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It is not for a tribunal to decide the validity of a state’s choice of action, so long as that choice does not rise to a denial of fair and equitable treatment
- North American Free Trade Agreement > Chapter Eleven – Section A – Investment > Article 1105 – Minimum Standard of Treatment > Discretion of the State
- International Investment Treaties (IITs) > Protection of Investors under IITs > Expropriation and Standards of Protection > Fair and Equitable Treatment > Discretion of the State
The fairness elements in Article 1105 NAFTA are in addition to to the requirements of international law and must be applied without any threshold limitation of the conduct being “egregious”, “outrageous”, “shocking ”, or “extraordinary”
Relationship between NAFTA and other treaties of the same parties
- 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
- International Investment Treaties (IITs) > Protection of Investors under IITs > Character of IITs
- North American Free Trade Agreement > Preamble
Articles 1102(1) and (2) and Article 1102 (3) are substantially identical, except for the limitations to states and provinces
In its assessment of the “like circumstances”, the tribunal must to consider the facts, the legal context, and the state measures of the given case
Article 1102 (2) NAFTA applies to single investments; the claimant does not need to demonstrate that there are other similarly situated foreign investments or that there is more than one similarly situated domestically owned investment
Article 1102 NAFTA requires a two-part test: first, a comparison to domestic investments in the same business or economic sector; second, an examination of whether there is a reasonable nexus to rational government policies not discriminating against foreigners and not undermining the objectives of NAFTA
- North American Free Trade Agreement > Chapter Eleven – Section A – Investment > Article 1102 – 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 > Justification of Distinction
The fairness elements in Article 1105 NAFTA are additive to the requirements of international law and must be applied without any threshold limitation of the conduct being “egregious”, “outrageous”, “shocking”, or “extraordinary”
On determining the meaning of the term “like circumstances”, a tribunal must consider the facts, the legal context, and the state measures of the given case
Article 1102 (2) NAFTA applies to single investments; the claimant does not need to demonstrate that there are other similarly situated foreign investments or that there is more than one domestically owned investment in a similar situation
Within the scope of Article 1102 NAFTA, there is no reason to treat de facto and de jure discrimination differently; a finding of a disproportional disadvantage caused by the measure is not necessary in cases of de facto discrimination
- 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
Article 1102 NAFTA requires a two-part test: first, a comparison to domestic investments in the same business or economic sector; second, an examination whether there is a reasonable nexus to rational government policies not discriminating against foreigners and not undermining the objectives of NAFTA
The elements of a measure causing a discrimination of the foreign investor cannot be used to deny the existence of “like circumstances” unless there is a reasonable nexus to a rational, non-discriminatory government policy
- 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
International Law Rules Applicable to IITs
Relationship of IITs to Other Sources of International Law
Relationship of an IIT to Other Treaties
General Remarks
Relationship between NAFTA and other treaties of the same parties
Protection of Investors under IITs
Character of IITs
Relationship between NAFTA and other treaties of the same parties
Expropriation and Standards of Protection
Fair and Equitable Treatment
Relationship to Public International Law
The fairness elements in Article 1105 NAFTA are in addition to to the requirements of international law and must be applied without any threshold limitation of the conduct being “egregious”, “outrageous”, “shocking ”, or “extraordinary”
Discretion of the State
It is not for a tribunal to decide the validity of a state’s choice of action, so long as that choice does not rise to a denial of fair and equitable treatment
National Treatment
Scope of Protection – Local and Foreign Investors in Like Circumstances
On determining the meaning of the term “like circumstances”, a tribunal must consider the facts, the legal context, and the state measures of the given case
Article 1102 (2) NAFTA applies to single investments; the claimant does not need to demonstrate that there are other similarly situated foreign investments or that there is more than one domestically owned investment in a similar situation
The elements of a measure causing a discrimination of the foreign investor cannot be used to deny the existence of “like circumstances” unless there is a reasonable nexus to a rational, non-discriminatory government policy
Distinction Between Local and Foreign Investors
Within the scope of Article 1102 NAFTA, there is no reason to treat de facto and de jure discrimination differently; a finding of a disproportional disadvantage caused by the measure is not necessary in cases of de facto discrimination
Justification of Distinction
Article 1102 NAFTA requires a two-part test: first, a comparison to domestic investments in the same business or economic sector; second, an examination whether there is a reasonable nexus to rational government policies not discriminating against foreigners and not undermining the objectives of NAFTA
Preamble
Relationship between NAFTA and other treaties of the same parties
Chapter Eleven – Section A – Investment
Article 1102 – National Treatment
General Remarks
Articles 1102(1) and (2) and Article 1102 (3) are substantially identical, except for the limitations to states and provinces
Scope of Protection – Local and Foreign Investors in Like Circumstances
In its assessment of the “like circumstances”, the tribunal must to consider the facts, the legal context, and the state measures of the given case
Article 1102 (2) NAFTA applies to single investments; the claimant does not need to demonstrate that there are other similarly situated foreign investments or that there is more than one similarly situated domestically owned investment
Article 1102 NAFTA requires a two-part test: first, a comparison to domestic investments in the same business or economic sector; second, an examination of whether there is a reasonable nexus to rational government policies not discriminating against foreigners and not undermining the objectives of NAFTA
The elements of a measure causing a discrimination of the foreign investor cannot be used to deny the existence of “like circumstances” unless there is a reasonable nexus to a rational, non-discriminatory government policy
Distinction Between Local and Foreign Investors
Within the scope of Article 1102 NAFTA, there is no reason to treat de facto and de jure discrimination differently; a finding of a disproportional disadvantage caused by the measure is not necessary in cases of de facto discrimination
Justification of Distinction
Article 1102 NAFTA requires a two-part test: first, a comparison to domestic investments in the same business or economic sector; second, an examination of whether there is a reasonable nexus to rational government policies not discriminating against foreigners and not undermining the objectives of NAFTA
Article 1105 – Minimum Standard of Treatment
The Relationship of the Standard to Public International Law
The fairness elements in Article 1105 NAFTA are additive to the requirements of international law and must be applied without any threshold limitation of the conduct being “egregious”, “outrageous”, “shocking”, or “extraordinary”
Discretion of the State
It is not for a tribunal to decide the validity of a state’s choice of action, so long as that choice does not rise to a denial of fair and equitable treatment