- •In addition, an iia should display a commitment to flexibility for development. In this context, flexibility denotes:
- •In that the shorter the period between the governmental act that needs to be disclosed and the date of such disclosure, the greater the extent of the obligation. 108
- •In the Barcelona Traction case, Judge Jessup, in his Separate Opinion, 133 stated the following:
- •Igbokwe, vc, ‘Determination, Interpretation and Application of Substantive Law in Foreign Investment Treaty Arbitration’, 23 j Int'l Arb 267 (2006)
- •Igbokwe, vc, ‘Determination, Interpretation and Application of Substantive Law in Foreign Investment Treaty Arbitration’, 23 j Int'l Arb 267 (2006)
- •Very detailed, technical aspects such as sanitary and phytosanitary measures and intellectual property rights.
- •Interest and Public Purpose (Ottawa, cd Howe Institute, Policy Study 44, The Border Papers, 2006)
- •Van Hecke, g, ‘Contracts between States and Foreign Private Law Persons’, 1 epil 814 (1992)
- •Interest and Public Purpose (Ottawa, cd Howe Institute, Policy Study 44, The Border Papers, 2006)
- •Van Hecke, g, ‘Contracts between States and Foreign Private Law Persons’, 1 epil 814 (1992)
- •1. In the event of any inconsistency between this Agreement and the specific trade obligations set out in:
- •Investment treaty practice of the usa and Canada. 66 For example, the us-Uruguay bit of 25 October 2004 states, by Article 3(1):
- •In this respect, the wto Appellate Body and the International Court of Justice remind us of the principle of effectiveness in treaty interpretation. 21 It is not
- •Impairment” standards, when] (I) similar cases are (II) treated differently (III) and without reasonable justification’. 84
- •Vicu?a, f Orrego, ‘Regulatory Authority and Legitimate Expectations’, 5 Intl Law Forum, 188m 193 (2003)
- •Vicu?a, f Orrego, ‘Regulatory Authority and Legitimate Expectations’, 5 Intl Law Forum, 188m 193 (2003)
- •In order to avoid possible free-riding behaviour within the gatt framework, the Protocol to the 1992 us-Russia bit provides for a specific exception which reads as follows:
- •In addition, the distinction between breach of contract and expropriation has become relevant in the related jurisdictional debate about contract versus treaty
- •It is on the whole undisputed that the prohibition of expropriation of foreign property, both under customary international law and under applicable treaty law, covers
- •In addition, other investment relevant instruments speak of ‘expropriations or other measures affecting property rights’. 81
- •In the recent Occidental case, the arbitral tribunal confirmed that:
- •Is required is at least a ‘substantial loss of control or value’ 181 or ‘severe economic impact’. 182 The difficulty again lies in establishing the exact level of interference.
- •In Phelps Dodge , the Iran-us Claims Tribunal expressly stated that even acceptable motivations would not change its view that certain measures had an expropriatory effect:
- •In the doctrines of necessity and force majeure, if they view compliance with either doctrine to be essentially empty.
- •In the doctrines of necessity and force majeure, if they view compliance with either doctrine to be essentially empty.
- •In one of the early nafta cases—Metalclad Corporation V The United Mexican States84—the arbitral tribunal was required to address this issue, essentially as
- •5. Review and Appeal
- •5. Review and Appeal
- •In this kind of provision, when a dispute settlement forum is selected, this choice is made to the exclusion of any other (electa una via, non datur recursus ad alteram).
- •In a subsequent request for participation as amicus curiae, the tribunal found that it could not open up the hearings to the petitioners without the parties' consent:
- •In addition to the provisions of nafta, disputing parties are also bound by the arbitration rules that the investor selects. 64 When bringing a claim against a
- •In the Notes of Interpretation of Certain Chapter Eleven Provisions issued by the Free Trade Commission on 31 July 2001, the Commission declared that:
- •In determining whether to accept a written submission, the Free Trade Commission recommends in paragraph 6 that a tribunal consider the extent to which:
- •In practice, there is also no doubt whatever that users of commercial arbitration in England place much importance on privacy and confidentiality as essential features of English arbitration. 122
- •Increased transparency and public participation may impact upon the principles of confidentiality and privacy that have traditionally been respected in international
- •Is real, and experience shows that facts relating to such relationships should be disclosed even when they arise in the course of the arbitration and not at the time of appointment.
