Trade, Investment and Risk

2011 ◽  
Vol 2 (4) ◽  
pp. 586-590
Author(s):  
Valentina S. Vadi
Keyword(s):  
Dispute Settlement ◽  
Scientific Evidence ◽  
Trade Agreement ◽  
Toxic Chemicals ◽  
Dispute Settlement Mechanism ◽  
Risk Regulation ◽  
Host State ◽  
The North ◽  
Settlement Mechanism

Since the North American Free Trade Agreement (hereinafter NAFTA) was successfully negotiated in 1993, the provisions for investor-state arbitration under its Chapter 11 have put pressure on the regulatory spaces of the State Parties. Under Chapter 11, any investor alleging a breach of the treaty norms by a host State can file an arbitration claim. This diagonal dispute settlement mechanism has determined a growing stream of arbitrations, focusing inter alia on the interplay between the regulation of toxic chemicals by the host State and the substantive provisions of Chapter 11. The arbitration claims filed by investors against host States regarding the regulation of toxic chemicals by the latter include those related to the adoption of discriminatory policies, the expropriation of investments and the violation of the fair and equitable standard (FET). In a nutshell, the question is how to reconcile environmental protection with the promotion of foreign direct investment (FDI). Can the host State adopt precautionary policies? To what extent can and should policy influence risk regulation? Should investors be compensated if their toxic chemicals are banned from the market? Which standard of review should arbitral tribunals adopt to assess scientific evidence? This note explores all of these issues through an analysis of the Chemtura award.

scholarly journals NAFTA 2.0: The Greenest Trade Agreement Ever?

2019 ◽  
Vol 18 (4) ◽  
pp. 659-677
Author(s):  
NOEMIE LAURENS ◽  
ZACHARY DOVE ◽  
JEAN FREDERIC MORIN ◽  
SIKINA JINNAH
Keyword(s):  
Free Trade Agreement ◽  
Dispute Settlement ◽  
Environmental Issues ◽  
Trade Agreement ◽  
Environmental Agreements ◽  
Dispute Settlement Mechanism ◽  
Multilateral Environmental Agreements ◽  
The Core ◽  
The North ◽  
Settlement Mechanism

AbstractThe renegotiation of what US President Trump called ‘the worst trade deal ever’ has resulted in the most detailed environmental chapter in any trade agreement in history. The USMCA mentions dozens of environmental issues that its predecessor, the North American Free Trade Agreement (NAFTA), overlooked, and in line with contemporary US practice, brings the vast majority of environmental provisions into the core of the agreement, and subjects these provisions to a sanction-based dispute settlement mechanism. It also jettisons two controversial NAFTA measures potentially harmful to the environment. However, this paper argues that the USMCA only makes limited contributions to environmental protection. It primarily replicates most of the environmental provisions included in recent agreements, and only introduces three unprecedented environmental provisions. Moreover, it avoids important issues such as climate change, it does not mention the precautionary principle, and it scales back some environmental provisions related to multilateral environmental agreements.

scholarly journals Biologics Under a New NAFTA

2019 ◽  
Vol 5 (3) ◽  
pp. 301-320
Author(s):  
Jordan Jensen
Keyword(s):  
Intellectual Property ◽  
Dispute Settlement ◽  
Trade Agreement ◽  
Pharmaceutical Drugs ◽  
Dispute Settlement Mechanism ◽  
Investment Protection ◽  
The North ◽  
Patent Rights ◽  
Medical Advances

Scientific developments, such as biologics and personalized medicine, have created an entirely new category of pharmaceutical drugs that were not considered when the North American Free Trade Agreement (“NAFTA”) was adopted in 1994. However, the rise of biologics has increased demand for a reconfigured NAFTA, particularly with respect to Chapter 17, which outlines NAFTA’s robust intellectual property standards, as well as Chapter 11, which both lays out the framework for foreign investment under NAFTA and introduces a controversial mechanism referred to as the investor-state dispute settlement mechanism (“ISDS”). The intellectual property provisions of the original NAFTA should be revised to mirror the similar provisions of the Trans-Pacific Partnership (“TPP”) Agreement, which better accommodates new medical advances. However, despite criticism of their lack of transparency, the investment provisions of the original NAFTA are likely sufficient to grant medical patent-rights holders the investment protection that they seek because they strengthen transparency, which is ultimately good for business.

