Potential Conflicts between Investor Rights and Environmental Regulation under NAFTA's Chapter 11
![handle is hein.journals/gwilr33 and id is 659 raw text is: POTENTIAL CONFLICTS BETWEEN INVESTOR RIGHTS
AND ENVIRONMENTAL REGULATION UNDER
NAFTA'S CHAPTER 11
DAVID A. GANTZ*
1. INTRODUCTION
The North American Free Trade Agreement (NAFTA),' which
entered into force January 1, 1994, among the United States,
Canada, and Mexico, has among its objectives, to eliminate barri-
ers to trade in, and facilitate the cross border movement of, goods
and services between the territories of the Parties and to increase
substantially investment opportunities in the territories of the Par-
ties... 2 While the objectives do not mention environmental con-
siderations, in the Preamble the Parties resolve to... undertake
each of the preceding [expanding trade, investment, etc.] in a
manner consistent with environmental protection and
conservation . . .
NAFTA's complex provisions focus on the elimination of import
duties and non-tariff barriers on trade in goods3 and services,4 and
on protection of investment.5 NAFTA, however, also covers, inter
alia, agriculture, standards, government procurement, intellectual
property, and business travel.6 While in most instances the NAFTA
provisions have been implemented without delay or controversy,
disputes have arisen in several key trade related areas, most signifi-
candy with regard to the United States' refusal to implement provi-
* Professor of Law and Director, International Trade Law Program, University of
Arizona, James E. Rogers College of Law; Associate Director, National Law Center for
Inter-American Free Trade. The author at the time of this writing is serving as an arbitra-
tor in a NAFTA, Chapter 11 case, one which involves no environmental/regulatory issues
and is not discussed in this article. A parallel article by the same author, reflecting some of
the same issues and analysis, Reconciling Environmental Protection and Investor Rights Under
Chapter 11 of NAFTA, appeared as 31 ENVrL. L. REP. (ENvWL. L. INST.) 10646 (2001).
1. North American Free Trade Agreement, Dec. 17, 1992, U.S.-Can.-Mex., chs. 1-9.
32 I.L.M. 289; chs. 10-22, 32 I.L.M. 605 [hereinafter NAFTA].
2. NAFTA, supra note 1, art. 102(1)(a), (c).
3. NAFTA, supra note 1, at chs. 3-6, 8.
4. Id. at chs. 12-14.
5. Id. at ch. 11.
6. Id at chs. 7, 9, 10, 17, 16, respectively.](ViewImageLocal?handle=hein.journals/gwilr33&div=30&collection=&method=preview&ext=.png&size=3)
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Potential Conflicts between Investor Rights and Environmental Regulation under NAFTA's Chapter 11
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