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The answer is that obligations like fair and equitable treatment and protection against expropriation have generally been designed in the investment regime to allow foreign investors better treatment than domestic firms-so, for example, some countries may offer only very limited compensation to firms that are nationalized, whether domestic or foreign. To the extent that the expropriation clause is an absolute obligation not qualified by National Treatment, the host state would have to give full-market value compensation to the foreign investor even if its domestic law has a lower quantum, and even though domestic investors would have no way of invoking the treaty to get the higher amount.
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This history is very interesting. I wasn't aware of it. I don't know of any agreement where the US actually got the parties to agree to a clause that effectively capped or limited the rights of investors of other parties in the US to what domestic US investors are entitled to under US law. Do you? I wonder whether the State Department etc. basically buried this "objective", being aware of the Calvo Doctrine legacy...Anyhow, now it has been revived very explicitly by the Trump Administration.
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Dear Simon, I don't think we understand things differently. That's exactly the Calvo Doctrine (with respect to substantive protections). Developed countries, above all the US, insisted that, e.g. protection against expropriation be an absolute international law standard and with the Calvo Doctrine certain other countries pushed back, saying we will provide protection but on a non-discriminatory basis, i.e. no more than we provide domestic economic actors under our internal law. So let's say now the Administration demands of Mexico and Canada a clause that says: "with respect to protection against expropriation, the standard of protection shall be no greater than provided under US constitutional, administrative and property laws, as interpreted by the United States Supreme Court." Well, why wouldn't Canada or Mexico shoot back: we want a similar clause, that limits the protection we give to investors from other NAFTA parties to what is provided under our own domestic law to domestic investors? So fine. Isn't the logical answer to leave matters simply at National Treatment with respect to protection against expropriation?
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I am not sure that anything is "far-fetched" with respect to the Trump Administration. But you raise implicitly a good question about how seriously they will pursue any of the objectives in question, or to what extent are they for the consumption of Congress, the media, the public. What I don't understand is your comment about indirect expropriation/regulatory takings. There is always a benchmark for non-discrimination, which is the domestic constitutional and administrative law framework and how it provides, and if, for compensation of private economic actors in circumstances where they suffer a significant negative economic impact from regulatory change.
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Thanks, Federico. That this language is there and that there are square brackets around it indicates an agreement to disagree of sorts-at least for now. Or maybe just the absence of legal scrubbing. But well worth pondering. Sent from my iPhone
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The fact is that that where an important element was missing from the chapter, namely dispute settlement, the parties and particularly the EU felt the need to explain its absence and indicate that negotiations would continue. Commissioner Malmstrom could easily have said that not only dispute settlement but FET and expropriation would be subjects of agreement at a later date. Yet she explicitly singled out dispute settlement alone as the matter in the investment chapter that would be decided after further negotiations. In my experience, Cecilia Malmstrom is a direct, open and precise person. Given the rather conspicuous absence of FET and expropriation, she would naturally said something if the intent was to nail them down later, just as she did do with respect to dispute settlement. The fact is that we have an agreed text without FET and expropriation and without dispute settlement, with an understanding that the last item is to be dealt with in the future negotiations. That is the objective record, and that record fully supports my interpretation.
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I don't see any evidence for your position. Commissioner Malmstrom has indicated that the issue that remains unsettled with respect to investment is dispute settlement. FET and expropriation are norms that have been highly developed without any linkage to dispute settlement, for example in CETA and TPP. I just don't get the hypothesis that dispute settlement would have to be nailed down to settle FET and expropriation. Publishing a text on investment as agreed. Stern the parties and an integral element in the political agreement is a big step-leaving out FET and expropriation in such circumstances without some explanation of a disagreement between the parties shows something happening. In any case as Aaron Cosbey has exactly grasped in response to my post the possibility that a liberalization model with robust policy exceptions could be a new paradigm and open up a multilateral path is the bigger point of my post. As for the choice of "fumbling" it's merely a riff on an old song by my fellow Canadian Sarah McLachlan. Sent from my iPhone
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The requirements at issue apply to all tuna for which the dolphin-safe label applies. I don't see why it's (US's) "environment" would not include the marine life in question. US consumers would be shocked and disappointed if the label only allowed them to protect non-US dolphins.
