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The Evolution of Indirect Expropriation Clauses: Lessons from Singapore’s BITs/FTAs

Published online by Cambridge University Press:  17 August 2016

Yvette ANTHONY
Yvette ANTHONY*
Affiliation:
Clifford Chance, Singaporeyvette.anthony@cliffordchance.com
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Abstract

This paper examines the evolution of expropriation provisions contained in Singapore’s bilateral investment treaties and free trade agreements from the 1970s until now. It will be seen that whilst earlier treaties contained skeletal expropriation provisions, the later treaties have sought to guide the exercise of tribunals’ discretion by providing a non-exhaustive list of factors to be taken into account when indirect expropriation is alleged. The consequences of this evolution in Singapore’s treaty-making practice are considered in the light of customary international law. The paper postulates a framework for analyzing Singapore’s treaty practice and this author concludes by submitting that the later treaties arguably go one step further in limiting the scope of indirect expropriation.

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Articles
Information
Asian Journal of International Law , Volume 7 , Issue 2 , July 2017 , pp. 319 - 336
Copyright
© Asian Journal of International Law 2016 

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Footnotes

*

Advocate and Solicitor (Singapore). Senior Associate, Clifford Chance; LLB (Hons) (NUS). The views stated in this paper are expressed in the author’s personal capacity. For their valuable insight and comments on earlier drafts, the author thanks, in particular, Mr J. Christopher Thomas QC, Associate Professor Mark Feldman, and Mr Emmanuel Duncan Chua. All errors are the author’s.

References

1. The list of ICSID cases alone involving countries in the region is as follows: Churchill Mining & Planet Mining Pty Ltd v. Republic of Indonesia (ICSID Case No. ARB/12/14 and 12/40); Baggerwerken Decloedt En Zoon NV v. Republic of the Philippines (ICSID Case No. ARB/11/27); Ekran Berhad v. People’s Republic of China (ICSID Case No. ARB/11/15); Lighthouse Corporation Pty Ltd and Lighthouse Corporation Ltd, IBC v. Democratic Republic of Timor-Leste (ICSID Case No. ARB/15/2); Ansung Housing Co. Ltd. v. People’s Republic of China (ICSID Case No. ARB/14/25); Nusa Tenggara Partnership B.V. & PT Newmont Nusa Tenggara v. Republic of Indonesia (ICSID Case No.ARB/14/15); PNG Sustainable Development Program Ltd. v. Independent State of Papua New Guinea (ICSID Case No. ARB/13/33); Lao Holdings N.V. v. Lao People’s Democratic Republic (ICSID Case No. ARB(AF)/12/6); Fraport AG Frankfurt Airport Services Worldwide v. Republic of the Philippines (ICSID Case No. ARB/11/12). Examples of non-ICSID cases include Philip Morris Asia Ltd v. Australia and Michael McKenzie v. Vietnam, (both arbitrated under the UNCITRAL Rules).

2. The text of the TPP was released in November 2015.

3. Marvin Feldman v. Mexico, Case No. ARB (AF)/99/1, Award (16 December 2002) at para. 100 [Feldman Award]. However, Jan Paulsson and Zachary Douglas have suggested that one possible basis for distinguishing between compensable and uncompensable takings in a regulatory context is the frustration of the investor’s legitimate expectations built on a reasonable reliance upon representations and undertakings by the host state. See PAULSSON, Jan and DOUGLAS, Zachary, “Indirect Expropriation in Investment Treaty Arbitrations” in Norbert HORN and Stefan KROLL, eds., Arbitrating Foreign Investment Disputes: Procedural and Substantive Legal Aspects (The Hague: Kluwer Law International, 2004), 145 Google Scholar at 158.

4. The US is also a signatory to the TPP.

5. Other examples would include art. 4 of the China-Brunei BIT that was signed on 17 November 2000; art. 5 of the Malaysia-Saudi Arabia BIT that was signed on 25 October 2000; and art. 5 of the Laos-India BIT that was signed on 9 November 2000.

