p–ISSN: 2723 - 6609 e-ISSN: 2745-5254
Vol. 5, No. 8 August 2024 http://jist.publikasiindonesia.id/
Indonesian Journal of Social Technology, Vol. 5, No. 8, August 2024 2916
Analysis of the Enforcement of the Survival Clause for
Foreign Investors in Indonesia Due to the Termination of the
Bilateral Investment Treaty (BIT)
Hana Pertiwi
Magister Ilmu Hukum Universitas Indonesia, Indonesia
Email: [email protected]
*Correspondence
ABSTRACT
Keywords: Termination
of agreements,
Investment, Bilateral
Investment Treaty,
Foreign Investors,
Survival clause
This analysis examines the legal consequences of
Indonesia's termination of the Bilateral Investment
Agreement (BIT) on foreign investment entering or planning
to enter Indonesia after the termination date. Bilateral
Investment Agreements or BITs are known as a legal
umbrella for foreign investors in investing in host countries,
including legal protection for foreign investors in Indonesia.
The Indonesian government has signed BITs with several
other countries to strengthen cooperation in the investment
sector. However, because the contents of the agreement are
no longer in accordance with the country's development and
the current investment climate and limit Indonesia's policy
space in regulating matters related to the protection of
national interests, Indonesia has ended many BITs. The
consequence of Indonesia's termination of the BIT for
foreign investors is that there is the potential for investment
disputes to arise. In this situation, the provisions of the
survival clause will apply to foreign investments made
before the termination date, because even though the BIT has
ended, there is a certain period of time for the BIT to still be
valid for investments made before the end of the agreement
period so that in other words the agreement remains effective
in providing protection to investors from both countries who
previously existed or who had carried out restructuring
before the termination date of the BIT. For foreign
investments that enter or will enter Indonesia after the
termination date, protection can be obtained by creating a
new BIT or through a Multilateral Investment Treaty (MIT)
and Free Trade Agreement (FTA) where Indonesia as the
Host Country is a party to the agreement.
Introduction
Bilateral Investment Treaty (BIT) as Protection of Foreign Investors Included in the
Host Country
Every country in the world certainly wants to establish cooperative relationships
with each other that can benefit their country. Indonesia is classified as a country that is
Vol. 5, No. 8 August 2024 http://jist.publikasiindonesia.id/
Indonesian Journal of Social Technology, Vol. 5, No. 8, August 2024 2916
Analysis of the Enforcement of the Survival Clause for
Foreign Investors in Indonesia Due to the Termination of the
Bilateral Investment Treaty (BIT)
Hana Pertiwi
Magister Ilmu Hukum Universitas Indonesia, Indonesia
Email: [email protected]
*Correspondence
ABSTRACT
Keywords: Termination
of agreements,
Investment, Bilateral
Investment Treaty,
Foreign Investors,
Survival clause
This analysis examines the legal consequences of
Indonesia's termination of the Bilateral Investment
Agreement (BIT) on foreign investment entering or planning
to enter Indonesia after the termination date. Bilateral
Investment Agreements or BITs are known as a legal
umbrella for foreign investors in investing in host countries,
including legal protection for foreign investors in Indonesia.
The Indonesian government has signed BITs with several
other countries to strengthen cooperation in the investment
sector. However, because the contents of the agreement are
no longer in accordance with the country's development and
the current investment climate and limit Indonesia's policy
space in regulating matters related to the protection of
national interests, Indonesia has ended many BITs. The
consequence of Indonesia's termination of the BIT for
foreign investors is that there is the potential for investment
disputes to arise. In this situation, the provisions of the
survival clause will apply to foreign investments made
before the termination date, because even though the BIT has
ended, there is a certain period of time for the BIT to still be
valid for investments made before the end of the agreement
period so that in other words the agreement remains effective
in providing protection to investors from both countries who
previously existed or who had carried out restructuring
before the termination date of the BIT. For foreign
investments that enter or will enter Indonesia after the
termination date, protection can be obtained by creating a
new BIT or through a Multilateral Investment Treaty (MIT)
and Free Trade Agreement (FTA) where Indonesia as the
Host Country is a party to the agreement.
Introduction
Bilateral Investment Treaty (BIT) as Protection of Foreign Investors Included in the
Host Country
Every country in the world certainly wants to establish cooperative relationships
with each other that can benefit their country. Indonesia is classified as a country that is
Analysis of the Enforcement of the Survival Clause for Foreign Investors in Indonesia Due to
the Termination of the Bilateral Investment Treaty (BIT)
Indonesian Journal of Social Technology, Vol. 5, No. 8, August 2024
2917
active in establishing international relations. In addition to participation in international
forums, international agreements are also the legal basis of activities between countries,
both bilaterally, regionally, and multilaterally. International agreements are the main tool
that facilitates relations between countries around the world, including Indonesia.
According to the explanation in UNCTAD (1995), there are 8 (eight) bilateral and
multilateral agreements that usually apply to investment, such as (Rihwanto, 2016):
1. Provisions on Capital Movement (PCM);
2. Provisions on Foreign Borrowing (PFB);
3. Double Taxation treaties (DTT);
4. Insurances Guarantees in MIGA;
5. Washington Convention on the Settlement of Investment Disputes (WCSID);
6. Preferential Trade Agreement (PTA); dan
7. Bilateral Investment Treaties (BIT)
Investment agreements in the bilateral context are Bilateral Investment Treaty
(BIT) can be defined as an agreement that "protects the investment of one country on the
territory of another country by providing clear substantive rules governing the treatment
of the host country (host state) to investment and by establishing a dispute settlement
mechanism that can be used in cases of alleged violations of these rules". BIT first
appeared in the 17th century, where major European countries became the pioneer in the
formation of this BIT agreement (Vandevelde, 2000).
