Dispute Settlement under NAFTA Chapter 11: A Response to the Critics in the United States

2012 ◽  
pp. 395-418 ◽  
Author(s):  
Susan L. Karamanian
Keyword(s):  
United States ◽  
Dispute Settlement ◽  
The United States ◽  
Nafta Chapter 11

Influences on the Canadian FIPA Model and the US Model BIT: NAFTA Chapter 11 and Beyond

2007 ◽  
Vol 44 ◽  
pp. 249-298 ◽  
Author(s):  
Céline Lévesque
Keyword(s):  
United States ◽  
The United States ◽  
International Investment ◽  
International Investment Law ◽  
The Us ◽  
Nafta Chapter 11 ◽  
Systemic Nature ◽  
Domestic Law ◽  
Different Sources

SummaryIn recent years, Canada and the United States have modified their model bilateral investment treaties (BITs). If NAFTA Chapter 11 cases have provided the new lens through which investment issues are considered, the solutions to problems experienced in this context have come from different sources. This article explores three influences on the model BITs: the NAFTA Free Trade Commission's interpretation and statements, World Trade Organization law and cases, and US domestic law and principles. A range of interpretation issues is raised, from the effects of changes in wording in successive treaties, to the “transferability” of law across systems (international and domestic), to the use of arbitral awards as precedent. Issues of a systemic nature are also raised, including attempts at limiting the discretion of arbitral tribunals through state interpretations, the possibility of creating an appellate mechanism, and a push for expedited preliminary procedures. The article illustrates the fast-paced evolution of international investment law and highlights the influence of the United States on this evolution.

scholarly journals From NAFTA to USMCA: Two’s Company, Three’s a Crowd

2019 ◽  
Vol 1 (2) ◽  
pp. 30 ◽  
Author(s):  
Bradly J. Condon
Keyword(s):  
United States ◽  
Dispute Settlement ◽  
Bilateral Trade ◽  
The United States ◽  
Foreign Affairs ◽  
Minor Role ◽  
Dispute Settlement Mechanism ◽  
Nafta Chapter 11 ◽  
Trade Remedies ◽  
Trade Deals

The renegotiation of NAFTA was surrounded by a dramatic atmosphere, just as Canadian Minister of Foreign Affairs Chrystia Freeland predicted. The negotiations took place against a backdrop of unilateral trade measures, President Trump’s mercantilist approach to trade policy, and the United States’ specified preference for bilateral trade deals. This article argues that, for the most part, economic, political and cultural relations in the NAFTA countries are bilateral in nature, but with important trilateral production chains in specific sectors, most notably in the automotive sector. Beyond these trilateral sectors, the relationship between Canada and Mexico plays a relatively minor role. However, replacing NAFTA with bilateral agreements would have placed Canada and Mexico at a disadvantage, relative to the United States, in terms of attracting foreign direct investment. Nevertheless, Canadian and Mexican interests do not always coincide, nor do their negotiating positions. For example, Mexico was willing to give up Chapter 19 dispute settlement for trade remedies, whereas Canada insisted on keeping it in place. In end, USMCA Chapter 10 preserves this dispute settlement mechanism for all three parties. Canada was willing to give up NAFTA Chapter 11 on foreign investment disputes, whereas Mexico accepted a modified version. The result is a trilateral agreement with significant bilateral elements, as well as global elements that will serve as a possible model in future megaregional and multilateral negotiations.

Investor-State Dispute Settlement under NAFTA Chapter 11: The Shape of Things to Come?

1998 ◽  
Vol 35 ◽  
pp. 263-290
Author(s):  
J. Anthony VanDuzer
Keyword(s):  
Free Trade Agreement ◽  
Dispute Settlement ◽  
Trade Agreement ◽  
Minimum Standards ◽  
The North ◽  
State Behaviour ◽  
Nafta Chapter 11 ◽  
To Come ◽  
The Right

SummaryRecently, there has been a proliferation of international agreements imposing minimum standards on states in respect of their treatment of foreign investors and allowing investors to initiate dispute settlement proceedings where a state violates these standards. Of greatest significance to Canada is Chapter 11 of the North American Free Trade Agreement, which provides both standards for state behaviour and the right to initiate binding arbitration. Since 1996, four cases have been brought under Chapter 11. This note describes the Chapter 11 process and suggests some of the issues that may arise as it is increasingly resorted to by investors.

United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products – Recourse to Article 21.5 of the DSU by Mexico (US–Tuna II (Mexico) (Article 21.5 – Mexico), DS381)

2016 ◽  
Vol 15 (3) ◽  
pp. 523-525
Author(s):  
Geoffrey Carlson
Keyword(s):  
United States ◽  
Dispute Settlement ◽  
The United States ◽  
Technical Barriers To Trade ◽  
Appellate Body ◽  
Final Rule

This compliance proceeding under Article 21.5 of the DSU concerned measures taken by the United States to implement the recommendations and rulings of the Dispute Settlement Body (DSB) in US–Tuna II (Mexico). In US–Tuna II (Mexico), the DSB found that certain US measures concerning the importation, marketing, and sale of tuna products (taken together, the Original Tuna Measure) were inconsistent with the Agreement on Technical Barriers to Trade (the TBT Agreement). The Original Tuna Measure, inter alia, contained conditions under which tuna products could be labelled ‘dolphin safe’. The United States' measure taken to comply with the recommendations and rulings of the DSB consisted of an amendment to the Original Tuna Measure (the 2013 Final Rule). The Appellate Body generally referred to the Original Tuna Measure, together with the 2013 Final Rule, as the Amended Tuna Measure. The Amended Tuna Measure was the focus of this compliance proceeding.