6. To date, Singapore has entered into twenty-nine FTAs/Multilateral Agreements. Malaysia has entered into twenty-three; Indonesia has entered into fifteen; Laos has entered into sixteen; Myanmar has entered into fifteen; Brunei has entered into eighteen; the Philippines has entered into fourteen; Timor-Leste has entered into one; Thailand has entered into twenty-two; and Cambodia has entered into fifteen.

7. Signed by the Economic Ministers at the 14th ASEAN Summit in Cha-am, Thailand on 26 February 2009.

8. Treaty Between the Federal Republic of Germany and the Republic of Singapore Concerning the Promotion and Reciprocal Protection of Investments, 3 October 1973, 1008 U.N.T.S. 221.

9. Protocol to the Singapore-Germany IGA, at para. 4, states that the term “expropriation” shall pertain to acts of sovereign power, the effects of which are tantamount to expropriation or requisitioning, as well as measures of nationalization.

10. Agreement between the Government of the Republic of Singapore and the Government of the United Kingdom of Great Britain and Northern Ireland for Promotion and Protection of Investments, 22 July 1975, 1018 U.N.T.S. 175.

11. OECD Draft Convention on the Protection of Foreign Property, 1968, 7 I.L.M. 117.

12. DENZA, Eileen and BROOKS, Shelagh, “Investment Protection Treaties: United Kingdom Experience” (1987) 36 International & Comparative Law Quarterly 908 at 910 CrossRefGoogle Scholar.

13. Ronald S. Lauder v. The Czech Republic, UNCITRAL (Final Award) (3 September 2001) [Lauder Final Award] at para. 200.

14. The NAFTA between the US, Canada, and Mexico (entered into force on 1 January 1994).

15. Art. 1110 of the NAFTA reads: “No Party may directly or indirectly nationalize or expropriate an investment … or take a measure tantamount to nationalization or expropriation of such an investment (‘expropriation’).”

16. Without being exhaustive, art. 1110 left it open as to whether “a measure tantamount to expropriation” refers to a subset of indirect expropriation, or if it constitutes a more lenient standard.

17. GAGNE, Gilbert and MORIN, Jean-Frederic, “The Evolving American Policy on Investment Protection: Evidence from Recent FTAs and the 2004 Model BIT” (2006) 9 International Economic Law 357 at 359 Google Scholar. Investors’ claims against the US ranged from approximately US$20 million (Kenex Ltd. v. United States of America) to approximately US$1 billion (Methanex Corp. v. United States of America).

18. VANDEVELDE, Kenneth J., “A Brief History of International Investment Agreements” (2005) 12 UC Davis Journal of International Law & Policy 157 at 179 Google Scholar, where he opines that changes in the US BITs, such as the 2004 US Model BIT, “were largely in reaction to arbitral claims filed under the NAFTA investment chapter”.

19. MURPHY, Sean D., United States Practice in International Law: Volume 2, 2002–2004, (Cambridge: Cambridge University Press, 2002–2006) at 163 Google Scholar.

20. US, Treaty Between the Government of the United States of America and the Government of [Country] Concerning the Encouragement and Reciprocal Protection of Investment, 15 September 2004 [2004 Model BIT]. The 2004 Model BIT has since been superseded by the 2012 US Model BIT, which maintains language from its predecessor.

21. In particular, see annex B of the 2004 Model BIT, ibid., online: <http://www.state.gov/documents/organization/117601.pdf>.

22. US-Singapore Free Trade Agreement, 6 May 2003 (entered into force 1 January 2004) [US-Singapore FTA].

23. Countries within the European Union [EU] and Canada also seem to be taking a similar approach; see page 2 of the four-page summary of the investment chapter of the Canada-European Union Free Trade Agreement, which is presently being finalized, online: <http://trade.ec.europa.eu/doclib/docs/2013/november/tradoc_151918.pdf>.

24. Letters dated 6 May 2003 exchanged between the Honourable George Yeo (Minister for Trade and Industry, Singapore) and Robert B. Zoellick (US Trade Representative), para. 4. Art. 15.26 of the US-Singapore FTA, supra note 22, provides that the letters dated 6 May 2003 on expropriation (amongst other letters) “shall form an integral part of the Agreement”.

