Access to Trade Justice: Fixing NAFTA's Flawed State-to-State Dispute Settlement Process

2018 ◽  
Vol 18 (1) ◽  
pp. 63-79 ◽  
Author(s):  
SIMON LESTER ◽  
INU MANAK ◽  
ANDREJ ARPAS
Keyword(s):  
Dispute Settlement ◽  
Selection Process ◽  
Trade Agreement ◽  
Early Years

AbstractWithout a properly functioning dispute process, the obligations in a trade agreement may not be worth much. As part of the NAFTA renegotiation, the NAFTA parties should try to fix certain flaws in the NAFTA Chapter 20 dispute settlement process that emerged a few years after NAFTA came into force. Chapter 20 was used regularly in its early years, but usage dropped considerably after panel selection was blocked in a case involving US restrictions on Mexican sugar. In this paper, we examine recent innovations on panel selection in the TPP, CETA, and JEEPA dispute provisions, and draw from those to develop principles that can guide revisions to the NAFTA Chapter 20 panel selection process.

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.

scholarly journals Indigenous Rights and Trade Obligations: How Does CUSMA’s Indigenous General Exception Apply to Canada?

2021 ◽  
pp. 1-47
Author(s):  
J. ANTHONY VANDUZER ◽  
MELANIE MALLET
Keyword(s):  
Indigenous Peoples ◽  
Free Trade Agreement ◽  
Dispute Settlement ◽  
Indigenous Rights ◽  
Trade Agreement ◽  
Legal Obligations ◽  
United States Mexico ◽  
Trade And Investment ◽  
Ongoing Concern ◽  
Party State

Abstract Canadian commitments under trade and investment treaties have been an ongoing concern for Indigenous peoples. The Canada-United States-Mexico Agreement (CUSMA) is the first Canadian treaty to include a general exception for measures that a party state “deems necessary to fulfill its legal obligations to [I]ndigenous peoples.” This exception is likely to afford Canada broad, but not unlimited, discretion to determine what its legal obligations to Indigenous peoples require. There is a residual risk that Canada’s reliance on the exception could be challenged through the CUSMA dispute settlement process. A CUSMA panel would not have the expertise necessary to decide inevitably complex questions related to what Canada’s legal obligations to Indigenous peoples require. While state-to-state cases under the North American Free Trade Agreement have been rare, a CUSMA panel adjudication regarding the Indigenous general exception risks damaging consequences for Canada’s relationship with Indigenous peoples.

Who Settles Disputes? Treaty Design and Trade Attitudes Toward the Transatlantic Trade and Investment Partnership (TTIP)

2019 ◽  
Vol 73 (4) ◽  
pp. 881-900 ◽  
Author(s):  
Hyeonho Hahm ◽  
Thomas König ◽  
Moritz Osnabrügge ◽  
Elena Frech
Keyword(s):  
Dispute Settlement ◽  
Market Access ◽  
Critical Role ◽  
Public Support ◽  
Trade Agreement ◽  
Dispute Settlement Mechanism ◽  
Design Elements ◽  
Transatlantic Trade ◽  
Nationally Representative ◽  
Trade And Investment

AbstractWhat type of trade agreement is the public willing to accept? Instead of focusing on individual concerns about market access and trade barriers, we argue that specific treaty design and, in particular, the characteristics of the dispute settlement mechanism, play a critical role in shaping public support for trade agreements. To examine this theoretical expectation, we conduct a conjoint experiment that varies diverse treaty-design elements and estimate preferences over multiple dimensions of the Transatlantic Trade and Investment Partnership (TTIP) based on a nationally representative sample in Germany. We find that compared to other alternatives, private arbitration, known as investor-state dispute settlement (ISDS), generates strong opposition to the trade agreement. As the single most important factor, this effect of dispute settlement characteristic is strikingly large and consistent across individuals’ key attributes, including skill levels, information, and national sentiment, among others.

Breaking Ground

2021 ◽  
Vol 187 ◽  
pp. 6-9
Author(s):  
Chris Dupuis
Keyword(s):  
Selection Process ◽  
Early Years ◽  
Tomson Highway ◽  
Gradual Introduction ◽  
Lottery System

This text is an interview by Chris Dupuis with Benj Gallander, Greg Holmgren, Robert Sherwood, Ben Stadelmann, and Carol Pauker, the founders of the SummerWorks Festival. The team first assembled after being unable to secure slots at the Toronto Fringe Festival, with the idea of starting an alternative summer theatre event that would offer space to artists unable to get into the Fringe. They discuss the first conversations around launching the event through its early years, including the challenges of starting from scratch and running the project collectively and the various triumphs and failures they experienced. They outline changes in the selection process, the move from a first come, first served, model to a lottery system similar to the Fringe, and the gradual introduction of curation through the Parallel Lab initiative. Finally, they discuss how the festival shaped them personally and the event’s lasting impacts on the Toronto theatre sector. The text also includes references the late eighties Toronto theatre scene, including Tomson Highway, Hillar Littoja, and Buddies in Bad Times.

