Hi, all:
I have been looking at some other avenues appropriate to those who are not only non-resident of Hawaii, but who are, in fact, just plain old foreigners, whose pathway to this US investment has been partially eased through trade treaties and tax conventions negotiated with the US Government, on behalf of the States and Provinces. I do not as yet know if they are applicable, but I offer this one, below, on the chance that cleverer people than I might 'get ideas' from it. Or maybe just start to use the language or context, because, let's face it, it's kind of compelling; in having read the excerpt several times now, I'm warming to it, the need for lawyers' eyes, and the potential for a two- or multi-track effort to advance the issues that have been so rapidly identified and elegantly refined on this forum.
It might be, perhaps, that governments who were signatories to such conventions or treaties would have something helpful, i.e. pre-emptive and prescriptive, to say about a State's legislative foray into areas that could cause difficulties for treaties and conventions and the signatories to them, particularly if there was a worry that other States in the Union might well be seduced by the apparent success of the foray. For example -- and I'm just spitballing here -- Canadians might wish to raise the issue under their North American Free Trade Agreement (NAFTA) dispute provisions, or perhaps just with with their federal representatives, identifying a State's intended action that appears to undermine NAFTA and the "little Canadian investor's" ability to participate in its investment and enterprise provisions. Americans might want to express concern to federal representatives in their State, and in the appropriate bodies in Congress, regarding an individual State's escalating actions that would seem to cast doubt on the conviction underlying US participation in NAFTA, the commitment the State has to the provisions NAFTA sets out for trade and enterprise, and the opportunities and rewards all of us would expect to flow from our investment and our hard work in launching and operating an enterprise.
Again, just spitballin' here. Looking for avenues and themes. And, sure, maybe opportunities to bracket State action with national and international participation. But that's just me.
In any event, I quote the following, from NAFTA, noting that in the case of NAFTA, 'Party' means the US, Mexico, and Canada:
Article 1102: National Treatment
1. Each Party shall accord to investors of another Party treatment no less favorable than that it accords, in like circumstances, to its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments.
2. Each Party shall accord to investments of investors of another Party treatment no less favorable than that it accords, in like circumstances, to investments of its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments.
3. The treatment accorded by a Party under paragraphs 1 and 2 means, with respect to a state or province, treatment no less favorable than the most favorable treatment accorded, in like circumstances, by that state or province to investors, and to investments of investors, of the Party of which it forms a part.
4. For greater certainty, no Party may:
- (a) impose on an investor of another Party a requirement that a minimum level of equity in an enterprise in the territory of the Party be held by its nationals, other than nominal qualifying shares for directors or incorporators of corporations; or
- (b) require an investor of another Party, by reason of its nationality, to sell or otherwise dispose of an investment in the territory of the Party.
AJL
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