WTO obligations as collective

European Journal of International Law

Volumn 17, Issue 2, 2006, Pages 419-443

  Carmody, Chios ^a  

^a UNIVERSITY OF WESTERN ONTARIO   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33745765046     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chl007     Document Type: Article

References (112)

1. ILM (1994) 1125.
2. Vienna Convention on the Law of Treaties, 8 ILM (1969) 679; the International Law Commission's Articles on State Responsibility, unanimously endorsed by the UN General Assembly in A/RES/56/83 (12 Dec. 2001)
3. reprinted in J. Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (2002)
4. see also Pauwelyn, 'A Typology of Multilateral Treaty Obligations: Are WTO Obligations Bilateral or Collective in Nature?', 14 EJIL (2003) 907.
5. See, in particular, Fitzmaurice, 'Third Report on the Law of Treaties', UN Doc. A/CN.4/115, Yearbook of the International Law Commission (1958, II), at 20.
6. Ibid., at 27, Art. 18(2).
7. Ibid., at 28, Art. 19.
8. Pauwelyn, supra note 2, at 930.
9. Ibid.
10. Ibid., at 950.
11. WTO dispute settlement also extends to 'non-violation' claims, that is, cases where the measure at issue does not directly conflict with the WTO Agreement but may have some indirect effect on negotiated concessions, and to 'any other situation', that is, strictly speaking, any circumstance that may be nullifying or impairing a benefit or impeding the attainment of any objective under the WTO Agreement. See GATT Art. XXIII:1(a)-(c).
12. At the 1948 Havana Conference the Cuban representative, Dr C. Gutierrez, observed that '[t]his Charter of the ITO in its first chapters is a continuance of the principles involved in Article 55 and 56 of the Charter of the United Nations, and when it is established this procedure [concerning dispute settlement in GATT Art. XXIII] it was only following the lines already established in the main Charter of the United Nations'. See EPCT/A/PV/6, at 3 (2 June 1946). South Africa also agreed with this characterization: Ibid., at 18-19.
13. An analogy can be made between GATT and the UN Charter can be carried further if one conceives of GATT as reinforcing 'security' or the 'positive' peace: 'If "peace" is narrowly defined as the mere absence of a threat or use of force against the territorial integrity of political independence of any State ... the term "security" will contain parts of what is usually referred to as the notion of "positive peace" ... generally understood as encompassing the activity which is necessary for the maintaining of conditions of peace': Wolfrum, in B. Simma (ed.), The United Nations Charter: A Commentary (2002), at 41.
14. Four decades ago John Jackson identified the centrality of expectations in GATT as follows: 'An important goal of international agreement is the fulfillment of expectations of the parties to the agreement. These expectations may have been aroused or engendered by a variety of factors, but one can empirically observe the effect of the practice of the institution upon the expectations of national representatives to that institution and the effects that these expectations have in turn upon national governments. It is clear to anyone who has observed this practice closely that these effects are significant.' J. Jackson, World Trade and the Law of GATT (1969), at 19.
15. See also Ruessmann, 'The Place of Legitimate Expectations in the General Interpretation of the WTO Agreements', K.U. Leuven Institute for International Law Working Paper No. 36 (Dec. 2002).
16. For this reason, John Jackson has observed that 'the prerequisite to invoking Article XXIII does not depend upon a breach of the GATT agreement': Jackson, ibid., at 179.
17. David Ricardo's famous exposition of the theory of comparative advantage in 1817 involved two countries' exports to each other of products they were comparatively more efficient at producing, in that case Britain's exports of wool for Portugal's exports of wine: See J.R. McCulloch, The Works of David Ricardo (1888), at 76.
18. For cases where panels stated that the purpose of GATT is to protect expectations see Working Party Report, 'Brazilian Internal Taxes', adopted 30 June 1949, BISD II/181, at para. 16
19. Panel Report, United States - Taxes on Petroleum and Certain Imported Substances, adopted 17 June 1987, BISD 34S/136, at para. 5.1.9
20. Panel Report, Canada - Administration of the Foreign Investment Review Act, adopted 7 Feb. 1984, BISD 30S/140, at para. 6.6
21. Panel Report, Japanese Measures on Imports of Leather, adopted 15/16 May 1984, BISD 31S/94, at para. 55
22. Panel Report, Japan - Customs Duties, Taxes and Labelling Practices on Imported Wines and Alcoholic Beverages, adopted 10 Nov. 1987, BISD 34S/ 83, at para. 5.11
23. Panel Report, European Economic Community - Restrictions on Imports of Apples, adopted 22 June 1989, BISD 36S/135, at para. 5.25
24. and Panel Report, United States - Measures Affecting the Importation, Internal Sale and Use of Tobacco, adopted 4 Oct. 1994, DS44/R, at para. 99.