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.

Mexico – Tax Measures on Soft Drinks and Other Beverages (Complainant: United States of America)

2019 ◽  
Vol 181 ◽  
pp. 436-487
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
Trade Agreement ◽  
International Agreements ◽  
Dispute Settlement Mechanism ◽  
Settlement System ◽  
Wto Dispute Settlement ◽  
Trade Relationship ◽  
Dispute Settlement System ◽  
Settlement Mechanism

Economics, trade and finance — World Trade Organization — General Agreement on Tariffs and Trade — Relationship with other international agreements — North American Free Trade Agreement — Measures allegedly taken contrary to GATT said to be countermeasures responding to violation of NAFTA — WTO dispute settlement mechanismInternational tribunals — Jurisdiction — Discretion not to exercise jurisdiction — Whether inherent power — WTO dispute settlement system — Whether Panel empowered to decline to exercise jurisdiction — Whether dispute between two States parties to NAFTA should be heard by arbitral tribunal under NAFTA rather than by panel under the WTO Dispute Settlement UnderstandingReprisals and countermeasures — Nature and scope — Relationship between countermeasures under international law and measures to secure compliance with laws and regulations within the WTO — Whether falling under GATT Article XX(d)Treaties — Interpretation — Effect — Interpretation of GATT Article XX(d) — Relationship between GATT and other international agreements

The Evolution of the Dispute Settlement Mechanism in Preferential Trade Agreements [PTAs]: The Case of Indonesia

2020 ◽  
Vol 10 (2) ◽  
pp. 346-374
Author(s):  
I Gusti Ngurah Parikesit WIDIATEDJA
Keyword(s):  
Dispute Settlement ◽  
Trade Agreement ◽  
Trade Agreements ◽  
Preferential Trade Agreements ◽  
Dispute Settlement Mechanism ◽  
Related Factors ◽  
Preferential Trade ◽  
High Level ◽  
Trade Partners ◽  
Settlement Mechanism

AbstractThe dispute settlement mechanism [DSM] under preferential trade agreements [PTAs] is crucial to ensure adequate implementation and enforcement of commitments among contracting parties. The DSM has evolved from political/diplomatic styles with a low level of legalism to judicial styles with a high level of legalism. Indonesia has also experienced this evolution process in its PTAs. This paper aims to show the evolution of the DSM in Indonesian PTAs, analyzing several related factors behind this trend. The paper argues that the evolution of the DSM from the GATT to WTO, Indonesia's participation in regional trade agreement, that is, ASEAN, the influence of trade partners, the existence of domestic factors, and the ongoing WTO dispute encourage the evolution of the DSM in Indonesian PTAs from political styles to more judicial styles with a high level of legalism.

Following Suit: A Comparison of Dispute Resolution Mechanisms under NAFTA Chapter 20 and the Canada-Israel Free Trade Agreement

1998 ◽  
Vol 35 ◽  
pp. 291-304
Author(s):  
Yair Baranes
Keyword(s):  
Dispute Resolution ◽  
Free Trade ◽  
Free Trade Agreement ◽  
Dispute Settlement ◽  
Trade Agreement ◽  
Dispute Settlement Mechanism ◽  
Settlement Mechanism

SummaryThe Free Trade Agreement between Canada and Israel bases its dispute settlement mechanism on Chapter 20 of NAFTA. There are accordingly many similarities between the two regimes. In certain areas, however, such as consultations and Panel composition, the Canada-Israel dispute settlement regime was clearly intended to differ from the NAFTA regime.

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