Constitution or Model Treaty? Struggling Over the Interpretive Authority of Nafta

Abstract

The paper describes an 'interpretive struggle' over control of the text of the North American Free Trade Agreement’s (NAFTA) investment chapter. This is the part of NAFTA entitling investors to sue state parties directly for breaches of investment disciplines concerning, for instance, regulatory takings, national treatment, and fair and equitable treatment. Two dominant characterizations are contrasted. The first, a constitutionalist reading, emphasizes the constitution-like constraints of NAFTA’s investment disciplines and its integrationist thrust toward a continental vision with the United States at its epicentre. The second, an internationalist version, underscores the universal or transcendent values that NAFTA‘s investment chapter purport to promote. After describing these respective readings, the paper develops constitutitionalist rejoinders to different internationalist readings, concluding that a constitutionalist reading of NAFTA’s investment disciplines makes more sense of recent developments.

Keywords: NAFTA (North American Free Trade Agreement), constitutionalism, internationalism, Canadian constitutional law