Substantive Protections: Obligations

This chapter discusses three distinct substantive protections: umbrella clauses, transfer of funds clauses and prohibitions of performance requirements. For each substantive protection, we provide an overview and treaty examples, and discuss the relevant case law, identifying (where applicable) the jurisprudential debates that have emerged.

Umbrella clauses

Introduction to umbrella clauses

The violation by a state of a contract between itself and an investor of another state is not generally considered to be a violation of international law.^[2] Yet almost all foreign investments operate within the framework of contracts entered into between investors and host states. An umbrella clause (or an observance of undertakings clause) is a provision in a bilateral or multilateral investment agreement that aims to provide some measure of protection in international law to an investor when a host state or an emanation of it violates obligations contained in an investor–state contractual arrangement or other domestic instrument pertaining to the investment. Whether, and to what extent, an umbrella clause is effective to provide this protection has been the subject of intense debate between arbitrators and scholars.

A typical umbrella clause provides that ‘each contracting party shall observe the obligation it may have entered into with regard to the investments of nationals and companies of the other contracting party’.^[3] This typical formulation stands in the middle of a spectrum, and on either side of it there are other formulations that provide less or more clarity as to what is intended. Moreover, the concept of an umbrella clause has its origins in intense debates between international law scholars, jurists and arbitrators over the question of whether a treaty can accord standing in international law and before international investment tribunals to purely contractual arrangements between a state and an investor.

The discussion that follows highlights the significant differences in the formulations adopted by different umbrella clauses in bilateral investment treaties (BITs) and preferential trade and investment agreements (PTIAs), as well as model templates of these agreements. Also, the differing positions taken by international investment arbitration tribunals sometimes turn upon the language of the relevant clause. At other times, decisions can only be explained by the philosophical leaning of the tribunal regarding the right balance to be maintained between protecting the rights of foreign investors, on the one hand, and preserving the sovereign authority of the host state, on the other.

Treaty examples

The Energy Charter Treaty and the Philippines–Switzerland BIT

Article 10(1) of the Energy Charter Treaty^[4] provides that ‘[e]ach Contracting Party shall observe any obligations it has entered into with an Investor or an Investment of an Investor of any other Contracting Party’. By contrast, Article X(2) of the Philippines–Switzerland BIT^[5] provides that ‘Each Contracting Party shall observe any obligation it has assumed with regard to specific investments in its territory by investors of the other Contracting Party’. As discussed below, the choice between the phrase ‘entered into’ as opposed to ‘has assumed’ has been considered to be significant by a number of investment arbitration tribunals.

The Pakistan–Switzerland BIT and the Italy–Jordan BIT

By further contrast with treaties worded similarly to the Energy Charter Treaty or the Philippines–Switzerland BIT,^[6] Article 11 of the Pakistan–Switzerland BIT provides that ‘[e]ach Contracting Party shall constantly guarantee the observance of the commitments it has entered into with respect to the investments of the investors of the other Contracting Party’. Article 2(4) of the Italy–Jordan BIT^[7] requires each contracting party to ‘create and maintain in its territory a legal framework apt to guarantee to investors the continuity of legal treatment, including the compliance in good faith of all undertakings assumed with regard to each specific investor’. As discussed below, tribunals have attributed significance to the words ‘guarantee the observance’ and ‘maintain a legal framework’ used in these treaties, when contrasted with the words ‘shall observe’ used in BITs such as the Energy Charter Treaty.

The Austrian Model BIT

The Austrian Model BIT^[8] is significant for the clarity it offers in relation to some of the issues that have engaged investment arbitral tribunals. It first sets out the standard formulation, and then clarifies that ‘this means, inter alia, that the breach of a contract between the investor and the host state or one of its entities will amount to a violation of this treaty’.