Generally, a BIT is an agreement between two countries to protect and promote
investment by countries and investors from each country's jurisdiction. They set standards
of treatment and protection for investors and for their investments of which the BIT is a
party. (Price, 2017)
Bilateral Investment Treaty (BIT) is one of the methods to attract investors from
the two countries involved in the agreement with the aim of creating and maintaining
favorable conditions for investment. The main objective of the BIT is to reduce non-
economic risks and to open up investment opportunities, by setting standards for legal
instruments for foreign investment.(Reading, 1992) Indonesia has signed 74 (seventy)
BITs with other countries along with their ratification Convention on the Settlement of
Investment Disputes between States which was the beginning of its establishment
International Center for Settlement of Investment Dispute (ICSID) (Taylor & Smith,
2007). The convention came into force in October 1966 and Indonesia became a member
of the convention on October 28, 1968. The signing of the ICSID Convention in 1965
became a new starting point for the investment regime, especially in the making of rules
regarding international investment (IIA). The BIT and the ICSID Convention provide a
sense of security to foreign investors, namely in the event of a dispute arising between
the host country and foreign investors by resolving disputes through ICSID.
BIT is an implementation of relations between countries that strive to advance
economic activities in their respective countries, considering that investment is basically
a form of economic activity that is commonly carried out by countries at this time. BITs
have become a commonly used instrument to conduct foreign investment relations, to
facilitate and protect foreign investment. This agreement outlines the scope and definition
of foreign investment, including investors and the types of investments covered by the
agreement (Connolly, 2007).
By referring to the definition of BIT that has been explained earlier, it can be
concluded that BIT is indeed an international agreement. In terminology, the use of the
the Termination of the Bilateral Investment Treaty (BIT)
Indonesian Journal of Social Technology, Vol. 5, No. 8, August 2024
2917
active in establishing international relations. In addition to participation in international
forums, international agreements are also the legal basis of activities between countries,
both bilaterally, regionally, and multilaterally. International agreements are the main tool
that facilitates relations between countries around the world, including Indonesia.
According to the explanation in UNCTAD (1995), there are 8 (eight) bilateral and
multilateral agreements that usually apply to investment, such as (Rihwanto, 2016):
1. Provisions on Capital Movement (PCM);
2. Provisions on Foreign Borrowing (PFB);
3. Double Taxation treaties (DTT);
4. Insurances Guarantees in MIGA;
5. Washington Convention on the Settlement of Investment Disputes (WCSID);
6. Preferential Trade Agreement (PTA); dan
7. Bilateral Investment Treaties (BIT)
Investment agreements in the bilateral context are Bilateral Investment Treaty
(BIT) can be defined as an agreement that "protects the investment of one country on the
territory of another country by providing clear substantive rules governing the treatment
of the host country (host state) to investment and by establishing a dispute settlement
mechanism that can be used in cases of alleged violations of these rules". BIT first
appeared in the 17th century, where major European countries became the pioneer in the
formation of this BIT agreement (Vandevelde, 2000).
Generally, a BIT is an agreement between two countries to protect and promote
investment by countries and investors from each country's jurisdiction. They set standards
of treatment and protection for investors and for their investments of which the BIT is a
party. (Price, 2017)
Bilateral Investment Treaty (BIT) is one of the methods to attract investors from
the two countries involved in the agreement with the aim of creating and maintaining
favorable conditions for investment. The main objective of the BIT is to reduce non-
economic risks and to open up investment opportunities, by setting standards for legal
instruments for foreign investment.(Reading, 1992) Indonesia has signed 74 (seventy)
BITs with other countries along with their ratification Convention on the Settlement of
Investment Disputes between States which was the beginning of its establishment
International Center for Settlement of Investment Dispute (ICSID) (Taylor & Smith,
2007). The convention came into force in October 1966 and Indonesia became a member
of the convention on October 28, 1968. The signing of the ICSID Convention in 1965
became a new starting point for the investment regime, especially in the making of rules
regarding international investment (IIA). The BIT and the ICSID Convention provide a
sense of security to foreign investors, namely in the event of a dispute arising between
the host country and foreign investors by resolving disputes through ICSID.
BIT is an implementation of relations between countries that strive to advance
economic activities in their respective countries, considering that investment is basically
a form of economic activity that is commonly carried out by countries at this time. BITs
have become a commonly used instrument to conduct foreign investment relations, to
facilitate and protect foreign investment. This agreement outlines the scope and definition
of foreign investment, including investors and the types of investments covered by the
agreement (Connolly, 2007).
By referring to the definition of BIT that has been explained earlier, it can be
concluded that BIT is indeed an international agreement. In terminology, the use of the
Hana Pertiwi
Indonesian Journal of Social Technology, Vol. 5, No. 9, September 2024 2918
word 'treatyto refer to this investment agreement confirms that the BIT is an international
agreement (Parthiana, 2002).
The involvement of countries in this agreement shows that the BIT is clearly an
international agreement according to the definition given by the 1969 Vienna Convention.
This definition is contained in Article 2 paragraph 1, which states that an agreement is an
international agreement made between countries in a written form and regulated by
international law, whether it is in a single instrument or in two or more interrelated
instruments regardless of their designation.
The first BIT to be made was the BIT Agreement between Germany and Pakistan
in 1959 which was later followed by many other countries. At this time, the BIT was born
as a tool to protect investments made between developed and developing countries,
although at that time the level of protection provided was still limited and there was no
adequate regulation of dispute settlement mechanisms between investors and countries
(Investor-State Dispute Settlement/ISDS) (Perrone, 2018). The BIT agreement between
Indonesia and the Netherlands signed in 1968 was the first BIT to include ISDS
provisions in it.
The development of BIT as an international agreement has received great influence
from global economic institutions, namely from the United Nations Conference on Trade
and Development (UNCTAD) and the Organization for Economic Cooperation and
Development (OECD) in its implementation. Especially UNCTAD, which has played an
important role in the signing of this BIT.
According to UNCTAD, countries that implement BITs to promote and protect
foreign investment and enhance international economic cooperation by signing BITs are
actually also a strong signal to the business community in the world, especially investors,
that these countries are committed to providing stable and adequate legal protection
against investment (Tobing, 2023).
Determining which investors can be protected by the BIT is an important issue
which is also an illustration of the relationship between the two countries as the two
countries mutually agree and formulate the definition of investors and investment. That
definition will be the limitation of the application of BIT whether an investment is
included in the protected one with which investors can be protected.
