As part of States’ efforts to strike a balance in their international investment agreements (IIAs) between the obligations they assume and the rights and policy space they wish to retain, some adjoin annexes to their treaties to protect their ability to take “Non-Conforming Measures” (NCMs). States have generally: used such annexes to make exceptions to non-discrimination obligations, market access restrictions and performance requirements; have included the ability to grandfather in NCMs existing at the time an IIA enters into force; and have provided for the ability to maintain, amend, and enact new NCMs in specifically identified sectors, sub-sectors, activities, or policy areas.
Mobil v. Canada – Ratcheting Down the Scope of Treaty Reservations,
UNCTAD Investment Policy Hub, September 10, 2013
Available at: https://scholarship.law.columbia.edu/sustainable_investment_staffpubs/141