Case law

Claims under umbrella clauses have arisen in different contexts, including in relation to contracts for pre-shipment inspection,^[9] construction contracts,^[10] promissory notes^[11] and regimes established under domestic laws and regulations.^[12] In these cases, tribunals have had to decide whether a state’s breach of a contract or a domestic law or regulation affecting the investment also amounts to a violation of an umbrella clause contained in a BIT or a multilateral investment treaty. There is no consistent pattern emerging from the body of decisions. Some decisions have outrightly rejected the notion that umbrella clauses have any autonomous character that is capable of according significance in international law to obligations assumed by states under state commercial contracts or domestic legislation. Others, while recognising that an umbrella clause may equate a breach of a state contract to a breach of the relevant treaty, have sought to curtail the scope of umbrella clauses by interpreting them as being applicable only: where the contract is made or breached by the state in the exercise of its sovereign authority; where there is privity between the entity breaching the obligation and the entity to which the obligation is owed; or if the obligation arises from a contractual obligation but not from a unilateral act of the state such as domestic legislation or regulations.

No autonomous character, merely declaratory or aspirational

SGS v. Pakistan^[13] exemplifies the decisions in this category. The tribunal in this case considered the umbrella clause in the Pakistan–Switzerland BIT, which reads: ‘Either Contracting Party shall constantly guarantee the observance of the commitments it has entered into with respect to the investments of the investors of the other Contracting Party.’ The tribunal rejected the argument that the umbrella clause (Article 11) had ‘elevated’ a contractual breach by a state to a breach of the treaty, on the bases that: (1) this ‘elevation’ will make Article 11 ‘susceptible of almost indefinite expansion’ given that the clause refers to commitments in general, not only to contractual commitments, and all claims based on any commitment in legislative or administrative or other unilateral acts of the state or one of its entities or subdivisions will be considered as treaty claims; (2) to give this expansive effect to the clause will ‘render useless all substantive standards of protection of the Treaty’; and (3) the language of the clause (‘constantly [to] guarantee the observance’) did not provide clear and persuasive evidence that Switzerland and Pakistan intended that all breaches of each state’s contracts with investors of the other state were to be treated as breaches of the BIT.^[14]

Not long after this, in SGS v. Philippines,^[15] another investment tribunal deciding a claim by the same investor considered Article X(2) of the Philippines–Switzerland BIT, which offered treaty protection to ‘any obligation [each Contracting Party] has assumed with regard to specific investments in its territory by investors of the other Contracting Party’ and reached a different conclusion from the SGS v. Pakistan tribunal. Specifically, the SGS v. Philippines tribunal found the terms of Article X(2) of the Philippines–Switzerland BIT to be ‘clear and categorical’ and to require an ‘effective interpretation’ consistent with the object and purpose of the treaty, which was made for the promotion and reciprocal protection of investments. Although it also found that the umbrella clause in the Philippines–Switzerland BIT was ‘vaguer’ than the corresponding clause in the Philippines–Switzerland BIT, the SGS v. Philippines tribunal was critical of the SGS v. Pakistan decision, describing it as ‘unconvincing’ given its failure ‘to give any clear meaning to the “umbrella clause”’ in the Philippines–Switzerland BIT.^[16]

The tribunal in Strabag v. Libya^[17] was also critical of the SGS v. Pakistan decision for not applying the principles of the Vienna Convention on the Law of Treaties when considering the umbrella clause in the Philippines–Switzerland BIT:

[a]t the Hearing, Respondent argued that interpreting Article 8(1) of the Treaty as urged by Claimant would ‘open the floodgates to allow every commercial dispute in contracts with States or State entities to find its way to an international tribunal convened under a bilateral investment treaty’. As noted supra this is similar to the view of the tribunal in SGS v. Pakistan. However, such policy-based arguments do not fit into the VCLT’s rubric of treaty interpretation. These are policy issues for treaty-makers to consider in selecting the words of their treaty; they cannot later be imported to limit the meaning of the chosen words.^[18]

Contracts made or breached by the state in the exercise of sovereign authority

The policy against ‘opening the floodgates’^[19] has inspired another constraint imposed on umbrella clauses. In El Paso v. Argentina,^[20] an International Centre for Settlement of Investment Disputes tribunal held that ‘it is necessary to distinguish the state as a merchant from the state as a sovereign’, and for the tribunal to have jurisdiction under the umbrella clause, either: (1) the subject contract must be ‘an investment agreement entered into by the state as a sovereign’; or (2) the state must have interfered with contractual rights by a unilateral act in such a way that the state’s action can be analysed as a violation of the standards of protection embodied in a BIT.^[21]

