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EU-US TTIP Negotiations
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I: Expropriation
The Parties confirm their shared understanding that:
1. Expropriation may be either direct or indirect:
(a) direct expropriation occurs when an investment is nationalised or otherwise directly
expropriated through formal transfer of title or outright seizure.
(b) indirect expropriation occurs where a measure or series of measures by a Party has an
effect equivalent to direct expropriation, in that it substantially deprives the investor
of the fundamental attributes of property in its investment, including the right to use,
enjoy and dispose of its investment, without formal transfer of title or outright seizure.
2. The determination of whether a measure or series of measures by a Party, in a specific fact
situation, constitutes an indirect expropriation requires a case-by-case, fact-based inquiry
that considers, among other factors:
(a) the economic impact of the measure or series of measures, although the sole fact that
a measure or series of measures of a Party has an adverse effect on the economic
value of an investment does not establish that an indirect expropriation has occurred;
(b) the duration of the measure or series of measures by a Party;
(c) the character of the measure or series of measures, notably their object and content.
3. For greater certainty, except in the rare circumstance when the impact of a measure or
series of measures is so severe in light of its purpose that it appears manifestly excessive,
non-discriminatory measures of a Party that are designed and applied to protect legitimate
policy objectives, such as the protection of public health, safety, environment or public
morals, social or consumer protection or promotion and protection of cultural diversity do
not constitute indirect expropriations.
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II: Public debt
1. No claim that a restructuring of debt of a Party breaches an obligation under Section 2
[Investment Protection] may be submitted to, or if already submitted, be pursued under
Section 3 [Resolution of Investment Disputes and Investment Court System] if the
restructuring is a negotiated restructuring at the time of submission, or becomes a
negotiated restructuring after such submission.
2. Notwithstanding [Article 6 Submission of a Claim, Section on Resolution of Investment
Disputes and Investment Court System], and subject to paragraph 1 of this Annex, an
investor may not submit a claim under Section 3 [Resolution of Investment Disputes and
Investment Court System] that a restructuring of debt of a Party breaches Articles X
[National Treatment] or X [Most-Favoured Nation] of Section 1 [Liberalisation of
Investments]
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or an obligation under Section 2 [Investment Protection], unless 270 days
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For greater certainty, a breach of the Article [National Treatment] or Article [Most-Favoured Nation] does not
occur merely by virtue of a different treatment provided by a Party to certain categories of investors or
investments on grounds of a different macroeconomic impact, for instance to avoid systemic risks or spillover
effects, or on grounds of eligibility for debt restructuring.