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It does not necessarily amount to a circumvention of NAFTA Chapter 10 if a federal government attaches a performance requirement like "buy national" to a funding aid granted to a local government, for which Chapter 10 is not applicable
NAFTA's object and purpose are to be found primarily in the words of the paragraph in question, which has the character of lex specialis when compared to the general objectives in Article 201(1) NAFTA
- International Investment Treaties (IITs) > International Law Rules Applicable to IITs > Law of Treaties > Rules of Interpretation > Object and Purpose as a Rule of Interpretation
- Vienna Convention on the Law of Treaties > Article 31 - General rule of interpretation > Object and Purpose
- North American Free Trade Agreement > Article 102 – Objectives
- North American Free Trade Agreement > Article 201 – Definitions of general application
Provisions of one chapter of the NAFTA need to be read in the context of the entire structure of the NAFTA
- International Investment Treaties (IITs) > International Law Rules Applicable to IITs > Law of Treaties > Rules of Interpretation > Interpretation in the Context of the Treaty
- Vienna Convention on the Law of Treaties > Article 31 - General rule of interpretation > Context > General Remarks
- North American Free Trade Agreement > Article 102 – Objectives
A "buy national" requirement does not constitute a de jure discrimination against a foreign investor in general
- International Investment Treaties (IITs) > Protection of Investors under IITs > Expropriation and Standards of Protection > National Treatment > Distinction Between Local and Foreign Investors
- North American Free Trade Agreement > Chapter Eleven – Section A – Investment > Article 1102 – National Treatment > Distinction Between Local and Foreign Investors
To establish that a "buy national" requirement constitutes a de facto discrimination, an investor has to provide specific evidence concerning the comparative economics of the situation
- International Investment Treaties (IITs) > Protection of Investors under IITs > Expropriation and Standards of Protection > National Treatment > Scope of Protection – Local and Foreign Investors in Like Circumstances
- North American Free Trade Agreement > Chapter Eleven – Section A – Investment > Article 1102 – National Treatment > Scope of Protection – Local and Foreign Investors in Like Circumstances
"Party" within the meaning of Article 1108(7) and (8) NAFTA encompasses federal, provincial and local governments
The scope of "procurement" within the meaning of Article 1001(5) NAFTA does not extend to the governmental assistance to a public entity or agency in procurement
- North American Free Trade Agreement > Chapter Ten – Government Procurement
- North American Free Trade Agreement > Chapter Eleven – Section A – Investment > Article 1108 – Reservations and Exceptions
The procedures set out in the NAFTA do not delimit the consent by the state party or the investor
- North American Free Trade Agreement > Chapter Eleven – Section B – Settlement of Disputes between a Party and an Investor of Another Party > Article 1121 – Conditions Precedent to Submission of a Claim to Arbitration
- North American Free Trade Agreement > Chapter Eleven – Section B – Settlement of Disputes between a Party and an Investor of Another Party > Article 1122 – Consent to Arbitration
Failure of an investor to set out an exhaustive list of relevant NAFTA provisions does not necessarily result in a loss of a tribunal's jurisdiction to consider unlisted provisions
Article 1104 NAFTA does not require the investor to prove a breach of both Article 1102 and 1103
Customary international law does not require a state measure to be “egregious” in order to constitute an international delinquency
The investor's failure to specify the factual basis of a claim cannot be remedied at subsequent phases of the proceedings as this could amount to denying the respondent due process
If the State delegates certain work to lower levels of government, be they federal, regional or municipal, it must be an obligation of the state under international law to ensure that the obligations under international law are fulfilled; the question of which public authority committed the violation is, therefore, irrelevant
It is not for a tribunal to decide whether an interpretation by the FTC is in fact an amendment
- North American Free Trade Agreement > Further articles relevant to International Investment Law > Article 2001 – The Free Trade Commission
- North American Free Trade Agreement > Further articles relevant to International Investment Law > Article 2202 – Amendments
By its reference to “international law”, Article 1105(1) NAFTA incorporates the contemporary international customary law
The protection from denial of justice does not turn tribunals into courts of appeal for decisions of local courts
- International Investment Treaties (IITs) > Protection of Investors under IITs > Expropriation and Standards of Protection > Fair and Equitable Treatment > Case Groups > Denial of Justice
- North American Free Trade Agreement > Chapter Eleven – Section A – Investment > Article 1105 – Minimum Standard of Treatment > Case Groups
A state's measure being ultra vires under national law does not necessarily amount to a violation of the fair and equitable treatment-standard
- International Investment Treaties (IITs) > Protection of Investors under IITs > Expropriation and Standards of Protection > Fair and Equitable Treatment > Character and Scope
- North American Free Trade Agreement > Chapter Eleven – Section A – Investment > Article 1105 – Minimum Standard of Treatment > Case Groups
Customary international law does not require a state measure to be “egregious” in order to constitute an international delinquency
