1. ZHANG Jiao 17 March 2015

2.  Preliminary study and rationale - background - problem statement and focus  Research question(s)  Literature review  Research design, methodology, limitations  Provisional chapter layout  Expected goals and impacts  Bibliography

3. Standards of Treatment NTMFNFET

4. National Treatment Most-Favored- Nation Treatment Non- discrimination Fair and Equitable Treatment Full Protection and Security Protection for Aliens Minimum standard of protection Comparative Absolute

5. Comparative test ‘like circumstances’ ‘exceptions’

6.  Article 15.5, US-Singapore FTA: 1. Each Party shall accord to covered investments treatment in accordance with customary international law, including fair and equitable treatment and full protection and security. 2. For great certainty, paragraph 1 prescribes the customary international law minimum standard of treatment of aliens as the minimum standard of treatment to be afforded to covered investments. The concepts of ‘fair and equitable treatment’ and ‘full protection and security’ do not require treatment in addition to or beyond that which is required by that standard, and do not create additional substantive rights. (a) The obligation in paragraph 1 to provide ‘fair and equitable treatment’ includes the obligation not to deny justice in criminal, civil, or administrative adjudicatory proceedings in accordance with the principle of due process embodied in the principle legal systems of the world; and (b) The obligation in paragraph 1 to provide ‘full protection and security’ requires each Party to provide the level of police protection required under customary international law.

7.  Absolute, Unconditional  Full protection and security? Minimum standard of protection?  Elements: good faith (bona fide), legitimate expectation, due process, stability of the legal and business framework …  No less than that required by international law (e.g.: US, UK model BIT)  No less than NT and MFN (e.g.: previous Switzerland model BIT)  General principle of international law (e.g.: France BITs)  Function: flexible interpretation  Three views: a part of minimum standard of protection; consider all sources of international law; independent standard.

8.  Professor FA Mann: … it is submitted that the right to fair and equitable treatment goes much further than the right to most-favored-nation and to national treatment … so general a provision is likely to be almost sufficient to cover all conceivable cases, and it may well be that provisions of the Agreements affording substantive protection are not more than examples of specific instances of this overriding duty.  Professor Weil: the standard of “fair and equitable treatment” is certainly no less operative than was the standard of “due process of law”, and it will be for future practice, jurisprudence and commentary to impact specific content to it.

9.  Canada Model BIT  US Model BIT

10.  Early Cases: - Pope & Talbot, Inc. v. The Government of Canada - S.D. Myers, Inc. v. Canada - Metalclad corp. v. United Mexican States  Notes of Interpretation of Certain Chapter 11 Provision 2 (2001)  Article 1105(1) prescribes the customary international law minimum standard of treatment of aliens as the minimum standard of treatment to be afforded to investments of investors of another Party.  The concepts of "fair and equitable treatment" and "full protection and security" do not require treatment in addition to or beyond that which is required by the customary international law minimum standard of treatment of aliens.  A determination that there has been a breach of another provision of the NAFTA, or of a separate international agreement, does not establish that there has been a breach of Article 1105(1).

11.  ADF Group v US ‘must be disciplined by being based upon State practice and judicial or arbitral case law or other sources of customary or general international law’  Waste Management ‘Taken together, the S.D. Myers, Mondev, ADF and Loewen cases suggest that the minimum standard of treatment of fair and equitable treatment is infringed by conduct attributable to the State and harmful to the claimant if the conduct is arbitrary, grossly unfair, unjust or idiosyncratic, is discriminatory and exposes the claimant to sectional or racial prejudice, or involves a lack of due process leading to an outcome which offends judicial propriety …’

12.  Stable, predictable legal and commercial environment: LG&E Capital Corp. LG&E International Inc. v. Argentine Republic; CMS Gas Transmission Company v. The Argentine Republic; MTD Equity Sdn. and MTD Chile S.A. v. Republic of Chile;  Legitimate expectations: Tecnicas Medioambientables Tecmed S.S. v. The United Mexican States;  not necessary to be bad faith;  responsibility to compensate: Azurix Corp. V. The Argentine Republic; LG&E Capital Corp. LG&E International Inc. v. Argentine Republic; CMC Gas Transmission Company v. The Argentine Republic.