25. For some WTO dispute settlement reports referring to the protection of expectations see India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/R (5 Sept. 1997), paras 45-62
26. EC - Customs Classification of Certain Computer Equipment, WT/DS62/AB/R (5 June 1998), paras 83-84
27. Korea - Taxes on Alcoholic Beverages, WT/DS75/AB/R (18 Jan. 1999), paras 125-127
28. Korea - Measures Affecting Government Procurement, WT/DS163/R (1 May 2000), paras 7.9ff, 7.75.
29. So sure were panels of this position that by 1962 they had all but dispensed with the need for evidence to found state responsibility. There was no need for evidence where vast, and essentially indeterminate, expectations were the centrepiece of the system. The presumption is now embodied in DSU Art. 3(8) which says that '[i]n cases where there is an infringement of the obligations assumed under a covered agreement, the action is considered prima facie to constitute a case of nullification or impairment'. The presumption has never been successfully rebutted.
30. GATT Art. III:2.
31. United States - Denial of Most-Favoured-Nation Treatment as to Non-Rubber Footwear from Brazil, adopted 19 June 1992, BISD 39S/128, at para. 6.9
32. Canada - Certain Measures Affecting the Automotive Industry, WT/ DS139-142/AB/R (31 May 2000), at para. 69
33. United States - Section 211 Appropriations Act, WT/DS176/AB/R (2 Jan. 2002), at para. 297.
34. For discussion see Jackson, supra note 12, at 251-255.
35. '[M]ost tariff concessions are negotiated bilaterally, but the results of the negotiations are extended on a multilateral basis': European Communities - Measures Affecting the Importation of Certain Poultry Products, WT/DS69/AB/R (13 July 1998), at para. 94.
36. US - Section 211 Appropriations Act, supra note 18, at para. 297.
37. Canada - Certain Measures Affecting the Automobile Industry, supra note 18, at para. 69.
38. Aristotle, Nichomachean Ethics (ed. R. Crisp, 2000) 85.
39. For a treatment of distributive justice see N. Rescher, Fairness: Theory and Practice of Distributive Justice (2002).
40. 'Freeing the Airwaves', The Economist, 31 May 2003, at 76.
41. See also R. Posner, Economic Analysis of Law (4th edn., 1992), at 45-47, 672-674.
42. International Association of Legal Science, International Encyclopedia of Comparative Law (1983), xi, Ch. 8, 8-2.
43. 'Although a judgment awarding a sum of money as damages is the most common judicial remedy for breach of contract, other remedies, including equitable relief in the form of specific performance or an injunction, may also be available': Restatement of the Law (2d) - Contracts (1981), at 110.
44. The relative ambition of this aim is to be contrasted with the more limited aim in domestic contract law where'[t]he traditional goal of ... remedies has not been compulsion of the promisor to perform his promise but compensation of the promise for the loss resulting from the breach': Ibid., at 100. More recently the compensatory orientation of contract law has been extended by the notion of 'efficient breach'. For an application of this idea in the trade context see Schwartz and Sykes, 'The Economic Structure of Renegotiation and Dispute Resolution in the World Trade Organization', 31 J Legal Stud (2002) S179 (arguing that the concept of efficient breach is a 'central feature' of WTO dispute settlement).
45. Pauwelyn, 'The Limits of Litigation: "Americanization" and Negotiation in the Settlement of WTO Disputes', 19 Ohio State J on Dispute Resolution (2003) 121, at 129-132.
