Performance Requirement Prohibitions in International Investment Law.

Half Title -- Series Information -- Title Page -- Copyright Page -- Contents -- Preface -- Acknowledgments -- Abbreviations -- Chapter 1 General Introduction -- A The Issue Addressed in This Monograph: the Prohibition of Performance Requirements in International Investment Agreements -- B The Objective of This Monograph -- C The Relevance of This Monograph -- 1 Analyses of How prp s in iia s Are Drafted, Interpreted and Applied Are Anecdotal -- 2 The Interpretation of prp s by Arbitral Tribunals Is Underdeveloped and Generally Unsatisfactory -- 3 The Application of mfn Treatment Clauses to prp s Remains Unexplored -- D The Scope and Methodology of This Monograph -- 1 Exhaustive Overview of prp s within the iia s of Six Countries and within Model bit s -- 2 Comprehensive Analysis of State Submissions on Performance Requirements and Subsidies in the gatt Uruguay Round of Negotiations -- 3 Comprehensive Analysis of Arbitral Awards Having Interpreted and Applied prp s in iia s -- 4 The Applicability of mfn Treatment Clauses to prp s -- E Overview of This Monograph -- Chapter 2 Characteristics and General Objectives of Performance Requirements and prp s -- A Conceptual Characteristics of Performance Requirements and the Absence of a Universally Accepted Definition -- B General Objectives of Performance Requirements -- C The Ubiquitous Presence of Advantages Alongside Performance Requirements -- D Prohibiting Performance Requirements Aims at Ensuring the Operational Freedom of Investors and Lasting Trade Benefits for Home States -- Chapter 3 Systemic Integration and Cross-Fertilisation for a Proper Understanding of prp s in iia s -- A prp s Must Be Understood in a Systemic Fashion: prp s as Multi-Sourced Equivalent Norms and Transplanted Treaty Rules -- B prp s in iia s Systematically Replicate prp s of Model bit s and/or of Previous iia s.

1 The Few Model bit s That Comprise prp s, as Well as the prp s of Pioneering iia s, Have Proven Extremely Influential -- 2 The U.S. bit Programme, Spearhead of prp s -- a The U.S. bit Programme Created and Exerted a Profound Influence on International Law -- b The U.S. bit Programme Uncompromisingly Strove for a Uniform Outcome -- C The trim s Agreement, the scm Agreement and prp s in iia s Are Joined at the Hip -- 1 Limited Achievements in the Multilateral gatt Forum Fuelled Intertwined Bilateral American Negotiations on Performance Requirements -- 2 gatt Uruguay Round of Negotiations on Subsidies Addressed Preoccupations Very Similar to Those on trim s -- D Articles 31 and 32 of the vclt and Maximising Interpretative Gateways to a Comprehensive Understanding of prp s -- 1 Ordinary Meaning, Terms of Art and the Settled Meaning of Terms Used in prp s -- 2 The Context of prp s in iia s -- 3 Applying the "Principle of Systematic Integration" to prp s in iia s -- 4 Supplementary Means of Interpretation and Circumstances of Conclusion of prp s in iia s -- 5 All Signs Point to a Systemic Interpretation and Application of prp s in iia s and to a Cross-Fertilisation with gatt/wto Disciplines -- Chapter 4 Typology and Analysis of prp s in iia s -- A Non-Binding prp s with Narrow Coverage -- B prp s &amp -- trim s -- 1 The Applicability of the gatt to Performance Requirements and the gatt-fira Panel Report -- 2 Performance Requirements under the trim s Agreement -- a The Endorsement of trim s as a Political Compromise -- b Scope and Coverage of the trim s Agreement and of prp s Which Incorporate the trim s Agreement -- 3 prp s That Incorporate the trim s Agreement -- C Open-Ended prp s in iia s -- 1 First-Generation prp s in American bit s (1982-1995) -- a American bit s with prp s That Reproduce prp s from U.S. Model bit s.

b Attempts in American bit s to Address the Open-Ended Broadness of prp s -- c Rejecting Haphazard Attempts at Narrowing the Scope of Open-Ended prp s in American bit s -- d The Lemire Tribunal's Interpretations of Open-Ended prp s -- 2 Open-Ended prp s in French bit s -- a France's Model prp -- b 64 French bit s with Open-Ended prp s -- 3 gatt Uruguay Round Submissions as Tools for Expounding the Content and Outer Contours of Open-Ended prp s in American, French and Indian bit s -- a Clearly (and Directly) Trade-Related Performance Requirements: lcr s, epr s and Trade-Balancing Requirements -- b The American/European/Indian/oecd List of Performance Requirements -- 4 Additional Protocols to Open-Ended American bit s with Eight European Countries Ahead of Their Accession to the European Union -- D Detailed and Exhaustive prp s in iia s -- 1 Prohibiting Detailed Lists of Mandatory Performance Requirements: the Widespread Recurrence of a Limited Number of Patterns -- 2 A Working List of Performance Requirements Whose Terms of Art Have Acquired Settled Meanings: Definitions and Examples -- a lcr s/lsr s -- b epr s -- c Trade-Balancing Requirements -- d Export Controls or Restrictions -- e Local Equity Requirements ("ler s"), Joint Venture Requirements ("jvr s") and/or Foreign Ownership Limitations -- f Technology Transfer, Licensing and/or Local r&amp -- d Requirements -- g Foreign Exchange Restrictions and/or Earning Requirements -- h Remittance Restrictions -- i Local Employment and/or Training Requirements -- j Investment Localisation Requirements -- k Manufacturing Requirements -- l Manufacturing Limitations -- m Domestic Sales Requirements -- n Product Mandating Requirements -- 3 Interpreting Specifically Prohibited Performance Requirements -- a The Application of Detailed prp s to lcr s.