25. The Singapore-Peru FTA (entered into force in August 2009) [Singapore-Peru FTA]. See also art. 7 of the Singapore-Government of the Hashemite Kingdom of Jordan [Kingdom of Jordan] BIT (signed 16 May 2004), as well as the letters exchanged between Singapore’s then Minister of State for Foreign Affairs Trade and Industry and the Minister of Industry and Trade of the Kingdom of Jordan on 16 May 2004 with respect to the construction of art. 7.

26. Art. 10.10 proscribes nationalization or expropriation unless such a measure is taken on a non-discriminatory basis, for a public purpose, in accordance with due process of law, and upon payment of compensation in accordance with the Article. Also, for greater certainty, footnote 10-9 of the Singapore-Peru FTA expressly ties the concept of “public purpose” (as referred to in art. 10.10) to the standard found in customary international law. Singapore-Peru FTA, supra note 25.

27. Annex 9-A of the Singapore-EU FTA.

28. NEWCOMBE, Andrew and PARADELL, Lluis, Law and Practice of Investment Treaties: Standards of Treatment (The Hague: Kluwer Law International, 2004) 341 Google Scholar. The authors observed, however, that the governments of Venezuala, Ecuador, and Bolivia were in the midst of embarking on direct expropriation programmes in or around 2009. In any event, the concept of direct expropriation is fairly uncontroversial.

29. See e.g. Amco Asia Corporation v. Republic of Indonesia, ICSID Case No ARB/81/1 (Award) (20 November 1984), at paras. 244–50 (withdrawal of an investment authorization); Southern Pacific Properties (Middle East) Limited v. Arab Republic of Egypt, ICSID Case No ARB/84/3 (Award on the Merits) (20 May 1992), at paras. 158–66 (cancellation of a tourist development project); Metalclad Corporation v. United Mexican States, ICSID Case No. ARB(AF)/97/1 (Award) (30 August 2000), at paras. 102–12 (denial of municipal permit after completion of a previously approved landfill project) [Metalclad v. United Mexican States]. In the words of one distinguished arbitrator: “[i]t all depends on the specific facts and circumstances of the case, particularly the gravity and length of the interference, the rights of the parties under a contract, or general legislation, and even cultural elements that define shared expectations.” VICUNA, Francisco Orrego, “Carlos Calvo, Honorary NAFTA Citizen” (2002–2003) 11 New York University Environmental Law Journal 19 at 28 Google Scholar.

30. Starrett Housing v. Iran, Interlocutory Award No. ITL 32-24-1 (19 December 1983) 4 Iran-US Cl. Trib. Rep. 122, 154. See also Spyridon Roussalis v. Romania, ICSID Case No. ARB/06/1 (Award) (7 December 2011), at para. 327 [Spyridon Roussalis v. Romania]; CME Czech Republic B.V (The Netherlands) v. The Czech Republic, UNCITRAL, (Partial Award) (13 September 2001), at paras. 604–5.

31. LG&E Energy Corp, LG&E Capital Corp., LG&E Internacional Inc. v. The Argentine Republic, ICSID Case No. ARB/02/1, Decision on Liability (3 October 2006), at para. 191 [LG&E Energy, Decision on Liability] (“[i]n many arbitral decisions, the compensation has been denied when it has not affected all or almost all the investment’s economic value”).

32. Metalclad v. United Mexican States, supra note 29, at para. 103.

33. See e.g. Compañia del Desarrollo de Santa Elena, S.A. v. The Republic of Costa Rica, ICSID Case No. ARB/96/1 (Final Award) (17 February 2000), at para. 76; see also LG&E Energy, Decision on Liability, supra note 31, at para. 188.

34. Newcombe and Paradell,supra note 28, at 327–8.

35. See e.g. Spyridon Roussalis v. Romania, supra note 30, at para. 328, where the Tribunal stated that the effect of the state’s actions on the investment is “the key question” in order to determine whether an indirect expropriation has taken place. See also Fireman’s Fund Insurance Company v. The United Mexican States, ICSID Case No. ARB(AF)/02/01 (Award) (17 July 2006), at para. 176(f) [Fireman’s Fund], where the Tribunal held that “the effects of the host State’s measures are dispositive, not the underlying intent, for determining whether there is expropriation”.

