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Unformatted text preview: Having reviewed the operation of proceedings conducted under Chapter Eleven of the North
American Free Trade Agreement, the Free Trade Commission hereby adopts the following interpretations of Chapter Eleven in order to clarify and reafﬁrm the meaning of certain of its
provisions: A. ‘ Access to documents 1. Nothing in the NAFTA imposes a general duty of conﬁdentiality on the disputingoparties
to a Chapter Eleven arbitration, and, subject to the application of Article “37(4), nothing
in the NAFTA precludes the Parties from providing public access to documents submitted
to, or issued by, a Chapter Eleven tribunal. ' ‘ 2. ' lnthe application of the foregoing: (a) In accordance with Article 1120(2), the NAl-T A Parties agree that nothing in the
relevant arbitral rules imposes a general duty of conﬁdentiality or precludes the
Parties from providing public access to documents submitted to, or issued by,
Chapter Eleven tribunals, apart from the limited speciﬁc exceptions set forth
expressly in those rules. ' (b) Each Party agrees to make available to the public in a timely manner all
documents submitted to, or issued by. a Chapter Eleven tribunal, subject to
redaction of : (i) conﬁdential business information; (ii) information which is privileged or otherwise protected from disclosure
under the Party’s domestic law; and (iii) information which the Party must withhold pursuant to the relevant arbitra] .
rules, as applied. ‘ (c) The Parties reaffirm that disputing parties may disclose to other persons in
connection with the arbitral proceedings such unredacted documents as they
consider necessary for the preparation of their cases, but they shall ensure that ' those persons protect the conﬁdential information in such documents. (d) The Parties further reafﬁrm that the Governments of Canada, the United Mexican
States and the United States of America may share with ofﬁcials of their
' rcSpective iederal, state or provincial governments all relevant documents in the
course of diSpute settlement under Chapter Eleven of NAFTA, including
conﬁdential information. ‘ 3. The Parties conﬁrm that nothing in this interpretation shall beconstrued to require any Party to furnish or allow access to information that it may withhold in accordance with
Articles 2102 or 2105. - B. ' . Minimum Standard of Treatment in Accordance with International Law 1. Article 1 105(1) prescribes the customary international law minimum standard of a
treatment of aliens as the minimum standard oi treatment to be aﬁorded to investments of
investors of another Party. ' 2. The concepts of “f air and equitable treatment" and “full protection and security”do not require treatment in addition to or beyond that which is required by the customary
international law minimum standard of treatment of aliens. 3. A determination that there has been a breach of another provision of the NAFTA, or of a .
separate international agreement, does not establish that there has been a breach of Article;
, 1 105(1). '
Closing Provision The adoption by the Free Trade Commission of this or any future interpretation shall not be
construed as indicating an absence of agreement among the NAFTA Parties about Other matters _
of interpretation of the Agreement. Done in triplicate at Washington, DC, on the 3131 day of July, 200] , in the English, French and
Spanish languages, each text being equally authentic. Ii or the Government of the For the Government of the For the Government of
United States of America United Mexican States ' Canada . (“——
°}€€ o: w /> /’
Luis Ernesto Derbez Bautista' Pierre S. Pettign':
Secretary of Economy Minister for International Trade ...
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- Spring '08