ZHANG Jiao

Review Definition on “investor” and “investment” National Treatment Most-Favored-Nation Treatment Fair and Equitable Treatment Expropriation

Cases S. D. Myers Pope & Talbot

Factual Background  May 29, 1996: Canada-US Softwood Lumber Agreement (SLA) Established Base, Lower Fee Base, Upper Fee Bas  March 25, 1996: Notice to Exporters No. 90 April 1, 1996, Export Control List, covered provinces (B.C., Alberta, Ontario and Quebec)  June 19, 1996: Notice to Exporters No. 92 until a system of allocation was designed and implemented (Sep. 30, 1996) – “first-come, first-served” basis  June 21, 1996: Softwood Lumber Products Export Permit Fees Regulations  June 21, 1996: Export Permit Regulations (Softwood Lumber Products)  October 31, 1996: Notice to Exporters No. 94 method of allocation, valid for one year at a time, flexible and responsive, different methods in different provinces for the calculation of the base.

Evolution Risk Market public insurers private insurers 1950s: ran by national governments (e.g. Agency for International Development, OPIG) 1970s: private insurers (e.g. Lloyd’s; American International Group) 1985: International actors - MIGA

MIGA Convention Chapter III Operations Art. 11: Covered Risks Art. 12: Eligible Investments Art. 13: Eligible Investors Art. 14: Eligible Host Countries Art. 15: Host Country Approval Art. 16: Terms and Conditions Art. 17: Payment of Claims Art. 18: Subrogation … …

Covered Risks Non- compliance with contracts Currency inconvertibility Restriction on currency transfer Direct and indirect expropriation Business interruption Risks of war Civil disturbance

Non-Covered Risks Non-discrimination measures of general application which governments normally take for the purpose of regulating economic activity in their territories; Projects that violate international environmental standards, create unreasonable health risks, or fail to respect human rights, in particular workers’ rights.

MIGA Convention Article 11: Covered Risks Covered: - Currency Transfer - Expropriation and similar measures - Breach of contract (have no recourse, unreasonable period of time, can not be enforced) - War and civil disturbance In addition: the Board by special majority, non-commercial risks, but in no case to the risk of devaluation or depreciation of currency. Shall not be covered: - the guarantee has agreed or for which he has been responsible; - occurring before the conclusion of the contract of guarantee.

“Subrogation” Government insurers - host countries Investor’s rights against the host country are assigned to the insurer upon payment under the insurance contract. BITs or specific agreement