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This is exactly why applying the elements of text,object,purpose,context in the VCLT is a holistic exercise. There can be instances where the text itself states or discloses one purpose or object that is beyond normative controversy. In such cases it is not that the treaty interpreter is closing off consideration of the other elements on account of being satisfied by the plain meaning of the words without any theory as to object and purpose, it is that the words themselves provide a sufficiently unambiguous guide to purpose. When we turn to how the AB interprets procedural type conditions, such as specificity in the request for a panel, the AB has interpreted in a flexible way, emphasizing the underlying purpose of putting the other party on notice of the nature of the case against it, i.e. fairness, equality between the parties.
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Agree text is starting point but it depends on what starting point means: I take it to mean that the inquiry into object purpose and context are oriented by the words, but not that the words have a self-evident or dictionary meaning and that object purpose and context only get considered when the self-evident or dictionary meaning is somehow obscure or indeterminate or not satisfactory given the legal question.
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That isn't a correct reading of VCLT 31 (1). Text, object and purpose are to be considered together, holistically. Your approach is one that appeared in early WTO AB decisions but was later corrected, and certainly not one taken in ICJ, the ad hoc international criminal tribunals, or international human rights tribunals. George Abi-Saab has written instructively about this. As has Joseph Weiler.
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1. US statements in DSB meeting arguably suffice for notice, if one reads the notice provision in a teleogical way; 2) I believe there was some kind of formal notice by the US re bringing an Article 20 NAFTA proceeding, even though it was not pursued to the next steps, given that the outcome of WTO litigation was pending. I will check with someone who was at USTR at the time3) fact that US did not object to jurisdiction before the panel does not mean that is estopped from arguing that it was an illegal act of Mexico that led to the panel assuming jurisdiction, however properly under WTO rules.
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Your view that an available remedy for Mexico for the US blocking of an Article XX tribunal in Sugar was to repudiate its clear obligation under NAFTA to adjudicate an environmental/animal health and welfare dispute exclusively in NAFTA is astonishing: what is its basis for that view in the law of the NAFTA or more generally the international law of state responsibility?
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Is there not a negotiated settlement between Mexico and the US on sugar?
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Then the US would have exhausted its obligation to seek recourse for settlement of the dispute through those procedures and could at that point take countermeasures against Mexico under general international law principles, withdrawing concessions under NAFTA up to the WTO MFN-bound rate.
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I don't think that Mexico would get that far arguing that from the difficulties in Sugar that the US had basically repudiated its obligations with respect to Ch. 20 panels and thus as a remedy Mexico was free to ignore its own obligations under 20 with respect to choice of forum. If Mexico really thought that the US was blocking panels systematically, Mexico could and should have raised this in the NAFTA Free Trade Commission, pursuant to NAFTA 2001 (2) (e).
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An interesting thought. My recollection of the DSU meeting minutes where the US challenged Mexico about bringing the case to the WTO was that Mexico did not raise that consideration. In the case of US-Tuna, I have seen no evidence that Mexico even attempted to use NAFTA proceedings or that any effort at having a NAFTA panel was blocked.
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I was not opining on contract law generally but rather describing the theory of consent that has developed with respect to investor-state arbitration under treaties.
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Sorry, I left a detail out of my blog-it was already getting long-that is important in relation to your observations. Valasek's hours were very heavy late in the case, when one would Imagine the exercise of formulating and drafting the award to be occuring. This is made clear in van den Berg's pleading. Valasek doesn't appear to have been that much involved til then. I have no precise basis for comparing Valasek's level of legal acumen to that of SCOTUS clerks. I was assuming for purposes of argument that it would be equal. Given who those clerks are, this is very flattering to Mr. Valasek, and along the lines you suggest he may well be worthy of it.
