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Icsid Review-Foreign Investment Law Journal May 8, 2000 : Dissenting Opinion

By Highet, Keith

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Book Id: WPLBN0000234962
Format Type: PDF eBook
File Size: 0.2 MB
Reproduction Date: 2005

Title: Icsid Review-Foreign Investment Law Journal May 8, 2000 : Dissenting Opinion  
Author: Highet, Keith
Language: English
Subject: Economics, Finance & business, World Bank.
Collections: Economics Publications Collection
Publication Date:
Publisher: The World Bank


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Highet, K. (n.d.). Icsid Review-Foreign Investment Law Journal May 8, 2000 : Dissenting Opinion. Retrieved from


I have dissented from the Award rendered by a majority of the arbitrators in this case because I disagree both with the result of the Award and with certain key elements of the reasoning. I consider it important to append this opinion of my dissenting views, not to denigrate or undermine the reasoning and logic of the Award, but only to point out the key differences between my views and those of the majority. The precedential significance of this Award for future proceedings under the North American Free Trade Agreement (NAFTA) cannot be underestimated. In addition, the Award will be an important guidance to future potential NAFTA claimants. It is for this purpose that as complete an understanding as possible be expressed of the legal issues involved. 1. Respondent has claimed that this Tribunal has no jurisdiction because of an asserted failure on the part of Waste Management to have complied with the formal requirements of NAFTA?s Article 1121?either because (i) it did not supply the correct waiver required by that article at the beginning of the arbitration; or because (ii) the waiver that it supplied was subsequently shown to have been inoperative, nonexistent, or disavowed by reason of a subsequent course of conduct of Waste Management. The existence and delivery of this waiver is asserted to be a condition precedent to jurisdiction of the Tribunal under NAFTA. It is claimed that if the waiver had not been given, or had subsequently been disavowed, disqualified or effectively withdrawn, the consent of the United Mexican States to the arbitral process could no longer be presumed.


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