Searching for an ideal amicus curiae regime for the agreement on investment of the framework agreement on comprehensive economic cooperation between the ASEAN and China

Name: Yang, Xinglong

keyword: Amicus curiae

; China-ASEAN free trade area

; Investor-state arbitration

; Publication of arbitral information

; Publication of oral hearing

Abstract: For the last two decades, the legal standards applicable to amicus curiae participation in investor-state arbitration has been forged by the development of international investment treaties and the modification of normative sources. The Agreement on Investment of the Framework Agreement on Comprehensive Economic Cooperation Between the ASEAN and China (‘Agreement on Investment’), as the investment agreement governing investment disputes between investors and the Contracting States to the Agreement in the China-ASEAN Free Trade Area (‘CAFTA’), lacks explicit provisions governing amicus participation in arbitration instituted pursuant to the Agreement. Thus amicus curiae participation, as a procedural issue, will be leave to be decided by the relevant arbitration rules provided under Article 14 of the Agreement. Due to the different legal standards on amicus participation between the ICSID Arbitration Rules and the UNCITRAL Transparency Rules ; the uncertainties of amicus participation under commercial arbitration rules ; and the inconsistent interpretations concerning Rule 37 (2) of the ICSID Arbitration Rules, amicus petitions in identical arbitrations may be differently treated. In order to promote equality, continuity, and predictability of amicus participation as well as preserve the legitimacy of arbitral awards on amicus petitions under investor-state arbitration in the CAFTA, the primary objective of the dissertation is to examine the following proposal: Searching for an ideal amicus curiae Regime for the Agreement on Investment. In the dissertation, three secondary questions will be answered, firstly, is it actually necessary to reach the political will of establishing an ideal amicus Regime among the Contracting States to the Agreement? Secondly, if the necessity has been confirmed, what approach shall be used to incorporate such Regime into the Agreement on Investment? Finally, the dissertation, based on the differing legal standards applicable to amicus participation and the distinct degrees of arbitral transparency adopted by modern investment treaties as well as prominent arbitral rules, proposes the legal standards to be applied to amicus participation and to establish a mandatory requirement on publication of arbitral records as well as oral hearings under investor-state arbitration in the CAFTA

Thammasat University. Thammasat University Library

Address: BANGKOK

Email: preserv@tu.ac.th

Name: Munin Pongsapan

Role: advisor

Name: Saowanee Asawaroj

Role: co-advisor

Created: 2016

Modified: 2021-08-20

Issued: 2021-08-20

วิทยานิพนธ์/Thesis

application/pdf

DOI: 10.14457/TU.the.2016.1002

eng

DegreeName: Doctor of Laws

Level: Doctoral Degree

Descipline: Laws

Grantor: Thammasat University

©copyrights Thammasat University

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