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Thanks for this helpful comment. I'm currently drafting a paper about the design of a multilateral investment court and trying to think of how domestic law should be treated by that court. The reason I don't think Bilcon is a good example of a difficult case is that in Bilcon there was discrimination/politically motivated conduct outside the normal process of interpretation and application of the law. (Disclosure: I consulted to investor's counsel in that case). One difficult case might be where different domestic courts or tribunals have come to varying conclusions on the meaning of the law but no court of last resort has resolved those differences. I have a couple of institutional ideas about how a world investment court could be handled to deal with that kind of situation. A cruder more old-fashioned alternative is as India has done to go back to some version of exhaustion of domestic remedies (which of course you don't have in NAFTA and many other investment agreements). However, if we can't get a better institutional design in a world court for investment, maybe we need to go back to exhaustion of domestic remedies.
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I think probably the host state could block for some time the appointment and even if appointed the operation of the tribunal. Given the sensitvity and legitimacy woes of ISDS these days I'm very doubtful that in these circumstances an appointing authority and/or arbitral facility would stick its neck out to try to get a tribunal up and running in the face of the total non cooperation of the host state, based on the absence of a perfected offer to arbitrate.
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There is also a suggestion by the Appellate Body of the WTO in Hormones I that general principles of law of civilized nations could include some international norms not just ones directly drawn from municipal law systems (see discussion of precautionary principle in that judgment) The Appellate Body also thought that custom and general principles in that sense could overlap. But what the Exxon annulment committee is trying to do is to exclude custom and perhaps also conventional intl law as sources for general principles of international law. As i explain that is a totally unwarranted reading of the expression, probably aimed at shutting down the invocation of human rights in investment arbitration.
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I disagree. The offer to the investor has a different legal effect than the promise to the other state to continue to offer. The later simply invokes the international responsibility of the state to the other state not the remedy that an arbitral tribunal can be constituted without an agreement to arbitrate. In any case should there be any attempt to constitute such a tribunal the host state could and should consider the measures I suggest in my early post such as non cooperation with the tribunal including no payment of fees, and if necessary making it an offense to participate in such a tribunal under domestic penal law. Sent from my iPhone
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Federico, thanks for your response. Take a look again at my post. You are right that in most cases the investment treaty would have to be interpreted so as to create an obligation under the treaty-from one state to the other-to provide a continuing offer (to those who are investors within the meaning of the treaty) to arbitrate. But the jurisdiction of the arbitral tribunal must be based also on an agreement between the potential parties to arbitration. A treaty does not establish such agreement because it is only an inter-state agreement. Thus, to understand how such an agreement exists, we must characterize the arbitration clause in the treaty as an offer to investors to arbitrate which the individual investor accepts by signalling an intent to go to arbitration, typically by filing a notice. If a state withdraws the offer to arbitrate before such acceptance there can be no such agreement and therefore no basis for the jurisdiction of an arbitral tribunal. BUT, and this is where you are right, usually by withdrawing the offer, the state in question (as I do explain in the post) will be in breach of its obligation to the other state(s) parties to the treaty to continue to offer to arbitrate. If the other state is not also moving to the multilateral court and itself withdrawing consent, then it may object to the withdrawal by the state that is moving to the multilateral court. This objection could result in an eventual denunciation or renegotiation of the treaty, or state-to-state dispute settlement in some relevant forum. While provisions on state-to-state dispute settlement vary from treaty to treaty, I doubt that the outcome of such dispute settlement could be the kind of specific performance that would directly empower an arbitral tribunal. So you see, what I am NOT saying is that, as a general matter, a state could withdraw consent to arbitrate WITHOUT creating a breach in its obligation to the other state under the treaty. It is just that the fact of the breach of state-to-state obligations doesn't make the withdrawal of consent ineffective in shutting down the possibility of an investor going to an arbitral tribunal.
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Great. Please do. I would love to see. Best, Rob Sent from my iPhone
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