- •Investment disputes in respect of the implementation of the provisions of this Law shall be settled in a manner to be agreed upon with the investor, or within the framework of the
- •In Ronald s Lauder V The Czech Republic , 69 the bit between the Czech Republic and the usa provided as follows: ‘At any time after six months from the date on
- •Vandevelde, kj, United States Investment Treaties: Policy and Practice (Deventer, Netherlands, Kluwer Law and Taxation, 1992)
- •Vandevelde, kj, United States Investment Treaties: Policy and Practice (Deventer, Netherlands, Kluwer Law and Taxation, 1992)
- •It will be recalled that under Article 25(2)(b) a ‘juridical’ national is:
- •In Tokios , the tribunal was faced with an objection to jurisdiction founded on the argument that the control test was the appropriate test for the purposes of Article 25.
- •Vicu?a, Francisco Orrego, ‘Changing Approaches to the Nationality of Claims in the Context of Diplomatic Protection and International Dispute Settlement’, 15 icsid Rev-filj 340 (2000)
- •Vicu?a, Francisco Orrego, ‘Changing Approaches to the Nationality of Claims in the Context of Diplomatic Protection and International Dispute Settlement’, 15 icsid Rev-filj 340 (2000)
- •In the end, however, the tribunal did not apply the clause and therefore it considered that there was no need to express any definitive conclusion as to whether the
- •In Eureko V Poland , 106 the Tribunal saw and addressed this problem briefly when it concluded:
- •In the cme case, the tribunal quoted the tribunal in The Mox Plant Case , 29 which stated that:
- •Identity of Parties
- •Interim or Injunctive Relief
- •Ila Committee on International Commercial Arbitration, Final Report on ‘Lis Pendens and Arbitration’(Toronto, 2006)
- •Ila Committee on International Commercial Arbitration, Final Report on ‘Lis Pendens and Arbitration’(Toronto, 2006)
- •It would be within the logic of the npv/dcf approach to disregard the fact that an investment may only be in its early stages. In these early stages, there will always
- •In conventional international law, in particular in icj jurisprudence, equitable circumstances play a role not only, for example, in boundary determinations, 231 but
- •Investor of the other party to the treaty concerning inter alia an alleged breach of the treaty itself.
- •If the award is annulled, the dispute may be decided by a new arbitration tribunal constituted in accordance with section 2 of Chapter IV of the Treaty. 40
- •Icsid Secretariat, ‘Possible Improvements of the Framework for icsid Arbitration’ (icsid Secretariat, Discussion Paper, 22 October 2004)
- •Veeder, VV, ‘The Necessary Safeguards of an Appellate System’, in f Ortino, a Sheppard, and h Warner (eds), Investment Treaty Law: Current Issues—Vol I (London, biicl, 2006)
- •Icsid Secretariat, ‘Possible Improvements of the Framework for icsid Arbitration’ (icsid Secretariat, Discussion Paper, 22 October 2004)
- •Veeder, VV, ‘The Necessary Safeguards of an Appellate System’, in f Ortino, a Sheppard, and h Warner (eds), Investment Treaty Law: Current Issues—Vol I (London, biicl, 2006)
- •Icsid Secretariat, ‘Possible Improvements of the Framework for icsid Arbitration’ (icsid Secretariat, Discussion Paper, 22 October 2004)
- •Veeder, VV, ‘The Necessary Safeguards of an Appellate System’, in f Ortino, a Sheppard, and h Warner (eds), Investment Treaty Law: Current Issues—Vol I (London, biicl, 2006)
- •Icsid Secretariat, ‘Possible Improvements of the Framework for icsid Arbitration’ (icsid Secretariat, Discussion Paper, 22 October 2004)
- •Veeder, VV, ‘The Necessary Safeguards of an Appellate System’, in f Ortino, a Sheppard, and h Warner (eds), Investment Treaty Law: Current Issues—Vol I (London, biicl, 2006)
- •Van den Berg, aj, ‘Some Recent Problems in the Practice of Enforcement under the New York and icsid Conventions’, 2 icsid Rev-filj 439 (1987)
- •Van den Berg, aj, ‘Some Recent Problems in the Practice of Enforcement under the New York and icsid Conventions’, 2 icsid Rev-filj 439 (1987)