Other tribunals disagree with this approach. In Strabag SE v. Libya,^[22] the tribunal dismissed the notion that the requirement for the exercise of sovereign authority as a condition for international jurisdiction can circumscribe the plain language of the umbrella clause.^[23]

Privity

Some tribunals have held that umbrella clauses are effective only if there is privity between the entity breaching the obligation and the entity to which the obligation is owed.^[24] Other tribunals, focusing on the specific wording of the particular treaties, have dismissed this requirement.^[25]

Unilateral acts

In some cases, such as Oxus v. Uzbekistan,^[26] Noble Ventures v. Romania^[27] and CMS v. Argentina,^[28] tribunals have held that the umbrella clause formulations that adopt the phrase ‘entered into’ apply only to contractual obligations and not to unilateral obligations such as those contained in domestic legislation.^[29] In another set of decisions, including Plama v. Bulgaria,^[30] Enron v. Argentina^[31] and Noble Energy v. Ecuador,^[32] tribunals have held that umbrella clauses are applicable to unilateral obligations contained in legislation, notwithstanding that the umbrella clause formulation adopted the phrase ‘entered into’.

Some decisions contemplate that obligations contained in legislation may be covered by an umbrella clause if the legislation addresses the relevant investment with sufficient specificity. The tribunal in Continental Casualty v. Argentina^[33] provided some insight as to what may be considered to be sufficiently specific, referring to provisions ‘regulating a particular business sector and addressed specifically to the foreign investors in relation to their investments therein . . .’. Other decisions, such as OI European Group v. Venezuela, consider that an umbrella clause creates an obligation to ‘fulfil all of the legal obligations established in the legal system’.^[34]

The result in practice is that tribunals considering similar legislation have reached different conclusions on the question of whether such legislation can create obligations that validly give rise to umbrella clause claims. Thus, while the Oxus v. Uzbekistan tribunal characterised the Uzbekistan Law on Foreign Investments as a ‘law of a general nature setting out the obligations of the State in a general way’ and held therefore that the umbrella clause was inapplicable,^[35] another tribunal, considering the similar Venezuelan Foreign Investments Law, held that the law was within the umbrella clause.^[36]

In all, the foregoing discussion demonstrates that the results in the umbrella clause debates cannot always be fully explained by the terms of relevant clauses. In a system in which there is no binding doctrine of precedent, it is inevitable that decisions are often influenced by the philosophical leaning of tribunal members regarding the right balance to be maintained between protecting the rights of foreign investors, on the one hand, and preserving the sovereign authority of the host state, on the other.

Transfer of funds clauses

Overview of transfer of funds clauses

Customary international law recognises the concept of monetary sovereignty – the right that each state has to regulate its own currency.^[37] According to F A Mann:

To the power granted by municipal law there corresponds an international right, to the exercise of which other states cannot, as a rule, object. . . . It must follow that, subject to such exceptions as customary international law or treaties have grafted upon this rule, the municipal legislator … enjoys sovereignty over its currency and monetary system.^[38]

However, a state’s monetary sovereignty may be circumscribed by international arrangements that it has itself entered into, such as those that come with membership of the International Monetary Fund and limits to the right to transfer funds relating to an investment that many states agree under investment treaties.

Different BIT formulations of transfer of funds clauses reflect the competing priorities of investors and host states. On the one hand, investors have to transfer funds into the host country to make the investment, and then subsequently to repatriate home the profits, investment value and any capital gain. The ability of an investor to transfer these monies, including for the purpose of reimbursing any financing or making any royalty payments, has been described as an essential element of the promotional role of BITs.^[39] On the other hand, host states need to exercise their monetary sovereignty to control outward flow of capital and payments and thereby prevent capital flight that might deplete foreign reserves. They also need to control massive inward flows that could cause inflation.^[40] It is in the context of this tension between investor and state risks and motivations that BITs must be interpreted and applied.

