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Remarks by Jack J. Coe

Published online by Cambridge University Press:  28 February 2017

Jack J. Coe
Jack J. Coe*
Affiliation:
Pepperdine University School of Law
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Abstract

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Type
Fair and Equitable Treatment Under NAFTA’s Investment Chapter
Information
Proceedings of the ASIL Annual Meeting , Volume 96 , 2002 , pp. 17 - 19
Copyright
Copyright © American Society of International Law 2002

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References

1 NAFTA Free Trade Commission, Notes of Interpretation of Certain Chapter 11 Provisions (July 13, 2001), available at <http://www.dfait-maici.gc.ca/tna-nac/NAFTA-Interpr-e.asp> [hereinafter Notes].

2 North American Free Trade Agreement, Dec. 17, 1992, Can.-Mex.-U.S., art. 1105, 32 ILM 605 [hereinafter NAFTA].

3 Mann, F. A., British Treaties for the Promotion and Protection of Investments, 1981 Brit. Y.B. Int’l L. 241 Google Scholar, reprinted in F. A. Mann, Further Studies in International Law 234 (1981) [hereinafter Further Studies] .

4 Further Studies, supra note 2, at 237-38.

5 Id. at 238.

6 Id. at 247.

7 Id. at 238-39.

8 I am told that 2,000 is the informal working estimate used by the International Centre for Settlement of Investment Disputes (ICSID) secretariat.

9 Most of the texts I consulted are contained in the 7 volume series compiled by ICSID. See International Centre for Settlement of Investment Disputes, Investment Treaties (1992). The earliest Bit text examined was signed on November 25, 1959.

10 Organisation of Economic Co-operation and Development, Draft Convention on the Protection of Foreign Property, Oct. 12, 1967, Oecd Pub. No. 23081 (Nov. 1967), reprinted in 7 ILM 117 (1968).

11 Id. at 119.

12 Id. at 120.

13 I say “poised to” because I am not fully convinced that it has become customary. In suggesting that it would “enlarge” custom, I am also ignoring what may be the Interpretive Note’s premise.

14 See Panama-U.S. BIT Submittal Letter, reprinted in Kenneth J. Vandevelde, United States Investment Treaties Policy and Practice app. C-1 (1992).

15 Id. at 164; but see Statement of President Ronald Reagan, 19 Weekly Comp. Pres. Doc. 1216-18 (Sept. 9, 1983) (the United States “believes that direct investment abroad should . . . receive fair and equitable treatment. . . consistent with international law standards”).

16 Panama-U.S. Bit Submittal Letter, supra note 12, at 169.

17 See U.S. State Department Letter of Submittal of May 1, 2000 to the President accompanying Mozambique—U.S. Treaty Concerning the Encouragement and Reciprocal Protection of Investment, done December 1, 1998 [hereinafter U.S.-Mozambique Bit].

18 Metalclad Corp. v. United Mexican States, Award, ICSID Case No. ARB (AF)/97/1 (2000).

10 Georg Schwarzenberger, Foreign Investments in International Law 36, 114 (1969).

20 See, e.g., Peter T. Muchlinski, Multinational Enterprises and the Law 625-26 (1990).

21 See, e.g., Bit Mozambique-U.S, supra note 18, art. 1.3(a) (covered investments to be accorded “fair and equitable treatment and . . . shall in no case [be accorded] treatment less favorable than that required by international law”).

22 NAFTA, supra note 2 (emphasis added).

23 Draft Free Trade Agreement of the Americas, Chapter on Investment (July 3, 2001).

24 Maffezani v. Kingdom of Spain, Award, ICSID Case No. ARB/97/7.