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Arbitrariness, the Fair and Equitable Treatment Standard, and the International Law of Investment

Published online by Cambridge University Press:  06 February 2012

JACOB STONE
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Abstract

One of the most common features of international investment treaties is the obligation of a state to grant ‘fair and equitable treatment’ to investors and investments. Treatment giving rise to allegations of breaches of this obligation has taken many forms, namely bad faith, discrimination, denial of justice, frustration of legitimate expectations, lack of transparency, coercion and harassment, and arbitrariness or arbitrary conduct. This latter form of treatment – arbitrariness – has rarely been the focus of scholarly works and, thus, its scope and meaning are difficult to ascertain. When examined in the context of international investment disputes, however, one may conclude that, while its scope and meaning may vary, arbitrariness is indeed a legitimate basis for claim under the fair and equitable treatment standard. The thresholds for demonstrating arbitrariness, however, are decidedly and consistently high.

Keywords

arbitrariness or arbitrary conductfair and equitable treatmentinternational investment lawminimum standard of treatmentNAFTA
Type
INTERNATIONAL LAW AND PRACTICE
Information
Leiden Journal of International Law , Volume 25 , Issue 1 , March 2012 , pp. 77 - 107
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2012

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References

1 To be distinguished from bilateral investment treaties (BITs), which only concern two states. Normally, IITs include BITs, but also include multilateral trade treaties with investment obligations such as the 1994 Energy Charter Treaty, 34 ILM 360 (1995); or the 1992 North American Free Trade Agreement, 32 ILM 289 (1993). For the purposes of this paper, however, the NAFTA investor–state dispute regime shall not be included under the rubric of IITs.

2 The total number of BITs had risen to 2676 by then end of 2008 and an additional 25 BITs and six IIAs had been signed by mid-2009. See United Nations Conference on Trade and Development, ‘Recent Developments in International Investment Agreements 2008–June 2009’, IIA MONITOR No. 3 (2009), International Investment Agreements, UNCTAD/WEB/DIAE/IA/2009/8, United Nations, New York and Geneva, 2009, available online at www.unctad.org/en/docs/webdiaeia20098_en.pdf. For a comprehensive look at the history of IITs, see United Nations Conference on Trade and Development, International Investment Agreements: Key Issues, UNCTAD/ITE/IIT/2004/10 (Vol.1), United Nations, New York and Geneva, 2004, available online at www.unctad.org/en/docs/iteiit200410_en.pdf.

3 Vasciannie, S., ‘The Fair and Equitable Treatment Standard in International Investment Law and Practice’, (1999) 70 BYIL 99, at 100Google Scholar; see also Dolzer, R., ‘Fair and Equitable Treatment: A Key Standard in Investment Treaties’, (2005) 39 International Law 70, at 87Google Scholar. See also M. Malik, ‘Fair and Equitable Treatment’, (2009) Best Practices Bulletin #3, International Institute for Sustainable Development (IISD), available online at www.iisd.org/pdf/2009/best_practices_bulletin_3.pdf.

4 See, generally, R. Dolzer and C. Schreuer, Principles of International Investment Law (2008), 133–48; and A. Newcombe and L. Paradell, Law and Practice of Investment Treaties (2009), 275–307 (although Newcombe and Paradell would place ‘denial of justice’ under the aegis of a minimum standard of treatment, a testament in itself to the differing views on the contours and boundaries of the notions of fair and equitable treatment and minimum standard of treatment).

5 See Oxford English Dictionary (1989), under ‘arbitrary’ and ‘arbitrariness’. Note the range in definitions of ‘arbitrary’: ‘2. . . Relating to, or dependent on, the discretion of an arbiter, arbitrator, or other legally-recognized authority; discretionary, not fixed. 3. Derived from mere opinion or preference; not based on the nature of things; hence, capricious, uncertain, varying. 4. Unrestrained in the exercise of will; of uncontrolled power or authority, absolute; hence, despotic, tyrannical’; and of ‘arbitrariness’: ‘The quality of being arbitrary or uncontrolled in the exercise of will; a. capriciousness; b. despotism’. As will be discussed below, conduct that might fall under each of these definitions has been contested under IITs.

6 NAFTA, supra note 1, Art. 1105.

7 See VanDuzer, J. A., ‘Enhancing the Procedural Legitimacy of Investor–State Arbitration through Transparency and Amicus Curiae Participation’, (2007) 52 McGill Law Journal 681, at 698–708Google Scholar; see also NAFTA Free Trade Commission, FTC Interpretive Note on Transparency (July 2001), available online at www.international.gc.ca/trade-agreements-accords-commerciaux/disp-diff/nafta_commission.aspx?lang=en. NAFTA parties routinely make available submissions by the parties to a Chapter 11 dispute, as well as communications and decisions of the arbitral tribunals – a practice that does not appear to be prevalent in disputes under other IITs. Although the International Centre for the Settlement of Investment Disputes (ICSID) has adopted measures to increase transparency, it can be argued that the effect has been minimal; see, e.g., Yackee, J. W. and Wong, J., ‘The 2006 Procedural and Transparency-Related Amendments to the ICSID Arbitration Rules: Model Intentions, Moderate Proposals, and Modest Returns’, in Sauvant, K. P. (ed.), The Yearbook on International Investment Law & Policy (2010)Google Scholar.

