The Award in Waste Management v Mexico (No 2) and Its Influence on the Minimum Standard of Treatment

Abstract

Abstract Judge Crawford’s contributions to public international law were immense and covered a vast field, including State responsibility, international criminal law, State immunity, international legal personality, the law of the sea, and the protection of human rights. The focus of this essay is on Judge Crawford’s work in the field of international investment law, to which he made substantial contributions as a scholar, as an arbitrator, and as counsel, at a time when the field of international investment law was in a relatively embryonic stage of development. The contribution focusses in particular on the award of the tribunal constituted under Chapter 11 of the North American Free Trade Agreement (‘NAFTA’) in Waste Management v Mexico (No 2) (‘Waste Management (No 2)’), in which Judge Crawford was appointed by the ICSID Secretary-General as the presiding arbitrator. The award contains an important dictum on the content of the minimum standard of treatment under Article 1105 of NAFTA, which has been highly persuasive within the NAFTA context, in other investment treaty claims, and in the subsequent treaty practice of States. The Waste Management (No 2) tribunal brought much-needed rigour to a field in which ad hoc tribunals were adopting broad interpretations of treaty obligations and imposing onerous obligations on States.