Democracy and Legitimacy in Investor-State Arbitration

126 YALE LAW JOURNAL FORUM 65

12 Pages Posted: 31 Jul 2017 Last revised: 29 Dec 2017

See all articles by Cory Adkins

Cory Adkins

Yale University - Law School

David Singh Grewal

Yale University - Law School

Date Written: June 2016

Abstract

In January 2016, the Canadian infrastructure company TransCanada Corporation filed a notice of intent to sue the United States government in a North American Free Trade Agreement (NAFTA) Chapter 11 arbitration over the Keystone XL pipeline. At the center of this dispute is the State Department's refusal to permit the construction of an oil pipeline between Canada and Nebraska. TransCanada claims that the State Department ignored its own favorable environmental assessments of the pipeline multiple times and rejected the proposal to placate misinformed activists and foreign governments. The State Department acknowledges that it denied the permit to enhance the Obama Administration's credibility at the 2015 United Nations Climate Change Conference in Paris, with the long-term goal of reducing emissions through collective political action.

This Essay situates the TransCanada arbitration within the history of investment arbitration, highlighting recent collisions between arbitral regimes and the modern regulatory state. After briefly discussing the history of investment arbitration, we discuss in depth the collision's most startling fallout so far- the Clayton v. Canada award on liability. Finally, we suggest how the TransCanada tribunal should view the Clayton award.

Keywords: Chapter 11 Arbitration, TransCanada, Clayton Award

Suggested Citation

Adkins, Cory and Grewal, David Singh, Democracy and Legitimacy in Investor-State Arbitration (June 2016). 126 YALE LAW JOURNAL FORUM 65. Available at SSRN: https://ssrn.com/abstract=3009903 or http://dx.doi.org/10.2139/ssrn.3009903

Cory Adkins

Yale University - Law School ( email )

David Singh Grewal (Contact Author)

Yale University - Law School ( email )

127 Wall St.
New Haven, CT 06511
United States

HOME PAGE: http://www.law.yale.edu/faculty/DGrewal.htm

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