To be protected, an investor must be an investor who falls within the meaning of
BIT. Generally, a BIT distinguishes between an individual and a corporation. For
example, it can be seen from the BIT between South Korea and Indonesia which was
signed on February 16, 1991 where the BIT defines investors as in Article 1 (2) of the
Indonesian and South Korean BIT which stipulates that a person's citizenship must be
from one of the partner countries in order to be protected by the BIT (Ko, 2002). As for
the nationality of a corporation, it can be seen from which country the corporation is a
legal entity and position. Thus, individuals who are not citizens of one of the partner
countries and unincorporated corporations, do not fall into the category protected by the
BIT, so the protection provided is highly dependent on the definition outlined in the BIT.
Host states Legally, it has the right to screen and determine which foreign investors
can invest in their country. Filtering (screening) carried out by host states Implemented
by The Administrative Body is is a body that carries out the function of screening foreign
investment inflows, with the main task of ensuring that foreign investors make a positive
contribution to the host country (host state) by considering the impact of foreign
investment on the local economy and ensuring that local business actors are not affected
by the presence of foreign investors (Sornarajah, 2021).
Indonesian Journal of Social Technology, Vol. 5, No. 9, September 2024 2918
word 'treatyto refer to this investment agreement confirms that the BIT is an international
agreement (Parthiana, 2002).
The involvement of countries in this agreement shows that the BIT is clearly an
international agreement according to the definition given by the 1969 Vienna Convention.
This definition is contained in Article 2 paragraph 1, which states that an agreement is an
international agreement made between countries in a written form and regulated by
international law, whether it is in a single instrument or in two or more interrelated
instruments regardless of their designation.
The first BIT to be made was the BIT Agreement between Germany and Pakistan
in 1959 which was later followed by many other countries. At this time, the BIT was born
as a tool to protect investments made between developed and developing countries,
although at that time the level of protection provided was still limited and there was no
adequate regulation of dispute settlement mechanisms between investors and countries
(Investor-State Dispute Settlement/ISDS) (Perrone, 2018). The BIT agreement between
Indonesia and the Netherlands signed in 1968 was the first BIT to include ISDS
provisions in it.
The development of BIT as an international agreement has received great influence
from global economic institutions, namely from the United Nations Conference on Trade
and Development (UNCTAD) and the Organization for Economic Cooperation and
Development (OECD) in its implementation. Especially UNCTAD, which has played an
important role in the signing of this BIT.
According to UNCTAD, countries that implement BITs to promote and protect
foreign investment and enhance international economic cooperation by signing BITs are
actually also a strong signal to the business community in the world, especially investors,
that these countries are committed to providing stable and adequate legal protection
against investment (Tobing, 2023).
Determining which investors can be protected by the BIT is an important issue
which is also an illustration of the relationship between the two countries as the two
countries mutually agree and formulate the definition of investors and investment. That
definition will be the limitation of the application of BIT whether an investment is
included in the protected one with which investors can be protected.
To be protected, an investor must be an investor who falls within the meaning of
BIT. Generally, a BIT distinguishes between an individual and a corporation. For
example, it can be seen from the BIT between South Korea and Indonesia which was
signed on February 16, 1991 where the BIT defines investors as in Article 1 (2) of the
Indonesian and South Korean BIT which stipulates that a person's citizenship must be
from one of the partner countries in order to be protected by the BIT (Ko, 2002). As for
the nationality of a corporation, it can be seen from which country the corporation is a
legal entity and position. Thus, individuals who are not citizens of one of the partner
countries and unincorporated corporations, do not fall into the category protected by the
BIT, so the protection provided is highly dependent on the definition outlined in the BIT.
Host states Legally, it has the right to screen and determine which foreign investors
can invest in their country. Filtering (screening) carried out by host states Implemented
by The Administrative Body is is a body that carries out the function of screening foreign
investment inflows, with the main task of ensuring that foreign investors make a positive
contribution to the host country (host state) by considering the impact of foreign
investment on the local economy and ensuring that local business actors are not affected
by the presence of foreign investors (Sornarajah, 2021).
Analysis of the Enforcement of the Survival Clause for Foreign Investors in Indonesia Due to
the Termination of the Bilateral Investment Treaty (BIT)
Indonesian Journal of Social Technology, Vol. 5, No. 8, August 2024
2919
Some of the general standards set out in the BIT regarding the treatment of host
states towards foreign investors are as follows:
1. Fair and Equitable Treatment
Host countries are required to maintain a stable and predictable investment
condition in accordance with reasonable expectations from investors.
2. National Treatment dan Most Favoured Nations Treatment
National treatment means that the host country must treat investment from partner
countries in the same way as investment from domestic investors. While the most
favoured nations treatment means that the host country must treat investment from
partner countries in a way that is no less special than investment from investors
from other countries.
3. Monetary Transfers
Regulates the provisions for transfer permits for investment-related funds made
from and out of the host country.
4. No Expropriation Without Compensation
The expropriation or nationalization of investment assets that are carried out in the
public interest and are not discriminatory in nature receive compensation in
accordance with the market price.
5. Duration and Termination
Determine at least how long the BIT will be valid and how it will be terminated. In
general, the duration that is widely found in Indonesian BIT is 10 (ten) years
(Sefriani, 2018). Meanwhile, regarding termination, it is stipulated that the BIT
remains valid until one partner country notifies the other partner country to
terminate the agreement one year before the expiration of the agreement. In this
provision, there is also survival clause which is an agreement between the parties
to continue to enforce the BIT as a legal protection for foreign investors who have
entered or will enter the Host Country before the termination date, in general
survival clause this is valid for up to 10 -15 years after the date of termination of
the BIT.
Related regulations Bilateral Investment Treaty (BIT) is regulated in Law No. 25
of 2007 concerning Investment, especially the articles that regulate foreign investment,
namely (Government of the Republic of Indonesia, 2007),
1. Article 1 number 3, number 6, and number 8 concerning the Definition of
Foreign Investment, Foreign Investors, Capital
2. Article 3 on Principles and Objectives of Investment
3. Article 4 on Basic Investment Policy
4. Article 5 paragraph (2) and paragraph (3) concerning the Form of Business
Entity
5. Article 6 on Treatment of Investment
6. Article 7 concerning the Government shall not Carry Out Nationalization or
Deprivation of Rights
7. Article 8 on Freedom of Transfer of Assets
8. Article 9 concerning Legal Responsibilities that have not been resolved by
Investors
9. Article 10 concerning the Use of Labor, especially Foreign Workers
10. Article 11 concerning Settlement of Industrial Relations Disputes
11. Article 12 concerning Business Fields
the Termination of the Bilateral Investment Treaty (BIT)
Indonesian Journal of Social Technology, Vol. 5, No. 8, August 2024
2919
Some of the general standards set out in the BIT regarding the treatment of host
states towards foreign investors are as follows:
1. Fair and Equitable Treatment
Host countries are required to maintain a stable and predictable investment
condition in accordance with reasonable expectations from investors.
