Trade and Investment: A tale of two cities Diego Brian Gosis Gomm & Smith Miami, FL

“Article 4: Most-Favored-Nation Treatment. 1. Each Party shall accord to investors of the other Party treatment no less favorable than that it accords, in like circumstances, to investors of any non-Party with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments in its territory US Model BIT, §4.1.

Lowest Price!!! $10 $8 $6 $9 $7 How does MFN treatment protection operate?

FPS Standard in Argentine BITs: “legal protection” (BITs with Cuba, Croatia, Australia, Bolivia, Denmark, Ecuador, Egypt, Guatemala, Hungary, India, Indonesia, Jamaica, Lithuania, Malaysia, Mexico, Nicaragua, Poland, Portugal, Romania, Senegal, South Africa, Turkey, the Ukraine, Venezuela and Vietnam), “full protection” (BIT with Russia), “full protection and security” (BITs with Canada, Chile, Costa Rica, Israel, Thailand, Tunisia and the United States), “full legal protection and security” (BITs with Germany, Guatemala, Panama and Peru), “constant protection and security”(BITs with China, the Czech Republic and the United Kingdom), “full legal protection” (BIT with Philippines), “subject to the measures required for the maintenance of pubilc order, …constant security and protection” (BIT with Benelux) What treatment is most-favored-nation treatment?

When should MFN treatment be invoked? The situation under WTO-GATT The situation under investment law instruments [o]wing to the binding character of express promises and agreements, a wise and prudent Nation will carefully examine and maturely consider a treaty of commerce before concluding it, and will take care not to bind itself to anything contrary to its duties to itself and to others.” M. DE VATTEL, Le Droit de Gens ou Principles de la Loi Naturelle (1758), Book II, Chapter VIII, para.28

When should MFN treatment be invoked? (c’ed) MFN Treatment in the importation of goods “In its Decision on Jurisdiction, the Tribunal noted that Pakistan had not disputed that the BITs concluded by Pakistan with France, the Netherlands, China, the United Kingdom, Australia and Switzerland contained an explicit fair and equitable treatment clause. At the hearing, Bayindir further referred to the BITs between Pakistan and Lebanon, Sri Lanka and Denmark. The Respondent has not specifically disputed this reference, focusing instead on the applicability of the FET provision of the Pakistan-UK BIT.” Bayindir v Pakistan, Award of 27 August, 2009, para.163 MFN Treatment in investment case law

M ANY T HANKS ! D IEGO B RIAN G OSIS