46. For violation cases referring to expectations under GATT Art. XXIII:1(a) see EC - Computer Equipment, supra note 15
47. EC - Trade Description of Sardines, WT/DS231/AB/R (26 Sept. 2002),48 India - Patent Protection, supra note 15, Korea - Alcoholic Beverages, supra note 15, and Canada - Measures Affecting the Export of Civilian Aircraft, WT/DS70/AB/R (2 Aug. 1999). Likewise, for cases involving expectations in non-violation claims under GATT Art. XXIII:1(b) see Japan - Measures Affecting Consumer Photographic Film and Paper, WT/DS44/ R (21 Mar. 1998), EC - Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R (12 Mar. 2001).
48. India - Patent Protection, supra note 15, at para. 45.
49. The reason for this distinction is clear. GATT Art. XXIII:1, the principal provision ascribing responsibility under GATT, is silent about'expectations'. Instead, the language at issue in any dispute is whether a WTO member has failed 'to carry out its obligations' or, less likely, whether it impeded 'the attainment of any objective of the Agreement'. Breach of either of these bases of responsibility is what violates expectations. However, the Appellate Body has conceded that, in practice, 'panels ... have frequently stated that the purpose of these articles is to protect the expectations of Members concerning the competitive relationship between imported and domestic products, as opposed to expectations concerning trade volumes'. It added that 'this statement is often made after a panel has found a violation': India - Patent Protection, supra note 15, at para. 40.
50. See Cottier and Schefer, 'Good Faith and the Protection of Legitimate Expectations in the WTO', in M. Bronckers and R. Quick (eds), New Directions in International Economic Law (2000), at 60, who mention the Appellate Body as rejecting the use of'legitimate expectations' or 'reasonable expectations' outside non-violation cases. They observe that '[i]nstead of generalizing the recognition of the existence of legitimate expectations throughout the WTO, the Appellate Body has recognized it only in the realm of non-violation, denying its applicability elsewhere. This segregation of uses of legitimate expectations is at odds with the current integration of WTO rules into international law, and deserves closer examination': At ibid.
51. European Communities - Customs Classification of Certain Computer Equipment, WT/DS62/R (5 Feb. 1999), at paras 8.24-8.26.
52. For further commentary see Ruessmann, supra note 12.
53. The Appellate Body had observed 'we disagree with the Panel that the maintenance of the security and predictability of tariff concessions allows the interpretation of a concession in the light of the "legitimate expectations" of exporting Members, i.e., their subjective views as to what the agreement reached during tariff negotiations was': EC - Computer Equipment, supra note 15, at para. 82 (emphasis in original).
54. Ibid., at para. 84 (emphasis in original).
55. Ibid., at para. 83.
56. For application of the same interpretative methodology in other cases see Korea - Government Procurement, supra note 15, at para. 7.75 ('if it is necessary to go beyond the text in a violation case, the relevant question is to assess the objective evidence of the mutual understanding of the negotiating parties. This involves not just the complaining and responding parties, but also involves possibly other parties to the negotiations. It is also important to note that there is a difference in perspectives of the reasonable expectations of one party as opposed to the mutual understanding of all the parties. The information available at the time of the negotiations may be available to some parties but not all. In other words, the evidence before the panel may be different in the two analyses and the weighting and probative value may also differ.') (emphasis added). See also EC - Poultry Products, supra note 20, at para. 94 ('The bilateral character of the Oilseeds Agreement does not, by itself, constitute evidence of a common intent that the tariff-rate quota was for the exclusive benefit of Brazil.') (emphasis added).
57. For discussion of the challenges of estimating expectations and, more generally, probabilities and risk see A. Porat and A. Stein, Tort Liability under Uncertainty (2003).
58. Thus, arbitrators under DSU Art. 22.6 have observed that their task is 'very different from that of a panel examining the WTO conformity of certain measures ... [w]hat normally counts for a panel is competitive opportunities and breaches of WTO rules, not actual trade flows. A panel does not normally need to further assess the nullification or impairment caused; it can presume its existence. We, in contrast, have to go one step further ... we have to focus on trade flows': EC - Measures Concerning Meat and Meat Products (Hormones), WT/DS26/ARB (12 July 1999), at para. 42
59. EC - Regime for the Importation, Sale and Distribution of Bananas, WT/ DS27/ARB (9 Apr. 1999), at paras 6.9-6.11.
60. For discussion of this requirement see EC - Bananas, ibid., at para. 6.12, where the arbitrators stated that their losses of US exports in goods or services between the US and third countries did not constitute nullification or impairment of indirect benefits accruing to the United States under the GATT or GATS.