36. Newcombe and Paradell, supra note 28 at 358, where the authors state that: “Under customary international law, not all deprivations of property are expropriatory.” The authors refer to the following awards, which confirm that states may justify deprivations based on the exercise of “police powers”: Methanex Corp. v. US, UNCITRAL (Final Award) (3 August 2005) 44 ILM 1343 [Methanex Final Award], at para. 410; Saluka Investments B.V. (The Netherlands) v. The Czech Republic, UNCITRAL (Partial Award) (17 March 2006) [Saluka Partial Award], at paras. 253–8; Lauder Final Award, supra note 13 at para. 198; and Tecnicas Medioambientales Tecmed S.A. v. United Mexican States, ICSID Case No. ARB(AF)/00/2 (Award) (29 May 2003) [Tecmed Award], at para. 119.

37. ALDRICH, George H., “What Constitutes a Compensable Taking of Property? The Decisions of the Iran-United States Claims Tribunal” (1994) 88 American Journal of International Law 585 at 609 CrossRefGoogle Scholar. See also CRAWFORD, James, SC, FBA, Brownlie’s Principles of Public International Law, 8th ed. (Oxford: Oxford University Press, 2008) at 624 Google Scholar, where the learned author states that: “Expropriation for certain public purposes, for example, exercise of police power … is lawful even if no compensation is payable.”

38. Sedco Inc v. National Iranian Oil Co (1985) 9 Iran-US CTR 248 [Sedco] at 275.

39. Saluka Partial Award, supra note 36 at para. 262, where the Tribunal stated that:

the principle that a State does not commit an expropriation and is thus not liable to pay compensation to a dispossessed alien investor when it adopts general regulations that are “commonly accepted as within the police power of States” forms part of customary international law today. There is ample case law in support of this proposition.

See also Tecmed Award, supra note 36 at para. 119.

40. Feldman Award, supra note 3.

41. That provision reads in pertinent part as follows: “1. No Party may directly or indirectly nationalize or expropriate an investment of an investor of another Party in its territory or take a measure tantamount to nationalization or expropriation of such an investment (‘expropriation’), except: (a) for a public purpose; (b) on a non-discriminatory basis; (c) in accordance with due process of law and article 1105(1); and (d) on payment of compensation in accordance with paragraphs 2 through 6.5.”

42. Feldman Award, supra note 3 at para. 98. According to the Tribunal: “The Article 1110 language is of such generality as to be difficult to apply in specific cases.”

43. Ibid., at para. 103.

44. Ibid., at para. 104.

45. Cases such as Harza Engineering Co. v. Islamic Rep. of Iran, 1 Iran-US C.T.R. 499 (1982) and Sedco, supra note 38 are cited in Third Restatement of the Foreign Relations Law of the United States, Vol. 2 (1987) [US Third Restatement 1987], at 211.

46. Ibid., at 201.

47. Ibid., at 212.

48. Ibid., at 211.

49. Saluka Partial Award, supra note 36.

50. Art. 5 provides as follows: “Neither Contracting Party shall take any measures depriving, directly or indirectly, investors of the other Contracting Party of their investments unless the following conditions are complied with: (a) the measures are taken in the public interest and under due process of law; (b) the measures are not discriminatory; (c) the measures are accompanied by provision for the payment of just compensation. Such compensation shall represent the genuine value of the investments affected and shall, in order to be effective for the claimants, be paid and made transferable, without undue delay, to the country designated by the claimants concerned and in any freely convertible currency accepted by the claimants.”

51. Saluka Partial Award, supra note 36 at para. 255.

52. Ibid., at para. 258.

53. Ibid., at para. 262.

54. Ibid. The Tribunal specifically referred to the Methanex Final Award, at para. 410.

55. Saluka Partial Award, supra note 36 at para. 259. The Tribunal highlighted the portion of the draft convention which provided that measures taken in the pursuit of a state’s “political, social or economic ends” do not constitute compensable expropriation.

