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NAFTA’s prohibition on performance requirements covers all investors
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Mexico breached national treatment guarantee by subjecting foreign-owned sugar producers to special treatment
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Tribunal examines Mexico’s purported counter-measure in light of 4 criteria
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Majority awards part of costs to Romania
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Umbrella clause also canvassed
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Police Powers discussed in fair and equitable treatment context
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Legitimate Expectations and Fair and Equitable Treatment fleshed out
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Various fair and equitable treatment claims rejected
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Other alleged breaches did not hinge on attribution theory
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Certain conduct of state-owned companies is attributed to state
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Spotlight may re-focus on Mexico’s failed consolidation bid
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Tribunals also differ sharply on validity of counter-measures defence
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Parties agreed on tribunal to hear Mexico’s consolidation request
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Confidentiality issues arising from fierce competition between claimants weighed heavily against consolidation
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Party preferences were relevant, and also counted against consolidation
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Tribunal saw no ‘major risk’ of inconsistent decisions; concerns for delay in ordering consolidation
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Other expropriation cases distinguished, and Metalclad singled out for critique
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Each side ordered to bear its own costs
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Each of the claimants’ alleged rights failed one or more of these tests
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No right to broadcasting agreement after illegal award
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Tribunal discusses “profound difference” between property rights and purely personal rights for the purposes of expropriation claims
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Dispute arose out of failed tender in process judged illegal under Hungarian law
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Debate centers on arbitrability of customary international law obligation on expropriation
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Claimants agreed to strike-thru non-expro claims; Hungary sought rewrite of RFA
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