- •Icsid Secretariat, ‘Possible Improvements of the Framework for icsid Arbitration’ (Discussion Paper, 22 October 2004)
- •Icsid Secretariat, ‘Possible Improvements of the Framework for icsid Arbitration’ (Discussion Paper, 22 October 2004)
- •In the context of investment arbitration, there is not necessarily always an arbitration agreement in
5. Review and Appeal
(a) Each Party shall establish or maintain judicial, quasi-judicial, or administrative tribunals or procedures for the purpose of the prompt review and, where warranted, correction of final administrative actions regarding matters covered by this Treaty. Such tribunals shall be impartial and independent of the office or authority entrusted with administrative enforcement and shall not have any substantial interest in the outcome of the matter. (b) Each Party shall ensure that, in any such tribunals or procedures, the parties to the proceeding are provided with the right to: (i) a reasonable opportunity to support or defend their respective positions; and (ii) a decision based on the evidence and submissions of record or, where required by domestic law, the record compiled by the administrative authority. (c) Each Party shall ensure, subject to appeal or further review as provided in its domestic law, that such decisions shall be implemented by, and shall govern the practice of, the offices or authorities with respect to the administrative action at issue.’ 17 See the US-Uruguay BIT of 25 October 2005 in 44 ILM 265 (2005) Arts 10 and 11. 18 See UNCTAD, Investment Provisions in Economic Integration Agreements (New York and Geneva, United Nations, 2006) at 88, citing the US-Singapore FTA Art 19.5. See too US-Chile FTA of 6 June 2003 Art 10.20, available at <http://www.unctad.org/sections/dite/iia/docs/Compendium//en/290%20volume%2012.pdf>. 19 See eg the Canadian Model BIT 2004 Art 19, available at <http://ita.law.uvic.ca/documents/Canadian2004-FIPA-model-en.pdf>. 20OECD, Public Sector Transparency and International Investment Policy (Paris, OECD, 11 April 2003) at 5. 21UNCTAD, Key Issues, above n 1 at 285–9. 22 See further UNCTAD, Bilateral Investment Treaties 1995–2006: Trends in Investment Rulemaking (New York and Geneva, United Nations, 2007) at 76–80. The study concludes: ‘only a small—albeit growing—number of BITs of the last decade include provisions on transparency. However, to the extent that BITs deal with this issue, there have been significant developments concerning the content of the clause. Transparency is no longer perceived as a matter of the contracting parties exchanging investment-related information. In addition, a few recent BITs grant information rights to “all interested persons” and even allow them to comment upon draft legislation. Some BITs also enhance investor rights in administrative and judicial proceedings and provide for third-party participation’. 23 See eg Japan-Vietnam BIT 2003 Art 7 in UNCTAD, above n 22 at 77. 24 Howard Mann, ‘The IISD Model International Agreement on Investment for Sustainable Development: An Introductory Note’, 20 ICSID Rev-FILJ 84 ff (2005). 25 See Stephen Vasciannie, ‘The Fair and Equitable Treatment Standard in International Investment Law and Practice’, 70 BYIL 99 (1999) at 102–5. 26 When the arbitration under NAFTA started in the 1990s, the issue whether damage to investments might arise from expropriation by host states was highly controversial. Following that, the definition of fair and equitable treatment has come to be a central topic of discussion as it has been shown that the theory of regulatory expropriation is not so easily confirmed: on which see further August Reinisch, Ch 11 above and Todd Grierson-Weiler and Ian A Laird, ch 8 above. 27Metalclad Corporation v The United Mexican States , ICSID Case No. Arb(AF)/97/1, 40 ILM 36 (2001). 28 Ibid at paras 75–6. 29 Ibid at para 99. 30 See Patrick G Foy and Robert J Deane, ‘Foreign Investment Protection under Investment Treaties: Recent Developments under Chapter 11 of the North American Free Trade Agreement’, 16 ICSID Rev-FILJ 299 at 325–9 (2001). 