International Law Rules Applicable to IITs
Law of Treaties
Rules of Interpretation
Object and Purpose as a Rule of Interpretation
NAFTA's object and purpose are to be found primarily in the words of the paragraph in question, which has the character of lex specialis when compared to the general objectives in Article 201(1) NAFTA
Interpretation in the Context of the Treaty
Provisions of one chapter of the NAFTA need to be read in the context of the entire structure of the NAFTA
Law of State Responsibility
Attribution of Acts
Attribution of Acts by Organs / Provinces / Municipalities
If the State delegates certain work to lower levels of government, be they federal, regional or municipal, it must be an obligation of the state under international law to ensure that the obligations under international law are fulfilled; the question of which public authority committed the violation is, therefore, irrelevant
Protection of Investors under IITs
Expropriation and Standards of Protection
Fair and Equitable Treatment
Character and Scope
A state's measure being ultra vires under national law does not necessarily amount to a violation of the fair and equitable treatment-standard
Case Groups
Denial of Justice
The protection from denial of justice does not turn tribunals into courts of appeal for decisions of local courts
National Treatment
Scope of Protection – Local and Foreign Investors in Like Circumstances
To establish that a "buy national" requirement constitutes a de facto discrimination, an investor has to provide specific evidence concerning the comparative economics of the situation
Distinction Between Local and Foreign Investors
A "buy national" requirement does not constitute a de jure discrimination against a foreign investor in general
Article 31 - General rule of interpretation
Context
General Remarks
Provisions of one chapter of the NAFTA need to be read in the context of the entire structure of the NAFTA
Object and Purpose
NAFTA's object and purpose are to be found primarily in the words of the paragraph in question, which has the character of lex specialis when compared to the general objectives in Article 201(1) NAFTA
Article 102 – Objectives
NAFTA's object and purpose are to be found primarily in the words of the paragraph in question, which has the character of lex specialis when compared to the general objectives in Article 201(1) NAFTA
Provisions of one chapter of the NAFTA need to be read in the context of the entire structure of the NAFTA
Article 201 – Definitions of general application
NAFTA's object and purpose are to be found primarily in the words of the paragraph in question, which has the character of lex specialis when compared to the general objectives in Article 201(1) NAFTA
Chapter Ten – Government Procurement
It does not necessarily amount to a circumvention of NAFTA Chapter 10 if a federal government attaches a performance requirement like "buy national" to a funding aid granted to a local government, for which Chapter 10 is not applicable
The scope of "procurement" within the meaning of Article 1001(5) NAFTA does not extend to the governmental assistance to a public entity or agency in procurement
Chapter Eleven – Section A – Investment
Article 1102 – National Treatment
Scope of Protection – Local and Foreign Investors in Like Circumstances
To establish that a "buy national" requirement constitutes a de facto discrimination, an investor has to provide specific evidence concerning the comparative economics of the situation
Distinction Between Local and Foreign Investors
A "buy national" requirement does not constitute a de jure discrimination against a foreign investor in general
Article 1104 – Standard of Treatment
Article 1104 NAFTA does not require the investor to prove a breach of both Article 1102 and 1103
Article 1105 – Minimum Standard of Treatment
The Relationship of the Standard to Public International Law
By its reference to “international law”, Article 1105(1) NAFTA incorporates the contemporary international customary law
Case Groups
The protection from denial of justice does not turn tribunals into courts of appeal for decisions of local courts
A state's measure being ultra vires under national law does not necessarily amount to a violation of the fair and equitable treatment-standard
Article 1108 – Reservations and Exceptions
"Party" within the meaning of Article 1108(7) and (8) NAFTA encompasses federal, provincial and local governments
The scope of "procurement" within the meaning of Article 1001(5) NAFTA does not extend to the governmental assistance to a public entity or agency in procurement
Chapter Eleven – Section B – Settlement of Disputes between a Party and an Investor of Another Party
Article 1119 – Notice of Intent to Submit a Claim to Arbitration
Failure of an investor to set out an exhaustive list of relevant NAFTA provisions does not necessarily result in a loss of a tribunal's jurisdiction to consider unlisted provisions
The investor's failure to specify the factual basis of a claim cannot be remedied at subsequent phases of the proceedings as this could amount to denying the respondent due process
Article 1121 – Conditions Precedent to Submission of a Claim to Arbitration
The procedures set out in the NAFTA do not delimit the consent by the state party or the investor
Article 1122 – Consent to Arbitration
The procedures set out in the NAFTA do not delimit the consent by the state party or the investor
Further articles relevant to International Investment Law
Article 2001 – The Free Trade Commission
It is not for a tribunal to decide whether an interpretation by the FTC is in fact an amendment
Article 2202 – Amendments
It is not for a tribunal to decide whether an interpretation by the FTC is in fact an amendment