b The Application of Detailed prp s to epr s and Export Restrictions -- c The Application of Detailed prp s to Domestic Sales Restrictions -- d The Application of Detailed prp s to lsr s -- E Prohibiting Advantages Conditioned upon Performance Requirements -- 1 Scope and Coverage of Disciplines Applicable to Advantage-Conditioning Performance Requirements under the trim s Agreement and the scm Agreement -- 2 The Regulation of Advantage-Conditioning Performance Requirements by prp s in iia s -- a prp s Which Remain Silent in Respect of Advantage-Conditioning Performance Requirements -- b prp s Which Incorporate the trim s Agreement Prohibit Advantage-Conditioning Performance Requirements Unless Specified Otherwise -- c American and Canadian iia s That Address Concerns of the European Commission in Respect of Advantage-Conditioning Performance Requirements -- d Explicitly Excluding Advantage-Conditioning Performance Requirements from prp s -- e Replicating the nafta Approach: Prohibiting Limited Lists of Advantage-Conditioning Performance Requirements -- 3 Defining Contiguous Concepts: Advantages under the trim s Agreement and in prp s of iia s and Benefits under the scm Agreement -- 4 Interpreting and Applying Prohibitions of Advantage-Conditioning Performance Requirements and the Term "Advantage" -- F prp s in Trade and/or Investment Chapters of tip s -- 1 tip s with Two prp s Reflect Dual Trade and Investment Concerns -- 2 Conflicting Interests of Home States and Their Outward Investors Warrant State-to-State Disciplines on Directly Trade-Related Performance Requirements -- Chapter 5 Recurring Features That Modulate the Scope and Coverage of prp s in iia s -- A prp s, Investments and Investors -- 1 prp s Applicable to All Investments -- 2 prp s Applicable Only to Covered Investments and Investors.

B Activities to Which prp s Apply and the "Connection" Prerequisite -- C The Looming Ineffectiveness of Disciplines on Advantage-Conditioning Performance Requirements -- 1 Prohibitions of Advantage-Conditioning Performance Requirements Whose Very Wording Deprive Them of Any Effectiveness -- 2 The Erroneous Arbitral Interpretations of "in Connection with" in nafta Article 1106(3) -- D The Existence of a "Requirement" as a Condition for the Applicability of prp s in iia s -- 1 Commitments or Undertakings as Performance Requirements -- 2 The Notion of "Requirement" According to Arbitral Tribunals -- 3 The Unavailing de Facto vs. de Jure Conundrum, Incidental Effects and Explicit Limitations to Performance Requirements -- E Ensuring the Continued Lawfulness of Specific Performance Requirements -- 1 "Clarifying" Provisions -- 2 Preserving the Right to Impose Some Technology Transfer Requirements -- 3 Excluding Qualification Requirements for Export Promotion and Foreign Aid Programmes -- 4 Excluding Qualification Requirements for Preferential Tariffs or Quotas -- 5 gatt Article xx-Like Exceptions -- 6 Exceptions in Favour of Aboriginal Peoples and/or Socially or Economically Disadvantaged Minorities -- 7 Exempting Cultural Industries from prp s -- 8 Opting Taxation Measures in or out of prp s -- 9 Tailored Exceptions to prp s That Address Various Issues of National or Regional Concern -- a Preserving Performance Requirements Necessary to Comply with eu Rules -- b Protecting National Treasures, Accessing Products in Short Supply, and Maintaining Public Order -- F Shielding Government Procurement from prp s in iia s -- G Disciplining Performance Requirements as "Offsets" in tip Chapters on Government Procurement -- H Reserving Existing or Future Non-Conforming Measures from prp s -- 1 Reserving Existing Non-Conforming Measures from prp s.

2 The Unpredictable Scope of Open-Ended Reservations to prp s in iia s.

In Performance Requirement Prohibitions in International Investment Law, Alexandre Genest proposes the first empirical typology of performance requirement prohibitions in investment treaties and the first in-depth analysis of arbitral awards on the subject, which will improve their interpretation and drafting.

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Electronic reproduction. Ann Arbor, Michigan : ProQuest Ebook Central, 2024. Available via World Wide Web. Access may be limited to ProQuest Ebook Central affiliated libraries.