Extraterritorial Shrimps, NGOs and the WTO Appellate Body

1999 ◽  
Vol 48 (1) ◽  
pp. 199-206 ◽  
Author(s):  
Asif H. Qureshi
Keyword(s):  
United States ◽  
Dispute Settlement ◽  
Market Access ◽  
The United States ◽  
Consultation Process ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
The Us ◽  
Wto Appellate Body ◽  
Dispute Settlement System

At the centre of the international trading order, under the framework of the World Trade Organization (WTO), lies a dispute-settlement system. This system offers a graduated conflict-resolution mechanism that begins with a consultation process; progresses to adjudication, through a panel system, and ends in an appellate process.1 Under this machinery, in October 1996 India, Malaysia, Pakistan and Thailand (the complainants) requested joint consultations with the United States, regarding the US prohibition on the importation of certain shrimps and shrimp products caught with fishing technology considered by the United States adversely to affect the population of sea turtles—an endangered species under CITES.2 The US prohibition arose from section 609 of Public Law 101–1623 and associated regulations and judicial rulings (hereafter referred to as section 609). In a nutshell the complainants claimed denial of market access to their exports, and the United States justified this on grounds of conservation. However, as a consequence of the failure of the consultations, the WTO Dispute Settlement Body established a panel, around April 1997, to consider a joint complaint against the United States in relation to section 609. Australia, Ecuador, the European Communities, HongKong, China, Mexico and Nigeria joined the complainants as third parties. In May 1998 the panel's report was published, containing a decision in favour of the complainants. In July 1998 the United States appealed to the WTO Appellate Body, and in October 1998 the Appellate Body issued its report.4

Revolution

Atlantic Wars ◽  
2020 ◽  
pp. 252-273
Author(s):  
Geoffrey Plank
Keyword(s):  
United States ◽  
Nineteenth Century ◽  
Slave Trade ◽  
Military Intervention ◽  
The United States ◽  
Revolutionary Era ◽  
Transatlantic Slave Trade ◽  
The Common ◽  
Moral Superiority

Chapter 11 traces the common origins and consequences of revolutions in various regions of the Atlantic world. In Europe and much of the Americas, a new military ethic developed, promoting patriotic and loyal service and condemning mercenaries and foreign interventionists. Campaigners against the transatlantic slave trade sought to dissociate Europeans and Americans from African violence. In the Americas, revolutionary conflict fuelled racial and communal animosity. Revolutionaries and counterrevolutionaries sensed their own moral superiority and showed contempt for their opponents. Anger, fear, and the desire for vengeance fed on each other, in some places leading to genocidal violence. In the early nineteenth century the United States condemned British aid to indigenous American warriors and expressed general opposition to European military intervention in the newly independent American republics. National and imperial policies adopted in the revolutionary era broke the early modern pattern of transatlantic war.

Exceeding the Limits of Territorial Bounds: The Helms-Burton Act

1997 ◽  
Vol 34 ◽  
pp. 161-213
Author(s):  
H. Scott Fairley
Keyword(s):  
United States ◽  
International Law ◽  
International Institutions ◽  
Dispute Settlement ◽  
Trade Agreements ◽  
The United States ◽  
International Trade Agreements ◽  
Title Iv ◽  
Trading Partners ◽  
Title Iii

SummaryThe author argues that the Helms-Burton Act violates general principles of international law. The analysis begins with a brief discussion of the extraterritorial purposes, structure, and operation of the act, followed by a survey of international responses to Helms-Burton by the principal trading partners of the United States: diplomatic protest, formalized dispute settlement under international trade agreements, retaliatory blocking leghlation, and multi-hteral scrutiny in and by international institutions. The author then turns to principles of jurisdiction with a view to demonstrating that Helms-Burton does not meet the applicable thresholds to support either the private right to sue for trafficking in confiscated property under Title III of the act or the governmental exclusion of designated aliens from admission to the United States under Title IV. In this regard, substantive international law arguments in relation to extraterritoriality and nationality, remoteness, the effects doctrine, human rights, and the reasonable expectations of other nations are also considered.

“Toward the World’s Center Stage”

2021 ◽  
pp. 261-276
Author(s):  
Rush Doshi
Keyword(s):  
United States ◽  
Communist Party ◽  
Chinese Communist Party ◽  
Initial Response ◽  
The United States ◽  
Global State ◽  
Donald Trump ◽  
Global Expansion ◽  
Waking Up

Chapter 11 discusses the dawn of China’s strategy of global expansion, its perception of American decline, and the arrival of a new Party concept—the “great changes unseen in a century”—associated with both. It argues that China’s strategy of expansion emerged following another “trifecta,” this time consisting of Brexit, the election of Donald Trump, and the West’s initial response to the coronavirus pandemic. In this period, the Chinese Communist Party reached a paradoxical consensus: it concluded that the United States was in decline globally but at the same time was waking up to the China challenge bilaterally. It argues that Beijing now perceives an opportunity to displace the United States as the leading global state by 2049, with the next decade deemed the most critical to this objective.

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