Have Public Interests Been Forgotten in NAFTA Chapter 11 Foreign Investor/Host State Arbitration-Some Conclusions from the Judgment of the Supreme Court of British Columbia on the Case of Mexico V. Metalclad
NAFTA: Law and Business Review of the Americas (Kluwer Law International), Austin (Texas, USA) 8-SPG L. & Bus. Rev. Am. 189, 2002, pp. 189-210, IBSN/ISSN: 1381-4605.
Posted: 9 May 2017
Date Written: January 2, 2002
United States of Mexico vs. Metalclad Corp. is a landmark decision regarding both arbitration under NAFTA Chapter 11 and review proceedings of NAFTA Chapter 11 arbitral awards. For the first time since their creation in 1978, the Additional Facility Rules of the International Center for the Settlement of Investment Disputes (ICSID) have governed an international arbitration. In addition, the case exhibits the first time an arbitration award has been challenged in a national court as provided for in section 1136 (3)(b)(i) of NAFTA. This article focuses on the interrelaton of the nature of NAFTA Chapter 11 foreign investor / host State arbitration and the scope of the judicial review of Metalclad´s arbitral award by the Supreme Court of British Columbia (Canada). The Supreme Court extended the scope of its review far beyond the limits contained in the International Arbitration Act of British Columbia (IAABC), even though it formally proclaimed the narrow limits of the scope of its review, as provided for in section 34 of IAABC). Such an extensión is the natural consequence of having tried to assimilate NAFTA Chapter 11 arbitrations into pure commecial international arbitrations. It ought to be recognized that important public interests are adjudicated in NAFTA Chapter 11 arbitrations, and therefore, it is necessary to profoundly reform the current system of arbitration that mirrows the one created to adjudicate pure private interests.
Keywords: NAFTA, public interest, arbitration
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