Investor Presentaiton
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INVESTOR-STATE DISPUTE SETTLEMENT: A SEQUEL
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interpretative note clarifying the meaning of the obligation.
Subsequent NAFTA tribunals have followed the guidance provided
in the Note. In addition, all NAFTA parties (Canada, Mexico and
the United States) have incorporated corresponding language into
their model BITS.
The relevant interpretation can be issued at any time and will
have binding force.
3. Obligation of a tribunal to refer certain matters to the
contracting parties
Some treaties have introduced a referral mechanism that allows
a tribunal
―on its own initiative or at the request of the respondent
State to refer certain matters or provisions to the contracting
parties (or the joint commission or committee established by the
IIA) for a binding interpretation. Should the parties fail to agree on
the interpretation, the tribunal regains the ability to interpret the
relevant provisions.
For instance, Article 10.33 of the Panama-Taiwan FTA (2003)
obliges a tribunal to seek clarification from a Commission
established by said treaty on the interpretation of any reservations
and exceptions to IIA obligations included in the Annexes. The
Malaysia-New Zealand FTA (2009) applies this mechanism more
broadly to the interpretation of any provision of the treaty:
"Article 10.26. Interpretation of Agreement
162
1. The Tribunal shall, on its own account or at the request
of the disputing investor or the disputing Party, request a joint
161 NAFTA Free Trade Commission, Notes of Interpretation of Certain
Chapter 11 Provisions, 31 July 2001.
162 These Annexes include country-specific reservations from certain treaty
obligations, including national treatment, MFN and performance
requirements.
UNCTAD Series on International Investment Agreements IIView entire presentation