Treaty examples

A standard transfer clause in a BIT protects the investor’s right to: (1) transfer funds for purposes connected with the investment, (2) without delay, (3) in convertible currency and (4) at a rate of exchange prevailing at date of transfer.^[41] Variations in the formulation of transfer clauses in individual BITs typically involve features such as:

• whether the right is set out in general terms, or as an illustrative or exhaustive list of specific categories;
• whether only outward flows are protected, or both inward and outward flows are covered (e.g., ‘[i]n relation to investments . . .’);
• the language employed in describing the type of payments that are protected; for example, whether the right relates to ‘payments resulting from investment activities’ or ‘related to an investment’ or ‘in connection with an investment’;
• convertibility;
• exchange rates; and
• the nature of any limitations on the right to transfer.

Format: general protection versus list of items

Many BITs and multilateral agreements adopt a non-exhaustive list of what funds can be transferred by an investor. For example, Article 15 of the Draft Pan-African Investment Code^[42] provides that ‘transfers may include’:

• profits, capital gains, dividends, royalties, interests and other current income accruing from an investment;
• the proceeds of the total or partial liquidation of an investment;
• repayments made pursuant to a loan agreement in connection with an investment;
• licence fees in relation to investment;
• payments in respect of technical assistance, technical service and management fees;
• payments in connection with contracting projects;
• earnings of Member State nationals who work in connection with an investment in the territory of the other Member State; and
• compensation, restitution, indemnification or other settlement pursuant to the investments.

An example of an exhaustive list is provided by the Southern African Development Community (SADC) Model Bilateral Investment Treaty Template. It provides that a state party shall accord investors with the right to:

• repatriate the capital invested and the investment returns;
• repatriate funds for repayment of loans;
• repatriate proceeds from compensation upon expropriation, the liquidation or sale of the whole or part of the investment including an appreciation or increase of the value of the investment capital;
• transfer payments for maintaining or developing the investment project, such as funds for acquiring raw or auxiliary materials and semi-finished products, as well as replacing capital assets;
• remit the unspent earnings of expatriate staff of the investment project;
• any compensation to the investor paid pursuant to this agreement; and
• make payments arising out of the settlement of a dispute by any means, including adjudication, arbitration or the agreement of the state party to the dispute.^[43]

Article 6 of the United Kingdom Model Investment Promotion and Protection Agreement (2008) simply guarantees investors ‘the unrestricted transfer of their investments and returns’, without setting out a list.

Continental Casualty v. Argentina illustrates a situation where a tribunal had to determine whether a particular transfer was within the protective scope of a non-exhaustive list, the transfer in question not being specifically mentioned in the list. The claim involved short-term dollar deposits held by the investor’s subsidiary. To determine whether these deposits were within the scope of the transfer of funds guarantee, the tribunal sought guidance from: (1) the detailed, although non-exclusive, list in Article V(1) of the Argentina–United States BIT^[44] (the transfer of funds clause); (2) the purpose of such transfer of funds clauses; and (3) the definitions of ‘investment’ and ‘associated activities’ in Article I of the BIT.^[45]

‘Outflows only’ versus ‘inflows and outflows’

Some treaties explicitly state that the guarantee relates to both inflows and outflows.^[46] Others use a formulation according to which the host state guarantees investors of the other contracting party the transfer of their ‘investments and returns held in its territory’,^[47] suggesting that only outflows are covered. Others are silent on the subject, and the question may turn on what is to be inferred from the language of the guarantee. Where broad language is used to define the type of payments that enjoy the guarantee, such as ‘transfers relating to an investment’, both inflows and outflows are likely to be covered.

