- •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
In the Notes of Interpretation of Certain Chapter Eleven Provisions issued by the Free Trade Commission on 31 July 2001, the Commission declared that:
Nothing in NAFTA imposes a general duty of confidentiality on the disputing parties to a Chapter Eleven arbitration and nothing in NAFTA precludes the Parties from providing public access to documents submitted to, or issued by, a Chapter Eleven tribunal. 71
The Notes of Interpretation also required NAFTA parties to make all documents publicly available ‘in a timely manner’, subject to certain protections for confidential business and State information. 72 On 16 July 2004, the Free Trade Commission once again recognized the public's interest in negotiating texts of NAFTA and agreed to make them available through its websites. 73 In recent Chapter 11 cases such as Methanex74
end p.743
and UPS , 75 the disputing parties agreed to make all documents publicly available subject to the protection of confidential business information.
NAFTA parties have also taken unilateral actions to ensure access to documents. The USA has maintained that a Chapter 11 tribunal cannot insulate any documents otherwise obtainable through the US Freedom of Information Act (‘FOIA’), the major US law on public access to information. 76 In Loewen Group, Inc and Raymond L Loewen v United States , 77 the USA requested that the tribunal treat all filings as open and available to the public. 78 Loewen argued that the documents should all be made publicly available, but not until after the matter was concluded. 79 As discussed further below, the tribunal rejected Loewen's assertion that each disputing party has a presumed general obligation of confidentiality, but ruled that the tribunal did not have the authority to publish documents without the consent of both parties. 80 The Tribunal declared, though, that its decision did not affect or qualify either party's statutory obligations of disclosure. 81 As a result, the USA gradually released Loewen documents
end p.744
pursuant to the FOIA. 82 Canada has also consistently released Chapter 11 documents. Although Mexico has not committed to the publication of documents, in practice it has thus far made documents available.
Public Hearings
Article 1128 allows NAFTA Parties that are not disputing parties to make submissions to a tribunal on a question of interpretation of NAFTA, but NAFTA is silent on whether NAFTA Parties may observe hearings in cases in which they are not disputing parties. In practice, NAFTA parties may, and often do, observe hearings in which they are not disputing parties. This practice is viewed as implicit in, and thus a natural outgrowth of, Article 1128 because without a Party's access to the dispute's hearings, it would not be possible for the Party to know what interpretive issues are at play, and thus they could not make a submission on a question of interpretation.
NAFTA and the Free Trade Commission are also silent on the issue of public access to arbitration hearings. So far, hearings have been open to the public only with the consent of both disputing parties. 83 Tribunals have hesitated to open hearings without consent and have typically denied such requests. 84 There is a trend, however, towards opening hearings to the public. For example, with respect to future free trade agreements, the US Trade Act of 2002 provides that ‘all hearings [should be] open to the public’ during investment arbitrations. 85 The USA and Canada have taken unilateral actions to promote open hearings. In the Statement of Canada on Open Hearings in NAFTA Chapter Eleven Arbitration made on 7 October 2003, Canada declared:
Canada affirms that it will consent, and will request the consent of disputing investors and, as applicable, tribunals, that hearings in Chapter Eleven disputes to which it is a party be open for the public, except to ensure the protection of confidential information, including business confidential information. 86
The USA made an identical commitment in its Statement on Open Hearings in NAFTA Chapter Eleven Arbitrations. 87 Furthermore, in 2004, Mexico decided
end p.745
to join Canada and the USA in supporting open hearings for investor-state disputes. 88
By the end of 2004, three NAFTA tribunals had allowed open hearings: UPS , Methanex , and Canfor v United States . 89 In UPS, the disputing parties set a precedent by becoming the first Chapter 11 parties to allow public access to a hearing. The parties agreed to allow access to a hearing on jurisdiction that took place from 29 to 31 July 2002 through a live closed-circuit broadcast. 90 The Methanex case was also ground-breaking in allowing increased transparency and non-disputing party participation in Chapter 11 arbitration. Public hearings through live closed-circuit broadcast were held at the World Bank from 7 to 17 June 2004 after consent by the Methanex parties. 91 Afterwards, public hearings were broadcast live through closed-circuit television in the Canfor case from 7 to 9 December 2004. ICSID's experience has proven that allowing the public access to investment arbitral hearings was possible at low cost and without interfering with the hearing or causing any other problems, although ICSID was uncertain about how many people would seek access. In reviewing this format for public hearings, NGOs such as the Center for International Environmental Law considered it to be a highly successful means of promoting transparency and non-disputing party participation. 92
(iii) Ability to Provide Input to the Tribunal
There has also been a trend towards allowing public participation in Chapter 11 arbitrations. Article 1133 of NAFTA allows a tribunal on its own initiative to appoint experts to report on factual issues, 93 but there is no provision on whether and in what circumstances a tribunal may accept submissions by non-disputing parties. However, the Free Trade Commission has addressed some of these issues, as discussed below.
Written Submissions
The Free Trade Commission addressed the issue of written submissions in its Statement on Non-Disputing Party Participation issued on 7 October 2003. The
end p.746
Commission declared that no NAFTA provision limits a tribunal's discretion to accept written submissions from a non-disputing person or entity. 94 Furthermore, the Commission recommended a procedure for accepting written submissions. To apply to make a submission, the non-disputing party must be ‘a person of a [NAFTA] Party … that has a significant presence in the territory of a Party’. 95 The applicant must apply for leave from the tribunal to file a written submission. 96 The application must:
(a) be made in writing, dated and signed by the person filing the application, and include the address and other contact details of the applicant;
(b) be no longer than 5 typed pages;
(c) describe the applicant, including, where relevant, its membership and legal status (e.g. company, trade association or other non-governmental organization), its general objectives, the nature of its activities, and any parent organization (including any organization that directly or indirectly controls the applicant);
(d) disclose whether or not the applicant has any affiliation, direct or indirect, with any disputing party;
(e) identify any government, person or organization that has provided any financial or other assistance in preparing the submission;
(f) specify the nature of the interest that the applicant has in the arbitration;
(g) identify the specific issues of fact or law in the arbitration that the applicant has addressed in its written submission;
(h) explain, by reference to the factors specified in paragraph 6 [quoted below], why the Tribunal should accept the submission; and
(i) be made in a language of the arbitration. 97
The applicant must serve the application and submission on all disputing parties, which are then given an appropriate period of time by the tribunal to comment. 98 The submission filed by a non-disputing party must:
(a) be dated and signed by the person filing the submission;
(b) be concise, and in no case longer than 20 typed pages, including any appendices;
(c) set out a precise statement supporting the applicant's position on the issues; and
(d) only address matters within the scope of the dispute. 99
end p.747