2. National Treatment dan Most Favoured Nations Treatment
National treatment means that the host country must treat investment from partner
countries in the same way as investment from domestic investors. While the most
favoured nations treatment means that the host country must treat investment from
partner countries in a way that is no less special than investment from investors
from other countries.
3. Monetary Transfers
Regulates the provisions for transfer permits for investment-related funds made
from and out of the host country.
4. No Expropriation Without Compensation
The expropriation or nationalization of investment assets that are carried out in the
public interest and are not discriminatory in nature receive compensation in
accordance with the market price.
5. Duration and Termination
Determine at least how long the BIT will be valid and how it will be terminated. In
general, the duration that is widely found in Indonesian BIT is 10 (ten) years
(Sefriani, 2018). Meanwhile, regarding termination, it is stipulated that the BIT
remains valid until one partner country notifies the other partner country to
terminate the agreement one year before the expiration of the agreement. In this
provision, there is also survival clause which is an agreement between the parties
to continue to enforce the BIT as a legal protection for foreign investors who have
entered or will enter the Host Country before the termination date, in general
survival clause this is valid for up to 10 -15 years after the date of termination of
the BIT.
Related regulations Bilateral Investment Treaty (BIT) is regulated in Law No. 25
of 2007 concerning Investment, especially the articles that regulate foreign investment,
namely (Government of the Republic of Indonesia, 2007),
1. Article 1 number 3, number 6, and number 8 concerning the Definition of
Foreign Investment, Foreign Investors, Capital
2. Article 3 on Principles and Objectives of Investment
3. Article 4 on Basic Investment Policy
4. Article 5 paragraph (2) and paragraph (3) concerning the Form of Business
Entity
5. Article 6 on Treatment of Investment
6. Article 7 concerning the Government shall not Carry Out Nationalization or
Deprivation of Rights
7. Article 8 on Freedom of Transfer of Assets
8. Article 9 concerning Legal Responsibilities that have not been resolved by
Investors
9. Article 10 concerning the Use of Labor, especially Foreign Workers
10. Article 11 concerning Settlement of Industrial Relations Disputes
11. Article 12 concerning Business Fields
Hana Pertiwi
Indonesian Journal of Social Technology, Vol. 5, No. 9, September 2024 2920
12. Articles 15-17 concerning Rights and Obligations, and Responsibilities of
Investors
13. Articles 18-24 concerning Investment Facilities
14. Article 32 paragraph (1) and paragraph (3) concerning Dispute Resolution
15. Articles 33-34 concerning Sanctions.
The provisions contained in the UUPM are not a way to implement the BIT as an
international agreement, but are the basis that will be included in the clauses in the BIT.
As an international agreement, the BIT is regulated by several Indonesian laws and
regulations, especially Law Number 24 of 2000 concerning International Agreements
which regulates international agreements in Indonesia. The creation of the BIT is carried
out with the aim of strengthening international relations, especially bilateral relations, so
that it can provide benefits for parties involved in the international cooperation. In
Indonesia, guarantees against direct investment (Foreign Direct Investment) is regulated
directly or indirectly through a series of laws and regulations. This starts from the highest
legal foundation, namely the 1945 Constitution, then further regulated in Law Number
37 of 1999 concerning Foreign Relations which also emphasizes the importance of
international cooperation through the signing of international agreements (Republic of
Indonesia, 1999). The mechanism related to international agreements is then explained in
Law Number 24 of 2000 concerning International Agreements. The ratification process
of the agreement is then further regulated in Law Number 10 of 2004 concerning the
Establishment of Laws and Regulations.
Law Number 7 of 2014 concerning Trade also refers to and regulates international
agreements, especially international agreements related to the field of trade. This
provision is contained in the Chapter XII section which discusses International Trade
Cooperation, namely Articles 82 to 87. According to this law, international agreements
are one of the ways that the Government can do with other countries and/or international
institutions/organizations in increasing trade cooperation to expand market access and
protect and guarantee national interests (Nerina, 2017). When referring to BIT, which is
an agreement related to investment protection where investment is also related to trading
activities, the provisions contained in this Law can also be the basis for regulating BIT
within the framework of Indonesian national law.
Method
The research methodology carried out in this study is: normative legal research
with a juridical approach. The form is by reviewing laws and regulations, international
investment agreements, international journals and secondary materials taken in the form
of literature studies. Then from the literature it will be used as a study in this writing
(Ibrahim, 2008).
Results and Discussion
Analysis of the Basis and Reasons for Termination of the Bilateral Investment
Treaty (BIT)
In the period of 2013-2014, several countries, including Indonesia, began to
consider the problems arising from the existence of BIT. BIT as a legal instrument that
should be able to provide mutual benefit to both countries, it is considered not to provide
benefits as expected. Countries such as Bolivia, Ecuador, South Africa, Pakistan,
Venezuela, India, Brazil and including Indonesia intend to terminate or refuse to renew
Indonesian Journal of Social Technology, Vol. 5, No. 9, September 2024 2920
12. Articles 15-17 concerning Rights and Obligations, and Responsibilities of
Investors
13. Articles 18-24 concerning Investment Facilities
14. Article 32 paragraph (1) and paragraph (3) concerning Dispute Resolution
15. Articles 33-34 concerning Sanctions.
The provisions contained in the UUPM are not a way to implement the BIT as an
international agreement, but are the basis that will be included in the clauses in the BIT.