56. Ibid., at para. 260.

57. Saluka Partial Award, supra note 36 at para. 256.

58. See e.g. Burlington Resources Inc. v. Republic of Ecuador, ICSID Case No. ARB/08/5 (Decision on Liability) (14 December 2012), at para. 392; Fireman’s Fund, supra note 35, p. 84, n. 162.

59. ICSID Case No. ARB(AF)/00/1 (Award) (9 January 2003), at para. 184. Although ADF Group deals with “fair and equitable” treatment, it is respectfully submitted that the principle quoted applies with equal force in the context of deprivation. A number of later decisions also appear to be in line with the Saluka approach. E.g. Accession Mezzanine Capital L.P. and Danubius Kereskedöház Vagyonkezelö Zrt. v. Hungary, ICSID Case No. ARB/12/3 (Decision on Respondent’s Objection under Arbitration Rule 41(5)) (16 January 2013), at para. 69, noting that, in the absence of definitions in BITs, the normal practice for investment tribunals was to focus on expropriation within the framework of international law standards, meaning state practice, treaties, and judicial interpretations of “expropriation” in the cases.

60. Ad Hoc NAFTA Arbitration under UNCITRAL Rules (Award) (2 August 2010) [Chemtura Award], at para. 266.

61. ICSID Case No. ARB/04/4 (Decision on Jurisdiction and Liability) (6 June 2012).

62. Ibid., at para. 398.

63. Saluka Partial Award, supra note 36 at para. 260, citing US Third Restatement, 1987, supra note 45 at 201.

64. Incidentally, art. 10.10(1) of the Singapore-Peru FTA is similarly worded to art. 4 of the Singapore-Germany IGA and art. 5 of the Singapore-UK IGA.

65. Saluka Partial Award, supra note 36 at para. 262. The Tribunal in Saluka appears to have proceeded on the premise that compensation would not be required in any instance involving the state’s exercise of its “police powers”. This is consistent with the position reflected in the US Third Restatement, which provides that “police power regulation or tax … does not give rise to an obligation to compensate even though a foreign national suffers loss as a consequence”. US Third Restatement, 1987, supra note 45 at 211.

66. ICSID Case No. ARB/96/1 (Final Award) (17 February 2000) [Compania Santa Elena, Final Award] at paras. 71 and 72, where the Tribunal made it clear that mere public purpose does not justify uncompensated appropriations.

67. ICSID Case Nos. ARB/05/18 and ARB/07/15 (Award) (3 March 2010). The Tribunal definitively found that the deprivation was not an exercise of the state’s bona fide police powers (at para. 387), but was of the view that it was “arguable that the expropriation was in Georgian public interest” (at para. 391).

68. ICSID Case No. ARB/03/16 (Award of the Tribunal) (2 October 2006).

69. Ibid., at para. 432. In ADC Affiliate v. Hungary, a 2001 Hungarian decree voided the investors’ contracts for the operation and management of the Budapest airport. The airport was subsequently taken over by the state in 2002, but then privatized in 2005. The Tribunal concluded that it was not satisfied that the taking was in the public interest and stated that the subsequent privatization of the airport, netting Hungary US$ 2.26 billion, rendered any public interest argument unsustainable.

70. ICSID Case No. ARB/02/8 (Award) (6 February 2007), at para. 273, where the Tribunal used the terms “public purpose” and “public interest” interchangeably. But on the facts of the case, the Tribunal found that there was no evidence of a public purpose for a series of Argentine measures relating to a concession contract for the provision of national identity cards because the measures were simply an exercise of public authority to reduce the costs of the contract.

71. Inmaris Perestroika Sailing Maritime Services GmbH and others v. Ukraine, ICSID Case No. ARB/08/8, (Excerpts of Award) (1 March 2012), where the terms “public purpose” and “public interest” appear to have been used interchangeably. The Tribunal rejected the claimants’ assertion that the travel ban in question was not taken for a “public purpose”, pointing out that there was no evidence that Ukraine’s actions were politically motivated, or due to corruption, a desire for personal gain, or a personal vendetta, at para. 303. The Tribunal went on to say that it was “convinced that the Ministry’s actions were genuinely motivated by an intent to protect the public interest”, at para 303 (emphasis added).

