Disaggregating the Regional-Multilateral Overlap: The NAFTA Looking-Glass

Abstract

This short piece explores regionalism through the lens of NAFTA and examines its relationship to the multilateral trade regime and its effects on domestic policy. It tries to better understand the legal paradigm that allows the public aspects of trade law to intersect with the private interests of private investors. The rich jurisprudence of the Chapter 11 investment chapter of NAFTA provides a looking-glass into the complex interplay of state and non-state actors who navigate through the regional and multilateral trade and investment frameworks to further their interests. By disaggregating these overlaps, the paper illuminates this interplay which allows private actors to influence governments and affect domestic regulatory policy. Furthermore, by invoking the rich trade jurisprudence of the WTO, state and non-state actors working within regional legal frameworks further solidify the legitimacy of international adjudicatory processes of the WTO, furthering its political and economic influence on member states. Regional agreements are at times better positioned to deal with regulatory polices because of their proximity to domestic issues at hand that may impact the region. However, regional agreements may also contribute in dismantling domestic regulatory structures which may have legitimate goals. While the WTO may not bear the ultimate burden of resolving the conflicts between domestic trade and regulatory policies, the multilateral framework it provides may be a strong coordinating force that creates important legal linkages between its own adjudicatory processes and those of regional tribunals. Through these linkages, WTO panels may better deal with domestic regulatory policies that impact trade, thereby enhancing dialogue among the various state and non-state actors regarding regulatory measures. This short article is the product of a Symposium sponsored by the Indiana International and Comparative Law Review on “Assessing the Impact of Existing Bilateral and Multilateral U.S. Trade Agreements and Attempting Policy Recommendations for the Future,” at Indiana University Law School - Indianapolis.