As an international agreement, the BIT is regulated by several Indonesian laws and
regulations, especially Law Number 24 of 2000 concerning International Agreements
which regulates international agreements in Indonesia. The creation of the BIT is carried
out with the aim of strengthening international relations, especially bilateral relations, so
that it can provide benefits for parties involved in the international cooperation. In
Indonesia, guarantees against direct investment (Foreign Direct Investment) is regulated
directly or indirectly through a series of laws and regulations. This starts from the highest
legal foundation, namely the 1945 Constitution, then further regulated in Law Number
37 of 1999 concerning Foreign Relations which also emphasizes the importance of
international cooperation through the signing of international agreements (Republic of
Indonesia, 1999). The mechanism related to international agreements is then explained in
Law Number 24 of 2000 concerning International Agreements. The ratification process
of the agreement is then further regulated in Law Number 10 of 2004 concerning the
Establishment of Laws and Regulations.
Law Number 7 of 2014 concerning Trade also refers to and regulates international
agreements, especially international agreements related to the field of trade. This
provision is contained in the Chapter XII section which discusses International Trade
Cooperation, namely Articles 82 to 87. According to this law, international agreements
are one of the ways that the Government can do with other countries and/or international
institutions/organizations in increasing trade cooperation to expand market access and
protect and guarantee national interests (Nerina, 2017). When referring to BIT, which is
an agreement related to investment protection where investment is also related to trading
activities, the provisions contained in this Law can also be the basis for regulating BIT
within the framework of Indonesian national law.
Method
The research methodology carried out in this study is: normative legal research
with a juridical approach. The form is by reviewing laws and regulations, international
investment agreements, international journals and secondary materials taken in the form
of literature studies. Then from the literature it will be used as a study in this writing
(Ibrahim, 2008).
Results and Discussion
Analysis of the Basis and Reasons for Termination of the Bilateral Investment
Treaty (BIT)
In the period of 2013-2014, several countries, including Indonesia, began to
consider the problems arising from the existence of BIT. BIT as a legal instrument that
should be able to provide mutual benefit to both countries, it is considered not to provide
benefits as expected. Countries such as Bolivia, Ecuador, South Africa, Pakistan,
Venezuela, India, Brazil and including Indonesia intend to terminate or refuse to renew
Analysis of the Enforcement of the Survival Clause for Foreign Investors in Indonesia Due to
the Termination of the Bilateral Investment Treaty (BIT)
Indonesian Journal of Social Technology, Vol. 5, No. 8, August 2024
2921
the BIT after the end of the agreement (Nel, 2024). The main consideration is the need to
revise the BIT in order to protect the national interests of the country concerned. What is
of concern is that a powerful agreement such as BIT should be made carefully and openly,
so that need to be controlled by the Capital Recipient Country (control by the host states)
(Nel, 2024).
Control by the Capital Recipient Country (control by the host states) in foreign
investment, according to Prof. Erman Rajagukguk, refers to the measures and policies
implemented by host states It is carried out to regulate and supervise the presence of
foreign investment in its territory. The main objective of the control carried out by the
recipient State is to protect the national interests of the country (Rajagukguk, 2018). One
of the control measures taken by Indonesia against foreign investors was to end the BIT
between Indonesia and the Netherlands in March 2014. Indonesia communicated its
intention to terminate the agreement to the Dutch Embassy in Jakarta, effective July 1,
2015 (Embassy of the Netherlands in Indonesia, n.d. 2024). The communication was
conveyed through Diplomatic Memorandum No. D/00405/02/2014/60 dated February
17, 2014 and the agreement ended on June 30, 2015. Indonesia also stated its intention to
terminate 67 (sixty-seven) BITs similar to 67 (sixty-seven) other countries
(“nortonrosefulbright,” n.d. 2024). To date, Indonesia has ratified as many as 31 (thirty-
one) BIT agreements with 31 (thirty-one) countries, including the BIT Agreements with
the Netherlands and India (International Investment Agreements Navigator, n.d. 2024).
Indonesia's decision to terminate the Bilateral Investment Agreement (BIT) was
triggered by an increasing number of legal disputes arising under the provisions of
investment agreements filed by transnational companies seeking damages in the amount
of hundreds of millions of dollars. In addition, the act of signing international trade and
investment agreements is also considered to have reduced the policy space (policy space)
Indonesia to regulate matters related to the protection of national interests (Indonesia for
Global Justice, n.d. 2024). One example of an international arbitration dispute case that
uses BIT as the basis of a lawsuit is an international arbitration case, namely IMFA which
sued the Government of the Republic of Indonesia in 2015 using the basis of a BIT lawsuit
between Indonesia and India in 1999, one year after which the BIT between Indonesia
and India was terminated by Indonesia on April 7, 2016.
Analysis of the Survival Clause for Foreign Investors after the Termination of the
Bilateral Investment Treaty (BIT)
In BITs that Indonesia signs as a host state with partner countries, termination
clauses are often combined along with 'validity' and 'duration' provisions. The validity
and duration clause regulates when the agreement becomes effective and how long the
agreement is valid. Meanwhile, the termination provisions stipulated in the BIT affirm an
appropriate time frame to be submitted to the partner country. This is done by giving
official notice to the partner country regarding the intention to terminate the agreement
before the expiration of the agreement.
In mutual termination, the consequences of termination for partner countries are
usually limited where the BIT usually includes a survival clause in its provisions. This
survival clause will ensure that investment protection will continue for investments that
occur before the termination of the agreement for a certain period of time. The Survival
Clause can be found in the BITs between Indonesia and its partner countries, including
the following:
the Termination of the Bilateral Investment Treaty (BIT)
Indonesian Journal of Social Technology, Vol. 5, No. 8, August 2024
2921
the BIT after the end of the agreement (Nel, 2024). The main consideration is the need to
revise the BIT in order to protect the national interests of the country concerned. What is
of concern is that a powerful agreement such as BIT should be made carefully and openly,
so that need to be controlled by the Capital Recipient Country (control by the host states)
(Nel, 2024).
