Local News, page-15

Bump. What got me interested in this investment/speculation was this YouTube interview with Dr Kiratipong Neawmalee. Dr Kiratipong is pretty well credentialed having a PHD in International Economic law (Aust), Masters of International Trade and Foreign Investment Law (Canada), Masters of International Business and Trade Law (Netherlands) and Masters of Law (Thai) (https://tdri.or.th/wp-content/uploads/2018/01/CV_DrKiratipong-ENG-02-2019.pdf)

I watched it again and it reminded me of the Thai legal team's challenge. It lead me to this article by Dr Kiratipong titled "My thoughts on the use of government power: case study on the Akara Gold Mine"
https://www.bangkokbiznews.com/blog/detail/643987

His key point was "In my experience, a government in an arbitration must prove at the very least the following: (1) its actions were non-discriminatory between foreign and local investors; and (2) its actions were the only option to achieve the objective to protect the public interest." This is where it gets difficult for the Thai government.

Regarding point (1), the section 44 order applied to all gold mining activities across Thailand. It did not specifically reference Akara gold mine. However, at the time the order was given there was no other gold mine in Thailand that was in operation. The only other gold mine in Thailand - Tung Kham - had stopped operating years prior. So it's clear the effect of the order was discriminatory even though it's written as if it's non-discriminatory. The other evidence that the action was discriminatory is that it references "impacts on the environment and health of the community, and especially the problem of conflict between people in the vicinity of the mine". At the time, this was only a concern at 1 mine, Akara. Also, the order didn't apply to other mining activities, which might have similar environmental concerns and would suggest it was non-discriminatory. The concerns raised in the order are all specific to a mine, which can't be applied generally across an entire industry.

Regarding point (2), the order states that "further investigations are needed to analyse and determine the facts and the problems". This is our knockout punch. How are they going to prove that closing all gold mining operations across the country was the only option when they state in the order that they don't even know the facts? Public officials have even admitted that the reason they used section 44 instead of taking action against Akara under the Environment Act or Mining Act was because they didn't know the causes. You can't solve a problem when you don't know the cause. They would have had to prove to the tribunal that the government didn't have other options at their disposal like dispute resolution through the courts or an order under the Mining Act to compensate affected individuals or rehabilitate the environment. It would be very difficult to convince experienced arbitrators that they had no other options.