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The "Legitimate Expectations" Principle under Article 1105 NAFTA

The "Legitimate Expectations" Principle under Article 1105 NAFTA On 26 January 2006, the North American Free Trade Agreement (NAFTA) Arbitral Tribunal composed of Professor Dr Albert Jan van den Berg (President), Lic. Agustin Portal Ariosa and Professor Thomas W. Walde handed down its Award in the case of International Thunderbird Gaming Corporation v. The United Mexican States (Thunderbird).' 1 The Award stands to play a leading role in defining the limits of the "legitimate expectations" doctrine as a ground for complaint by investors under the NAFTA. The Award is also notable for its treatment of two further issues of interest: first, the question of when a claimant will "own or control" an enterprise for the purposes of Article 1117 of the NAFTA so as to be entitled to submit an arbitration claim on behalf of that enterprise; and second, in the context of costs, the circumstances in which the "loser pays" principle should operate to the detriment of an unsuccessful claimant in international investment arbitration. The primary focus of this short article is that part of the Thunderbird Award which addresses the relevance of the legitimate expectations principle to investment claims under Article 1105 of the NAFTA. By way of background, a short introduction will be http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of World Investment and Trade Brill

The "Legitimate Expectations" Principle under Article 1105 NAFTA

Journal of World Investment and Trade , Volume 7 (3): 10 – Jan 1, 2006

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Publisher
Brill
Copyright
Copyright © Koninklijke Brill NV, Leiden, The Netherlands
ISSN
1660-7112
eISSN
2211-9000
DOI
10.1163/221190006X00252
Publisher site
See Article on Publisher Site

Abstract

On 26 January 2006, the North American Free Trade Agreement (NAFTA) Arbitral Tribunal composed of Professor Dr Albert Jan van den Berg (President), Lic. Agustin Portal Ariosa and Professor Thomas W. Walde handed down its Award in the case of International Thunderbird Gaming Corporation v. The United Mexican States (Thunderbird).' 1 The Award stands to play a leading role in defining the limits of the "legitimate expectations" doctrine as a ground for complaint by investors under the NAFTA. The Award is also notable for its treatment of two further issues of interest: first, the question of when a claimant will "own or control" an enterprise for the purposes of Article 1117 of the NAFTA so as to be entitled to submit an arbitration claim on behalf of that enterprise; and second, in the context of costs, the circumstances in which the "loser pays" principle should operate to the detriment of an unsuccessful claimant in international investment arbitration. The primary focus of this short article is that part of the Thunderbird Award which addresses the relevance of the legitimate expectations principle to investment claims under Article 1105 of the NAFTA. By way of background, a short introduction will be

Journal

Journal of World Investment and TradeBrill

Published: Jan 1, 2006

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