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.

Lessons Learned from the Canada–China FIPA for the US–China BIT and beyond

2019 ◽  
pp. 116-141 ◽  
Author(s):  
Kyle Dylan Dickson-Smith
Keyword(s):  
United States ◽  
Legal Protection ◽  
The United States ◽  
International Investment ◽  
Economic Benefits ◽  
Lessons Learned ◽  
The European Union ◽  
Investment Protection ◽  
The Us ◽  
Investment Agreements

Key lessons can be made from analysing a unique and recent BIT, the Canada–China Foreign Investment Protection Agreement (FIPA), in order better to predict and identify the opportunities and challenges for potential BIT counterparties of China (such as the United States, the European Union (EU), India, the Gulf Cooperation Council, and Columbia). The Canada–China FIPA and the anticipated US–China BIT (and EU–China BIT) collectively fall into a unique class of investment agreements, in that they represent a convergence of diverse ideologies of international investment norms/protections with two distinct (East/West) underlying domestic legal and economic systems. The purpose of this chapter is to appreciate and utilize the legal content of the Canada–China FIPA in order to isolate the opportunities and challenges for investment agreements currently under negotiation (focusing on the US–China BIT). This analysis is conducted from the perspective of China’s traditional BIT practice and political–economic goals, relative to that of its counterparty. This chapter briefly addresses the economic and broader diplomatic relationship between China and Canada, comparing that with the United States. It then analyses a broad selection of key substantive and procedural obligations of the Canada–China FIPA, addressing their impact, individually and cumulatively, to extract what lessons can be learned for the United States (US) and other negotiating parties. This analysis identifies the degree of investment liberalization and legal protection that Canada and China have achieved, and whether these standards are reciprocally applied. The analysis is not divorced from the relevant political economy and negotiating position between China and the counterparty and the perceived economic benefits of each party, as well as any diplomatic sensitive obstacles between the parties. While this chapter does not exhaustively analyse each substantive and procedural right, it provides enough of a comprehensive basis to reveal those challenges that remain for future bilateral negotiations with China.

The Role of Regional Courts in the Development of International Investment Law: The Case of NAFTA Chapter 11 Dispute Settlement Framework and ECtHR

2018 ◽  
Vol 11 (1) ◽  
pp. 77-95
Author(s):  
Collins C. Ajibo
Keyword(s):  
Human Rights ◽  
Dispute Settlement ◽  
International Investment ◽  
International Investment Law ◽  
European Court ◽  
Margin Of Appreciation ◽  
Investment Law ◽  
Nafta Chapter 11

AbstractRegional courts have synthesized, articulated, and elucidated certain principles of law that influence the development of international investment law. The contributions of NAFTA Chapter 11 dispute settlement framework and European Court of Human Rights (ECtHR), in particular, have been outstanding. For instance, NAFTA jurisprudence has guided investor-state dispute settlement (ISDS) tribunals through influential precedents. Similarly, the doctrine of proportionality and the margin of appreciation doctrine which emerged from the ECtHR jurisprudence have become embedded in international investment law. Indeed, given the unique contributions of regional courts and their rapid proliferation, it can be predicted that they will play even more significant roles in the future development of principles of international investment law. Arguably, such emergent principles should be subjected to a prior scrutiny and filtering by ISDS institutions as a precondition to full incorporation into international investment law to foster their legitimacy and credibility.

The United States and the Coalition Provisional Authority – occupation by proxy?

2019 ◽  
Vol 32 (3) ◽  
pp. 415-436
Author(s):  
Amy Elizabeth Chinnappa
Keyword(s):  
United States ◽  
Legal Status ◽  
The United States ◽  
Legal Framework ◽  
The United Kingdom ◽  
Private Military Companies ◽  
The Us ◽  
Coalition Provisional Authority ◽  
Unified Command ◽  
Domestic Law

AbstractThe Coalition Provisional Authority (CPA) governed Iraq from 2003 following Resolution 1483 of the UN Security Council. This Resolution affirmed that Iraq was in a state of occupation and that there were occupying powers. The Resolution referred to the United States of America and the United Kingdom as ‘occupying powers under the unified command of the “Authority”’, the ‘Authority’ being the CPA. However, the legal status of the CPA and its relationship to the US (the focus of this article) is not entirely clear, both under US domestic law and international law. This lack of clarity could have significant implications for the US’s responsibility for the CPA’s conduct. As with private military companies, a CPA-style administration of territory could become a tool for states to quarantine their risk under the law of occupation. This article contends that the theory of occupation by proxy may help clarify the legal status of the CPA and its relationship to the US and could assist in closing the identified gap in responsibility. To support this argument, this article establishes a legal framework for the theory of occupation by proxy which is then applied to the CPA and US.

