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Treatment Of Non-Disputing State Party Views In Investor-State Arbitrations

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Chapter Summary

The focus of this chapter is on the role of a particular type of non-disputing party in investor-State arbitrations-the non-disputing State party, which is a party to the treaty under which the arbitration is submitted, but is not the respondent State in the arbitration. Article 2001 creates the Free Trade Commission (FTC), comprised of cabinet-level ministers of the three North American Free Trade Agreement (NAFTA) parties, which has the authority to issue interpretations of any provision of NAFTA. With a few notable exceptions, where the NAFTA parties' agreement was evidenced through Article 1128 submissions, tribunals have ruled consistently with the parties' shared interpretation. In concluding that the minimum standard of treatment article refers to customary international law as it exists today, the ADF tribunal, for instance, referenced the United States' accord with this interpretation and found it "equally important to note" that Canada and Mexico shared this view.

Keywords: Free Trade Commission (FTC); investor-State arbitrations; non-disputing party; North American Free Trade Agreement (NAFTA)



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