Thailand – Investment treaties and investor-state dispute settlement (ISDS)

By Daniel Morris | 4. September 2020

3. The core content of the National Action Plan on Business and Human Rights

3.4 Action Plan on Cross Border Investment and Multinational Enterprises

3.4.2 Challenges

Investment promotion

Government should consider human rights impacts before signing international trade or investment agreements and treaties. Review provisions for a stabilization clause in the investment agreement that will not affect government policies to promote the UNGPs. Measures for business organizations located in the territory or jurisdiction of the sovereignty of Thailand must comply with The UNGPs. The determination of measures to initiate or develop any project must consider the public interest, rights of public participation, and the impact on the people in the project area before deciding to implement the project. Establish foreign country investment supervision measures of Thai investors to respect human rights principles. Establish measures for businesses that receive investment support and ensure business investment respects human rights. Conduct a study of risks of human rights impacts in providing public services by independent academics to be accepted by people in the area and society. Determine measures and mechanisms to supervise the resolution of the impact. Propose the use of human rights risk assessment principles and human rights surveillance in the preparation of public service and joint venture agreement (in the case of the government authorizing the private sector to act). Consider cancelling assignments of the private sector to proceed with the construction of projects related to the infrastructure and public services through joint venture agreements (public-private partnerships).

 

3.4.1 Overview of the situation

… in the past, the Thailand Board of Investment (BOI) has implemented various measures to stimulate and encourage foreign investors to invest in Thailand, such as providing tax privileges to foreign businesses that invest in 10 categories of S-Curve Industries and opportunities to participate in Public Private Partnerships (PPPs) in communications infrastructure, including the government policy to push for the Eastern Economic Corridor (EEC) project.

The National Human Rights Commission of Thailand has received complaints regarding the impact of cross-border business operations of Thai entrepreneurs, such as a Thai private company that was granted a land concession for sugarcane cultivation and established a sugar factory in Cambodia and violated the human rights of the Cambodian people. The National Human Rights Commission of Thailand has investigated and has ruled that though the company is not the action maker, the impact is considered a part of their direct responsibility in the case of affecting human rights. In the case that a private company has entered into a Memorandum of Agreement with the Port Authority of the Union of Myanmar to operate a deep-sea port project in the Dawei Special Economic Zone Project in Myanmar, the National Human Rights Commission has investigated and found that the construction of infrastructure of the project caused human rights violation to the Myanmar people. The National Human Rights Commission of Thailand has recommendations for relevant government agencies to consider establishing mechanisms or defining the Investment Supervision to respect the basic principles of human rights by using The UNGPs as a framework.

 

3.4.3 Action Plan (2019–2022)

Pillar 1: State duties in protecting (Protect)

 

No.

  

Issues

  

Activities

 Responsible agencies Time-frame (2019–2022) Indicators (wide frame) Compliance with National Strategy/ SDGs/UNGPs
1. Amendments of laws, regulations, policies

and related measures

 Establish guidelines and procedures to provide comments to the contract that the government has with transnational

corporations, considering the Human Rights Assessment

 – Office of the Attorney General 2019–2022 Established guidelines and process to provide comments to the contract that the government has with transnational corporations, considering the Human Rights Assessment –   National Strategy for National Competitiveness Enhancement

–   National Strategy for Public Sector Rebalancing and Development

–   SDG 8 and 16

–   UNGPs Articles 1, 3, 4, 5, 7, 8, 9 and 10
Study and discuss with various relevant sectors to consider guidelines for developing laws, policies or concrete mechanisms to investigate human rights violations outside the territory to provide protection and remedy and take cross-border responsibility that

complies with international standards such as the OECD Guidelines for Multinational Enterprises

 –   Ministry of Foreign Affairs

–   Ministry of Justice

 2019–2022 Improved legislation, policies or mechanisms to investigate human rights violations outside the territory to provide protection and remedy and take cross- border responsibility that complies

with international standards, such as the OECD Guidelines for Multinational Enterprises

 –   National Strategy for National Competitiveness Enhancement

–   National Strategy for Public Sector Rebalancing and Development

–   SDG 8, 16 and 17

–   UNGPs Articles 1, 3, 4, 5, 7, 8, 9 and 10
Review laws and regulations related to the Eastern Economic Corridor (EEC) project in order to supervise the operations of the business sector and investors with a clear penalty for cases that violate human rights. –   Office of the National Economic and Social Development Council