Currency of transfer

There are also variations in treaty practice when referring to the currency in which the guaranteed transfer may be made. The usual format is to guarantee that the payment will be made in ‘freely usable currency’ or ‘freely convertible currency’.^[48] One variation guarantees the transfer ‘in the convertible currency in which the capital was originally invested or in any other convertible currency agreed by the investor and the Contracting Party concerned’.^[49]

Exchange rates

The usual formulation in treaty practice guarantees the right to transfer ‘at the rate of exchange applicable on the date of the transfer’ or ‘at the market rate of exchange existing on the date of the transfer with respect to spot transactions’.^[50] Variations to this include ‘at the prevailing market rate of exchange applicable within the Contracting Party accepting the investment and on the date of transfer’,^[51] and ‘at the rate of exchange applicable on each case . . . such exchange rate shall not differ substantially from the cross rate resulting from the exchange rate that the International Monetary Fund would apply if the currencies of the countries concerned were converted to special drawing rights on the date of payment’.^[52]

Restrictions

BITs, PTIAs and model agreements also differ in some respects as to whether and in what manner they circumscribe the guarantee of free transfer, reflecting different priorities in the exercise of monetary sovereignty. Most international investment agreements (IIAs) require that transfers must be done in accordance with relevant domestic legislation and procedures of the host state, and reserve to the host state the right to ‘prevent a transfer through the equitable, non-discriminatory and good faith application of laws and regulations’ on various matters of regulatory interest, such as bankruptcy, dealings in securities and criminal offences. Article 16.3 of the Draft Pan-African Investment Code goes further to permit exceptions to the transfer of funds, namely: (1) capital can only be transferred after a period of five years after full operation of the investment in a Member State unless its national legislation provides for more favourable treatment; and (2) proceeds of the investment can be transferred one year after the investment entered the territory of a Member State unless its national legislation provides for more favourable treatment.^[53]

Case law

On many occasions, investment arbitration tribunals have declined claims asserting a breach of transfer of funds clauses under IIAs. These include:

• a claim concerning short-term dollar deposits held by the investor’s subsidiary;^[54]
• claims considered by the tribunals to be based on purely contractual acts of a contracting state entity;^[55] and
• claims seeking to extend the free transfer clause to acts alleged to constitute violations of other protections in the IIA.^[56]

In other cases, the tribunals found a violation of the right of free transfer. Thus, in Achmea v. Slovak Republic,^[57] the Permanent Court of Arbitration tribunal decided that ‘the ban on profits was inconsistent with Respondent’s obligations’ under the applicable transfer provision. Another investment tribunal held that Zimbabwe had violated the transfer clauses of the relevant BITs by taking the following measures: (1) refusing to release foreign currency for the transfer of profits and for the repayment of the claimants’ loans to a foreign creditor; and (2) forcing the investors to accept payments in Zimbabwean dollars and to exchange US dollars proceeds to Zimbabwean dollars.^[58]

Performance requirements

Introduction to performance requirements

Performance requirements are stipulations imposed on investors, requiring them to meet certain specified economic or non-economic goals with respect to their operations in the host country.^[59] The most common examples are measures relating to local content, export performance, domestic equity, joint ventures, technology transfer and employment of nationals.^[60] While some view performance requirements as a useful tool to ensure that investments make an effective contribution to the development of the host country, others see them as ineffective or counterproductive.^[61] The latter view is reflected in the prohibition or limitation of performance requirements in some IIAs.^[62]

It is useful to distinguish between mandatory and non-mandatory performance requirements.^[63] Mandatory requirements are those linked to the conditions for entry and operation of an investment – they must be complied with before the investor can establish or operate the investment.^[64] Non-mandatory requirements are conditions to advantages provided by the host state, such as tax exemptions – they must be complied with before the investor can benefit from those advantages.^[65]

Treaty examples

Performance requirements have been used by both developed and emerging economies at different times in their history.^[66] In the 1980s, the United States began to press for their prohibition, on the basis that they distorted trade.^[67] This posture was reflected in US Model BITs,^[68] ultimately influencing the North American Free Trade Agreement (NAFTA),^[69] which was one of the first investment protection agreements to include a specific list of prohibited performance requirements.^[70]

Article 1106(1) of NAFTA sets out a list of seven specific types of measures that ‘[n]o Party may impose or enforce . . . in connection with the establishment, acquisition, expansion, management, conduct or operation of an investment’.^[71] Article 1106(3) lists specific requirements that cannot be imposed as a condition for the ‘receipt or continued receipt of an advantage’ or as an incentive from the host state.^[72] Article 1106(4) carves out a set of exceptions from this list, allowing a party to condition the receipt or continued receipt of an advantage in compliance with certain requirements, including the obligation to train and employ local workers or carry out research and development activities in its territory. Lastly, Article 1108 permits the parties to enter reservations in respect of ‘non-conforming’ government measures that existed at the time of the treaty’s entry into force, and any renewals of, and amendments to, these measures.^[73] Further reservations are permitted for laws not yet enacted in connection with various sectors, sub-sectors and activities.^[74] As discussed below, most of the case law on performance requirements has arisen in the context of NAFTA.