72. Methanex Final Award, supra note 36, at para. 32 (Part II, Chapter C, at 17). It appears that Mexico had submitted that art. 1110 of the NAFTA “incorporates the principle that States are generally not liable to compensate aliens for economic loss resulting from non-discriminatory measures taken to protect the public interest” (emphasis added).

73. Saluka Partial Award, supra note 36 at para. 255. See also AWG Group Ltd. v. Argentine Republic, UNCITRAL (Decision on Liability) (30 July 2010) [AWG Group Decision on Liability], where the Tribunal recognized that a state has a “legitimate right to regulate and to exercise its police power in the interests of public welfare”, at para. 139 (emphasis added).

74. In the Counter-Memorial filed by Canada in Chemtura, Canada repeatedly linked the application of the “police powers” doctrine to measures adopted by states to protect public health and the environment. See Chemtura Award, supra note 60, Canada’s Counter-Memorial, at paras. 566, 571, and 580. Therefore, Canada submitted that:

Taken as a whole, these NAFTA provisions demonstrate that the NAFTA signatories clearly did not intend for non-discriminatory regulatory measures that are designed to protect public health and the environment—such as the PMRA’s decision to de-register lindane—to constitute expropriation” at para. 580 (emphasis added).

75. Newcombe and Paradell, supra note 28 at 358.

76. Ibid., at 360–61.

77. Singapore-Peru FTA, supra note 25. Ftn. 10-9 of the Singapore-Peru FTA provides that:

For greater certainty, for the purposes of this Article, public purpose refers to a concept in customary international law. Without prejudice to its definition under customary international law, public purpose may be similar or approximate to concepts under domestic law, for example, the concept of “public necessity”.

78. The position set out in Singapore’s BITs/FTAs is supported by decisions such as the one rendered in Compania del Desarrollo de Santa Elena, S.A. v. Costa Rica, ICSID Case No. ARB/96/1 (Final Award) (17 February 2000). The Tribunal made it clear that mere public purpose does not justify uncompensated appropriations: “Expropriatory environmental measures—no matter how laudable and beneficial to society as a whole—are, in this respect, similar to any other expropriatory measures that a state may take in order to implement its policies: where property is expropriated, even for environmental purposes, whether domestic or international, the state’s obligation to pay compensation remains”, at para. 72 (emphasis added).

79. Chemtura Award, supra note 60. The Tribunal found that the regulator took measures “motivated by the increasing awareness of the dangers presented by lindane for human health and the environment” and that a “measure adopted under such circumstances is a valid exercise of the state’s police powers and, as a result, does not constitute an expropriation”, at para. 266 (footnote omitted, emphasis added).

80. AWG Group Decision on Liability, supra note 73, where the Tribunal took the position that “it is important to recognize a State’s legitimate right to regulate and to exercise its police power in the interests of public welfare and not to confuse measures of that nature with expropriation”, at para. 139 (emphasis added).

81. Too v. Greater Modesto Insurance Associates, Award, 29 December 2989, 23 Iran-United States Cl. Trib. Rep. 378. The claimant sought compensation for the seizure of his liquor licence by the US Internal Revenue Service but the Tribunal ultimately rejected the allegation of taking on the grounds of police power regulations.

82. S. IV (1) on “Expropriation and Unilateral Alterations or Termination of Contracts”, states that: “A state may not expropriate or otherwise take in whole or in part a foreign private investment in its territory, or take measures which have similar effects, except where this is done in accordance with applicable legal procedures, in pursuance in good faith of a public purpose, without discrimination on the basis of nationality and against the payment of appropriate compensation.”

83. Art. 13 provides that: “investments of investors of a Contracting Party in the Area of any other Contracting Party shall not be nationalized, expropriated or subjected to a measure or measures having effect equivalent to nationalization or expropriation” except where such measure complies with the rules of customary international law in this matter (public purpose, due process, non-discrimination, and compensation).

