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Kind of clause that must be included – an experience

A clause that must be included in agreements to protect legitimate public welfare objectives as an exception of indirect expropriation. Non-discriminatory measures applied to protect public welfare, such as health, safety, and the environment, do not constitute indirect expropriation.

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Kind of clause that must be included – an experience

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  1. Measures to Protect Legitimate Public Welfare Objectives as an Exception of Indirect Expropriation Kind of clause that must be included – an experience

  2. Exception – Regular clause included • Except in rare circumstances, such as when a measure or series of measures is so severe in the light of its purpose that it cannot be reasonably viewed as having been adopted and applied in good faith, non-discriminatory measures of a Party that are designed and applied to protect legitimate public welfare objectives, such as health, safety and the environment, do not constitute indirect expropriation.

  3. Different Exception Clause: “Non-discriminatory measures of a Party that are designed and applied to protect legitimate public welfare objectives in accordance with subparagraphs 1(a) and 1(c) of Article XX (General Exceptions), do not constitute indirect expropriation. For the purpose of this paragraph, the said measures include those which also contribute to the protection of environment.” General and Security Exceptions: 1. Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination against the other Party, or a disguised restriction on investments of investors of the other Party in the Area of a Party, nothing in this Agreement shall be construed to prevent a Party from adopting or enforcing measures: a) necessary to protect human, animal or plant life or health; b) necessary to protect public morals or to maintain public order; c) necessary to secure compliance with the laws or regulations which are not inconsistent with the provision of this Agreement including those relating to: (i) the prevention of deceptive and fraudulent practices (…); (ii) the protection of the privacy of the individual (…); (iii) safety; (...) 2. In cases where a Party takes any measure, pursuant to paragraph 1, that does not conform with the obligations under this Agreement (…), that Party shall, prior to the entry into force of the measure or as soon thereafter as possible, notify the other Party of the following elements of the measure: (a) sector and sub-sector or matter; (b) obligation or article in respect of the measure; (c) legal source of the measure; (d) succinct description of the measure; and (e) purpose of the measure. Indirect Expropriation exception clause “in accordance with” General Exceptions

  4. New indirect expropiation exception clause • Non-discriminatory measures of the Party that are designed and applied to protect legitimate public welfare objectives stated in paragraph 1 of Article XX (General Exceptions) do not constitute indirect expropriation. Note: It is understood that paragraph 1 of Article 19 includes measures to protect environment.

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