International business transactions

BITs also provide

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  More clarity about what intl law principles are
  
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  Private right of action for investor and forum in which to bring that action
  

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  Art 4 p. 415
  
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  Generally, MFN treatment requires that a foreign investor be accorded the highest standard of treatment available to an investor from any other foreign country.
  
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  Not a principle of CIL  govts are not obligated to treat foreigners in a manner that is fair and equal compared to other foreigners unless they have signed treaty saying they will do that
  
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  This is treaty law, so you have to look at the exact terms negotiated by treaty partners
  
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  US Model BIT
  

1. 
   “Each Party shall accord to investors of the other Party treatment no less favorable than that it accords, in like circumstances, to investors of any non-Party with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments in its territory.”
   
2. 
   “Each Party shall accord to covered investments treatment no less favorable than that it accords, in like circumstances, to investments in its territory of investors of any non-Party with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments in its territory.”
   

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  Scope of covered conduct in American treaties includes “establishment” whereas European and Asian BITs generally does not.
  
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  Definition of “investor” under US BITs includes a party “that attempts to make, is making, or has made an investment..”
  
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  “in like circumstances”
  
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    is a company that produces cooking oil using olives to be compared with a company that produces cooking oil using canola?
    
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    Have to look to choice of law in order to determine what law would decide this question?
    
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      NAFTA tribunal said MTBE is not entitled to be treated as same in Ethanol factory even though MTBE and Ethanol compete with each other
      
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        “in like circumstances” language did not pick up competitor
        
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      But be careful: just because something is interpreted one way under, say, WTO, doesn’t mean it will be the same in your circumstances
      
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      May relate to circumstances of govt conduct
      
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        Environmental regulation (MTBE has different environmental impact than ethanol)
        
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          If regulation had not been about environment, but just about gasoline, may have had different outcome
          

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  Principle of non-discrimination is usually formulated in a provision on national treatment that requires treatment “no less favorable” than that provided to domestic investors “in like circumstances
  
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  de facto differences in treatment can be sufficient to create a presumption of discrimination  p. 479
  
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  US treaties Art 3 p. 415
  
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    Include both investors and covered investments
    
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    have establishment right (limited by exceptions)
    
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    “in like circumstances” standard very controversial
    
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      to what extent does interpretation under trade law (WTO) impact interpretation under investment law
      

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