31 The United Mexican States v Metalclad Corporation , 2001 BCSC 664. 32 Ibid at paras 70–2. 33T?cnicas Medioambientales Tecmed, SA v United Mexican States , ICSID Case No. Arb(AF)/00/2 (Spain/ Mexico BIT), Award, 29 May 2003, 43 ILM 133 (2004). 34 Ibid at para 154. 35Saluka Investments BV (The Netherlands) v The Czech Republic (Dutch/Czech BIT) , Partial Award, 17 March 2006 at <http://ita.law.uvic.ca/documents/Saluka-PartialawardFinal.pdf>. 36Myers (SD) Inc v Canada , NAFTA Arbitration, UNCITRAL Award of 12 November 2000, 40 ILM 1408 (2001) para 263. 37Saluka , above n 35 at para 297. 38 Ibid at para 298. 39 Ibid at para 302. 40 According to the tribunal, ‘A foreign investor whose interests are protected under the Treaty is entitled to expect that the Czech Republic will not act in a way that is manifestly inconsistent, non-transparent, unreasonable (i.e. unrelated to some rational policy), or discriminatory (i.e. based on unjustifiable distinctions). In applying this standard, the Tribunal will have due regard to all relevant circumstances.’ Ibid at para 309. 41 Note Ian Brownlie, Principles of Public International Law (Oxford, Oxford University Press, 6th edn, 2003) at 501–2. 42Pope and Talbot v Canada , UNCITRAL; Award on the Merits of Phase 2, 10 April 2001 at <http://ita.law.uvic.ca/documents/PopeandTalbot-Merit.pdf>. 43 Ibid at para 110. 44Tecmed , above n 33 at para 153. 45MTD Equity Sdn Bhd & MTD Chile SA v Chile , ICSID Case No. Arb/01/7 Final Award, 25 May 2004, 44 ILM 91 (2005). 46 Ibid at paras 114–15. 47 Ibid at para 109. 48 Ibid at para 113. 49 See eg Genin v Estonia , ICSID Case No. Arb/99/2 Award of 25 June 2001, 17 ICSID Rev-FILJ 395 (2002) where the reality of administering financial sector supervisory functions in a transitional economy was thought relevant to determining whether the investor had been unfairly and inequitably treated. Indeed, the tribunal noted that the investor had been less than fully transparent towards the regulatory authorities as to the precise ownership structure of their investment in that country, which led in part to their decision to revoke his licence to operate. See further Peter Muchlinski, ‘“Caveat Investor?” The Relevance of the Conduct of the Investor under the Fair and Equitable Treatment Standard’, 55(3) ICLQ 527 (2006) at 540–1. 50 But note that the investor may also have responsibilities to act reasonably in assessing the commercial viability of the investment: see MTD Equity , above n 45 and Muchlinski, above n 49 at 542–7. Select Bibliography
Brownlie, Ian, Principles of Public International Law (Oxford, Oxford University Press, 6th edn, 2003)
Dolzer, Rudolf, and Stevens, Margrete, Bilateral Investment Treaties (The Hague, Nijhoff, 1995)
Foy, Patrick G, and Deane, Robert J, ‘Foreign Investment Protection under Investment Treaties: Recent Developments under Chapter 11 of the North American Free Trade Agreement’, 16 ICSID Rev-FILJ 299 (2001)
Jackson, John H, World Trade and the Law of GATT (Indianapolis, Bobbs-Merill Company, 1969)
end p.635
Mann, Howard, ‘The IISD Model International Agreement on Investment for Sustainable Development: An Introductory Note’, 20 ICSID Rev-FILJ 84 (2005)
Mavroidis, Petros C, The General Agreement on Tariffs and Trade: A Commentary (Oxford, Oxford University Press, 2005)
Muchlinski, Peter, ‘“Caveat Investor?” The Relevance of the Conduct of the Investor under the Fair and Equitable Treatment Standard’, 55(3) ICLQ 527 (2006)
__, Multinational Enterprises and the Law (Oxford, Oxford University Press, 2nd edn, 2007)
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Reich, Arie, International Public Procurement Law (The Hague, Kluwer Law International, 1999)
Sornarajah, M, The International Law on Foreign Investment (Cambridge, Cambridge University Press, 2nd edn, 2004)