61. 'Studies can calculate what a country has gained or lost by acceding to the WTO Treaty or what a country gains or loses from the imposition or withdrawal of a trade restriction. As a result, the interest aimed at by WTO obligations is not one that, in the words of the ILC Commentary, 'transcend[s] the sphere of bilateral relations of the states parties'; it is not a 'collective interest' in the sense of 'a common interest, over and above any interests of the states concerned individually'. Rather, performance of WTO obligations can be, and actually is (as noted earlier), 'differentiated or individualized': Pauwelyn, supra note 2, at 933.
62. EC - Bananas, supra note 39, at para. 7.7.
63. The arbitrator indicated that it had evaluated various counterfactuals and decided to choose 'a reasonable counterfactual' in the circumstances. It then concluded that '[u]sing the various data provided on US market shares, and our knowledge of the current quota allocation and what we estimate it would be under the WTO-consistent counterfactual chosen by us, we determine that the level of nullification and impairment is US$191.4 million per year': Ibid., at para. 7.8.
64. Thus, arbitrators have described their work as 'a reasoned estimate' (EC - Hormones, supra note 39) and have avoided claims that are 'too remote', 'too speculative', or 'not meaningfully quantified': US - Antidumping Act of 1916, WT/DS136/ARB (24 Feb. 2004), at para. 5.57. There is also recognition of the 'inflation' that such claims are subject to: See Canada - Regional Aircraft, supra note 40, at n. 90 (observing that apart from US - 'Foreign Sales Corporations', WT/DS108/ ARB (30 Aug. 2002), arbitrators have always rejected the level proposed by the member requesting the right to suspend concessions or other obligations and set a new level, based on their own assessment).
65. See, for instance, Turkey - Restrictions on Imports of Textiles and Clothing Products, WT/DS34/R (31 May 1999), at para. 9.184 ('The WTO system of rights and obligations provides, in certain instances, flexibility to meet the specific circumstances of Members. For instance, the ATC has grand-fathered certain MFA derived rights regarding import restrictions for specific Members and Articles XII, XIX, XX and XXI of GATT authorize Members, in specific situations, to make use of special trade measures.').
66. See, for instance, Bronkers and van den Broek, 'Trade retaliation is a poor way to get even', Financial Times, 24 June 2004, at 15 ('Financial compensation should be high on the agenda of every trade negotiator at the WTO.')
67. Pauwelyn, 'Enforcement and Countermeasures in the WTO: Rules are Rules - Toward a More Collective Approach', 94 AJIL (2000) 335, at 345-346 ('Why not, therefore, make compensation compulsory and automatic the way that countermeasures currently are?').
68. See also WTO member proposals on great compensation made in the Doha Development Round by the African Group, TN/DS/W/15 (25 Sept. 2002), at 2; Ecuador, TN/DS/W/9 (8 July 2002), at 3; and China, TN/DS/W/29 (22 Jan. 2003), at 1.
69. See DSU Art. 3(5) ('All solutions to matters formally raised under the consultation and dispute settlement provisions of the covered agreements ... shall be consistent with those agreements'). See also Busch and Reinhardt, 'Bargaining in the Shadow of the Law: Early Settlement in GATT/WTO Disputes', 24 Fordham Int'l LJ (2000) 158.
70. 'Traditionally, judicial procedures have presumed that the goal of litigation is to discern the facts that relate to a particular situation of conflict, and then to identify the law that applies to these facts. The adjudicative process is two-sided, adversarial and backward looking. It works to produce winners and losers.... A transformative approach to conflict resolution would encourage accommodative relationships between groups with competing interests. The conflict situation would be transformed from one in which groups are in competition with one another to one in which groups recognise their mutual interests in arriving at workable solutions': Law Commission of Canada, 'From Restorative Justice to Transformative Justice: Discussion Paper', Law Commission of Canada Catalogue No. JL2-6/1999 (1999).
71. For discussion internationally see N.J. Kritz (ed.), Transitional Justice: How Emerging Democracies Reckon with Former Regimes (1995), i.