8 See Elettronica Sicula S.p.A. (ELSI) (United States of America v. Italy), Judgment of 20 July 1989, [1989] ICJ Rep. 15; see also L.F.H. Neer and Pauline E. Neer (USA) v. United Mexican States, United States and Mexico General Claims Commission Decision of 15 October 1926, United Nations, Reports of International Arbitral Awards, [1926], Vol. IV, 60 (hereafter, Neer).

9 See, e.g., Glamis Gold, Ltd. v. United States, NAFTA (UNCITRAL), (Final Award), 8 June 2009 (hereafter, Glamis); see also Picherack, J. R., ‘The Expanding Scope of the Fair and Equitable Treatment Standard: Have Recent Tribunals Gone Too Far?’, (2008) 9 Journal of World Investment & Trade 255, at 267–9, 270–85Google Scholar. This reluctance stems generally from the fact that interpretations made outside the purview of the NAFTA cannot have been made in consideration of the NAFTA and thus their applicability to NAFTA disputes is brought into question.

10 S. Sinclair, ‘NAFTA Chapter 11 Investor–State Disputes to October 2010’, (2010) Trade and Investment Research Project, Canadian Centre for Policy Alternatives, available online at www.policyalternatives.ca/publications/reports/nafta-chapter-11-investor-state-disputes-1; Government of Canada, Department of Foreign Affairs and International Trade, ‘NAFTA Chapter Eleven: Cases Filed against the Government of Canada’, available online at www.international.gc.ca/trade-agreements-accords-commerciaux/disp-diff/nafta.aspx?view=d; United States of America, Department of State, ‘NAFTA Investor–State Arbitration’, available online at www.state.gov/s/l/c3439.htm; Mexico's Secretaria de Economia, ‘Investor–State Dispute Settlement Proceedings’, available online at http://200.77.231.70/swb/es/economia/p_Solucion_Controversias_InvEdo; NAFTA Claims, ‘The Disputes’, available online at www.naftaclaims.com/disputes.htm. It should be noted that at least 11 Art. 1105 claims are known to be pending before NAFTA.

11 For a detailed history of the term ‘fair and equitable treatment’, see Vasciannie, supra note 3, at 107–19. See also Havana Charter for an International Trade Organization, UN Conference on Trade and Employment, UN Doc. E/CONF.2/78 (1948), Art. 11(2); H. Abs and Lord H. Shawcross, Draft Convention on Investments Abroad (1960), 116; Organization for Economic Co-Operation and Development, ‘Draft Convention on the Protection of Foreign Property’, (1963) 2 ILM 241; and Organization for Economic Co-Operation and Development, ‘Draft Convention’, (1968) 7 ILM 118, as cited in Newcombe and Paradell, supra note 4, at 256.

12 Newcombe and Paradell, supra note 4, at 256.

13 Vasciannie, supra note 3, at 101.

14 Mann, F. A., ‘British Treaties for the Promotion and Protection of Investments’, (1981) 52 BYIL 241, at 244Google Scholar.

15 K. Vandevelde, United States Investment Treaties: Policy and Practice (1992), 76.

16 Comment by S. Nesbitt featured in Paradell, L., ‘The BIT Experience of the Fair and Equitable Treatment Standard’, in Ortino, F., Liberti, L., and Sheppard, A. (eds.), Investment Treaty Law, Current Issues II (2007), 140Google Scholar.

17 Vasciannie, supra note 3, at 102.

18 1969 Vienna Convention on the Law of Treaties, (1969) 1155 UNTS 331.

19 Vasciannie, supra note 3, at 104.

20 Ibid.

21 See Neer, supra note 8, at 61–2, uncontested perhaps, but not necessarily static. For instance, the tribunals in Glamis (supra note 9, at para. 616) and Mondev International Ltd v. United States of America, NAFTA (ICSID), Case No. ARB(AF)/99/2 (Award), 11 October 2002, at para. 125 (hereafter, Mondev) found that what amounts to an outrage in the treatment of an alien may evolve over time.

