Investor-State Dispute Settlement and Indonesian Reform Policy in Mining Downstream Sector
Abstract
To date, Indonesia has been facing the seventh ISDS (Investor-State Dispute Settlement) lawsuit case in ICSID, the most number of ICSID cases a particular country has in ASEAN. In the meantime, Indonesia had to initiate reform in its minerals mining sector policy since the sector had provided little benefit in Indonesian sustainable economic development thus far–a policy reform which is potentially highly exposed to ISDS lawsuit case. Yet, the reform once issued has no turning back and thus it should move forward. Indonesian reform policy to support more its mining downstream by Minerba Act issuance is intended to benefit from its scarce, limited non-renewable minerals so as to support national development and maintain its long-term interest and economic sustainability. Undoubtfully, the policy reform will be beneficial for Indonesian economy sustainability and thus it should be protected from any potential ISDS claims in the future. This study seeks to address such real, critical current challenges arising from contingent ISDS claims towards Indonesia. This study adopts a descriptive analytical method, which combines literature review, authors’ shared expertise in this field, and results of interviews and discussions with several other experts in relevant fields. This study concludes that in addressing ISDS contingent problems threatening Indonesian current reform policy in mining downstream sector, Indonesia should focus the emphasis on the prevention endeavor, those are a review of BITs and IIAs containing ISDS provisions; improvement in investment dispute management; which are mainly supported by continuous bureaucracy reform, capacity building, and better coordination.
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References
Gallagher, K. & Shrestha, E. (2011). Investment Treaty Arbitration and Developing Countries: A Re-Appraisal. Global Development and Environment Institute Working Paper No. 11-01. Harquail, D. (1991). Investing in Junior Mining Companies. Proceedings of the 6th Mineral Economics Symposium of CIM. CIM Montreal Canada. Ika, S. (2017). Kebijakan Hilirisasi Mineral: Reformasi Kebijakan untuk Meningkatkan Penerimaan Negara. Kajian Ekonomi Keuangan, 1 (1). Jailani, A. (2015). Indonesia’s Perspective on Review of International Investment Agreements. Investment Policy Brief No, 1. Kementerian ESDM. Laporan Kinerja Tahun. (2015). Kementerian Keuangan. APBN dan Laporan Realisasi APBN. (2006-2014). Knoerich, J. & Berger, A. (2014). Friends or Foes? Interactions Between Indonesia’s International Investment Agreements and National Investment Law. Studies. Bonn: Deutsches Institut fur Entwicklungspolitik. Latina, J., Permartini, R. & Ruta, M. (2011). Natural Resurces and Non Cooperative Trade Policy. International Economics Policy, 8. Losari, J. & Ewing-Chew, M. (2015). Reflective or Reactionary? Indonesia’s Approaches to International Investment Agreements and Recommendations for the Future. Transnational Dispute Management, 12. Magiera, S. L. (2017). International Investment Agreements and Investor-State Disputes: A Review and Evaluation for Indonesia. ERIA Discussion Paper Series. McCarthy, P. (2013). Managing technical risk for mine feasibility studies in Mining Risk Management. The AusIMM. Mildner, S. (2015). International Investment Agreements and Investor-State Dispute Settlement: Fears, Facts, Faultlines. BDI – Federation of German Industries. Miskelly, N. (2004). The International Mining Industry – Linking the Upareams Mineralisation With the Downstream Money. Conference Proceedings, 10-22. Mohamadieh, K. & Uribe, D. (2016). The Rise of Investor-State Dispute Settlement in The Extractive Sectors: Challenges and Considerations for African Countries. Research Paper, 65. Patunru, A. A. (2015). Hilirisasi. Kompas 24 Januari 2015. Provost, C. & Kennard, M. (2015). The obscure legal system that lets corporations sue countries. The Guardian, Wed 10 Jun 2015 (downloaded 19 June 2018). Rahayu, A. (2010). Pengantar Kebijakan Fiskal. Jakarta: PT Bumi Aksara . Resmini, L. & Vittucci, G. (2016). Home country bias in divestment decisions of multinational corporations in the EU. Conference Paper. 56th Congress of the ERSA: "Cities & Regions: Smart, Sustainable, Inclusive?" ?", 23-26 August 2016. Vienna, Austria: Econstor and European Regional Science Association (ERSA). Rudenno, V. (2004). The Mining Valuation Handbook, 2nd edition. Rightbooks an Imprint of John Wiley and Sons Australia, Ltd. Saggu, A. & Anukoonwattaka, W. (2015). Commodity Price Crash: Risks to Exports and Economic Growth in Asia-Pacific LDCs and LLDCs. United Nations ESCAP. Schill, S. (2015). Reforming Investor-State Dispute Settlement (ISDS): Conceptual Framework and Options for the Way Forward. E15 Initiative. World Economic Forum and International Centre for Trade and Sustainable Development. Sembiring, S. F. (2009). Jalan Baru Untuk Tambang : Mengalirkan Berkah Bagi Anak Bangsa. Jakarta: PT Gramedia. Setiawan, S. (2018). Negative List in Services Liberalization: Pros and Cons for ASEAN Developing Economies. Working Paper. Stijns, J. C. (2001). Natural Resource Abundance And Human Capital Accumulation. Diakses dari https://ageconsearch.umn.edu/bitstream/25128/1/ uccost01.pdf Tanggal 15 January 2017. University of California at Berkeley. UNCTAD (2014). Investor-State Dispute Settlement: UNCTAD Series on Issues in International Investment Agreements II: A sequel. Walker, S. (2015). Gold: New Fundamentals. Engineering & Mining Journal, February 2015. Ward, D. (1999). Startup Performance of New Base Metal Projects in Adding Value to the Carpentaria Mineral Province. Australian Journal of Mining, April 1999.
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