__, International Investment Agreements: Key Issues (New York and Geneva, United Nations, 2004)
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UNCTAD, Bilateral Investment Treaties 1995–2006: Trends in Investment Rulemaking (New York and Geneva, United Nations, 2007)
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Vasciannie, Stephen, ‘The Fair and Equitable Treatment Standard in International Investment Law and Practice’, 70 BYIL 99 (1999)
Winham, Gilbert R, International Trade and the Tokyo Round Negotiations (Princeton, Princeton University Press, 1986) Footnotes ?I wish to express my heartful thanks to Ms Loretta Malintoppi, who improved my English considerably. 1 See UNCTAD, International Investment Agreements: Key Issues (New York and Geneva, United Nations, 2004) ch 10, ‘Transparency’ at 281–314. Also published separately as UNCTAD, Transparency, Series on issues in international investment agreements (New York and Geneva, United Nations, 2004), available at <http://www.unctad.org/iia>. 2WTO, Ministerial Conference, Fourth Session, Doha, 9–14 November 2001, Ministerial Declaration, WT/MIN(01)/DEC/1. Negotiations over investment rules were dropped from the Doha Development Agenda (DDA) in 2004. 3 See M Sornarajah, The International Law on Foreign Investment (Cambridge, Cambridge University Press, 2nd edn, 2004); Rudolf Dolzer and Margrete Stevens, Bilateral Investment Treaties (The Hague, Nijhoff, 1995). Muchlinski states, ‘Among other, less common, specific standards to be found in BITs are: … transparency obligations’, citing the US-Uruguay BIT of 25 October 2004, Art 8: 44 ILM 268 (2005) and the above UNCTAD study (n 1), but he does not elaborate further: Peter T Muchlinski, Multinational Enterprises and the Law (Oxford, Oxford University Press, 2nd edn, 2007) at 693. But see below n 22. 4 The main purpose of the trade facilitation negotiation now in progress in the DDA is enhancing transparency in trade. 5 See further Peter Muchlinski, ‘Corporate Social Responsibility’, ch 17 below. 6 National treatment and market access are also basic principles, but these are applied to matters to which contracting states have made commitments. Therefore the ambit of the application of national treatment and market access is very restrictive. On the contrary, transparency and MFN are applied to all matters in principle. See General Agreement on Trade in Services 1994, available at <http://www.wto.org>. 7GATS Article III: Transparency:
‘1. Each Member shall publish promptly and, except in emergency situations, at the latest by the time of their entry into force, all relevant measures of general application which pertain to or affect the operation of this Agreement. International agreements pertaining to or affecting trade in services to which a Member is a signatory shall also be published.
2. Where publication as referred to in paragraph 1 is not practicable, such information shall be made otherwise publicly available.
3. Each Member shall promptly and at least annually inform the Council for Trade in Services of the introduction of any new, or any changes to existing, laws, regulations or administrative guidelines which significantly affect trade in services covered by its specific commitments under this Agreement.
4. Each Member shall respond promptly to all requests by any other Member for specific information on any of its measures of general application or international agreements within the meaning of paragraph 1. Each Member shall also establish one or more enquiry points to provide specific information to other Members, upon request, on all such matters as well as those subject to the notification requirement in paragraph 3. Such enquiry points shall be established within two years from the date of entry into force of the Agreement Establishing the WTO (referred to in this Agreement as the “WTO Agreement”). Appropriate flexibility with respect to the time-limit within which such enquiry points are to be established may be agreed upon for individual developing country Members. Enquiry points need not be depositories of laws and regulations.
