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International Investment Law for the 21st CenturyEssays in Honour of Christoph Schreuer$
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Christina Binder, Ursula Kriebaum, August Reinisch, and Stephan Wittich

Print publication date: 2009

Print ISBN-13: 9780199571345

Published to Oxford Scholarship Online: September 2009

DOI: 10.1093/acprof:oso/9780199571345.001.0001

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INVESTMENTS ‘IN THE TERRITORY’ OF THE HOST STATE

INVESTMENTS ‘IN THE TERRITORY’ OF THE HOST STATE

Chapter:
(p.42) 5 INVESTMENTS ‘IN THE TERRITORY’ OF THE HOST STATE
Source:
International Investment Law for the 21st Century
Author(s):

Christina Knahr

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199571345.003.0005

Many bilateral as well as multilateral investment treaties contain in their provisions on the definition of investment a requirement that the investment has to be made in the territory of the host State, while other treaties do not contain language to that effect. This issue has been addressed briefly in some International Centre for Settlement of Investment Disputes (ICSID) cases but has not played a major role among the judicial requirements usually examined by tribunals. In two recent North American Free Trade Agreement (NAFTA) Chapter 11 cases, Bayview v Mexico and Canadian Cattlemen for Fair Trade v United States, the tribunals for the first time rejected jurisdiction because the claimants had not made an investment in the territory of the respondent State. This chapter analyzes the reasoning and the findings of the tribunals in these two cases and tries to determine the relevance of the territorial nexus in investment arbitration. While the focus will be on Bayview and the Canadian Cattlemen Claims, previous ICSID cases that have addressed the issue is also considered.

Keywords:   investment protection treaties, territoriality, jurisdiction, NAFTA, Bayview, Canadian Cattlemen for Fair Trade, investment arbitration

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