Beyond the Smoking Gun - Is a Discriminatory Objective Necessary to Find a Breach of National Treatment? - Chapter 14 - Investment Treaty Arbitration and International Law - Volume 1
About the Editor:
TODD WEILER is an investment treaty counsel and arbitrator and noted expert on NAFTA Chapter 11. He is the co-founder of Investmentclaims.com and the publisher of NAFTAClaims.com.
PIETER H.F. BEKKER is a Partner in the International Dispute Resolution Group at McDermott Will & Emery LLP in New York. He is an Adjunct Professor of International Arbitration at Fordham University School of Law in New York and a member of the Executive Council of the American Society of International Law. Prior to entering private practice, Dr. Bekker worked in the Registry of the International Court of Justice.
ANDREA K. BJORKLUND is a Professor at the University of California, Davis, School of Law who specializes in international economic law, international arbitration and litigation, international trade, and conflict of laws. Before starting at Davis, she spent two years as a Bigelow Fellow and Lecturer in Law at the University of Chicago Law School and from 1999-2001, Ms. Bjorklund was an attorney-adviser in the Office of the Legal Adviser at the U.S. Department of State, where she defended the United States in investor-State arbitrations brought under the NAFTA.
GABRIEL BOTTINI serves as Counsel in the Office of the Attorney General for the Government of Argentina. He has represented his country in a large number of bilateral investment treaty cases and has written widely on the subject.
CHARLES N. BROWER is a member of 20 Essex Street Chambers. During his career in international arbitration Judge Brower has served as counsel, arbitrator and expert witness in numerous ad hoc and institutional arbitration proceedings. A well known author and long-standing member of the American Society of International Law, Charles N. Brower served as Judge of the Iran-United States Claims Tribunal and as a member of the United Nations Compensation Commission.
CHARLES H. BROWER II is Jessie D. Puckett, Jr., Lecturer and Croft Associate Professor of International Law at the University of Mississippi Faculty of Law. A noted author on international investment and dispute settlement, Professor Brower currently serves on the Executive Council of the American Society of International Law and the Executive Committee of the Institute for Transnational Arbitration (ITA).
MARINN CARLSON Partner, Sidley Austin LLP, Washington, DC
DAVID D. CARON is the C. William Maxeiner Distinguished Professor of Law at the University of California at Berkeley. Professor Caron is a member of the U.S. Department of State Advisory Committee on Public International Law and serves as a Vice President of the American Society of International Law, and Chair of the Institute of Transnational Arbitration of the Center for American and International Law. Professor Caron served as Commissioner with the Precedent Panel (E2) of the United Nations Compensation Commission in Geneva, resolving claims arising out of the 1990 Gulf War, and acted as Counsel for Ethiopia before the Ethiopian - Eritrean Claims Commission in 2005. He currently serves as a Member of two NAFTA tribunals.
JACK J. COE, Jr. is a Professor of Law at Pepperdine University School of Law, specializing in private international law. Professor Coe is an elected member of the American Law Institute, admitted to practice in California and Washington, and a member of the Chartered Institute of Arbitrators, London. He is a co-chair of the International Commercial Dispute Resolution Committee of the ABA International Law Section, and chairs the Academic Council of the Institute for Transnational Arbitration. Professor Coe has served as both counsel and expert in investor-state arbitrations.
GRAHAM COOP has served as General Counsel at the Energy Charter Secretariat since 2004. Prior to joining the Secretariat, Mr. Coop was partner with Denton Wilde Sapte's Energy and Infrastructure Department in London for two years and spent 10 years at the Paris office of Freshfields Bruckhaus Deringer, where he served as Head of the firm's Energy and Natural Resources Group.
ALEX DE GRAMONT Partner, Crowell & Moring LLP, Washington, DC
GONZALO FLORES is Senior Counsel at the ICSID. In this capacity, Mr. Flores has served as tribunal secretary in a large number of proceedings instituted under the ICSID Convention, the ICSID Additional Facility Rules and the UNCITRAL Arbitration Rules.
DAVID R. HAIGH is Senior Partner at burnet, Duckworth & Palmer LLP, Calgary.
LAURA HALONEN is an Attorney in the Paris office of Freshfields Bruckhaus Deringer. She has been involved in a large number of international commercial arbitrations and both ad hoc and ICSID proceedings under bilateral investment treaties.
WALID BEN HAMIDA is Professor of International Law at the Universite d'Evry (Sciences Po), Paris. Dr. Hamida has previously taught at the University of Paris II, the University of Paris Dauphine, the University of Bucharest (college Franco-Roumain) and the University of Paris V.
KAJ HOBÃR is a Partner of Mannheimer Swartling in the Stockholm office, and Professor of East European Commercial Law at Uppsala University, Uppsala.
STEPHEN JAGUSCH is a Partner in the London office of Allen & Overy LLP. Co-chair of the firm's international arbitration practice, Mr. Jagusch specialises in international commercial and investment treaty arbitration, having acted as adviser and advocate in dozens of ad hoc and institutional international arbitrations, both in favour of, and against, sovereign states.
DEVASHISH KRISHAN is an Attorney at Baker Botts, London. Dev Krishan has wide experience before a variety of international tribunals. He has previously been an assistant legal counsel at the Permanent Court of Arbitration in The Hague and has clerked for the Chief Justice of India.
IAN LAIRD is Counsel with the international arbitration practice of Crowell Morning LLP in Washington D.C. He is the co-founder and Editor-in-Chief of Investmentclaims.com. Mr. Laird was involved as counsel in some of the earliest NAFTA arbitrations and is currently involved in a number of investment treaty arbitrations.
CAROLYN B. LAMM is a Partner in the Washington, D.C. office of White & Case, LLP. A member of the ICSID panel of arbitrators, Ms. Lamm has represented a large number of claimants and respondents in investor-state arbitrations.
