Home Editorial Insight When arbitration is not voluntary: the case of Mutu and Pechstein v. Switzerland Global Briefing The impact of The Belt and Road Initiative on investment arbitration “What’s in a name?”: NAFTA to USMCA and what this Gazette of the Federation and the What has changed with regards to USMCA is an agreement governing approximately change means for investment ratification of the treaty. investment protections? protection USD 1.2 trillion worth of trade and affects nearly •Canada: the treaty must be ratified Chapter 14 of USMCA (pending half a billion North American consumers In FocusCultural Heritage by the executive and will be voted on ratification by all three countries, Considerations in both in the House of Commons and as previously explained) is, in many International Investment in the Senate. However, these votes aspects, a reflection of Chapter 11 of Model BIT. In contrast, NAFTA offered non-party does not have substantial Arbitration are not binding, since the constitution NAFTA, which deals with investment a less expansive definition, providing business activity in the state in which Smart Contracts and does not require international treaties matters. However, there are three main only a closed list of examples of it is incorporated. However, USMCA International Arbitration: to be submitted to Parliament differences that should be taken into investment. will restrict non-parties from doing Friends or Foes? (bicameral) for consideration. account: so even where they have substantial The Achmea decision: ii. The definition of claimant (vid. art 1 of business activity in the state. The significant uncertainties linger •United States: the agreement must be i.The definition of investment (vid. art. Annex 14-D): USMCA defines claimant exclusion is likely directed at Chinese- sent to the Congress (bicameral) for 14.1): the USMCA defines investment as “an investor of an Annex Party [i.e. owned or controlled investments in Investment Arbitration: analysis and eventual approval both as “every asset that an investor owns or the United States or Mexico], excluding the U.S. and Mexico. Contact Lawyers in the Senate and in the House of controls, directly or indirectly, that has an investor that is owned or controlled Representatives. Once this procedure the characteristics of an investment, by a person of a non-Annex Party that iii. The provision on the minimum is exhausted, the treaty may be ratified including such characteristics as the other Annex Party considers to be standard of treatment for investments by the President. the commitment of capital or other a non-market economy, that isa party (vid. art. 14.6): USMCA requires the resources, the expectation of gain to a qualifying investment dispute”. signatories to “accord to covered The USMCA will initially be valid for 16 or profit, or the assumption of risk”, NAFTA contains a similar clause that investments treatment in accordance years and will be reviewed every followed by an open list of examples. restricts non-party owned investments with customary international law, six years. This definition largely follows the U.S. from acting as claimants where the including fair and equitable treatment www.uria.com 11