The Rise of NAFTA 2.0: A Case Study in Effective ISDS Reform

The Investor-State Dispute Settlement System: Reform, Replace or Status Quo? (eds. Dr Alan Anderson and Ben Beaumont) (Kluwer Law International, 2020 Forthcoming)

25 Pages Posted: 20 Feb 2020 Last revised: 23 Jun 2020

See all articles by Kiran Nasir Gore

Kiran Nasir Gore

George Washington University - Law School; New York University (NYU)

Charles H. Camp

The George Washington University Law School

Date Written: December 11, 2019

Abstract

From 1994 to 2020, the North American Free Trade Agreement (NAFTA) enabled a free trade zone in the region. Its early days were undoubtedly successful. NAFTA was credited with stimulating trade, economic growth, and cooperation among Canada, Mexico, and the US. Yet, NAFTA was not without controversy. Its Chapter 11 offered an Investor-State Dispute Settlement (ISDS) mechanism that American and Canadian trade negotiators anticipated would protect their investors from risks posed by Mexico’s legal system. They did not expect ISDS claims against their own governments, which they perceived as a threat to their sovereignty. NAFTA’s successor, the US–Mexico–Canada Agreement (USMCA) entered into force on 1 July 2020 and adopts a new approach to ISDS within its Chapter 14. As the existing ISDS system faces increasing criticism and scrutiny, much of the debate centres on whether the ISDS system remains fit for its purpose. This chapter examines the social, political, and experiential circumstances which led to the rise of USMCA. It concludes that USMCA is a practical example of effective ISDS reform. In sum, the story of USMCA demonstrates that evolution, and not death, is the answer to the modern ISDS debate.

Keywords: Trump, dispute resolution, NAFTA, USMCA, arbitration, trade, international arbitration, international affairs, foreign policy, international law, global affairs, ISDS, investor-state dispute settlement, Canada, Dispute Resolution, Investment Claims, ISDS Reform, ISDS, Mexico, NAFTA, United States, U

JEL Classification: K33, K41, F1

Suggested Citation

Gore, Kiran Nasir and Camp, Charles, The Rise of NAFTA 2.0: A Case Study in Effective ISDS Reform (December 11, 2019). The Investor-State Dispute Settlement System: Reform, Replace or Status Quo? (eds. Dr Alan Anderson and Ben Beaumont) (Kluwer Law International, 2020 Forthcoming). Available at SSRN: https://ssrn.com/abstract=3502291 or http://dx.doi.org/10.2139/ssrn.3502291

Kiran Nasir Gore (Contact Author)

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Charles Camp

The George Washington University Law School ( email )

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