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Imposition of a 50% national music requirement does not necessarily constitute a prohibited performance requirement that goods or services must be purchased locally
Interpretation of the FET standard must be made in light of the high measure of deference that international law generally extends to the right of domestic authorities to regulate matters within their own borders
A violation of the FET standard requires that the state's actions trespass a certain standard of propriety
Mere statistic showing that an investor was less successful than his or her competitors are insufficient to prove a breach of the FET standard; however, as they provide an overview of the development of facts, they are not irrelevant either
Arbitration clauses must be interpreted to restore the true intention of the parties
The relevance of legitimate expectations follows from an interpretation of the FET standard in light of the context of the IIT
General remarks regarding discrimination
Definition of arbitrary
Even if limited sector exceptions exist in an IIT, an investor in a regulated industry can legitimately expect consistent, transparent, fair and reasonable decisions enforced without arbitrariness or discrimination
If the IIT does not provide otherwise, an investor does not have to exhaust local remedies to claim a violation of the FET standard
While the main purpose of an IIT is the stimulation of foreign investment, this purpose should serve the development of the domestic economy; thus, the right of the host state to act for the public interest has to be given due consideration
General remarks on fair and equitable treatment
General remarks regarding the relationship of FET to Public International Law
The FET interpretation by the NAFTA FTC does not necessarily apply to other IITs of the USA
A reference to the Additional Facility in an arbitration agreement implies a reference to the ICSID Convention, once the latter is available
- ICSID Convention > General Remarks
- ICSID Convention > Jurisdiction of the Centre (Articles 25-27) > Article 25 > Consent > General Remarks
It is impossible to determine an "ordinary meaning" of the expression "fair and equitable"
Requirements imposed by Article 25 ICSID Convention
No foreign origin requirement is imposed by Article 25 ICSID-Convention
Interpretation of the ICSID Convention should seek compatibility with a parallel IIT
- International Investment Treaties (IITs) > International Law Rules Applicable to IITs > Relationship of IITs to Other Sources of International Law > Relationship of an IIT to Other Treaties > General Remarks
- ICSID Convention > General Remarks
Whether a dispute concerning the issuance of a license arises directly out of an investment depends on whether the claimant requests additional licenses for an existing investment or enters the market for the first time
The “minimum standard” is a floor below which treatment of foreign investors must not fall
IITs must be interpreted using the rules of interpretation laid down in the VCLT
- International Investment Treaties (IITs) > International Law Rules Applicable to IITs > Law of Treaties > Rules of Interpretation > Interpretation Rules of the Vienna Convention on the Law of Treaties (VCLT) as Reflecting Customary International Law
- Vienna Convention on the Law of Treaties > Article 31 - General rule of interpretation > Further Problems > Articles 31 et seq. Reflect Customary International Law
International Law Rules Applicable to IITs
Relationship of IITs to Other Sources of International Law
Relationship of an IIT to Other Treaties
General Remarks
Interpretation of the ICSID Convention should seek compatibility with a parallel IIT
Law of Treaties
Rules of Interpretation
Interpretation Rules of the Vienna Convention on the Law of Treaties (VCLT) as Reflecting Customary International Law
IITs must be interpreted using the rules of interpretation laid down in the VCLT
Protection of Investors under IITs
Expropriation and Standards of Protection
Fair and Equitable Treatment
Relationship to Public International Law
General remarks regarding the relationship of FET to Public International Law
The FET interpretation by the NAFTA FTC does not necessarily apply to other IITs of the USA
Character and Scope
A violation of the FET standard requires that the state's actions trespass a certain standard of propriety
Mere statistic showing that an investor was less successful than his or her competitors are insufficient to prove a breach of the FET standard; however, as they provide an overview of the development of facts, they are not irrelevant either
If the IIT does not provide otherwise, an investor does not have to exhaust local remedies to claim a violation of the FET standard
General remarks on fair and equitable treatment
It is impossible to determine an "ordinary meaning" of the expression "fair and equitable"
The “minimum standard” is a floor below which treatment of foreign investors must not fall
Discretion of the State
Interpretation of the FET standard must be made in light of the high measure of deference that international law generally extends to the right of domestic authorities to regulate matters within their own borders
While the main purpose of an IIT is the stimulation of foreign investment, this purpose should serve the development of the domestic economy; thus, the right of the host state to act for the public interest has to be given due consideration
Case Groups
Legitimate Expectations
The relevance of legitimate expectations follows from an interpretation of the FET standard in light of the context of the IIT
Even if limited sector exceptions exist in an IIT, an investor in a regulated industry can legitimately expect consistent, transparent, fair and reasonable decisions enforced without arbitrariness or discrimination
Arbitrary and Discriminatory Measures
General remarks regarding discrimination
Definition of arbitrary
Performance Requirements
Imposition of a 50% national music requirement does not necessarily constitute a prohibited performance requirement that goods or services must be purchased locally
Article 31 - General rule of interpretation
Further Problems
Articles 31 et seq. Reflect Customary International Law
IITs must be interpreted using the rules of interpretation laid down in the VCLT
General Remarks
A reference to the Additional Facility in an arbitration agreement implies a reference to the ICSID Convention, once the latter is available
Interpretation of the ICSID Convention should seek compatibility with a parallel IIT
Jurisdiction of the Centre (Articles 25-27)
Article 25
General Remarks
Requirements imposed by Article 25 ICSID Convention
Consent
General Remarks
Arbitration clauses must be interpreted to restore the true intention of the parties
A reference to the Additional Facility in an arbitration agreement implies a reference to the ICSID Convention, once the latter is available
Jurisdiction Ratione Materiae
Investment
Further Problems
No foreign origin requirement is imposed by Article 25 ICSID-Convention
Arising Directly out of an Investment
Whether a dispute concerning the issuance of a license arises directly out of an investment depends on whether the claimant requests additional licenses for an existing investment or enters the market for the first time