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Loewen v. USA

Type of decisionDecision on hearing of Respondent's objection to competence and jurisdiction
Date of decision5 January 2001
Tribunal
Anthony Mason (President)
Abner J. Mikva
Yves Fortier
Legal instrumentNorth American Free Trade Agreement
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Statements from this decision

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The act of state doctrine is one of municipal law and cannot be regarded as a rule of international law
Important principles of international law should not be held to have been tacitly dispensed with by an international agreement
Important principles of international law should not be held to have been tacitly dispensed with by an international agreement
The principle of interpreting treaties in deference to the sovereignty of states does not apply
“Measures” in Chapter 11 of NAFTA does not exclude judicial acts per se; however, not every judicial act on part of the courts of a party constitutes such a measure
The rule of judicial finality does not differ from the exhaustion of local remedies rule
The standard of full protection and security extends to the protection of foreign investors from private parties when they act through the judicial organs of the State
The principle of interpreting treaties in deference to the sovereignty of states does not apply
NAFTA must be interpreted in light of the effective implementation of its objectives; the principle of interpreting treaties in deference to the sovereignty of states does not apply
The act of state doctrine has no relevance within Article 1101 NAFTA
While judicial acts are not excluded from the definition of “Measures” in Chapter 11 of NAFTA per se, not every judicial act on part of the courts of a party constitutes such a measure
Judgments of domestic courts in purely private disputes can constitute a measure within Chapter 11 of NAFTA
The standard of full protection and security extends to the protection of foreign investors from private parties when they act through the judicial organs of the State
Article 45 extends to objections regarding the jurisdiction, constitution, and composition of a tribunal

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