13.  Article X, Energy Charter Treaty (ECT) (1)Each Contracting Party shall, in accordance with the provisions of this Treaty, encourage and create stable, equitable, favourable and transparent conditions for investors of other Contracting Parties to make Investments in its Area. Such conditions shall include a commitment to accord at all times to Investments of Investors of other Contracting Parties fair and equitable treatment. Such Investments shall also enjoy the most constant protection and security and no Contracting Party shall in any way impair by unreasonable or discriminatory measures their management, maintenance, use, enjoyment or disposal. In no case shall such Investments be accorded treatment less favourable than that required by international law, including treaty obligations. Each Contracting Party shall observe any obligations it has entered into with an Investor or an Investment of an Investor of any other Contracting Party. (3) For the purpose of this Article, ‘Treatment’ means treatment accorded by a Contracting Party which is no less favourable than that which it accords to its own Investors or to Investors of any other Contracting Party or any third state, whichever is the most favourable… (7) Each Contracting Party shall accord to Investments in its Area of Investors of other Contracting Parties, and their related activities including management, maintenance, use, enjoyment or disposal, treatment no less favourable than that which it accords to Investments of its own Investors or of the Investors of any other Contracting Party or any third state and their related activities including management, maintenance, use, enjoyment or disposal, whichever is the most favourable.

14.  Chinese Model BIT:  Article 3 1. Investments and activities associated with investments of investors of either Contracting Party shall be accorded fair and equitable treatment and shall enjoy protection in the territory of the other Contracting Party. 2. The treatment and protection referred to in Paragraph 1 of this Article shall not be less favorable than that accorded to investments and activities associated with such investments of investors of a third State. 3. The treatment and protection as mentioned in Paragraphs 1 and 2 of this Article shall not include any preferential treatment accorded by the other Contracting Party to investments of investors of a third State based on customs union, free trade zone, economic union, agreement relating to avoidance of double taxation or for facilitating frontier trade.

15.  Vienna Convention on the Law of Treaties 1969, Article 31 – General rule of interpretation 1. in good faith in accordance with the ordinary meaning … context and in the light of its object and purpose; 2. relevant agreement or instrument, including preamble and annexes; 3. subsequent agreement regarding the interpretation + subsequent practice in the application + any relevant rules of international law applicable in the relations between the parties; 4. special meaning, if intended.

16.  Article 3.1: FET Interpretation: - context? (other provisions of the treaty, Preamble) - object and purpose? Determination: - foreign investor’s expectations: justified and reasonable? - host State’s legitimate right to regulate domestic matters in the public interest?

17.  Background: S.D.Myers, Inc., an Ohio corporation that processes and dispose of PCB waste, filed claims against Canada under the UNCITRAL Rules on October 30, 1998 for alleged violations of NAFTA Articles 1102 (NT), 1105 (Minimum Standard of Treatment), 1106 (Performance Requirements), and 1110 (expropriation and compensation) arising out of Canada’s ban on the export of PCB wastes from Canada to the US in late 1995. S.D. Myers claims that, as a result of the ban, it “suffered economic harm to its investment through interference with its operations, lost contracts and opportunities in Canada.”  The factual background: - Regulatory and policy background? - other factual background? Evidences?

18.  Stare Decisis in investment dispute settlement (esp. on standards of treatment) ?  What constitutes FET ?  Overlap among provisions, FET & minimum standard of treatment & customary international law & treatment of aliens ? FET & substantive provisions on expropriation ?  FET & the autonomous right of a state to regulate in the interests of domestic public policy ?

19.  Customary international law (esp. in international investment law)  Cases on standards of treatment  Trade and investment (including ‘exceptions’ in investment protection)