22 I. Brownlie, Principles of Public International Law (2003), 503.

23 Newcombe and Paradell, supra note 4, at 236, 238. These elements include discrimination, denial of justice, lack of due diligence or due process, and arbitrariness. As discussed below, many of these elements have also been associated with the constituent elements of ‘fair and equitable treatment’. The fact that they are linked to both the international minimum standard of treatment and the fair and equitable treatment standard only further highlights the interplay between the two standards as well as the difficulty of disassociating the two.

24 Dumberry, P., ‘Are BITs Representing the “New” Customary International Law in International Investment Law?’, (2010) 28 Pennsylvania State International Law Review 675, at 680Google Scholar.

25 I. Tudor, The Fair and Equitable Standard in International Foreign Investment Law (2008), 73–85.

26 Vasciannie, supra note 3, at 158. While developed countries remain the principal proponents of IITs, however, there is an upward trend in the number and geographical coverage of such treaties between developing countries (so-called ‘south–south’ agreements).

27 See, generally, UNCTAD South–South Cooperation in International Investment Agreements UNCTAD/ITE/IIT/2005/3 (2005), available online at www.unctad.org/en/docs/iteiit20053_en.pdf.

28 See, generally, S. K. B. Asante, Droit international et investissements (1991), 711. Also see M. Sornarajah, The Investment Law on Foreign Investment (2004), 204–8. Contra C. Leben, ‘L'évolution du droit international des investissements’ (2000), available online at www.dundee.ac.uk/cepmlp/journal/html/vol7/article7–12.html.

29 Vasciannie, supra note 3, at 161.

30 See S.D. Myers Inc. v. Canada, NAFTA (UNCITRAL), (Partial Award on Merits), 13 November 2000, at paras. 261–265 (hereafter, S.D. Myers) and Pope & Talbot v. Canada, NAFTA (UNICTRAL) (Award on the Merits of Phase II) 10 April 2001, at paras. 115–118 (hereafter, Pope & Talbot I); see also Paradell, supra note 16, at 123–4.

31 NAFTA Free Trade Commission, Notes of Interpretation of Certain NAFTA Chapter 11 Provisions (2001), available online at www.international.gc.ca/trade-agreements-accords-commerciaux/disp-diff/nafta-interpr.aspx?lang=en. The Pope & Talbot tribunal was the first to adopt the 2001 Notes of Interpretation and, in doing so, emphasized the evolutive nature of customary international law. See Pope & Talbot v. Canada, NAFTA (UNCITRAL) (Award in Respect of Damages), 31 May 2002 (hereafter, Pope & Talbot II), at paras. 58–66. Subsequent NAFTA tribunals have adopted the 2001 Notes of Interpretation; see, e.g., Glamis, supra note 9, at para. 599.

32 Paradell, supra note 16, at 125.

33 Ibid.

34 Ibid., at 126.

35 Ibid., at 127.

36 Ibid.

37 See, generally, Newcombe and Paradell, supra note 4; Dolzer and Schreuer, supra note 4; C. Yannaca-Small, ‘Chapter 3: Fair and Equitable Treatment Standard in International Investment Law’, (2005), available online at www.oecd.org/dataoecd/11/52/40077877.pdf. For a critique of the OECD Report and of the prevailing views on the constituent elements of the fair and equitable treatment standard, see also Sornarajah, M., ‘The Fair and Equitable Standard of Treatment: Whose Fairness? Whose Equity?’, in Ortino, F., Liberti, L., and Sheppard, A. (eds.), Investment Treaty Law, Current Issues II (2007), 167Google Scholar.

38 Although these obligations have been identified by various tribunals, there is no consensus among academics (and states in particular) as to their scope and content, much less their existence.

39 Newcombe and Paradell, supra note 4, at 294.

40 Ibid.

41 Ibid., at 289–90. Nationality-based discrimination is another form of violation of this obligation. The similarities between nationality-based discrimination under the fair and equitable treatment standard and discrimination under the national treatment standard, however, generally preclude the former from constituting a violation of the fair and equitable treatment standard, especially when a provision for national treatment is included in the same instrument.

42 Ibid., at 291–3.

43 Dolzer and Schreuer, supra note 4, at 133–4.

44 Newcombe and Paradell, supra note 4, at 279–80.

45 Yannaca-Small, K., ‘Fair and Equitable Treatment Standard: Recent Developments’, in Reinisch, A. (ed.), Standards of Investment Protection (2008), 119–20Google Scholar. See also Dolzer and Schreuer, supra note 4, at 162–6.

46 Newcombe and Paradell, supra note 4, at 239.

47 Ibid., at 239–40.

48 Vasciannie, supra note 3, at 144; OECD Report, supra note 37, at 103.

49 With exception made notably to Hamrock, K. J., ‘The ELSI Case: Toward an International Definition of “Arbitrary” Conduct’, (1992) 27 TILJ 837Google Scholar; and Heiskanen, V., ‘Arbitrary and Unreasonable Measures’, in Reinisch, A. (ed.), Standards of Investment Protection (2008), 87–110Google Scholar.

