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Centre for Environmental, Resources and Energy Law
(CEREL)
Dr Alberto
Alvarez-Jimenez
Investment Protection & the Environment in Chapter 9 of the TPPA
National Treatment. Article 9.4
• Each Party shall accord to investors of another Party treatment no less
favourable than that it accords, in like circumstances, to its own
investors with respect to the establishment, acquisition, expansion,
management, conduct, operation, and sale or other disposition of
investments in its territory.
National Treatment. Article 9.4
• Footnote 14.
• For greater certainty, whether treatment is accorded in “like
circumstances” under Article 9.4 (National Treatment) … depends on
the totality of the circumstances, including whether the relevant
treatment distinguishes between investors or investments on the
basis of legitimate public welfare objectives.
Minimum Standard of Treatment. Article 9.6
• Each Party shall accord to covered investments treatment in
accordance with applicable customary international law principles,
including fair and equitable treatment and full protection and
security.
Minimum Standard of Treatment. Article 9.6
• 4. For greater certainty, the mere fact that a Party takes or fails to take
an action that may be inconsistent with an investor’s expectations
does not constitute a breach of this Article, even if there is loss or
damage to the covered investment as a result.
Minimum Standard of Treatment. Article 9.6
• 5. For greater certainty, the mere fact that a subsidy or grant has not
been issued, renewed or maintained, or has been modified or
reduced, by a Party, does not constitute a breach of this Article, even
if there is loss or damage to the covered investment as a result.
Expropriation and Compensation. Article 9.8
• No Party shall expropriate or nationalise a covered investment either
directly or indirectly through measures equivalent to expropriation or
nationalisation (expropriation), except:
• (b) in a non-discriminatory manner;
• (c) on payment of prompt, adequate and effective compensation.
Annex 9 – B. Expropriation
• 3(a)(i) the fact that an action or series of actions by a Party has an
adverse effect on the economic value of an investment, standing
alone, does not establish that an indirect expropriation has occurred;
Annex 9 –B. Expropriation
• (b) Non-discriminatory regulatory actions by a Party that are designed
and applied to protect legitimate public welfare objectives, such as
public health, safety and the environment, do not constitute indirect
expropriations, except in rare circumstances.
Investment and Environmental, Health and other
Regulatory Objectives. Article 9.16
• Nothing in this Chapter shall be construed to prevent a Party from
adopting, maintaining or enforcing any measure otherwise consistent
with this Chapter that it considers appropriate to ensure that
investment activity in its territory is undertaken in a manner sensitive
to environmental, health or other regulatory objectives.
Resource Management Act 1991