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Understanding Performance Requirement Prohibitions In Investment Treaties

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Chapter Summary

Performance requirements are the least understood of the substantive prohibitions set forth in modern bilateral investment treaties (BITs). This chapter explores what performance requirements are and why they are so poorly understood. It examines why they are prohibited. The chapter reviews how such prohibitions have evolved and the limited jurisprudence to date addressing performance requirements. Performance requirement prohibitions are poorly understood by investment arbitration practitioners for four reasons: their scarcity, their very different origins, their focus on trade, and the difficulty of the text of the prohibitions. Modern investment treaties generally focus narrowly, as one would expect, on investment in the host State. Prohibitions of performance requirements have evolved from broad, often hortatory, provisions to increasingly more precise and detailed provisions. The limited jurisprudence available to date illuminates only a little the difficult area of performance requirements.

Keywords:bilateral investment treaties (BITs); host State; investment arbitration; investment treaties; jurisprudence; performance requirements



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