Patricia, Pricilla
(2019)
Analisis yuridis tentang perlindungan investasi langsung asing dalam rangka kebijakan Indonesia atas peninjauan ulang dan penghentian perjanjian investasi bilateral = Juridical analysis on the foreign direct investment protection in view of Indonesia’s current bilateral investment treaties review and termination policy.
Bachelor thesis, Universitas Pelita Harapan.
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Abstract
In recent years, a trend has arisen where various countries have begun to review and halt to sign bilateral investment agreements (BIT) in order to strike a balance between state sovereignty and the protection of foreign investors. This thesis analyzes the causes, effects, and alternative solutions for foreign investors who have, intend or are interested in investing in Indonesia. There are four reasons that can be observed from the termination of BIT conducted by the Indonesian government. First, to strike a balance between investor protection and national sovereignty. Second, the existing provisions are not up to date with the recent development. Third, there are concerns about the impact of ambiguous clauses that could trigger an international arbitration cases against Indonesia. Fourth, the provisions in the BIT which have the potential to override national law. The implication of the termination of BIT by the Indonesian government is the discontinuation of protection for foreign investors by BITs signed by Indonesia and investors’ home countries. BIT has a sunset clause that provides protection for a certain period of time for foreign investments which were made before the termination of BIT is carried out. However, protection from a sunset clause is only given for a limited time and is usually not given to investments made after the BIT is terminated. For this reason, this thesis discusses various alternative protection that can be used by foreign investors when there are no BITs between countries of origin and Indonesia. Alternative protection that can be used by foreign investors includes protection under multilateral agreements relating to investment, regional investment agreements, and protection by Indonesia's national law regarding investment. Author concludes that foreign investors must seek alternative investment protection to obtain legal certainty. The author also recommends Indonesia to be more careful in considering the economic and political developments that occur in the BIT negotiations or future investment agreements.
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