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Todd Weiler
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Fundamentally, I think the rule of international law is not particularly well-served by the culture of 'treaty tinkering' in which we now find ourselves (which appears to include the maxim that all changes are, as if by divine fiat, "improvements"). Adjudication is a necessary component of the process of dispute resolution and -- invoking the trite but oh-so-compelling maxim: "if it ain't broke, don't fix it" -- I haven't seen a flood of decisions in favour of either side that warrant any "improvements" to the existing provision.
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Hi Mona. I don't think you're taking your own conclusions seriously enough when you suggest that a NAFTA 2.0 FET provision could be excluded from arbitration at the initiation of investors. Yes, the FET provision was a gap-filler. Yes, it was expected that specific disputes would be resolved through adjudication and negotiation. So far, we're on the same page. There's nothing about either of these statements that ought to compel somebody to conclude that FET should be excluded from arbitration at the initiation of investors. Why not exclude any other provision? In every single case (i.e. as regards every other provision), very much the same thing could be said: " it was expected that specific disputes would be resolved through adjudication and negotiation." The closest you seem to come to a reason for such exclusion is your indeterminacy argument, but in suggesting the CETA approach (in which FET is accompanied by an illustrative list denominating the general scope of the obligation) you exhaust it. That's not to say that I find the indeterminacy argument particularly compelling, because I think it applies to the interpretation of virtually all treaty provisions, which is precisely why we have the lis inter partes model of adjudication (whether State-to-State or Investor-State).
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One must be careful not to confuse the details of the case with the ratio of the decision, Simon. The Tribunal correctly states that its task is to determine whether the individual investment enterprise received treatment no less favourable in like circumstances. As it turns out, not only did the investment enterprise receive less favourable treatment; every US-owned investment enterprise in the market received the same, less favourable treatment. To save itself from having to delve too deeply into implicit balancing test (which forms part of the analysis since there is no general exception provision), the Tribunal took pains to stress that the evidence was overwhelming that the less favourable treatment it had observed could not be explained by recourse to some non-discriminatory public policy objective, ostensibly purported for the measure. Of course it may well be that our old friend, Don, may have suggested that language to the President (keeping in mind that it is traditional in international commercial arbitration for the arbitrators to reach consensus on a result and have the President write the award). He's spent more years in the trenches of international trade law than many young lawyers have spent breathing. In the same vain, the two of you (i.e Simon and Sungjoon) are born and bread trade wonks. You see those magic words in an investment treaty award and the first thing that comes to your beautiful minds is "Malt Beverages." If we accept that there is a jurisprudence constante of international investment law, then we must also import the tools of that trade, which includes accepting that obiter dictum, while certainly fun, is not necessarily indicative of evolving doctrine. T
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