50 Oxford English Dictionary, supra note 5.

51 See Black's Law Dictionary (2004), under ‘arbitrary’ (italics in original). This definition has also been cited by international arbitral tribunals, infra note 109.

52 A general principle of law to the extent that arbitrariness is tied to other general principles of law such as good faith and the principle of self-preservation. See ‘measures to promote public welfare’, ‘measures to ensure public safety’ under the principle of ‘self-preservation’, and ‘abuse of discretion’ under the principle of ‘good faith’ in B. Cheng, General Principles of Law as Applied by International Courts and Tribunals (1953), 36–56, 133.

53 Art. 38(1)(c) of the Statute of the International Court of Justice.

54 Kolb, R., ‘Principles as Sources of International Law (with Special Reference to Good Faith)’, (2006) 53 NILR 1, at 9CrossRefGoogle Scholar, cited in F. Raimondo, General Principles of Law in the Decisions of International Criminal Courts and Tribunals (2008), 50.

55 These include domestic or municipal law, principles of international legal relations, and natural law; see Raimondo, supra note 54, at 1.

56 Ibid.

57 The samples of legal regimes featured herein represent the world's two most prevalent legal systems: the civil-law and common-law systems. Although these references are either North American or European in origin, they are representative of the legal regimes of the more populous regions of the world (e.g., China (codified civil law) or India (English common law)). Religious legal systems such as Islamic law may also be said to prohibit arbitrariness, due to the fixed nature of scripture-based law and the lack of discretionary authority to depart from the written word.

58 Hamrock, supra note 49, at 852.

59 Ibid.

60 §10(e) of the Administrative Procedure Act, 5 USC §706(2)(A) (1988), as cited in ibid.

61 Ibid., at 852–3. Non-translated: ‘incompétence, détournement de pouvoir and violation de la loi.’

62 These are the two standards of review that apply to administrative acts, depending on the gravity of the act; see, generally, Dunsmuir v. New Brunswick, [2008] 1 SCR 190, 2008 SCC 9.

63 See, generally, Judge L'Heureux-Dubé in Domtar Inc. v. Quebec (Commission d'appel en matière de lésions professionnelles), [1993] 2 SCR 756, at 773: ‘While the analysis of the standard of review applicable in the case at bar has made clear the significance of the decision-making autonomy of an administrative tribunal, the requirement of consistency is also an important objective. As our legal system abhors whatever is arbitrary, it must be based on a degree of consistency, equality and predictability in the application of the law’; the Court in Reference re Secession of Quebec, [1998] 2 SCR 217: ‘at its most basic level, the rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs. It provides a shield for individuals from arbitrary state action’; Judge Estey in Douglas Aircraft Co. of Canada v. McConnell, [1980] 1 SCR 245, at 277: ‘Unfairness, the adoption of procedures contrary to natural justice, arbitrary conduct, refusal to discharge their function, fraud and bias in law, are all matters that transcend the classification of error in law on the face of the record’; and Judges Bastarache and Lebel in Dunsmuir v. New Brunswick case, supra note 62: ‘public law is rightly concerned with preventing the arbitrary exercise of delegated powers.’

64 P. Issalys and D. Lemieux, L'action gouvernementale (2002), 1262.

65 Preamble of the Canadian Charter of Rights and Freedoms of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

66 Hamrock, supra note 49, at 852–4.

67 ELSI, supra note 8.

68 To the extent that the absence of arbitrary conduct also forms a part of the international minimum standard of treatment, however, the author would refer the reader to the Neer decision cited supra note 8 as well. When viewed through the lens of the Neer and Neer v. United Mexican States decision, arbitrary conduct, in order to constitute a violation of the minimum standard of treatment, should ‘amount to an outrage, to bad faith, to wilful neglect of duty, or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would readily recognize its insufficiency’.

69 Murphy, S., ‘The ELSI Case: An Investment Dispute at the International Court of Justice’, (1991) 16 Yale JIL 391Google Scholar, as cited in Newcombe and Paradell, supra note 4, at 248.

70 ELSI, supra note 8, at paras. 124, 128.

71 Murphy, supra note 69, at 433, as cited in Newcombe and Paradell, supra note 4, at 249.

72 Weiler, T., ‘Good Faith and Regulatory Transparency: The Story of Metalclad v Mexico’, in Weiler, T. (ed.), International Investment Law and Arbitration: Leading Cases From ICSID, NAFTA, Bilateral Treaties and Customary International Law (2005), 737Google Scholar; see also ELSI, supra note 8, at para. 124.

73 Hamrock, supra note 49, at 849.

74 Ibid., at 849–51.

75 I. Laird, MTD Equity Sdn. Bhd. and MTD Chile S.A. v. Republic of Chile – Recent Developments in the Fair and Equitable Treatment Standard (2004), 6.

