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Grand River Enterprises Six Nations v. USA

Type of decisionAward
Date of decision12 January 2011
Tribunal
Fali Nariman (President)
James Anaya
John Crook
Legal instrumentNorth American Free Trade Agreement
Further information

Statements from this decision

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International Minimum Standard / The Law of Aliens
Customary international law may require governments to consult indigenous peoples as collective communities, but not as individual investors
Neither Article 1105 NAFTA nor customary international law generally prohibit discrimination against foreign investments
International Investment Treaties (IITs)
International Law Rules Applicable to IITs
Relationship of IITs to Other Sources of International Law
System of Precedents
Although not binding precedents, previous NAFTA awards are more relevant and appropriate on jurisdictional aspects than decisions in non-NAFTA cases
Law of Treaties
Rules of Interpretation
Special Rules of Interpretation
Terms should not be interpreted broadly or narrowly, but according to their plain meaning
Protection of Investors under IITs
Applicability of IITs
Ratione Materiae – Definition of Investment
The Concept of "Investment"
Claims to Money
Deposition of money into escrow accounts does not constitute an investment
Expropriation and Standards of Protection
Expropriation
General Requirements of an Expropriatory Act
Degree of Interference
Expropriation requires a very significant deprivation of an investment; it is not sufficient that the state action impaired only a limited portion of the value of an otherwise ongoing and profitable investment
Indirect Expropriation / Regulations
Determining Whether a Regulation Constitutes an Indirect Expropriation
Domestic law and international treaties cannot be sources of legitimate expectations if the rules in question are contested or unsettled
Reasonable expectations must be based on a representation or conduct by a state party; it is not decisive whether or not the investor is right on a contested legal proposition that would favour him or her
Fair and Equitable Treatment
Relationship to Public International Law
Article 1105 NAFTA does not incorporate legal protection provided under other sources of law
Character and Scope
Even if customary international law grants an investor a right, a violation of that right constitutes a breach of Article 1105 NAFTA only if that right is part of the minimum protection assured to all alien investors
National Treatment
Scope of Protection – Local and Foreign Investors in Like Circumstances
The fact that the same legal regime is applicable to both a domestic investor and the claimant is an indication of the investors or investments being in like circumstances
Most-Favoured-Nation Treatment (MFN)
General Remarks
The fact that the same legal regime is applicable to both a domestic investor and the claimant is an indication of the investors or investments being in like circumstances
Investment Treaty Arbitration
Jurisdiction
Interpreting Provisions Concerning Jurisdiction
A tribunal's limited jurisdiction influences the applicable law
Vienna Convention on the Law of Treaties
Article 31 - General rule of interpretation
Further Problems
Special Rules of Interpretation
Terms should not be interpreted broadly or narrowly, but according to their plain meaning
North American Free Trade Agreement
Article 102 – Objectives
"Take into account" does neither allow a tribunal to import into NAFTA legal elements from other treaties nor does it allow alteration of an interpretation established through the VCLT
Terms should not be interpreted broadly or narrowly, but according to their plain meaning
Chapter Eleven – Section A – Investment
Article 1101 – Scope and Coverage
Ratione materiae – Definition of Investment
An investment must be located in the territory of the same NAFTA party which issues the measure allegedly violating NAFTA and the investor must not have the nationality of this party
Deposition of money into escrow accounts does not constitute an investment
Article 1102 – National Treatment
Scope of Protection – Local and Foreign Investors in Like Circumstances
The fact that the same legal regime is applicable to both a domestic investor and the claimant is an indication of the investors or investments being in like circumstances
Article 1103 – Most-Favored-Nation Treatment
The fact that the same legal regime is applicable to both a domestic investor and the claimant is an indication of the investors or investments being in like circumstances
Article 1105 – Minimum Standard of Treatment
The Relationship of the Standard to Public International Law
Article 1105 NAFTA does not incorporate legal protection provided under other sources of law
Character and Scope of the Standard
Even if customary international law grants an investor a right, a violation of that right constitutes a breach of Article 1105 NAFTA only if that right is part of the minimum protection assured to all alien investors
Article 1105 NAFTA requires that the state measure affects the investment, not just the investor
Case Groups
Neither Article 1105 NAFTA nor customary international law generally prohibit discrimination against foreign investments
Article 1110 – Expropriation and Compensation
General Requirements of an Expropriatory Act
Degree of Interference
Expropriation requires a very significant deprivation of an investment; it is not sufficient that the state action impaired only a limited portion of the value of an otherwise ongoing and profitable investment
Indirect Expropriation / Regulations
Determining Whether a Regulation Constitutes an Indirect Expropriation
Domestic law and international treaties cannot be sources of legitimate expectations if the rules in question are contested or unsettled
Reasonable expectations must be based on a representation or conduct by a state party; it is not decisive whether or not the investor is right on a contested legal proposition that would favour him or her
Chapter Eleven – Section B – Settlement of Disputes between a Party and an Investor of Another Party
Article 1136 – Finality and Enforcement of an Award
Although not binding precedents, previous NAFTA awards are more relevant and appropriate on jurisdictional aspects than decisions in non-NAFTA cases
Chapter Eleven – Section C – Definitions
Definition of "affiliated enterprise", Article 1139(d) NAFTA
Deposition of money into escrow accounts does not constitute an investment
ICSID Convention
Arbitration (Articles 36-55)
Article 42
General Remarks
A tribunal's limited jurisdiction influences the applicable law

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