Hukum Investasi III

Prinsip Penanaman Modal

Non Diskriminasi
(National Treatment dan Most Favoured Nation)

Fair and Equitable Tratment

Protection and Security, dll

 Most Favoured Nation

Article 1 GATT

… any advantage, favour, privilege or immunity granted by any contracting party to any
product orginating in or destined for any other country shall be accorded imedietly an
unconditionally to the like product originanting in or destined for territories of all other
contracting parties.

Article 2 GATs, article 4 TRIPs article 2 TRIMs.

Beberapa persetujuan WTO: article 9.2 Anti-dumping Agreement; 2.2 Agreement of Safeguard, 2.1
of the Agreement on Technical Arries to Trade, 2.1 of the Agreement on Preshipment Inpection, 9.2
the Agreement on Implementation of article VI of the General Agreement on Tariffs an Trade 1994;
19.3 of the Agreement on Subsidies and Countervailing Measures, and article III of the Agreement
on Government Procurenment.
 National Treatment

Article III (2) dan (4) GATT 1994, article 3 TRIPs, article 4 TRIMs, article 2.1 the
Agreement on Technical Barriers to Trade, article III of the Agreement on
Government Procurement.

a principle whereby a host country extends to foreign extend to foreign investor atment thst is at least
as favourable as treatment that is accords to national invectors in like circumstances. In this way the
national treatment standards seeks to ensure a degree of competitive equality between national and
foreign investors…
(UNCTAD)

National treatment standard requires that foreign investor should receive treatment no less
favourable than that accorded to nationals of the state engaged in simmiliar business activity.
(OECD)
Fair and equitable Treatment
Article 11 (2) Havana Charter for an International trade Organitation (1948)
Article 22 the Economic Agreement of Bogota (1998)

Article I Draf Convention on Investments Aboard

Each party shall at all times ensure fair and equitables treatment to the property of the national of the other parties. Such
property shall be accorded the most constant protection and security within the territories of the the other parties and the
management, use and enjoyment there of shall not in any way be impaired by unreasonable or discriminatory measures

Fair and equitable treatmen requires an attitude to governance based on an unbiased set of rules that
should be applied with a view to doing justice to all interested parties that may be effected by statet’s
decision in question, including the host statet’s population at large.
(UNCTAD)
OECD Draf convention on the protection of foreign property: the prase “fair and equitable treatmen”,
customary in relevant bilateral agreements, indicates the standart set by international law for the
treatment due by each state with regard to the property of foreign nationals…

Paragraf 48 UN Draf Code of Conduct on Transnational Corporations (1990); the guidline III (2), of
World Bank Guidelines (1992); article 1.1 of the Draf Multilateral Agreement on Investment
(MAI).
Article 12 (d) Convention Establising The Multilateral Invesment Guarantee Agency (MIGA);
Article IV (2) the Agreement for the Promotion and Protection of Investment of the Association of
Souteasts Asian Nations (ASEAN); article 1105 (1) North American Free Trade Agreement
(NAFTA), dll
Protection and Security

Principles of the protection and security obligies the host state to act with due diligences as
reasonable necessary to protect foreigner’s person an property, as well as to posses and make
available and adequate legal system, featuring such protections as appropriate remedial
mechanisms, due process, and a right to compensation for expropriation.
K. Foster

Article 2 (2) the United Kingdom-Vietnam (BIT).

“Investment of nationals or companies of each conctracting party shall at all times be accorded
fair and equitable treatment and shall enjoy full protection and sequrity in the territory of each
other contracting party”

Rumeli v. Kazakhtan (2008), BG Groupv. Argentina (2007), Eastern Sugar v. Czesh Republic
(2007), Wena Hotels v. Egypt (2002).
 Asas Penanaman Modal Dalam
Undang-undang No. 25 Tahun 2007
 Tujuan Penanaman Modal
Pasal 3 dan Penjelasannya
Pasal 3 (2) Undang-undang No. 25 Tahun 2007
 Kepastian Hukum
 Keterbukaan
 Akuntabilitas
 Perlakuan yang sama
 Kebersamaan
 Efesiensi berkeadilan
 Berkelanjutan
 Berwawasan Lingkungan
 Kemandirian
 Keseimbangan kemajuan dan
kesatuan ekonomi nasional