76 A. Lemaire, Traitement juste et équitable, Les Cahiers de l'Arbitrage No. 2004/2 – 2e partie, Dimanche 5 au Mardi 7 Decembre 2004, 124e année, no 340 à 342, Gazette du Palais, at 39.

77 Verdross, A., ‘Les règles internationales concernant le traitement des étrangers’, (1931) 37 RCADI 325, at 388Google Scholar, as cited in OECD Report, supra note 37, at 110. Original text translated by OECD: ‘L'État viole le droit des gens s'il porte arbitrairement atteinte aux droits privés des étrangers, fût-ce même par un acte de législateur. Et cela même si de tels actes ne sont pas dirigés contre les personnes en raison de leur qualité d'étranger, mais se fondent sur des lois générales, applicables aussi aux nationaux.’

78 Sornarajah, supra note 37, at 176.

79 Supra notes 50 and 51.

80 Mann, supra note 14, at 243.

81 G. Schwarzenberger, International Law and Order (1971), 89–90, 99–100, as cited in Weiler, T. and Laird, I., ‘The Oxford Handbook of International Investment Law’, in Muchlinski, P., Ortino, F., and Schreuer, C. (eds.), Oxford University Press (2008)Google Scholar, Chapter 8 – ‘Standards of Treatment’, at 284–5.

82 Weiler and Laird, supra note 81.

83 Newcombe and Paradell, supra note 4, at 250–1.

84 Ibid., at 251.

85 Ibid.

86 See, generally, Dolzer and Schreuer, supra note 4, at 173–4. Kenneth Vandevelde profiles a dozen or so US BITs, all of which contain clauses prohibiting arbitrary measures: Egypt, Panama, Cameroon, Morocco, Zaire, Bangladesh, Haiti, Senegal, Turkey, Grenada, Congo, Poland; see Vandevelde, supra note 15. Canada's Foreign Investment Promotion and Protection Treaties (FIPAs) do not contain such a clause, but they do require that exceptions under the agreement are not availed of ‘in a manner that would constitute arbitrary or unjustifiable discrimination between investments or between investors’; see Art. 10 of Canada's model FIPA, available online at the Department of Foreign Affairs and International Trade, www.international.gc.ca/trade-agreements-accords-commerciaux/assets/pdfs/2004-FIPA-model-en.pdf.

87 Dolzer and Schreuer, supra note 4; see also Newcombe and Paradell, supra note 4, at 299.

88 Newcombe and Paradell, supra note 4, at 300.

89 Dolzer and Schreuer, supra note 4, at 173.

90 Newcombe and Paradell, supra note 4, at 303.

91 Ibid., at 301. Redundant with respect to arbitrariness, perhaps, but the presence of the term ‘arbitrary’ in these clauses may be meant to add weight to the other key terms, such ‘discriminatory’, ‘unjustified’, or ‘unreasonable’.

92 Dolzer and Schreuer, supra note 4, at 175.

93 Ibid.

94 Schreuer, C., ‘Fair and Equitable Treatment (FET): Interactions with other Standards’, (2007) 4 TDM 1, at 8–9Google Scholar.

95 Mann, supra note 14, at 243.

96 OECD Report, supra note 37, at 125.

97 Schill, S., ‘Fair and Equitable Treatment under Investment Treaties as an Embodiment of the Rule of Law’, (2006) 6 International Law and Justice Working Papers 1, at 19–20Google Scholar.

98 Vasciannie, supra note 3, at 133, as cited in J. W. Salacuse, Law of Investment Treaties (2010), at 238.

99 Ibid.

100 See Picherack, supra note 9, who is particularly critical of recent formulations of the duty to protect investors’ legitimate expectations and to provide transparency.

101 Dolzer and Schreuer, supra note 4, at 176.

102 Weiler, T., ‘Methanex Corp. v. U.S.A: Turning the Page on NAFTA Chapter Eleven?’, (2005) 6 Journal of World Investment and Trade 903, at 917Google Scholar.

103 UNCTAD, ‘Fair and Equitable Treatment’, UNCTAD/ITE/IIT/11 (Vol. III), at 40, available online at www.unctad.org/en/docs/psiteiitd11v3.en.pdf.

104 On the subject of the precedent value of arbitration awards, see Burlington Resources Inc. and Others v. Republic of Ecuador and Empresa Estatal Petróleos del Ecuador (PetroEcuador), US/Ecuador BIT (ICSID), Case No. ARB/08/5 (Decision on Jurisdiction), 2 June 2010, at para. 100; and Glamis, supra note 9, at para. 8. See also Guillaume, G., ‘The Use of Precedents by International Judges and Arbitrators’, (2011) 2 Journal of International Dispute Settlement 5CrossRefGoogle Scholar.