The CETA Opinion of the European Court of Justice and its Implications—Not that Selfish After All

2019 ◽  
Vol 22 (3) ◽  
pp. 503-521 ◽  
Author(s):  
Christian Riffel
Keyword(s):  
Dispute Settlement ◽  
Trade Agreement ◽  
European Court Of Justice ◽  
Court System ◽  
Eu Law ◽  
Investment Protection ◽  
Constitutional Principle ◽  
Court Of Justice ◽  
European Court ◽  
The Eu

Abstract In Opinion 1/17, the European Court of Justice (ECJ) found the investment court system compatible with European Union (EU) law. The ruling concerned the mechanism in the Comprehensive Economic and Trade Agreement (CETA) but the Court’s reasoning is equally applicable to other investment courts as established, for example, in the EU’s investment protection agreements with Singapore and Vietnam. This outcome was far from clear, given that in the past the accession to international dispute settlement bodies regularly foundered on the autonomy of the EU legal order. The present article parses the CETA Opinion and explores its implications. It particularly focuses on autonomy as a constitutional principle and its advancement in Opinion 1/17. Importantly, the ECJ accepted the superiority of a court created by international agreement in relation to the said agreement. Furthermore, it clarified that it is not prerequisite for the Court to rule first on the meaning to be given to an act of EU law before that act can be the subject matter of an investment dispute. Finally, the pdrerogative of the EU to autonomously set the level of protection of a public welfare goal must be secured in a treaty for the EU to join it.

scholarly journals The Two Noble Kinsmen: Internal and Legal Transparency in the WTO and Their Connection to Preferential and Regional Trade Agreements

2016 ◽  
Vol 5 (2) ◽  
pp. 539-569
Author(s):  
Maria Panezi
Keyword(s):  
Decision Making ◽  
Dispute Settlement ◽  
Trade Agreement ◽  
Trade Agreements ◽  
Regional Trade Agreements ◽  
Regional Trade ◽  
Preferential Trade ◽  
Institutional Processes ◽  
Multilateral Trading System ◽  
The Impact

Abstract The proliferation of Preferential Trade Agreements (PTAs) and Regional Trade Agreements (RTAs) has given rise to significant debate on the need to measure, understand and possibly regulate the impact these agreements have on the multilateral trading system under the umbrella of the World Trade Organization (WTO). This article will discuss the two Doha Transparency Mechanisms (legal transparency) regarding regional trade agreements, as they appear in two General Council decisions from 2006 and 2010. I will argue based on a closer look and a consistent interpretation of Paragraph 10 of the Doha Ministerial Declaration that there is another type of transparency that is relevant to the discussion on PTAs/RTAs, namely “internal transparency.” “Internal transparency stricto sensu” highlights the significance of trust in the WTO institutional processes, such as negotiations, decision-making, dispute settlement and trade monitoring that the representatives of developing member states should have in order for the WTO system to function productively. “Internal transparency lato sensu” is introduced in this article as an extension to include any decision-making deficits, exclusionary and asymmetrical outcomes specifically in the area of unchecked Preferential Trade Agreement proliferation. Instead of a conclusion, the article offers some proposals for more a meaningful progress in the WTO with respect to PTAs/RTAs The proposals aim at raising the profile of both legal and internal of transparency and posit that raising the profile of one will inevitably lead in improvements in the other.

scholarly journals NAFTA Is Renegotiated and Signed by the United States

2019 ◽  
Vol 113 (1) ◽  
pp. 150-159 ◽  
Keyword(s):  
United States ◽  
Dairy Products ◽  
Free Trade Agreement ◽  
Dispute Settlement ◽  
Trade Agreement ◽  
The United States ◽  
Negotiation Process ◽  
Rules Of Origin ◽  
The North ◽  
United States Mexico

A twenty-four-year-old agreement was reborn on October 1, 2018, when President Trump announced that the North American Free Trade Agreement (NAFTA) had been successfully renegotiated. The deal came after an arduous, year-long negotiation process that almost left Canada behind. As one indicator of its contentiousness, the deal lacks an agreed-upon name, but the United States is referring to it as the United States-Mexico-Canada Agreement (USMCA). It keeps some key NAFTA provisions mostly the same, including with respect to state-to-state dispute resolution, but eliminates, modifies, and adds other provisions. Among the changes: investor-state dispute settlement has been eliminated as between the United States and Canada; rules of origin for automobiles and rules for U.S. dairy products have been modified; and new provisions address labor protections, intellectual property rights, rights for indigenous persons, rules for trade negotiations with non-market countries, and the agreement's termination. The agreement was formally signed by the leaders of all three countries on November 30, 3018. It must be approved through the domestic ratification procedures of the three countries before it enters into force.

Sustainability and precautionary aspects of CETA dissected

elni Review ◽  
2016 ◽  
pp. 58-63
Author(s):  
Wybe Th. Douma
Keyword(s):  
Dispute Settlement ◽  
Trade Agreement ◽  
Trade Agreements ◽  
Institutional Arrangements ◽  
Development Cooperation ◽  
The Self ◽  
Evidence Based ◽  
Policy Choices ◽  
Sustainability Impact Assessment ◽  
The Eu

The Comprehensive Economic and Trade Agreement (CETA) between the EU, its Member States and Canada has been presented as “the best trade agreement the EU has ever negotiated”. While there are certainly many advantages compared to older trade treaties, two remaining points of concern are investigated in this contribution. The first one relates to the manner in which the EU utilises its own system for ensuring that sustainability concerns are integrated into trade agreements. In the first part of this contribution, it is investigated whether the manner in which the integration instrument is employed in the case of CETA, notably where the inclusion of an investor state dispute settlement (ISDS) mechanism is concerned, is in line with consistent, evidence-based policy choices and with the self-imposed guidelines as laid down in the so-called Trade Sustainability Impact Assessment (TSIA) Handbook. The second part of this contribution investigates whether the continued implementation of the precautionary principle on the side of the EU is properly secured in the view of the various rules, procedures and institutional arrangements contained in the CETA text. In that respect, the findings of a detailed study on this topic are summarised first, after which some of the critique from the side of the Dutch Minister of Foreign Trade and Development Cooperation and from the EU Commissioner for Trade is examined and commented upon.

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