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Remarks by Emi Nagaoka

Published online by Cambridge University Press:  22 March 2019

Emi Nagaoka*
Affiliation:
Baba & Sawada.

Extract

When it comes to the investment agreement (IA) between Japan and the EU or the EU member states, which means not only the investment part of the JEEPA but also the new investment treaty that would be concluded in the future, it is not considered that Japan and the EU have reached agreement without the absolute standards of treatment (e.g. FET and expropriation). Indeed, the text of the investment part of the JEEPA presented on the European Commission's website, which has not been legally verified yet as of today (April 5, 2018), has not stipulated said absolute standards, and such investment part is even titled as “Investment Liberalization” implying that only the non-discrimination provisions are provided. However, from the viewpoint of promoting investment as well as protecting the investors in the other countries, the level of liberalizing investment should not be decreased nor should the coverage of the standard or treatment be limited. In particular, FET is the most important standard of treatment for investors and most of them have relied on FET as their legal basis where they submit claims in the ISDS procedure. It is apparent that most countries also take the absolute standards important and necessary and the recent IAs including the CPTPP containing the absolute standards are considered to comply with such countries’ perspective.

Type
The Once and Future Law of Non-Discrimination: Revisiting Most Favored Nation and National Treatment
Copyright
Copyright © by The American Society of International Law 2019 

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References

2 According to the text of the JEEPA (“Agreement Between the European Union and Japan for an Economic Partnership”) on the European Commission's website as of April 18, 2018, the investment part of that agreement is provided in Section B Investment liberalization of Chapter 8 Trade in Services, Investment Liberalisation and Electronic Commerce, available at https://eur-lex.europa.eu/resource.html?uri=cellar:cf1c4c42-4321-11e8-a9f4-01aa75ed71a1.0001.02/DOC_2&format=PDF#page=186.