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ADF v. USA

Type of decisionAward
Date of decision9 January 2003
Tribunal
Florentino P. Feliciano (President)
Armand Demestral
Carolyn B. Lamm
Legal instrumentNorth American Free Trade Agreement
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Statements from this decision

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Customary international law does not require a state measure to be “egregious” in order to constitute an international delinquency
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
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
A state's measure being ultra vires under national law does not necessarily amount to a violation of the fair and equitable treatment-standard
The protection from denial of justice does not turn tribunals into courts of appeal for decisions of local courts
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
A "buy national" requirement does not constitute a de jure discrimination against a foreign investor in general
Provisions of one chapter of the NAFTA need to be read in the context of the entire structure of the NAFTA
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
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
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
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
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
A "buy national" requirement does not constitute a de jure discrimination against a foreign investor in general
Article 1104 NAFTA does not require the investor to prove a breach of both Article 1102 and 1103
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
A state's measure being ultra vires under national law does not necessarily amount to a violation of the fair and equitable treatment-standard
"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
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
The procedures set out in the NAFTA do not delimit the consent by the state party or the investor
The procedures set out in the NAFTA do not delimit the consent by the state party or the investor
It is not for a tribunal to decide whether an interpretation by the FTC is in fact an amendment
It is not for a tribunal to decide whether an interpretation by the FTC is in fact an amendment

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