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There is no abstract definition of what is fair and equitable; whether treatment was fair and equitable depends on the facts of the particular case
The compensation does not need to be paid at the exact same time as the taking; for the taking to be lawful, however, the obligation to compensate must be recognized by the state or an appropriate procedure for compensation must be provided
On assessing an act, which took place before the IIT entered into force, one must distinguish between an act of continuing character and an already completed act continuing to cause loss or damage
International law does not place emphasis on merely formal considerations
There is no principle of extensive or restrictive interpretation of jurisdictional provisions in IITs
Article 1122 NAFTA does not distinguish between jurisdiction and admissibility; there may, however, be a distinction between the conditions in Article 1122 NAFTA and other procedures referred to in Chapter 11
The phrase “in accordance with international law” does not necessarily refer to anything other than customary international law
The compensation need not be paid at the exact same time as the taking; for the taking to be lawful, however, the obligation to compensate must be recognized by the state or an appropriate procedure for compensation must be provided
Due to the detailed scheme laid down by Articles 1116 and 1117 NAFTA, there is no room for the application of rules of international law regarding the piercing of the corporate veil
- North American Free Trade Agreement > Chapter Eleven – Section B – Settlement of Disputes between a Party and an Investor of Another Party > Article 1116 – Claim by an Investor of a Party on Its Own Behalf > General Remarks
- North American Free Trade Agreement > Chapter Eleven – Section B – Settlement of Disputes between a Party and an Investor of Another Party > Article 1117 – Claim by an Investor of a Party on Behalf of an Enterprise
A tribunal should not allow recovery to be paid directly to an investor in a claim falsely brought under Article 1116 NAFTA instead of Article 1117 NAFTA
- North American Free Trade Agreement > Chapter Eleven – Section B – Settlement of Disputes between a Party and an Investor of Another Party > Article 1116 – Claim by an Investor of a Party on Its Own Behalf > General Remarks
- North American Free Trade Agreement > Chapter Eleven – Section B – Settlement of Disputes between a Party and an Investor of Another Party > Article 1117 – Claim by an Investor of a Party on Behalf of an Enterprise
For the time bar of Article 1116(2) and 1117(2) NAFTA, it is sufficient that the claimant knows that loss or damage occurred, even the extent of such is unclear
- North American Free Trade Agreement > Chapter Eleven – Section B – Settlement of Disputes between a Party and an Investor of Another Party > Article 1116 – Claim by an Investor of a Party on Its Own Behalf > Question of Time Bar
- North American Free Trade Agreement > Chapter Eleven – Section B – Settlement of Disputes between a Party and an Investor of Another Party > Article 1117 – Claim by an Investor of a Party on Behalf of an Enterprise
For the time bar of Article 1116(2) and 1117(2) NAFTA, the decisive point in time is the date the measure caused loss and damage; it does not matter at what date loss or damage was confirmed by a local court decision
- North American Free Trade Agreement > Chapter Eleven – Section B – Settlement of Disputes between a Party and an Investor of Another Party > Article 1116 – Claim by an Investor of a Party on Its Own Behalf > Question of Time Bar
- North American Free Trade Agreement > Chapter Eleven – Section B – Settlement of Disputes between a Party and an Investor of Another Party > Article 1117 – Claim by an Investor of a Party on Behalf of an Enterprise
Article 1105(1) NAFTA protects intangible property interests
The protection from denial of justice does not turn tribunals into courts of appeal for decisions of local courts
- International Investment Treaties (IITs) > Protection of Investors under IITs > Expropriation and Standards of Protection > Fair and Equitable Treatment > Case Groups > Denial of Justice
- North American Free Trade Agreement > Chapter Eleven – Section A – Investment > Article 1105 – Minimum Standard of Treatment > Case Groups
Test of a decision being arbitrary as a form of denial of justice
Immunity from suit for conduct of a public authority may amount to a breach of Article 1105(1) NAFTA
By its reference to “international law”, Article 1105(1) NAFTA incorporates the contemporary international customary law
A claimant does not need to maintain a continuing status as an investor under the law of the host state at the time the arbitration is commenced
On assessing an act which took place before the IIT entered into force, one distinguishes between an act of continuing character and an already completed act continuing to cause loss or damage
International law does not require the initiation of new proceedings where a mere procedural defect is involved
There is no principle of extensive or restrictive interpretation of jurisdictional provisions in treaties
Article 1122 NAFTA does not distinguish between jurisdiction and admissibility; however, there may be a distinction between the conditions in Article 1122 NAFTA and other procedures referred to in Chapter 11