Control by the Capital Recipient Country (control by the host states) in foreign
investment, according to Prof. Erman Rajagukguk, refers to the measures and policies
implemented by host states It is carried out to regulate and supervise the presence of
foreign investment in its territory. The main objective of the control carried out by the
recipient State is to protect the national interests of the country (Rajagukguk, 2018). One
of the control measures taken by Indonesia against foreign investors was to end the BIT
between Indonesia and the Netherlands in March 2014. Indonesia communicated its
intention to terminate the agreement to the Dutch Embassy in Jakarta, effective July 1,
2015 (Embassy of the Netherlands in Indonesia, n.d. 2024). The communication was
conveyed through Diplomatic Memorandum No. D/00405/02/2014/60 dated February
17, 2014 and the agreement ended on June 30, 2015. Indonesia also stated its intention to
terminate 67 (sixty-seven) BITs similar to 67 (sixty-seven) other countries
(“nortonrosefulbright,” n.d. 2024). To date, Indonesia has ratified as many as 31 (thirty-
one) BIT agreements with 31 (thirty-one) countries, including the BIT Agreements with
the Netherlands and India (International Investment Agreements Navigator, n.d. 2024).
Indonesia's decision to terminate the Bilateral Investment Agreement (BIT) was
triggered by an increasing number of legal disputes arising under the provisions of
investment agreements filed by transnational companies seeking damages in the amount
of hundreds of millions of dollars. In addition, the act of signing international trade and
investment agreements is also considered to have reduced the policy space (policy space)
Indonesia to regulate matters related to the protection of national interests (Indonesia for
Global Justice, n.d. 2024). One example of an international arbitration dispute case that
uses BIT as the basis of a lawsuit is an international arbitration case, namely IMFA which
sued the Government of the Republic of Indonesia in 2015 using the basis of a BIT lawsuit
between Indonesia and India in 1999, one year after which the BIT between Indonesia
and India was terminated by Indonesia on April 7, 2016.
Analysis of the Survival Clause for Foreign Investors after the Termination of the
Bilateral Investment Treaty (BIT)
In BITs that Indonesia signs as a host state with partner countries, termination
clauses are often combined along with 'validity' and 'duration' provisions. The validity
and duration clause regulates when the agreement becomes effective and how long the
agreement is valid. Meanwhile, the termination provisions stipulated in the BIT affirm an
appropriate time frame to be submitted to the partner country. This is done by giving
official notice to the partner country regarding the intention to terminate the agreement
before the expiration of the agreement.
In mutual termination, the consequences of termination for partner countries are
usually limited where the BIT usually includes a survival clause in its provisions. This
survival clause will ensure that investment protection will continue for investments that
occur before the termination of the agreement for a certain period of time. The Survival
Clause can be found in the BITs between Indonesia and its partner countries, including
the following:
Hana Pertiwi
Indonesian Journal of Social Technology, Vol. 5, No. 9, September 2024 2922
1. The BIT between Indonesia and India was signed on February 10, 1999 and ended on
April 7, 2016. survival clause found on Article 15 (3), quoted as follows (Hidayati,
Suhaidi, Siregar, & Leviza, 2017):
Article 15
Entry into Force, Duration and Termination
3. Notwithstanding termination of this Agreement pursuant to paragraph (1) of this
Article, the Agreement shall continue to be effective for a further period of fifteen
years from the date of its termination in respect of investments made or acquired
before the date of termination of this Agreement.
In Article 15 (3) of the Indonesia-India BIT, there is a survival clause that protects
foreign investors from India who have entered Indonesia before the termination date
and are valid for up to 15 (fifteen) years from the date of termination of the BIT.
2. The BIT between Indonesia and the Netherlands was signed on April 6, 1994 and
ended on June 30, 2015. survival clause found on Article 15 (2) is quoted as follows
(Herian, 2020):
Article 15
2) In respect of investments made prior to the date of termination of the present
Agreement, the foregoing Articles shall continue to be effective for a further period of
fifteen years from the date of termination of the present Agreement.
In Article 15 (2) of the Indonesia-Netherlands BIT, there is a survival clause that
protects foreign investors from the Netherlands who have entered Indonesia before the
termination date and are valid for up to 15 (fifteen) years from the date of termination
of the BIT.
3. The BIT between Indonesia and the Russian Federation signed on September 6, 2007
and terminated on October 15, 2009, survival clause found on Article 12 (2), quoted
as follows (Firdausi, 2017):
Article 12
Entry into Force, Duration, Amendment and Termination
2. This Agreement shall remain in force for a period of ten years. Upon expiry of this
period it shall automatically be extended for subsequent five-year periods unless one
of the Contracting Parties notifies the other Contracting Party in writing at least twelve
months prior to the expiry of the correspondent period about its intention to terminate
this Agreement.
In Article 12 (2) of the Indonesia-Russian Federation BIT, there is a survival clause
that protects foreign investors from the Russian Federation who have entered
Indonesia before the termination date and are valid for up to 10 (ten) years from the
date of termination of the BIT.
The survival clause is also still being applied in the latest BITs between Indonesia and
Partner Countries where the BIT has not ended and is still valid today, including the
following:
4. The BIT between Indonesia and Saudi Arabia was signed on July 24, 2019 and is still
valid today, survival clause found on Article 22, quoted as follows (ESCAP, 2020):
Indonesian Journal of Social Technology, Vol. 5, No. 9, September 2024 2922
1. The BIT between Indonesia and India was signed on February 10, 1999 and ended on
April 7, 2016. survival clause found on Article 15 (3), quoted as follows (Hidayati,
Suhaidi, Siregar, & Leviza, 2017):
Article 15
Entry into Force, Duration and Termination
3. Notwithstanding termination of this Agreement pursuant to paragraph (1) of this
Article, the Agreement shall continue to be effective for a further period of fifteen
years from the date of its termination in respect of investments made or acquired
before the date of termination of this Agreement.
In Article 15 (3) of the Indonesia-India BIT, there is a survival clause that protects
foreign investors from India who have entered Indonesia before the termination date
and are valid for up to 15 (fifteen) years from the date of termination of the BIT.
2. The BIT between Indonesia and the Netherlands was signed on April 6, 1994 and
ended on June 30, 2015. survival clause found on Article 15 (2) is quoted as follows
(Herian, 2020):
Article 15
2) In respect of investments made prior to the date of termination of the present
Agreement, the foregoing Articles shall continue to be effective for a further period of
fifteen years from the date of termination of the present Agreement.
In Article 15 (2) of the Indonesia-Netherlands BIT, there is a survival clause that
protects foreign investors from the Netherlands who have entered Indonesia before the
termination date and are valid for up to 15 (fifteen) years from the date of termination
of the BIT.