84. Methanex Final Award, supra note 36 at part IV, chapter D, para. 15.

85. See e.g. US-Singapore FTA, supra note 22; Singapore-Peru FTA, supra note 25.

86. “Police powers” has been equated to “general” or “public welfare” in cases such as Saluka and AWG Group. See Saluka Partial Award, supra note 36; AWG Group Decision on Liability, supra note 73.

87. Even the Singapore-Costa Rica FTA, which entered into force on 1 July 2013, does not offer examples of such “rare circumstances”, online: <http://investmentpolicyhub.unctad.org/IIA/country/190/treaty/3283>.

88. Online: <http://www.ustr.gov/trade-agreements/free-trade-agreements/korus-fta/final-text>. Para. 3(b) of annex 11-B states:

Except in rare circumstances, such as, for example, when an action or a series of actions is extremely severe or disproportionate in light of its purpose or effect, non-discriminatory regulatory actions by a Party that are designed and applied to protect legitimate public welfare objectives, such as public health, safety, the environment, and real estate price stabilization (through, for example, measures to improve the housing conditions for low-income households), do not constitute indirect expropriations. (footnotes omitted)

89. Besides being in line with the approach taken by investment tribunals, the approach set out in the Singapore-EU FTA closely resembles the approach taken in other FTAs. Apart from the US-Korea FTA, annex 9-A of the Singapore-EU FTA is also similarly worded to annex A of the Agreement between Canada and the Slovak Republic for the Promotion and Protection of Investments [Canada-Slovak FIPA]. The Canada-Slovak FIPA lists examples of “rare circumstances” to include measures or a series of measures that are “so severe in light of their purpose that they cannot be reasonably viewed as having been adopted and applied in good faith”.

90. LG&E Energy Decision on Liability, supra note 31 at para. 195. See also Deutsche Bank AG v. Democratic Socialist Republic of Sri Lanka, ICSID Case No. Arb/09/02 (Award) (31 October, 2012) [Deutsche Bank Award], at para. 522; Señor Tza Yap Shum v. The Republic of Peru, ICSID Case No. ARB/07/6 (Award) (7 July 2011), at para. 174.

91. Tecmed Award, supra note 36 at para. 122.

92. Perhaps the best way forward will be for Singapore to issue an interpretive note declaring its understanding of what the “rare circumstances” concept entails under, inter alia, the Singapore-Peru FTA and Singapore-Panama FTA.

93. In particular, the severity and excessiveness of the measure seems to be the only criteria for determining if the “rare circumstances” requirement is satisfied.

94. Supra note 17.

95. Tecmed Award, supra note 36 at para. 122. The Tribunal found that the Mexican government’s failure to renew the hazardous waste landfill permit held by the investor’s subsidiary was expropriatory.

96. This paragraph has been approvingly cited in cases such as El Paso Energy International Company v. Argentine Republic, ICSID Case No. ARB/03/15 (Award) (31 October 2011), at para. 243; Fireman’s Fund, supra note 35, p. 83, ftn. 161; Deutsche Bank Award, supra note 90 at para. 522.

97. ADC Affiliate v. Hungary, ICSID Case No. ARB/03/16 (Award) (2 October 2006), at para. 423.

98. Newcombe and Paradell, supra note 28 at 366. See e.g. Biloune and Marine Drive Complex Ltd. v. Ghana Investments Centre and the Government of Ghana (Award of Jurisdiction and Liability) (27 October 1989) 95 ILR 184. Biloune made an investment agreement with the Ghana Investments Centre, a government entity, for the development of a resort complex. After work had begun, government issued a stop work order and partially demolished the work in progress. Biloune was then arrested, detained, and deported. The Tribunal found that there was no justification for any of these actions. The Tribunal held that acts of the Ghanaian authorities would constitute constructive expropriation unless the state “can establish by persuasive evidence sufficient justification for these events”, at 209.

99. Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand, and Vietnam have signed the ACIA.