CETA also provides that, when considering a domestic law issue (as a fact), the Tribunal “follows the dominant interpretation of domestic law by the courts or authorities of that contracting party” (emphasized). This language seems obligatory, without the jurisdiction being given discretion. There may, however, be exceptional situations in which the investor could claim not to trust the courts or the authorities of the host Member State. Under the influence of the executive, local courts may have made a selfish decision, such as the legal termination of a contract. However, the court will be required to postpone the problematic local judgment and will therefore be required to find that it is not competent because the investment disappeared at the end of the contract. During the review of the tariff application, Hynix also gave a guided tour of the different types of errors and their treatment in the federal court system. The decisive difference is between “decision errors” and “mistakes of ignorance.” Id. to 1326; G- R Produce Co, v. U.S., 281 F. Supp. 2d 1323, 1331 (2003); Prosegur, Inc. v.
U.S., 140 F. Supp. 2d 1370, 1378 (2001); Universal Cooperatives, Inc. v. United States, 715 F. Supp. 1113, 1114 (1989). Material error: if the two parties enter into an agreement, they are indeed wrong on an issue essential to the agreement, the agreement is at the end of the contract.
An unspoken contract is a form of tacit contract that is done by non-verbal and not by explicit words. The U.S. Supreme Court defined it as “an agreement that is effectively implied” as “based on an assembly of spirits that, although not enshrined in an explicit treaty, is derived from the conduct of the parties who, in the light of the circumstances, demonstrate tacit understanding.”  “Decision errors are errors of law and occur when” … a party [makes] the wrong choice between two known and alternative facts. Universal Cooperatives, (quote partially omitted), 715 F. Supp. at 1114. On the other hand, there is an ignorant error where “… a party is not aware of the existence of appropriate alternative facts. Id.
“For the goods to be liquidated below 1520 C) (1), the alleged error of fact must be an ignorant error. Prosegur, (quote partially omitted), 140 F. Supp. 2d to 1378. Hynix to 1326. It is therefore necessary to distinguish between simple agreements to be agreed when the company that undertakes to negotiate or obtain a future agreement is not included in a contract and the contractual agreements that must be concluded if the same company is included in a binding agreement between the parties. What is less clear is how the bargaining obligation is applied, let alone an agreement. But this lack of clarity is precisely the problem, because it will likely result in increased costs and time for the parties to resolve it. Thank you jarrod for this contemporary and thoughtful contribution.
I agree with Dr. Gehring that after the price of NAFTA Bilcon/Canada, Canada may have had an interest in such a language. You also see a reaction to Bilcon in Article 8.10, paragraph 7 (treatment of investors and covered investments), which states that “the fact that a measure is contrary to national law does not, in itself, constitute a violation of this article. In determining whether the measure is contrary to this section, a court must determine whether a party has acted in contradiction with the obligations set out in paragraph 1. “b) Evidence should not be presented as an objection to an agreed fact or as entitled – Scenario 4: the parties agree to a binding contract, but they maintain certain conditions open to another agreement What happens if the parties agree on certain contractual terms, but make it clear that other conditions still need to be agreed? In a sense, it is a cross between Scenario 1 and Scenario 3.