5. Any Member may notify to the Council for Trade in Services any measure, taken by any other Member, which it considers affects the operation of this Agreement.’ 8 See UNCTAD, above n 1 at 36–7. 9 John H Jackson, World Trade and the Law of GATT (Indianapolis, Bobbs-Merill Company, 1969) 461. Nowadays Art 10 of GATT is interpreted as the obligation of transparency. See Petros C Mavroidis, The General Agreement on Tariffs and Trade: A Commentary (Oxford, Oxford University Press, 2005) 270–2. 10 See Arie Reich, International Public Procurement Law (The Hague, Kluwer Law International, 1999) 117–25; Gilbert R Winham, International Trade and the Tokyo Round Negotiations (Princeton, Princeton University Press, 1986) 358. 11Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Vanuatu for the Promotion and Protection of Investments (Port Vila, 22 December 2003) Vanuatu No. 1 (2004) (the Agreement is not in force) Cm 6169, available at <http://www.fco.gov.uk/Files/kfile/Cm6169,0.pdf>. 12 See eg the US-Senegal BIT of 6 December 1983 entered into force 25 October 1990, <http://www.state.gov/documents/organization/43585.pdf>. Art II(10): ‘Each party shall make public by existing official means all laws, regulations, administrative practices and procedures, and adjudicatory decisions that pertain to or affect investments in its territory of nationals or companies of the other Party. 11. The treatment accorded by a Party to nationals or companies of the other Party under the provisions of paragraphs 1 and 2 of this Article shall in any State, Territory, possession, or political or administrative subdivision of the Party be the treatment accorded therein to companies incorporated, constituted or otherwise duly organized in other States, Territories, possessions, or political or administrative subdivisions of the Party.’ 13US-Panama BIT of 27 October 1982, entered force 30 May 1991, available at <http://www.state.gov/documents/organization/43582.pdf>. 14 The Treaty between the Republic of Poland and the United States of America concerning Business and Economic Relations of 21 March 1990, available at <http://tcc.export.gov/static/doc_exp_005367.asp> or <http://www.unctad.org/sections/dite/iia/docs/bits/us_poland.pdf>. 15 See Kenneth J Vandevelde, United States Investment Treaties (Deventer, Kluwer Law and Taxation Publishers, 1992) 235–44. 16 See US Model BIT of 2004 at <http://ita.law.uvic.ca/documents/USmodelbitnov04.pdf>:
‘Article 10: Publication of Laws and Decisions Respecting Investment
1. Each Party shall ensure that its: (a) laws, regulations, procedures, and administrative rulings of general application; and (b) adjudicatory decisions respecting any matter covered by this Treaty are promptly published or otherwise made publicly available.
2. For purposes of this Article, “administrative ruling of general application” means an administrative ruling or interpretation that applies to all persons and fact situations that fall generally within its ambit and that establishes a norm of conduct but does not include: (a) a determination or ruling made in an administrative or quasi-judicial proceeding that applies to a particular covered investment or investor of the other Party in a specific case; or (b) a ruling that adjudicates with respect to a particular act or practice.
Article 11: Transparency
1. Contact Points
(a) Each Party shall designate a contact point or points to facilitate communications between the Parties on any matter covered by this Treaty. (b) On the request of the other Party, the contact point(s) shall identify the office or official responsible for the matter and assist, as necessary, in facilitating communication with the requesting Party.
2. Publication
To the extent possible, each Party shall: (a) publish in advance any measure referred to in Article 10(1)(a) that it proposes to adopt; and (b) provide interested persons and the other Party a reasonable opportunity to comment on such proposed measures.
3. Provision of Information
(a) On request of the other Party, a Party shall promptly provide information and respond to questions pertaining to any actual or proposed measure that the requesting Party considers might materially affect the operation of this Treaty or otherwise substantially affect its interests under this Treaty. (b) Any request or information under this paragraph shall be provided to the other Party through the relevant contact points. (c) Any information provided under this paragraph shall be without prejudice as to whether the measure is consistent with this Treaty.
4. Administrative Proceedings
With a view to administering in a consistent, impartial, and reasonable manner all measures referred to in Article 10(1)(a), each Party shall ensure that in its administrative proceedings applying such measures to particular covered investments or investors of the other Party in specific cases: (a) wherever possible, covered investments or investors of the other Party that are directly affected by a proceeding are provided reasonable notice, in accordance with domestic procedures, when a proceeding is initiated, including a description of the nature of the proceeding, a statement of the legal authority under which the proceeding is initiated, and a general description of any issues in controversy; (b) such persons are afforded a reasonable opportunity to present facts and arguments in support of their positions prior to any final administrative action, when time, the nature of the proceeding, and the public interest permit; and (c) its procedures are in accordance with domestic law.