Performance Requirement Prohibitions in International Investment Law


In Performance Requirement Prohibitions in International Investment Law, Alexandre Genest explores the prohibition of performance requirements in investment treaties. The author focuses on answering two questions: first, how do States prohibit performance requirements in investment treaties? And second, how should such prohibitions of performance requirements be interpreted and applied?
In providing answers to these questions, Alexandre Genest breaks new ground by proposing the first empirical typology of performance requirement prohibitions in investment treaties and the first in-depth analysis of arbitral awards on the subject.
Alexandre Genest formulates insightful remarks for a more deliberate and informed interpretation and application of existing performance requirement prohibitions. These remarks will help improve the drafting of performance requirement prohibitions in future investment treaties.

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Alexandre Genest, Ph.D. (Universities of Leiden and Ottawa) is a Canadian lawyer (Québec Bar) and Legal Affairs Officer at the World Trade Organization. Alexandre previously worked at Volterra Fietta, the International Court of Justice and the Trade Law Bureau of Global Affairs Canada.
List of Abbreviations

1 General Introduction
 A The Issue Addressed in This Monograph: the Prohibition of Performance Requirements in International Investment Agreements
 B The Objective of This Monograph
 C The Relevance of This Monograph
 D The Scope and Methodology of This Monograph
 E Overview of This Monograph
2 Characteristics and General Objectives of Performance Requirements and prp s
 A Conceptual Characteristics of Performance Requirements and the Absence of a Universally Accepted Definition
 B General Objectives of Performance Requirements
 C The Ubiquitous Presence of Advantages Alongside Performance Requirements
 D Prohibiting Performance Requirements Aims at Ensuring the Operational Freedom of Investors and Lasting Trade Benefits for Home States
3 Systemic Integration and Cross-Fertilisation for a Proper Understanding of prp s in iia s
 A prp s Must Be Understood in a Systemic Fashion: prp s as Multi-Sourced Equivalent Norms and Transplanted Treaty Rules
 B prp s in iia s Systematically Replicate prp s of Model bit s and/or of Previous iia s
 C The trim s Agreement, the scm Agreement and prp s in iia s Are Joined at the Hip
 D Articles 31 and 32 of the vclt and Maximising Interpretative Gateways to a Comprehensive Understanding of prp s
4 Typology and Analysis of prp s in iia s
 A Non-Binding prp s with Narrow Coverage
 B prp s & trim s
 C Open-Ended prp s in iia s
 D Detailed and Exhaustive prp s in iia s
 E Prohibiting Advantages Conditioned upon Performance Requirements
 F prp s in Trade and/or Investment Chapters of tip s
5 Recurring Features That Modulate the Scope and Coverage of prp s in iia s

 A prp s , Investments and Investors
 B Activities to Which prp s Apply and the “Connection” Prerequisite
 C The Looming Ineffectiveness of Disciplines on Advantage-Conditioning Performance Requirements
 D The Existence of a “Requirement” as a Condition for the Applicability of prp s in iia s
 E Ensuring the Continued Lawfulness of Specific Performance Requirements
 F Shielding Government Procurement from prp s in iia s
 G Disciplining Performance Requirements as “Offsets” in tip Chapters on Government Procurement
 H Reserving Existing or Future Non-Conforming Measures from prp s
6 The Disruptive Broadening of prp s by Virtue of mfn Treatment Clauses
 A A Consensus toward Applying mfn Treatment Clauses to Substantive Protections
 B Cracks in the Consensus: Restricting the Application of mfn Treatment Clauses to Substantive Protections and Implications for prp s
 C The Uncertain Application of mfn Treatment Clauses to Incorporate More Favourable prp s from Third Treaties That Pre-Date the Basic Treaty
 D The Scope of prp s and Third iia s : Topics for Further Exploration
7 General Conclusion and Proposals

Appendix: Examples of the Main Types of Performance Requirement Prohibitions and Related Treaty Provisions
Government officials who negotiate treaties, arbitrators and tribunal members who adjudicate trade or investment disputes, counsel who represent investors or States in such disputes, professors and students of international law.
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