Performance requirements may also be couched as prohibited restrictions to substantive treaty protections in certain BITs. For instance, the French Model BIT considers performance requirements to be impediments to the fair and equitable treatment standard contained in the BIT.^[75] Performance requirements such as export quotas on foreign investments and investors may also be considered a violation of the national treatment standard, when they are not similarly imposed on local investors.^[76] This has been the basis of a number of investor–state dispute settlement claims.^[77]

Recently, there has been a welcome attempt to rebalance the developmental and capacity-building goals of states and the protections to be afforded to foreign investors. For instance, the national treatment provision contained in the 2016 Morocco–Nigeria BIT^[78] expressly permits differentiation between local and foreign investors on grounds of national security or public order.^[79] The objective is to balance the interests of foreign investors with the host state’s right to regulate.^[80] The SADC Model BIT Template and Commentary contains a number of provisions intended to reject prohibitions on performance requirements by host states, with the overarching objective of encouraging and increasing investments that support the sustainable development of each party, in particular that of the host state.^[81] Part 2, which deals with ‘Investor Rights Post-Establishment’, contains a non-discrimination provision.^[82] This is, however, qualified by Article 4.3(a), which provides that the non-discrimination provision shall not apply to measures such as performance requirements imposed by governments. Article 21 further provides a ‘right to pursue development goals’.^[83] Under this provision, performance requirements may be imposed on foreign investors to promote the social and economic benefits of foreign direct investment.^[84]

Tribunal decisions on substantive claims

Most of the case law on performance requirements has arisen in the context of NAFTA. The claims have usually concerned measures by states that claimants contended had violated the prohibition of performance requirements. Tribunals have not always considered these arguments favourably.^[85]

For instance, in S.D. Myers, Inc. v. Canada, the tribunal accepted that the purpose of a Canadian ban on the export of polychlorinated biphenyl (PCB) was to protect the Canadian PCB industry from competition by US companies. Nonetheless, the tribunal rejected the claimant’s argument that the ban amounted to a prohibited performance requirement because its effect was that the claimant was compelled to conduct its treatment of PCB waste solely in Canada (and therefore consume goods and services in Canada). The majority considered that the restriction had to fall squarely within the ambit of the prohibited performance requirements listed in Article 1106(1) and (3) of NAFTA,^[86] and in this case, no requirement prohibited in that list had been imposed on the investor.^[87] In Pope & Talbot, Inc v. Canada, Canada had imposed a tariff-rate export restraint on exports of softwood lumber to the United States. The tribunal held that while the measure undoubtedly deterred increased exports to the US, that deterrence was not a ‘requirement’ for establishing, acquiring, managing, conducting or operating a foreign-owned business in Canada.^[88] In Merrill and Ring v. Canada, the tribunal found that none of the measures complained of by the claimant – including requirements relating to cutting and sorting timber as per ‘normal market practices’, scaling timber rafts in accordance with the metric system of measurement and additional stipulations for lumber produced from remote regions – fell within the ordinary meaning of Article 1106 (i.e., involved the imposition or enforcement of a requirement, commitment or undertaking).^[89] The tribunal considered the effects on the investment at issue not to be ‘directly and specifically connected to exports’.^[90]