105 In addition to the awards cited in the various works featured throughout this paper, reference was also made to the ICSID award database at http://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=ShowHome&pageName=Cases_Home and to the University of Victoria Investment Treaty Arbitration award database at http://ita.law.uvic.ca/chronological_list.htm.

106 The BITs featured herein that contain prohibitions of arbitrary measures also contain fair and equitable treatment clauses.

107 ECT, supra note 1.

108 Black's Law Dictionary, supra note 51.

109 See, e.g., Azurix Corporation v. Argentine Republic, USA–Argentina BIT (ICSID), Case No. ARB/01/12 (Award), 14 July 2006 (hereafter, Azurix); LG&E Energy Corp, LG&E Capital Corp, and LG&E International Inc. v. Argentine Republic, USA–Argentina BIT (ICSID), 46 ILM 36 (ICSID), Case No. ARB/02/1 (Decision on Liability), 3 October 2006 (hereafter, LG&E); CMS Gas Transmission Co. v. Argentine Republic, USA–Argentina BIT (ICSID), Case No. ARB/01/8 (Award), 12 May 2005 (hereafter, CMS Gas); Lauder v. Czech Republic, USA–Czech Republic BIT (UNCITRAL) (Final Award), 3 September 2002 (hereafter, Lauder); Occidental Exploration and Production Company (OEPC) v. Republic of Ecuador, USA–Ecuador BIT (London Court of International Arbitration), Case No. UN 3467 (Final Award), 1 July 2004 (hereafter, Occidental); Siemens A.G. v. The Argentine Republic, Germany–Argentina BIT (ICSID), Case No. ARB/02/8 (Award), 6 February 2007) (hereafter, Siemens).

110 Lauder, supra note 109, at para. 232.

111 Oxford English Dictionary, supra note 5.

112 Azurix, supra note 109, at paras. 392–393.

113 CMS Gas and LG&E citing Lauder, supra note 109, at paras. 292, 157, respectively.

114 See ELSI, supra note 8. Awards citing ELSI include: Azurix, LG&E, and Siemens, supra note 109, and Técnicas Medioambientales Tecmed, S.A. v. United Mexican States, Spain–Mexico BIT (ICSID), Case No. ARB (AF)/00/2 (Award), 29 May 2003 (hereafter, Tecmed); Noble Ventures, Inc. v. Romania, US–Romania BIT (ICSID), Case No. ARB/01/11 (Award), 12 October 2005 (hereafter, Noble); AES Summit Generation Limited and AES-Tisza Erömü Kft v. The Republic of Hungary, ECT (ICSID), Case No. ARB/07/22 (Award), 23 September 2010 (hereafter, AES); Alex Genin, Eastern Credit Limited, Inc. and A.S. Baltoil v. The Republic of Estonia, USA–Estonia BIT (ICSID), Case No. ARB/99/2 (Award), 25 June 2001 (hereafter, Genin).

115 Azurix, supra note 109, at para. 392.

116 Neer, supra note 8.

117 Tecmed, supra note 114, at para. 154.

118 Enron Corp. and Ponderosa Assets, L. P. v. Argentine Republic, US–Argentina BIT (ICSID), Case No. ARB/01/3 (Award), 22 May 2007, at para. 281 (hereafter, Enron).

119 Genin, supra note 114, at para. 370.

120 Siemens, supra note 109, at para. 319.

121 Arbitral awards that have acknowledged as much, either directly or indirectly, include: CMS Gas and LG&E, supra note 109; Tecmed, Genin, Noble, and AES, supra note 114; PSEG Global, Inc., The North American Coal Corporation, and Konya Ingin Electrik Uretim ve Ticaret Limited Sirketi v. Turkey, USA–Turkey BIT (ICSID), Case No. ARB/02/5 (Award), 19 January 2007 (hereafter, PSEG); Alpha Projektholding GmbH v. Ukraine, Austria–Ukraine BIT (ICSID), Case No. ARB/07/16) (Award), 8 November 2010 (hereafter, Alpha); Saluka Investments BV v. The Czech Republic, Netherlands–Czech Republic BIT (UNCITRAL) (Partial Award), 17 March 2006 (hereafter, Saluka); Ioannis Kardassopoulos, Ron Fuchs v. The Republic of Georgia, Israel–Georgia BIT, Greece–Georgia BIT, ECT (ICSID), Case No. ARB/07/15 (Award), 3 March 2010 (hereafter, Kardassopoulos).

122 CMS Gas, supra note 109, at para. 290.

123 LG&E, supra note 109, at para. 162.

124 Noble, supra note 114, at para. 182.

125 CMS Gas and LG&E, supra note 109; Tecmed, Noble, and AES, supra note 114; Kardassopoulos, PSEG, and Saluka, supra note 121.

