Take 2 - US FTA means compo deal

FTA establishes a series of standards of treatment and protections for US investors in Australia. FTA also gives US investors the right to refer disputes relating to covered investments to international arbitration.

Under FTA the concept of "Fair and Equitable Treatment" requires that Australia "ensure fair and equitable treatment in its own territory of investments".

Such clauses, which are often invoked by foreign investors in situations similar to this have been interpreted to require that the host State (in this case, Australia):

- respect and protect the basic expectations that were taken into account by the foreign investor (in this case, US insto investor in NCR) to make the investment;
- maintain a transparent, stable and predictable legal and regulatory environment for the investment; and
- refrain from treating the investor or its investments in a manner that is discriminatory, arbitrary, or unfair.
Apologies for 1st draft as it related to very similar case I'm looking at present. See below for update:

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NCR will contend on behalf of its US investors that the NSW State Government’s treatment of the Company's covered investments (Doyles Creek) violated all of the above requirements.


Expropriation claims under FTA do not prohibit Australia from expropriating Australian-owned covered investments. Rather, what FTA will set out a list of conditions that must be satisfied in order for an expropriation (or a measure having equivalent effect to an expropriation) to be lawful. The expropriation (whether direct or indirect) must be:

- for a public purpose related to the internal needs of Australia;
- carried out under due process of law;
- non-discriminatory; and
- accompanied by the payment of prompt, adequate and effective compensation.

Unless Australia satisfies all four conditions, its expropriation will be unlawful and an internationally wrongful act will have been committed.