As a Contracting Party’s programmes which provide for public loans, grants, guarantees or insurance for facilitating trade or Investment abroad are not connected with Investment or related activities of Investors from other Contracting Parties in its Area, such programmes may be subject to constraints with respect to participation in them.
Canada and the United States each affirm that they will apply the provisions of Article 10 in accordance with the following considerations:
For the purposes of assessing the treatment which must be accorded to Investors of other Contracting Parties and their Investments, the circumstances will need to be considered on a case-by-case basis. A comparison between the treatment accorded to Investors of one Contracting Party, or the Investments of Investors of one Contracting Party, and the Investments or Investors of another Contracting Party, is only valid if it is made between Investors and Investments in similar circumstances. In determining whether differential treatment of Investors or Investments is consistent with Article 10, two basic factors must be taken into account.
The first factor is the policy objectives of Contracting Parties in various fields insofar as they are consistent with the principles of non-discrimination set out in Article 10. Legitimate policy objectives may justify differential treatment of foreign Investors or their Investments in order to reflect a dissimilarity of relevant circumstances between those Investors and Investments and their domestic counterparts. For example, the objective of ensuring the integrity of a country’s financial system would justify reasonable prudential measures with respect to foreign Investors or Investments, where such measures would be unnecessary to ensure the attainment of the same objectives insofar as domestic Investors or Investments are concerned. Those foreign Investors or their Investments would thus not be “in similar circumstances” to domestic Investors or their Investments. Thus, even if such a measure accorded differential treatment, it would not be contrary to Article 10.
The second factor is the extent to which the measure is motivated by the fact that the relevant Investor or Investment is subject to foreign ownership or under foreign control. A measure aimed speciffcally at Investors because they are foreign, without su cient countervailing policy reasons consistent with the preceding paragraph, would be contrary to the principles of Article 10. The foreign Investor or Investment would be “in similar circumstances” to domestic Investors and their Investments, and the measure would be contrary to Article 10.
(1) Each Contracting Party shall, in accordance with the provisions of this Treaty, encourage and create stable, equitable, favourable and transparent conditions for Investors of other Contracting Parties to make Investments in its Area. Such conditions shall include a commitment to accord at all times to Investments of Investors of other Contracting Parties fair and equitable treatment. Such Investments shall also enjoy the most constant protection and security and no Contracting Party shall in any way impair by unreasonable or discriminatory measures their management, maintenance, use, enjoyment or disposal. In no case shall such Investments be accorded treatment less favourable than that required by international law, including treaty obligations. Each Contracting Party shall observe any obligations it has entered into with an Investor or an Investment of an Investor of any other Contracting Party.
The reference to treaty obligations in the penultimate sentence of Article 10(1) does not include decisions taken by international organisations, even if they are legally binding, or treaties which entered into force before 1 January 1970.
I would like to note that the Russian Federation believes that the reference to international law in Article 10(1) is not intended to impose most favoured nation obligations with regard to Making of Investments. This is clearly in accordance with the intent of the negotiators who decided not to include in this first Treaty MFN obligations for the pre-investment stage.
(2) Each Contracting Party shall endeavour to accord to Investors of other Contracting Parties, as regards the Making of Investments in its Area, the Treatment described in paragraph (3).
(3) For the purposes of this Article, “Treatment” means treatment accorded by a Contracting Party which is no less favourable than that which it accords to its own Investors or to Investors of any other Contracting Party or any third state, whichever is the most favourable.
(4) A supplementary treaty shall, subject to conditions to be laid down therein, oblige each party thereto to accord to Investors of other parties, as regards the Making of Investments in its Area, the Treatment described in paragraph (3). That treaty shall be open for signature by the states and Regional Economic Integration Organisations which have signed or acceded to this Treaty. Negotiations towards the supplementary treaty shall commence not later than 1 January 1995, with a view to concluding it by 1 January 1998.
The supplementary treaty will specify conditions for applying the Treatment described in Article 10(3). Those conditions will include, inter alia, provisions relating to the sale or other divestment of state assets (privatisation) and to the dismantling of monopolies (demonopolisation).
The Russian Federation wishes to have reconsidered, in negotiations with regard to the supplementary treaty referred to in Article 10(4), the question of the importance of national legislation with respect to the issue of control as expressed in the Understanding to Article 1(6)
In addition, the Russian Federation has expressed the view that the consideration of appropriate amendments to the Treaty pursuant to Article 30 a ecting sectors of services within the scope of this Treaty to which measures of the GATS apply, and the negotiations towards the supplementary investment treaty provided for in Article 10(4), should be conducted in such a manner as to assure mutual consistency of the Treaty provisions arrived at. Here again, I am sure that all delegations would fully endorse the need to achieve such consistency in the future incorporation in the Treaty of the results of the Uruguay Round, and in negotiation of the second Treaty for the pre-investment stage.
(5) Each Contracting Party shall, as regards the Making of Investments in its Area, endeavour to:
(7) Each Contracting Party shall accord to Investments in its Area of Investors of other Contracting Parties, and their related activities including management, maintenance, use, enjoyment or disposal, treatment no less favourable than that which it accords to Investments of its own Investors or of the Investors of any other Contracting Party or any third state and their related activities including management, maintenance, use, enjoyment or disposal, whichever is the most favourable.
The Russian Federation may require that companies with foreign participation obtain legislative approval for the leasing of federally-owned property, provided that the Russian Federation shall ensure without exception that this process is not applied in a manner which discriminates among Investments of Investors of other Contracting Parties.
(8) The modalities of application of paragraph (7) in relation to programmes under which a Contracting Party provides grants or other financial assistance, or enters into contracts, for energy technology research and development, shall be reserved for the supplementary treaty described in paragraph (4). Each Contracting Party shall through the Secretariat keep the Charter Conference informed of the modalities it applies to the programmes described in this paragraph.