72. Ibid.
73. Ibid.
74. WT/MIN(01)/DEC/2 (20 Nov. 2001), 41 ILM (2002) 755.
75. Pauwelyn, supra note 2, at 950.
76. I. Sinclair, The Vienna Convention on the Law of Treaties (1984), at 6 (emphasis added).
77. Crawford, 'The ILC's Articles on Responsibility of States for Internationally Wrongful Acts: A Retrospect', 96 AJIL (2002) 874, at 878.
78. See also Crawford, supra note 2, at 59 (referring to the ASR as 'a statement of secondary rules of international law, abstracted from any specific field of primary legal obligations but with wide-ranging and diffuse implications' (emphasis added)).
79. See also Bodansky, Crook, and Caron, 'The ILC's Articles on State Responsibility: The Paradoxical Relationship Between Form and Authority', 96 AJIL (2002) 857, at 868, 873 ('Recognizing that the ILC articles are not themselves a source of law is critical because, as I see it, arbitrators can otherwise defer too easily and uncritically to them.... The ILC's work on state responsibility will best serve the needs of the international community only if it is weighed, interpreted, and applied with much care').
80. Ian Sinclair also observes that 'in their comments on what is now Article 5 of the Convention, representatives of such disparate international organizations as the F.A.O., the Council of Europe, the League of Arab States, B.I.R.P.I. and the International Bank had all pointed to the existence of rules or practices operating within their organizations which were, or might be, contrary to the general rule proposed': Sinclair, supra note 53, at 34-35.
81. Ian Sinclair also observes that the phrase '"any relevant rules" of an international organization ... embrace not only written rules but also "unwritten customary rules"' (quoting from the explanation given by Mr Yaseen, chair of the Drafting Committee): Ibid., at 66.
82. See also Yearbook of the International Law Commission (1963), ii, at 213,
83. Yearbook of the International Law Commission (1965), i, at 31 and 308, and ii, at 160.
84. Henry Schermers and Nils Blokker observe that 'rules of the organization' have been defined in subsequent conventions to mean, 'in particular, the constituent instruments, decisions and resolutions adopted in accordance with them, and established practice of the organization': H. Schermers and N. Blokker, International Institutional Law (3rd edn., 1995), at 713.
85. The International Law Commission noted the 'residual character' of the provisions in Part IV of the Arts on State Responsibility, including Art. 55. See Crawford, supra note 2, at 306.
86. Pauwelyn, supra note 2, at 926 (emphasis in original).
87. Ibid., at 925.
88. Ibid., at 926 (emphasis in original).
89. Ibid.
90. Ibid., at 927.
91. United States - Section 211 Appropriations Act, supra note 18, at para. 297.
92. The MFN clause subsequently became the subject of work by a separate preparatory committee, which submitted the Draft Articles on Most-Favoured-Nation Clauses to the UN General Assembly in 1978: See International Law Commission, The Work of the International Law Commission (3rd edn., 1980), at 73-77.
93. Marceau, 'WTO Dispute Settlement and Human Rights', 13 EJIL (2002) 753
94. see also Kuijper, 'The Law of GATT as a Special Field of International Law - Ignorance, Further Refinement or Self-Contained System of International Law', 25 Netherlands Yearbook Int'l L (1994) 227.
95. See contra Pauwelyn, 'The Rule of Public International Law in the WTO: How Far Can We Go?', 95 AJIL (2001) 595
96. Bartels, 'Applicable Law in WTO Dispute Settlement', 35 J World Trade (2001) 499.
97. Thus, in EC - Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/AB/R (9 Sept. 1997), at para. 135, the Appellate Body observed: 'we believe that a Member has broad discretion in deciding whether to bring a case against another Member under the DSU. The language of Article XXIII:1 of the GATT 1994 and of Article 3.7 of the DSU suggests, furthermore, that a Member is expected to be largely self-regulating in deciding whether any such action would be "fruitful"'.
98. See also Canada - Patent Protection of Pharmaceutical Products, WT/DS114/ R (Mar. 17, 2000) (where the EC did not assert that only European intellectual property was being insufficiently protected by the Canadian regulatory review and "stockpiling" exception). The ability of any member to bring a claim is particularly evident in facial challenges to legislation: United States - Sections 301-310 of the Trade Act of 1974, WT/DS152/R (Dec. 22, 1999) (where the EC contested U.S. legislation without asserting any harm to exclusively European interests)
99. US - Anti-Dumping Act of 1916, supra note 44 (where the EC contested US legislation prohibiting international price discrimination. The legislation provided for civil complaints as well as criminal prosecutions, but there had never been a successful private complainant or criminal prosecution under the legislation, and therefore, no harm to European interests).