3. The BIT between Indonesia and the Russian Federation signed on September 6, 2007
and terminated on October 15, 2009, survival clause found on Article 12 (2), quoted
as follows (Firdausi, 2017):
Article 12
Entry into Force, Duration, Amendment and Termination
2. This Agreement shall remain in force for a period of ten years. Upon expiry of this
period it shall automatically be extended for subsequent five-year periods unless one
of the Contracting Parties notifies the other Contracting Party in writing at least twelve
months prior to the expiry of the correspondent period about its intention to terminate
this Agreement.
In Article 12 (2) of the Indonesia-Russian Federation BIT, there is a survival clause
that protects foreign investors from the Russian Federation who have entered
Indonesia before the termination date and are valid for up to 10 (ten) years from the
date of termination of the BIT.
The survival clause is also still being applied in the latest BITs between Indonesia and
Partner Countries where the BIT has not ended and is still valid today, including the
following:
4. The BIT between Indonesia and Saudi Arabia was signed on July 24, 2019 and is still
valid today, survival clause found on Article 22, quoted as follows (ESCAP, 2020):
Analysis of the Enforcement of the Survival Clause for Foreign Investors in Indonesia Due to
the Termination of the Bilateral Investment Treaty (BIT)
Indonesian Journal of Social Technology, Vol. 5, No. 8, August 2024
2923
Article 22
Entry into Force, Duration and Termination
This Agreement shall remain in force for a period of ten years end shall continue to
be in force thereafter unless terminated in accordance with paragraph 3.
5. BIT between Indonesia and Singapore which was signed on October 11, 2018 and is
still valid today, survival clause found on Article 44 (3), quoted as follows
(Mahardhaik, 2022):
Article 44
Entry into Force, Duration and Termination
(3) This Agreement shall remain in force for a period of ten years and shall continue
in force thereafter, at any time after the expiry of the initial periode of 10 yearsm
either party notifies in writing the othe Party of its intention to terminate this
Agreement. The notice of termination shall becaome effective one year after it has
been received by the other Party.
From the above quotes, it can be concluded that the survival clause does not apply
to foreign investments made by foreign investors from the Partner Country after the
expiration date of the agreement, so that the foreign investor loses protection from the
BIT. This does not mean that investments made after that will not be protected. These
investments can still be protected through the Multilateral Investment Treaty (MIT) and
Free Trade Agreement (FTA), where Indonesia as the Host State is one of the parties
involved in the agreement.
The validity of the survival clause is reflected in the case of international arbitration
disputes that use BIT as the basis of the lawsuit, namely the IMFA case that sued the
Government of the Republic of Indonesia in 2015 using the basis of the BIT lawsuit
between Indonesia and India in 1999. Although the Indonesian and Indian BITs have been
terminated by Indonesia on April 7, 2016, the BIT remains valid throughout the course
of the case until the issuance of an international arbitration award on March 29, 2019.
Survival clause not always enforceable during a certain period of time, where
parties who have agreed to terminate BIT may also cancel survival clause in some cases.
One of them is what happened when Australia and Chile ended the BIT, while both were
negotiating a new trade agreement. Australia and Chile agree to change time period
survival clause from 15 (fifteen) years to only 3 (three) years (Hidayati et al., 2017)
Although the ISDS mechanism is an important issue that makes Indonesia want to
review its BITs, the Indonesian Government still has to pay attention to the balance
between national interests and investor protection. This can be summarized in the change
of clause as follows (Price, 2017):
1. Specifying and narrowing the definition of "investment" rather than the flexibility
of a broader definition. Indonesia should be able to process the word "investment"
into a specific and narrow approach. This will clarify which assets are directly
related to investment or not and encourage their use for national development;
2. The Most Favoured Nations Treatment (MFN) provisions are integrated into
international investment and economic integration treaties, both existing and to be
developed (e.g. FTA, ACIA, RCEP, and so on);
3. The Fair and Equitable Treatment provisions not only focus on the full rights of
investors and quick access to legal proceedings but also pay attention to the national
interest;
the Termination of the Bilateral Investment Treaty (BIT)
Indonesian Journal of Social Technology, Vol. 5, No. 8, August 2024
2923
Article 22
Entry into Force, Duration and Termination
This Agreement shall remain in force for a period of ten years end shall continue to
be in force thereafter unless terminated in accordance with paragraph 3.
5. BIT between Indonesia and Singapore which was signed on October 11, 2018 and is
still valid today, survival clause found on Article 44 (3), quoted as follows
(Mahardhaik, 2022):
Article 44
Entry into Force, Duration and Termination
(3) This Agreement shall remain in force for a period of ten years and shall continue
in force thereafter, at any time after the expiry of the initial periode of 10 yearsm
either party notifies in writing the othe Party of its intention to terminate this
Agreement. The notice of termination shall becaome effective one year after it has
been received by the other Party.
From the above quotes, it can be concluded that the survival clause does not apply
to foreign investments made by foreign investors from the Partner Country after the
expiration date of the agreement, so that the foreign investor loses protection from the
BIT. This does not mean that investments made after that will not be protected. These
investments can still be protected through the Multilateral Investment Treaty (MIT) and
Free Trade Agreement (FTA), where Indonesia as the Host State is one of the parties
involved in the agreement.
The validity of the survival clause is reflected in the case of international arbitration
disputes that use BIT as the basis of the lawsuit, namely the IMFA case that sued the
Government of the Republic of Indonesia in 2015 using the basis of the BIT lawsuit
between Indonesia and India in 1999. Although the Indonesian and Indian BITs have been
terminated by Indonesia on April 7, 2016, the BIT remains valid throughout the course
of the case until the issuance of an international arbitration award on March 29, 2019.
Survival clause not always enforceable during a certain period of time, where
parties who have agreed to terminate BIT may also cancel survival clause in some cases.