International Law Rules Applicable to IITs
Relationship of IITs to Other Sources of International Law
Relationship of an IIT to Other Treaties
General Remarks
The phrase “in accordance with international law” does not necessarily refer to anything other than customary international law
Relationship of an IIT to General Principles of International Law
Further Problems
International law does not place emphasis on merely formal considerations
Protection of Investors under IITs
Applicability of IITs
Ratione Temporis – Application in Time
On assessing an act, which took place before the IIT entered into force, one must distinguish between an act of continuing character and an already completed act continuing to cause loss or damage
Expropriation and Standards of Protection
Expropriation
Legality of an Expropriation
The compensation does not need to be paid at the exact same time as the taking; for the taking to be lawful, however, the obligation to compensate must be recognized by the state or an appropriate procedure for compensation must be provided
Fair and Equitable Treatment
Character and Scope
There is no abstract definition of what is fair and equitable; whether treatment was fair and equitable depends on the facts of the particular case
Case Groups
Denial of Justice
The protection from denial of justice does not turn tribunals into courts of appeal for decisions of local courts
Distinction Between Jurisdiction and Admissibility
Article 1122 NAFTA does not distinguish between jurisdiction and admissibility; however, there may be a distinction between the conditions in Article 1122 NAFTA and other procedures referred to in Chapter 11
Jurisdiction
Interpreting Provisions Concerning Jurisdiction
There is no principle of extensive or restrictive interpretation of jurisdictional provisions in treaties
Admissibility
Further Problems
International law does not require the initiation of new proceedings where a mere procedural defect is involved
Chapter Eleven – Section A – Investment
Article 1101 – Scope and Coverage
Ratione temporis – Application in Time
A claimant does not need to maintain a continuing status as an investor under the law of the host state at the time the arbitration is commenced
On assessing an act which took place before the IIT entered into force, one distinguishes between an act of continuing character and an already completed act continuing to cause loss or damage
Article 1105 – Minimum Standard of Treatment
The Relationship of the Standard to Public International Law
By its reference to “international law”, Article 1105(1) NAFTA incorporates the contemporary international customary law
Character and Scope of the Standard
Article 1105(1) NAFTA protects intangible property interests
Case Groups
The protection from denial of justice does not turn tribunals into courts of appeal for decisions of local courts
Test of a decision being arbitrary as a form of denial of justice
Immunity from suit for conduct of a public authority may amount to a breach of Article 1105(1) NAFTA
Article 1110 – Expropriation and Compensation
Legality of an Expropriation
The compensation need not be paid at the exact same time as the taking; for the taking to be lawful, however, the obligation to compensate must be recognized by the state or an appropriate procedure for compensation must be provided
Chapter Eleven – Section B – Settlement of Disputes between a Party and an Investor of Another Party
Article 1116 – Claim by an Investor of a Party on Its Own Behalf
General Remarks
Due to the detailed scheme laid down by Articles 1116 and 1117 NAFTA, there is no room for the application of rules of international law regarding the piercing of the corporate veil
A tribunal should not allow recovery to be paid directly to an investor in a claim falsely brought under Article 1116 NAFTA instead of Article 1117 NAFTA
Question of Time Bar
For the time bar of Article 1116(2) and 1117(2) NAFTA, it is sufficient that the claimant knows that loss or damage occurred, even the extent of such is unclear
For the time bar of Article 1116(2) and 1117(2) NAFTA, the decisive point in time is the date the measure caused loss and damage; it does not matter at what date loss or damage was confirmed by a local court decision
Article 1117 – Claim by an Investor of a Party on Behalf of an Enterprise
Due to the detailed scheme laid down by Articles 1116 and 1117 NAFTA, there is no room for the application of rules of international law regarding the piercing of the corporate veil
A tribunal should not allow recovery to be paid directly to an investor in a claim falsely brought under Article 1116 NAFTA instead of Article 1117 NAFTA
For the time bar of Article 1116(2) and 1117(2) NAFTA, it is sufficient that the claimant knows that loss or damage occurred, even the extent of such is unclear
For the time bar of Article 1116(2) and 1117(2) NAFTA, the decisive point in time is the date the measure caused loss and damage; it does not matter at what date loss or damage was confirmed by a local court decision
Article 1122 – Consent to Arbitration
There is no principle of extensive or restrictive interpretation of jurisdictional provisions in IITs
Article 1122 NAFTA does not distinguish between jurisdiction and admissibility; there may, however, be a distinction between the conditions in Article 1122 NAFTA and other procedures referred to in Chapter 11