–   Neighbouring Countries’ Economic Development Corporation Agency (Public Organization)

–   Board of Eastern Economic Corridor (EEC)

 2019–2022 Meetings to review laws and regulations related to Eastern Economic Corridor (EEC) Projects –   National Strategy for National Competitiveness Enhancement

–   National Strategy for Eco- Friendly Development and Growth

–   National Strategy for Public Sector Rebalancing and Development

–   SDG 8 and 16

–   UNGPs Articles 1, 3, 4, 5, 7, 8, 9 and 10
Create channel to disclose information about the Eastern Economic Corridor (EEC) project, including all borders, economic zones and mechanisms to discuss with affected communities –   Office of the National Economic and Social Development Council

–   Neighbouring Countries’ Economic Development Corporation Agency (Public Organization)

–   Ministry of Interior

–   Ministry of Industry

–   Board of Eastern Economic Corridor (EEC)

 2019–2022 Created channel to disclose information about Eastern Economic Corridor (EEC) project, including all borders, economic zones

and mechanisms to discuss with affected communities

 –   National Strategy for National Competitiveness Enhancement

–   National Strategy for Eco- Friendly Development and Growth

–   National Strategy for Public Sector Rebalancing and Development

–   SDG 8 and 16

–   UNGPs Articles 1, 3, 4, 5, 7, 8, 9 and 10
3. Promotion of Investment Create awareness, promote and facilitate business for Thai investors going to foreign countries to respect the principles of human rights as well

as comply with various rules including regulations regarding human rights

of the host country by consider making

guidelines for investment in each country

 –   Office of the Board of Investment

–   Bank for Export and Import of Thailand

–   Office of the Securities and Exchange Commission

–   Ministry of Commerce (Department of Trade Promotion International)

 2019–2022 Entrepreneurs who are going to invest in foreign countries

trained and educated to respect human rights principles

 –   National Strategy for National Competitiveness Enhancement

–   National Strategy for Human Capital Development and Strengthening

–   SDG 8, 16 and 17

–   UNGPs Articles 1, 3, 4, 5, 7, 8, 9 and 10
Require studies and assessments of the risk and impact on human rights (human rights due diligence) before undertaking large-scale projects or projects

related to public services, including in the case of joint investment between the government and private sectors to prepare conducting projects relating to infrastructure and public services that are a duty of the state, including in the case

that the government has assigned the private sector to do the project instead

 –   Office of the Economic and Social Development Council

–   Ministry of Natural Resources and Environment (Bureau of Policy and Environmental Plan)

–   Ministry of Transport

–   Ministry of Finance (Office of the State Enterprise Policy Office)

–   Ministry of Energy

–   Ministry of Industry (Office of Economic Cooperation and Neighbouring Countries (Public Organization))

 2019–2022 A study to assess the risk and human rights impact (human rights due diligence) before the implementation of large-scale projects –   National Strategy for National Competitiveness Enhancement

–   National Strategy for Human Capital Development and Strengthening

–   National Strategy for Public Sector Rebalancing and Development

–   SDG 8 and 16

–   UNGPs Articles 1, 3, 4, 5, 7, 8, 9, 10, 17, 18 and 19
4. Preventing human rights violations abroad Organize training on business and human rights for personnel of the Ministry of Foreign Affairs to be able to give advice to the

Thai business sector that invests in foreign countries

 – Ministry of Foreign Affairs 2019–2022 Personnel of Ministry of Foreign Affairs trained on business and human rights –   National Strategy for Human Capital Development and Strengthening

–   National Strategy for Public Sector Rebalancing and Development

–   SDG 8, 16 and 17

–   UNGPs Articles 1, 3, 4, 5, 7, 8, 9 and 10
Establish measures to prevent violations of human rights in

investment projects of state-owned enterprises (and Thai businesses abroad) including complaint mechanisms

 –   Office of the National Economic and Social Development Council

–   Ministry of Finance (Office of the State Enterprise Policy Office)

 2019–2022 Preventive measures and mechanisms

for complaints of infringement discussed and

defined in relation to human rights in the projects invested by state-owned

enterprises (and Thai businesses abroad)

 –   National Strategy for Public Sector Rebalancing and Development

–   SDG 8, 16 and 17

–   UNGPs Articles 1, 3, 4, 5, 7, 8, 9 and 10