Taking Stock of NAFTA Chapter 11 in its Tenth Year: An Interim Sketch of Selected Themes, Issues, and Methods

Abstract:     
NAFTA Chapter 11 establishes certain guarantees and an arbitral mechanism by which qualifying investors may seek damages for breach of these guarantees. This article offers an interim appraisal of the Chapter 11 investor-state arbitration regime, and the effects of this regime on NAFTA's substantive jurisprudence. The first section of the article provides an overview of NAFTA's investor-state arbitral mechanism, focusing on the broad themes of claim processing architecture, the hybrid nature (including public and private features) of Chapter 11 arbitration, the preeminence of jurisdiction-related issues, and the accessibility and importance of NAFTA jurisprudence This first section also outlines docket characteristics, the processes of NAFTA jurisprudence, reasoning methodologies, and tribunal attitudes. The second section of the article discusses popular misgivings related to the NAFTA Chapter 11 dispute resolution process, focusing on issues of standing, predictability of outcome, process transparency, tribunal accountability, effect on regulation, and the perception of alien advantage. The final section of the article discusses the various control mechanisms for Chapter 11 proceedings, outlining the positive and negative traits of these mechanisms and offering suggestions for how they can be improved. This section also discusses the system's standards for set-aside.

Number of Pages in PDF File: 80

Keywords: NAFTA, NAFTA Chapter 11, arbitration, investor, investor-state, dispute, arbitral, arbitral mechanism, dispute resolution, tribunal, arbitration tribunal

Accepted Paper Series