The cases above are to be contrasted with ADM and Tate & Lyle v. Mexico, where the respondent levied a 20 per cent tax on soft drinks and syrups that used any sweetener other than cane sugar, such as high fructose corn syrup. Claimants successfully argued that the tax amounted to a prohibited performance requirement under Article 1106(3) of NAFTA, because it conferred an advantage (i.e., tax exemption) conditioned on the exclusive use of cane sugar, in circumstances where cane sugar was primarily produced in Mexico.^[91] A similar decision was reached in respect of the same measure in Cargill v. Mexico.^[92] However, the tribunal in Corn Products v. Mexico found that the measure was not a prohibited performance requirement, as it was not a requirement imposed on the claimant itself.^[93] Regrettably, it is not possible to discern whether the arguments advanced by the ADM and Cargill claimants were made by those in Corn Products, regarding the unique breadth of the prohibition contained in Article 1106(3) of NAFTA, which (according to the ADM and Cargill tribunals) made it possible for a measure to be ‘connected with’ a claimant’s investment for the purpose of the provision even though no requirement was made of the claimant.

The decision in Mobil Investments Canada Inc. and Murphy Oil Corporation v. Canada^[94] is considered the most detailed consideration of performance requirements to date.^[95] The dispute concerned research and development spending requirements imposed by the Province of Newfoundland and Labrador (the Province) in Canada on two US oil companies that had invested in oil production projects. Since 1986, the Province had been issuing guidelines on research and development expenditure under both provincial and federal legislation. Guidelines issued in 2004, which set a fixed amount for research and development expenditure based on average expenditures by sector, formed the root of the case. The claimants alleged, inter alia, that the setting of a fixed amount for research and development, and the obligation to purchase goods and services in the Province, breached Article 1106(1)(c) of NAFTA and thereby the prohibition of performance requirements.^[96] Canada asserted that research and development did not constitute a ‘service’, and that even if it did, Canada would still have immunity by virtue of a Canadian reservation under Article 1108. Canada’s list of reservations included the federal law under which the 2004 guidelines were enacted. In consequence, the tribunal (by a majority) upheld the claim. First, the tribunal found that the term ‘service’ in Article 1106 of NAFTA was ‘broad enough to encompass research and development’.^[97] Second, the majority found that the Canadian reservation under Article 1108 did not cover the 2004 guidelines. It concluded that to benefit from reservations, the new measure must not ‘unduly expand the nonconforming features of the reservation’.^[98] The majority opined that the 2004 guidelines had introduced an additional spending requirement and a different form of board oversight that did not previously exist. Consequently, it concluded that the 2004 guidelines were inconsistent with the exceptions under Article 1108(1) and therefore constituted an impermissible performance requirement.^[99]

Outside the NAFTA context, there is the case of Lemire v. Ukraine, which was brought under the US–Ukraine BIT.^[100] The claimant had invested in the Ukrainian broadcasting industry by launching a radio station. Subsequently, Ukraine imposed a requirement that at least 50 per cent of the music broadcast by all radio stations must be produced in Ukraine. The claimant contended that this measure breached Article II.6 of the BIT, which prohibited performance requirements. The tribunal rejected this claim, finding that the ‘object and purpose’ of Article II.6 – in line with the interpretative approach in Article 31.1 of the Vienna Convention on the Law of Treaties – was to prevent states from imposing local content requirements as a protection of local industries against competing imports. However, the underlying reason for Ukraine’s measure was to protect Ukraine’s cultural inheritance.^[101]

Conclusion

The above discussion, although dealing with three distinct topics, illustrates the tension between arbitral tribunals’ impulse to follow the wording of IIAs, wherever that might lead, and the desire to preserve states’ sovereignty and regulatory space. The continuing debate in respect of umbrella clauses is emblematic of this phenomenon. Practitioners can do little about the wording of specific IIAs – where the relevant wording is unfavourable, or where most of the case law has taken a particular view on that wording, the fate of a given argument may be sealed. There, however, remains one lever: the choice of arbitrator. As highlighted above, in the absence of a binding doctrine of precedent, arbitral tribunals are at liberty to depart from the interpretations adopted, and conclusions reached, in earlier decisions. Arbitrator selection is therefore key. Of course, except perhaps where an arbitrator has previously issued a sharp dissent on a point of principle, it is not always possible to divine in advance how an arbitrator might decide a particular dispute, as no two cases are the same. However, an arbitrator’s track record may provide a helpful hint as to his or her openness (or otherwise) to entertain certain lines of argument. In most cases, this is all that can be hoped for.

Notes