126 Alpha, supra note 121, at para. 420 (emphasis added).

127 Genin, supra note 114, at para. 371. The tribunal in Siemens explicitly rejects the Genin tribunal's finding that bad faith must be present in order for conduct to be deemed arbitrary; see Siemens, supra note 109, at para. 318: ‘The element of bad faith added by Genin does not seem to find support either in the ordinary concept of arbitrariness or in the definition of the ICJ in ELSI.’

128 ELSI, supra note 8.

129 See list of awards, supra note 114.

130 See Sempra Energy International v. Argentine Republic, US–Argentina BIT (ICSID), Case No. ARB/02/16 (Award), 28 September 2007, at para. 318 (hereafter, Sempra); and Enron, supra note 118, at para. 281.

131 See CMS Gas, Lauder and Occidental, supra note 109. The tribunal in Alpha also applies a low standard, but it is based on legitimate expectations and not dictionary definitions; see Alpha, supra note 121, at para. 420.

132 See Occidental, supra note 109, at para. 163.

133 See Saluka and Kardassopoulos, supra note 121, at paras. 297, 430, respectively, citing NAFTA case S.D. Myers, supra note 30, at para. 263, which is discussed further below.

134 For examples of awards that contain findings of arbitrariness, see Azurix, Lauder, Occidental, and Siemens, supra note 109; and Alpha, supra note 121.

135 AES, supra note 114.

136 Azurix, supra note 109.

137 Lauder, supra note 109.

138 Occidental, supra note 109.

139 Alpha, supra note 121.

140 Siemens, supra note 109.

141 CMS Gas, supra note 109.

142 LG&E, supra note 109.

143 AES, supra note 114.

144 Genin, supra note 114.

145 Enron, supra note 118; and Sempra, supra note 130.

146 2001 Notes of Interpretation, supra note 31.

147 Waste Management Inc v. Mexico, NAFTA (ICSID), Case No. ARB(AF)/98/2 (Final Award), 2 June 2002, at para. 98 (hereafter, Waste Management).

148 Merrill & Ring Forestry L.P. v. Canada, NAFTA (UNCITRAL) (Award), 31 March 2010, at para. 208 (hereafter, Merrill & Ring).

149 Glamis, supra note 9, at para. 625.

150 See International Thunderbird Gaming Corp. v. United States of America, NAFTA (UNCITRAL) (Final Award), 26 January 2006 (hereafter, Thunderbird); Merrill & Ring, supra note 148; Waste Management, supra note 147.

151 Mondev, supra note 21.

152 Azinian v. United Mexican States, NAFTA (ICSID), Case No. ARB/(AF)/97/2 (Award), 1 November 1999, at para. 99.

153 Glamis, supra note 9, at para. 616.

154 ADF Group Inc. v. United States of America, NAFTA (ICSID), Case No. ARB(AF)/00/1 (Final Award), 9 January 2003 (hereafter, ADF); Pope & Talbot II, supra note 31; Loewen Group, Inc. and Raymond L. Loewen v. United States of America, NAFTA (ICSID), Case No. ARB(AF)/98/3 (Award), 26 June 2003 (hereafter, Loewen); S.D. Myers, supra note 30; Waste Management, supra note 147.

155 Thunderbird, supra note 150, at para. 194.

156 Merrill & Ring, supra note 148, at para. 187.

157 Glamis, supra note 9, at para. 626.

158 S.D. Myers, supra note 30.

159 Waste Management, supra note 147.

160 ELSI, supra note 8, at para. 133.

161 ADF, supra note 154; Glamis, supra note 9, at para. 625; Thunderbird, supra note 150; GAMI Investments Inc. (U.S.) v. United Mexican States, NAFTA (UNCITRAL) (Final Award), 15 November 2004); Loewen, supra note 154, at para. 132; Mondev, supra note 21, at para. 127; Pope & Talbot II, supra note 31, at paras. 63–64.

162 ELSI, supra note 8, at para. 124.

163 ADF, supra note 154, at para. 190.

164 Mondev, supra note 21, at para. 127

165 Thunderbird, supra note 150 (emphasis added).

166 Neer, supra note 8.

167 Glamis, supra note 9, at para. 617.

168 Ibid., at para. 625 (emphasis in original).

169 Ibid.

170 Ibid., at para. 626 (emphasis in original).

171 Ibid., at para. 627.

172 Merrill & Ring, supra note 148, at para. 213.

173 Black's Law Dictionary, supra note 51.

174 At least two awards that deal with Art. 1105, Chemtura and Grand River, have been issued since Merrill & Ring, but neither makes mention of the tribunal's findings on the international minimum standard of treatment. One award, Chemtura, was issued within five months of the Merrill & Ring decision; therefore, it likely did not take it into consideration; see Chemtura Corporation v. Government of Canada, NAFTA (UNCITRAL) (Final Award), 2 August 2010 (hereafter, Chemtura); and Grand River Enterprises Six Nations Ltd et al. v. United States, NAFTA (UNCITRAL) ICSID, Case No. ARB/10/5 (Final Award), 12 January 2011 (hereafter, Grand River).