The United States and the Iranian Nuclear Programme

2018 ◽  
Author(s):  
Steven Hurst
Keyword(s):  
United States ◽  
Decision Making ◽  
Domestic Politics ◽  
The United States ◽  
Nixon Administration ◽  
Comprehensive Plan ◽  
The Us ◽  
Nuclear Issue ◽  
The Relationship

The United States, Iran and the Bomb provides the first comprehensive analysis of the US-Iranian nuclear relationship from its origins through to the signing of the Joint Comprehensive Plan of Action (JCPOA) in 2015. Starting with the Nixon administration in the 1970s, it analyses the policies of successive US administrations toward the Iranian nuclear programme. Emphasizing the centrality of domestic politics to decision-making on both sides, it offers both an explanation of the evolution of the relationship and a critique of successive US administrations' efforts to halt the Iranian nuclear programme, with neither coercive measures nor inducements effectively applied. The book further argues that factional politics inside Iran played a crucial role in Iranian nuclear decision-making and that American policy tended to reinforce the position of Iranian hardliners and undermine that of those who were prepared to compromise on the nuclear issue. In the final chapter it demonstrates how President Obama's alterations to American strategy, accompanied by shifts in Iranian domestic politics, finally brought about the signing of the JCPOA in 2015.

‘To see oursels as ithers see us’: Reflections on Scottish Independence from the United States

2014 ◽  
Vol 23 (3) ◽  
pp. 381-388 ◽  
Author(s):  
Euan Hague ◽  
Alan Mackie
Keyword(s):  
United States ◽  
The United States ◽  
The Us ◽  
Scottish Independence ◽  
The Uk ◽  
Scottish Diaspora

The United States media have given rather little attention to the question of the Scottish referendum despite important economic, political and military links between the US and the UK/Scotland. For some in the US a ‘no’ vote would be greeted with relief given these ties: for others, a ‘yes’ vote would be acclaimed as an underdog escaping England's imperium, a narrative clearly echoing America's own founding story. This article explores commentary in the US press and media as well as reporting evidence from on-going interviews with the Scottish diaspora in the US. It concludes that there is as complex a picture of the 2014 referendum in the United States as there is in Scotland.

Palestine Unbound

2018 ◽  
Vol 47 (3) ◽  
pp. 130-134
Keyword(s):  
United States ◽  
Human Rights ◽  
Task Force ◽  
The United States ◽  
Donald Trump ◽  
Tel Aviv ◽  
The Us ◽  
Intention To Move ◽  
Arab Israeli Conflict ◽  
The U.S

This section, updated regularly on the blog Palestine Square, covers popular conversations related to the Palestinians and the Arab-Israeli conflict during the quarter 16 November 2017 to 15 February 2018: #JerusalemIstheCapitalofPalestine went viral after U.S. president Donald Trump recognized Jerusalem as the capital of Israel and announced his intention to move the U.S. embassy there from Tel Aviv. The arrest of Palestinian teenager Ahed Tamimi for slapping an Israeli soldier also prompted a viral campaign under the hashtag #FreeAhed. A smaller campaign protested the exclusion of Palestinian human rights from the agenda of the annual Creating Change conference organized by the US-based National LGBTQ Task Force in Washington. And, UNRWA publicized its emergency funding appeal, following the decision of the United States to slash funding to the organization, with the hashtag #DignityIsPriceless.

