Investor Presentaiton
47
2. In the case of Mexico, the dispute settlement provisions of
this Section and of Chapter 15 shall not apply to a decision by
the National Commission on Foreign Investment ("Comision
Nacional de Inversiones Extranjeras") following a review
pursuant to Annex 6, reservation 3 set out in the Schedule of
Mexico, with respect to whether or not to permit an
acquisition that is subject to review." (Emphasis added).
In the Canada-Colombia FTA (2008), which grants pre-
establishment rights, Annex 837 excludes the following measures
from dispute settlement (both investor-State and State-State):
"A decision by Canada under the Investment Canada Act, with
respect to whether or not to permit an acquisition that is subject
to review; 35
A decision by a Party to prohibit or restrict the acquisition of an
investment in its territory by an investor of the other Party
pursuant to Article 2202 (National Security Exceptions)."
Where an IIA does not specifically exclude pre-establishment
obligations from the scope of ISDS, it will enable investors who
have encountered obstacles in making their investments to seek
redress through the IIA's ISDS mechanism.
35 Under the Investment Canada Act, the Canadian Government reviews all
direct acquisitions by non-Canadians of Canadian businesses with assets
above certain thresholds: for WTO member States that number (as of June
2012) is Can$330 million, and is scheduled to increase to Can$1 billion
over a four-year period; for non-WTO member States and for the
acquisitions of cultural industries, that number is Can$5 million or more,
and extends to all indirect acquisitions by non-Canadians of Canadian
businesses with assets of Can$50 million or more. An investment subject to
review may not be implemented unless the Canadian Government decides
that the investment is "likely to be of net benefit to Canada" on the basis of
criteria laid down by the Act.
UNCTAD Series on International Investment Agreements IIView entire presentation