175 See Mondev, supra note 21, at paras. 115–116: the tribunal finds that ‘there is insufficient cause for assuming that provisions of . . . NAFTA . . . are confined to the Neer and Neer (USA) v. United Mexican States case standard of outrageous treatment where the issue is the treatment of foreign investment by the State itself’ in part because ‘the status of the individual in international law, and the international protection of foreign investments, were far less developed [in the 1920s] than they have since come to be’. The tribunal adds at para. 117 that ‘it would be surprising if [the mass of investment treaties according protection to foreign investment] and the vast number of provisions it reflects were to be interpreted as meaning no more than the Neer and Neer (USA) v. United Mexican States case Tribunal (in a very different context) meant in 1927’; see also ADF, supra note 154, at para. 179: ‘what customary international law projects is not a static photograph of the minimum standard of treatment of aliens as it stood in 1927 when the Award in the Neer case was rendered’, but that ‘both customary international law and the minimum standard of treatment of aliens it incorporates are constantly in a process of development’.

176 Glamis, supra note 9, at para. 624.

177 Marvin Feldman v. United Mexican States, NAFTA (ICSID), Case No. ARB(AF)/99/1 (Final Award), 16 December 2002, at para. 148 (hereafter, Feldman).

178 Pope & Talbot II, supra note 31, at paras. 63–64, 67–68.

179 S.D. Myers, supra note 30.

180 Ibid., at para. 268.

181 Feldman, supra note 177.

182 Pope & Talbot II, supra note 31, at para. 68.

183 S.D. Myers, supra note 30, at para. 268.

184 ADF, supra note 154, at paras. 188, 191.

185 Thunderbird, supra note 150, at para. 197.

186 Merrill & Ring, supra note 148, at para. 236.

187 Mondev, supra note 21, at para. 156.

188 Waste Management, supra note 147, at paras. 114–115, 130.

189 This is likely due in large part to the absence of the term ‘international minimum standard of treatment’ in most IITs that feature fair and equitable treatment clauses instead.

190 Statute of the International Court of Justice, supra note 53.

191 For a summary of each party's position regarding Art. 1105, which includes a discussion on arbitrariness, see ADF, supra note 154, at paras. 109–125. These positions have remained relatively unchanged since the 2001 Notes of Interpretation. A valuable resource for a party's position on a given issue may be found in its Art. 1128 submissions. This provision allows parties to make submissions to a Chapter 11 dispute in which they are not directly involved. They may be consulted at each NAFTA party's respective government website that deals with NAFTA claims; these websites are referenced supra note 10.

192 Recalling that the recent Merrill & Ring award appears to be a significant departure from the pattern of high thresholds for arbitrariness. It remains to be seen, however, whether that award will constitute an anomaly or rather a harbinger of a future trend; see Merrill & Ring, supra note 148.

193 For a list of state respondents, see UNCTAD, ‘Latest Developments In Investor–State Dispute Settlement’, UNCTAD IIA Issues Note, No. 1, UNCTAD/WEB/DIAE/IA/2011/3, United Nations, New York and Geneva, March 2011, at 12–13, available online at www.unctad.org/en/docs/webdiaeia20113_en.pdf.

194 Art. 1110, NAFTA, supra note 1. Para. 1110(1) reads: ‘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:

  1. (a)

    (a) for a public purpose;

  2. (b)

    (b) on a non-discriminatory basis;

  3. (c)

    (c) in accordance with due process of law and Article 1105(1); and

  4. (d)

    (d) on payment of compensation in accordance with paragraphs 2 through 6’ (emphasis added).

195 Alpha, supra note 121.

196 Genin, supra note 114; and Mondev, supra note 21.

197 C. Yost, ‘A Case Review and Analysis of the Legitimate Expectations Principle as It Applies within the Fair and Equitable Treatment Standard’, (2009) ANU College of Law Research Paper No. 09-01, at 42.

198 T. Weiler, ‘The Treatment of SPS Measures under NAFTA Chapter 11: Preliminary Answers to an Open-Ended Question’, (2003) 26 Boston C. ICLR 229, at 247.

199 Salacuse, supra note 98, at 240.

200 Weiler and Laird, supra note 81, at 285.

201 Schwarzenberger, in Weiler and Laird, supra note 81, at 284.

202 Saluka and Kardassopoulos, citing S.D. Myers, supra note 30.