(9) Each state or Regional Economic Integration Organisation which signs or accedes to this Treaty shall, on the date it signs the Treaty or deposits its instrument of accession, submit to the Secretariat a report summarising all laws, regulations or other measures relevant to:
A Contracting Party shall keep its report up to date by promptly submitting amendments to the Secretariat. The Charter Conference shall review these reports periodically.
In respect of subparagraph (a) the report may designate parts of the energy sector in which a Contracting Party accords to Investors of other Contracting Parties the Treatment described in paragraph (3).
In respect of subparagraph (b) the review by the Charter Conference may consider the effects of such programmes on competition and Investments.
(10) Notwithstanding any other provision of this Article, the treatment described in paragraphs (3) and (7) shall not apply to the protection of Intellectual Property; instead, the treatment shall be as specified in the corresponding provisions of the applicable international agreements for the protection of Intellectual Property rights to which the respective Contracting Parties are parties.
(11) For the purposes of Article 26, the application by a Contracting Party of a trade-related investment measure as described in Article 5(1) and (2) to an Investment of an Investor of another Contracting Party existing at the time of such application shall, subject to Article 5(3) and (4), be considered a breach of an obligation of the former Contracting Party under this Part.
Australia notes that the provisions of Articles 5 and 10(11) do not diminish its rights and obligations under the GATT, including as elaborated in the Uruguay Round Agreement on Trade-Related Investment Measures, particularly with respect to the list of exceptions in Article 5(3), which it considers incomplete.
Australia further notes that it would not be appropriate for dispute settlement bodies established under the Treaty to give interpretations of GATT articles III and XI in the context of disputes between parties to the GATT or between an Investor of a party to the GATT and another party to the GATT. It considers that with respect to the application of Article 10(11) between an Investor and a party to the GATT, the only issue that can be considered under Article 26 is the issue of the awards of arbitration in the event that a GATT panel or the WTO dispute settlement body first establishes that a trade-related investment measure maintained by the Contracting Party is inconsistent with its obligations under the GATT or the Agreement on Trade-Related Investment Measures.
(12) Each Contracting Party shall ensure that its domestic law provides effective means for the assertion of claims and the enforcement of rights with respect to Investments, investment agreements, and investment authorisations.
Award, 1 November 2013, paragraphs 279, 289, 317, 324; 329-330; 334-335; 339; 374; 398-409; 418; 441
Award, 23 September 2010, paragraphs 9.3.15; 9.3.34-9.3.35; 9.3.66; 9.3.73; 11.3.2-11.3.3, 12.3.2 – 12.3.3, 13.3.5-13.3.6; 10.3.31; 10.3.34,10.3.36; 10.3.50, 10.3.53
Partial Award on Jurisdiction and Liability, 2 September 2009, Paragraphs 210; 215-217; 247; 251; 254-255; 265-268; 272-277
Excerpts of Award, 16 July 2012, paragraph 321
Award, 26 March 2008, paragraphs 78-84; 87-89; 92-95; 99; 103-105; 108; 110-112
Award, 19 December 2013, paragraphs 1086, 1087, 1092, 1232, 1256, 1282-1283; 1315-1316
Award, 2 May 2018, paragraphs 366-368; 410-412; 423-425; 430-435; 441-446
Dissenting Opinion of Mr Gary Born, 2 May 2018, paragraphs 7; 10-14; 24-26; 46-52; 58; 65-77
Award, 15 June 2018, paragraphs 552; 572
Final Award, 27 December 2016, paragraphs 329-330; 342-343; 350; 359-360; 364; 371-374; 386-388, 392-395
Award, 21 January 2016, paragraphs 471-474, 484, 486, 495, 505, 511, 512, 514, 517, 535, 539, 541
Award, 4 May 2017, paragraphs 353-355, 365, 371, 388, 389, 391, 393, 398, 400, 412-418
Decision on Jurisdiction, Applicable law and Admissibility, 30 November 2012, paragraphs 6.6.6-6.6.8; 6.7.6; 7.146-7.147; 7.152-7.153; 7.159; 7.162-7.164
Award, 25 November 2015, paragraphs 190; 219; 223
Award, 23 October 2013, Paragraphs 346-363; 370-380
Decision on Jurisdiction, 6 July 2007, paragraphs 212; 242; 452
Final Award, 18 July 2014, paragraph 1585
Final Award, 17 July 2016, paragraphs 764-772; 775; 781; 787-811, 818, 821-823
Dissenting Opinion of Prof. Guido Tawil, 17 July 2016, paragraphs 4-13
Decision on Jurisdiction, 25 July 2012, paragraphs 295, 366
Award, 2 September 2011, paragraph 102
Excerpts of Award, 22 June 2010, Paragraphs 263; 289; 348-349; 365; 377; 383; 422; 442-443; 449-450
Award, 30 March 2015, paragraphs 629-630, 657, 660, 662, 675, 695, 707, 716, 734-735, 764, 769, 771; 787-797; 823-825, 828-829
Dissenting Opinion of Steven A. Hammond, 20 March 2015, paragraphs 72-76; 90-95; 108; 120-139
Award, 16 May 2018, paragraphs 499; 503; 521, 667
Award, 15 February 2018, paragraphs 643-646; 657-661; 688-697, 713-715
Award, 16 December 2003, page 32-34
Award, 29 March 2005, page 75-77
Decision on Jurisdiction, 8 February 2005, paragraphs 143-146; 219-224; 248; 254
Final Award, 18 July 2014, paragraph 1585
Final Award, 18 July 2014, paragraph 1585