100. ASR Art. 42(b) entitles a country to invoke state responsibility where the breach of an obligations 'specially affects that State' or where the breach is 'of such a character as to radically change the position of all other States to which the obligation is owed'. Applied to WTO obligations as collective, the possibility exists that a WTO member launching a claim could be 'specially affected' under ASR Art. 42(b)(i), which is a matter of interpretation, or that the breach 'radically' changes the position of every other WTO member under ASR Art. 42(b)(ii), something which could be said to occur, given selective non-observance of the WTO Agreement and the idea of 'balance' inherent in the WTO Agreement. The possibility also exists that WTO members might be able to invoke the responsibility of the injured state under ASR Art. 48.1(a) by demonstrating a purely legal interest as 'other than injured', in which case they would be able to claim cessation and reparation on behalf of the injured state. The Special Rapporteur mentions the overlap between ASR Arts 42 and 48, observing that 'article 48 refrains from qualifying the position of States identified in article 48 ... The term "legal interest" would not permit a distinction between articles 42 and 48, as injured States in the sense of article 42 also have legal interests': Crawford, supra note 2, at 276-277.
101. VCLT Art. 58.1(a) states that two or more parties to a multilateral treaty may conclude an agreement to suspend the operation of provisions of the treaty temporarily and between themselves alone if the possibility of such a suspension is provided for by the treaty. The objection could be raised that if this provision is applicable, then all multilateral agreements must embody collective obligations. I disagree. Third party status is a matter for the particular treaty to spell out. See C. Chinkin, Third Parties in International Law (1992), at 8.
102. See WTO Agreement Arts X (amendment) and XV (withdrawal).
103. See Turkey - Textiles, supra note 45, at para. 9.178 ('In our view, however, a bilateral agreement between two Members ... does not alter the legal nature of the measures at issue or the applicability of the relevant GATT/WTO provisions')
104. EC - Bananas, supra note 39, at paras 164-170 (the Appellate Body, in examining the Lomé Convention, concluded that unless explicitly authorized by a waiver, provisions of the Convention could not alter rights and obligations of WTO members).
105. Pauwelyn, supra note 2, at 925 ('it must be kept in mind that the distinction between bilateral and collective is to be determined obligation by obligation, not treaty by treaty' (italics added)).
106. Brazil - Measures Affecting Dessicated Coconut, WT/DS22/AB/R (21 Feb. 1997), at 11.
107. United States - Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R (12 Oct. 1998), at paras. 157, 159.
108. Fitzmaurice, 'Third Report on the Law of Treaties', ILC Yearbook (1958 II), at 44
109. see also Fitzmaurice,'Second Report on the Law of Treaties', ILC Yearbook (1957 II), at 54.
110. Smith and Hallward-Driemeier, 'Understanding the Investment Climate', Finance & Development, Mar. 2005, at 40, 43.
111. See Tenicas Medioambientales Tecmed SA v. United Mexican States, ICSID Case No. ARB(AF)/00/2, award, 29 May 2003, at para. 154: 'This provision of the Agreement ... requires the Contracting Parties to provide to international investments treatment that does not affect the basic expectations that were taken into account by the foreign investor to make the investment' (emphasis added).
112. See the definition of 'investment' in NAFTA Art. 1139 ('investment means ... (g) real estate or other property, tangible or intangible, acquired in the expectation or used for the purpose of economic benefit or other business purposes' (emphasis added)). See also Metalclad v. United Mexican States, Case No. ARB(AF)/97/1 (30 Aug. 2000), at paras 99-101. ('Mexico failed to ensure a transparent and predictable framework for Metalclad's business planning and investment. The totality of these circumstances demonstrates a lack of orderly process and timely disposition in relation to an investor of a Party acting in the expectation that it would be treated fairly and justly in accordance with the NAFTA....The Tribunal therefore holds that Metalclad was not treated fairly or equitably under the NAFTA and succeeds on its claim under Article 1105' (emphasis added)).