Against Slave Power? Slavery and Runaway Slaves in Mexico-United States Relations, 1821–1857

2019 ◽  
Vol 35 (2) ◽  
pp. 143-170
Author(s):  
Gerardo Gurza-Lavalle
Keyword(s):  
United States ◽  
Foreign Policy ◽  
The United States ◽  
The South ◽  
Runaway Slaves ◽  
The Us ◽  
El Alto ◽  
Upper South ◽  
Lower South

This work analyses the diplomatic conflicts that slavery and the problem of runaway slaves provoked in relations between Mexico and the United States from 1821 to 1857. Slavery became a source of conflict after the colonization of Texas. Later, after the US-Mexico War, slaves ran away into Mexican territory, and therefore slaveholders and politicians in Texas wanted a treaty of extradition that included a stipulation for the return of fugitives. This article contests recent historiography that considers the South (as a region) and southern politicians as strongly influential in the design of foreign policy, putting into question the actual power not only of the South but also of the United States as a whole. The problem of slavery divided the United States and rendered the pursuit of a proslavery foreign policy increasingly difficult. In addition, the South never acted as a unified bloc; there were considerable differences between the upper South and the lower South. These differences are noticeable in the fact that southerners in Congress never sought with enough energy a treaty of extradition with Mexico. The article also argues that Mexico found the necessary leeway to defend its own interests, even with the stark differential of wealth and resources existing between the two countries. El presente trabajo analiza los conflictos diplomáticos entre México y Estados Unidos que fueron provocados por la esclavitud y el problema de los esclavos fugitivos entre 1821 y 1857. La esclavitud se convirtió en fuente de conflicto tras la colonización de Texas. Más tarde, después de la guerra Mexico-Estados Unidos, algunos esclavos se fugaron al territorio mexicano y por lo tanto dueños y políticos solicitaron un tratado de extradición que incluyera una estipulación para el retorno de los fugitivos. Este artículo disputa la idea de la historiografía reciente que considera al Sur (en cuanto región), así como a los políticos sureños, como grandes influencias en el diseño de la política exterior, y pone en tela de juicio el verdadero poder no sólo del Sur sino de Estados Unidos en su conjunto. El problema de la esclavitud dividió a Estados Unidos y dificultó cada vez más el impulso de una política exterior que favoreciera la esclavitud. Además, el Sur jamás operó como unidad: había diferencias marcadas entre el Alto Sur y el Bajo Sur. Estas diferencias se observan en el hecho de que los sureños en el Congreso jamás se esforzaron en buscar con suficiente energía un tratado de extradición con México. El artículo también sostiene que México halló el margen de maniobra necesario para defender sus propios intereses, pese a los fuertes contrastes de riqueza y recursos entre los dos países.

Pathways to Legalization: Undocumented Mexican Immigrants in the US/Mexico Borderlands, 1942–1956

2015 ◽  
Vol 2 (2) ◽  
Author(s):  
Ana Elizabeth Rosas
Keyword(s):  
United States ◽  
Family Relationships ◽  
Mexican Immigrants ◽  
Extended Family ◽  
The United States ◽  
Mexican Immigrant ◽  
Agricultural Laborers ◽  
The Us ◽  
Us Government ◽  
Contract Laborers

In the 1940s, curbing undocumented Mexican immigrant entry into the United States became a US government priority because of an alleged immigration surge, which was blamed for the unemployment of an estimated 252,000 US domestic agricultural laborers. Publicly committed to asserting its control of undocumented Mexican immigrant entry, the US government used Operation Wetback, a binational INS border-enforcement operation, to strike a delicate balance between satisfying US growers’ unending demands for surplus Mexican immigrant labor and responding to the jobs lost by US domestic agricultural laborers. Yet Operation Wetback would also unintentionally and unexpectedly fuel a distinctly transnational pathway to legalization, marriage, and extended family formation for some Mexican immigrants.On July 12, 1951, US president Harry S. Truman’s signing of Public Law 78 initiated such a pathway for an estimated 125,000 undocumented Mexican immigrant laborers throughout the United States. This law was an extension the Bracero Program, a labor agreement between the Mexican and US governments that authorized the temporary contracting of braceros (male Mexican contract laborers) for labor in agricultural production and railroad maintenance. It was formative to undocumented Mexican immigrant laborers’ transnational pursuit of decisively personal goals in both Mexico and the United States.Section 501 of this law, which allowed employers to sponsor certain undocumented laborers, became a transnational pathway toward formalizing extended family relationships between braceros and Mexican American women. This article seeks to begin a discussion on how Operation Wetback unwittingly inspired a distinctly transnational approach to personal extended family relationships in Mexico and the United States among individuals of Mexican descent and varying legal statuses, a social matrix that remains relatively unexplored.

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