The Bilcon NAFTA Tribunal: A Clash of Investor Protection and Sustainability-Based Environmental Assessments

(2017) Key Developments in Environmental Law 99-123.

21 Pages Posted: 19 Jul 2017 Last revised: 14 Apr 2020

See all articles by Meinhard Doelle

Meinhard Doelle

World Maritime University (WMU); Dalhousie University - Schulich School of Law; Dalhousie University - Marine and Environmental Law Institute

Date Written: July 14, 2017

Abstract

This article considers the implications of a March, 2015 ruling of a tribunal struck under the Chapter 11 investor protection provisions of the North American Free Trade Agreement (NAFTA). The majority of the tribunal found that Canada violated Articles 1102 and 1105 of NAFTA when the federal and provincial governments refused to approve a basalt quarry in Digby County (Whites Point Quarry), Nova Scotia following an environmental assessment carried out by way of a joint panel review. The article starts with an overview of the environmental assessment process carried out for the Whites Point Quarry, followed by a summary of the findings of the NAFTA tribunal. The ruling and its implications are then assessed, followed by a review of the investor protection provisions of the recently concluded trade agreement between Canada and the EU (CETA) to consider whether CETA’s investor protection process is likely to encounter similar challenges, particularly when considering the fair treatment of foreign investors in sustainability focused environmental assessment processes.

Keywords: NAFTA, Environmental Assessment, CETA, Investor Protection

Suggested Citation

Doelle, Meinhard, The Bilcon NAFTA Tribunal: A Clash of Investor Protection and Sustainability-Based Environmental Assessments (July 14, 2017). (2017) Key Developments in Environmental Law 99-123., Available at SSRN: https://ssrn.com/abstract=3002626 or http://dx.doi.org/10.2139/ssrn.3002626

Meinhard Doelle (Contact Author)

World Maritime University (WMU) ( email )

Fiskehamnsgatan 1
P. O. Box 500
Malmö, Skane 20124
Sweden

Dalhousie University - Schulich School of Law ( email )

6061 University Avenue
6061 University Ave
Halifax, Nova Scotia B3H 4H9
Canada

Dalhousie University - Marine and Environmental Law Institute ( email )

6061 University Avenue
Halifax, Nova Scotia B3H 4H9
Canada

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