One of them is what happened when Australia and Chile ended the BIT, while both were
negotiating a new trade agreement. Australia and Chile agree to change time period
survival clause from 15 (fifteen) years to only 3 (three) years (Hidayati et al., 2017)
Although the ISDS mechanism is an important issue that makes Indonesia want to
review its BITs, the Indonesian Government still has to pay attention to the balance
between national interests and investor protection. This can be summarized in the change
of clause as follows (Price, 2017):
1. Specifying and narrowing the definition of "investment" rather than the flexibility
of a broader definition. Indonesia should be able to process the word "investment"
into a specific and narrow approach. This will clarify which assets are directly
related to investment or not and encourage their use for national development;
2. The Most Favoured Nations Treatment (MFN) provisions are integrated into
international investment and economic integration treaties, both existing and to be
developed (e.g. FTA, ACIA, RCEP, and so on);
3. The Fair and Equitable Treatment provisions not only focus on the full rights of
investors and quick access to legal proceedings but also pay attention to the national
interest;
Hana Pertiwi
Indonesian Journal of Social Technology, Vol. 5, No. 9, September 2024 2924
4. Provisions containing the ISDS mechanism must be enforced on a case-by-case
basis. The new provisions also involve domestic arbitration institutions as an
alternative to dispute resolution.
The current BIT between Indonesia and other developing countries was mostly
made about 50 (fifty) years ago with an automatic renewal clause, still the same content
as at the time of signing. There has been no substantial development with changes in the
economic and political situation in Indonesia. Therefore, the need for a new BIT
agreement model is important, not only to strengthen fair and balanced treatment of
investors, but also to strengthen and protect national interests by maximizing the benefits
of foreign investment in the country.
Conclusion
The reason behind Indonesia's decision to terminate the BIT Agreement with
partner countries arises because Indonesia faces an increasing number of cases of legal
disputes arising under the BIT filed by multinational companies claiming damages in the
amount of hundreds of millions of dollars. In addition, the act of signing international
investment and trade agreements is also considered to have shrunk Indonesia's policy
space to regulate matters that protect national interests.
The result of the termination of the BIT by Indonesia for foreign investors is the
enactment of the provisions in the survival clause, where even though the BIT has
expired, there is a certain period of time for the BIT to still be valid for investment made
before the expiration of the agreement period. Foreign investors who invest after the end
of the agreement period can seek protection from the Multilateral Investment Treaty
(MIT) and the Free Trade Agreement (FTA) where Indonesia as the host country is one
of the parties involved in the agreement.
The new BIT model can take an example from the United States BIT model which
has previously become a guideline for Indonesia's BIT, or it can take an example from
the Brazilian BIT model which is more suitable for developing countries. In addition,
Indonesia also needs to pay attention to the points of changes in the BIT related to the
definition of "investment", the provisions of the Most Favoured Nations Treatment
(MFN), the provisions of Fair and Equitable Treatment, and most importantly the
provisions of the Investor-State Dispute Settlement (ISDS) mechanism so that there is a
balance between national interests and the protection of foreign investors.
Bibliography
Connolly, Kelley. (2007). Say what you mean: improved drafting resources as a means
for increasing the consistency of interpretation of bilateral investment treaties. Vand.
J. Transnat’l L., 40, 1579.
ESCAP, U. N. (2020). Preferential trade agreements in Asia and the Pacific: trends and
developments 2020/2021.
Firdausi, Fadrik Aziz. (2017). Njoto: Biografi Pemikiran 1951-1965. Marjin Kiri.
Herian, Muhammad Budi. (2020). Penghentian Bilateral Investment Treaty (BIT)
Indonesia–Belanda Yang Dilakukan Secara Sepihak Oleh Indonesia. Universitas
Islam Riau.
Indonesian Journal of Social Technology, Vol. 5, No. 9, September 2024 2924
4. Provisions containing the ISDS mechanism must be enforced on a case-by-case
basis. The new provisions also involve domestic arbitration institutions as an
alternative to dispute resolution.
The current BIT between Indonesia and other developing countries was mostly
made about 50 (fifty) years ago with an automatic renewal clause, still the same content
as at the time of signing. There has been no substantial development with changes in the
economic and political situation in Indonesia. Therefore, the need for a new BIT
agreement model is important, not only to strengthen fair and balanced treatment of
investors, but also to strengthen and protect national interests by maximizing the benefits
of foreign investment in the country.
Conclusion
The reason behind Indonesia's decision to terminate the BIT Agreement with
partner countries arises because Indonesia faces an increasing number of cases of legal
disputes arising under the BIT filed by multinational companies claiming damages in the
amount of hundreds of millions of dollars. In addition, the act of signing international
investment and trade agreements is also considered to have shrunk Indonesia's policy
space to regulate matters that protect national interests.
The result of the termination of the BIT by Indonesia for foreign investors is the
enactment of the provisions in the survival clause, where even though the BIT has
expired, there is a certain period of time for the BIT to still be valid for investment made
before the expiration of the agreement period. Foreign investors who invest after the end
of the agreement period can seek protection from the Multilateral Investment Treaty
(MIT) and the Free Trade Agreement (FTA) where Indonesia as the host country is one
of the parties involved in the agreement.
The new BIT model can take an example from the United States BIT model which
has previously become a guideline for Indonesia's BIT, or it can take an example from
the Brazilian BIT model which is more suitable for developing countries. In addition,
Indonesia also needs to pay attention to the points of changes in the BIT related to the
definition of "investment", the provisions of the Most Favoured Nations Treatment
(MFN), the provisions of Fair and Equitable Treatment, and most importantly the
provisions of the Investor-State Dispute Settlement (ISDS) mechanism so that there is a
balance between national interests and the protection of foreign investors.
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of narratives justifying and balancing foreign investor rights. The Journal of World
Investment & Trade, 19(1), 7–40.
Price, David. (2017). Indonesia’s Bold Strategy on Bilateral Investment Treaties: Seeking
an Equitable Climate for Investment? Asian Journal of International Law, 7(1), 124–
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Rajagukguk, Erman. (2018). Hukum Investasi Asing di Indonesia. Jakarta: PT Raja
Grafindo Persada.
Reading, Michael R. (1992). Bilateral Investment Treaty in ASEAN: A Comparative
Analysis, The. Duke LJ, 42, 679.
Rihwanto, Yacob. (2016). Bilateral Investment Treaties dan Penyelesaian Arbritase
Internasional (Studi Kasus Pencabutan Izin Kuasa Pertambangan Churchill Mining).
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