ROBERTO J. AGUIRRE LUZI is a Special Legal Consultant in the International Arbitration Practice Group of King & Spalding's Houston office. Mr. Aguirre Luzi's practice focuses on international arbitration with an emphasis on international public law. He has been involved in numerous ICSID and UNCITRAL arbitrations, particularly involving the natural resources and utilities sectors.
ANDREA J. MENAKER is Chief of the NAFTA Arbitration Division in the Office of the Legal Adviser for the U.S. Department of State. She also participates in the negotiation of dispute resolution and investment provisions in U.S. free trade agreements and bilateral investment treaties. Prior to working for the Department of State, Professor Menaker was a law clerk for the U.S. District Court for the Southern District of New York and worked for several years as an associate for Shearman & Sterling.
CRAIG MILES is a Partner in King & Spalding's Houston office and has served as first chair on numerous ICSID and ad hoc arbitrations.
UCHE ONWUAMAEGBU is Senior Counsel at ICSID. In addition to management of arbitral proceedings, he actively participates in ICSID's knowledge dissemination program and coordinates various institutional initiatives at the Centre including amendments to the Rules and Regulations of the Centre. Prior to joining ICSID in 2001, Mr. Onwuamaegbu was a Senior Legal Officer at the United Nations Compensation Commission. Mr. Onwuamaegbu is a Barrister of the Supreme Court of Nigeria and a Solicitor of the Supreme Court of England and Wales. He presently serves as a co-Chair of the International Courts Committee of the American Bar Association's International Law Section.
WILLILAM W. PARK is Professor of Law at Boston University. He is General Editor of ArbitrationInternational, Vice President of the London Court of International Arbitration, and a member of the NAFTA Financial Services Roster. Park served as Arbitrator on the International Commission on Holocaust Era Insurance Claims and the Claims Resolution Tribunal for Dormant Accounts in Switzerland.
NOAH RUBINS is Counsel in the International Dispute Resolution and public international law practice groups of Freshfields Bruckhaus Deringer, Paris, France. He has served as counsel in numerous investor-state arbitrations.
BORZU SABAHI is a Consultant working in the International Arbitration Group of Fulbright & Jaworski LLP in Washington D.C. He is an Adjunct Professor and SJD Candidate at the Georgetown University Law Center.
CHRISTOPH SCHREUER is a Professor of International Law at the University of Vienna. He spent most of his academic career at the Department of International Law of the University of Salzburg and has also served as the Edward B. Burling Professor of International Law and Organization at the Paul H. Nitze School of Advanced International Studies (SAIS) of the Johns Hopkins University in Washington, DC. He has published numerous articles and several books in the field of international law, including a 1500-page monograph called: The ICSID Convention: A Commentary.
ANTHONY C. SINCLAIR is an Attorney in the International Arbitration Group of Allen & Overy LLP, London. He is admitted as a Solicitor in England and Wales and a Barrister and Solicitor of the High Court of New Zealand. He has been counsel in numerous investment treaty arbitrations under ICSID and UNCITRAL arbitration rules, ICSID annulment proceedings, and international commercial arbitration proceedings generally. Anthony Sinclair is also the author of numerous articles and chapters on international investment law and arbitration.
MARGRETE STEVENS is a Consultant with King & Spalding LLP in Washington D.C. She was formerly ICSID's Acting Lead Counsel, a position she had held for two years. The co-author of one of the first monographs on the protection of foreign investment in international law, Ms. Stevens has personal experience with dozens of investment treaty arbitrations held under the ICSID Rules.
SYLVIE TABET is a Senior Counsel & Deputy Director in the Trade Law Bureau of the Department of Foreign Affairs & International Trade, for the Government of Canada. She has represented her country in a number of arbitrations under the NAFTA and has provided advice to her Government on the negotiation of its foreign investment protection agreements.
THOMAS WÃLDE was the Jean-Monnet Chair on European Economic and Energy Law at the University of Dundee's Centre for Energy, Petroleum & Mineral Law & Policy and is a member of Essex Court Chambers in London. He serves as Editor-in-Chief of the OGEL Global Energy Law Web Portal, Transnational-dispute-management.com and the OGEMID electronic discussion group.
MICHAEL WOODS is a Partner at Heenan Blaikie, Ottawa.
Originally from Investment Treaty Arbitration and International Law - Volume 1
Up to recently, there was very little guidance on the application of the national treatment obligation outside the context of trade in goods. While the WTO Appellate Body has developed a well-established analytical framework and criteria for finding a violation of national treatment in the context of the General Agreement on Tariffs and Trade (GATT), cases outside this area were almost non-existent, and there was no clear test for applying the national treatment obligation in the investment context.
One of the first investor-state cases to examine the criteria for finding a violation of national treatment was S.D. Myers v. Canada.1 The tribunal was faced with a claim that Canada’s ban on exporting PCB waste violated national treatment by discriminating against U.S. investors that were looking to export PCBs to the U.S. for treatment and disposal in favour of domestic investors who would dispose of the waste in Canada. Canada claimed that the export ban was a measure to protect the environment, and was not motivated by considerations of nationality. The tribunal rejected this argument. In examining the factual record, it found that the intent of the ban was to protect and promote the development of the Canadian domestic industry. Statements by the then Minister of the Environment regarding the government’s desire to protect the Canadian waste disposal industry were considered by the tribunal. While the tribunal found that promotion of the Canadian industry was a legitimate policy goal, it did not excuse doing so by means that violated NAFTA. The tribunal also considered the impact of the measure, which disadvantaged US investors in the industry.
In weighing the relevance of the Government’s intent to favour domestic over foreign investors, the tribunal noted: