About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

3 Asper Rev. Int'l Bus. & Trade L. 185 (2003)
Betrayal, Shock and Outrage - Recent Developments in NAFTA Article 1105

handle is hein.journals/asperv3 and id is 195 raw text is: BETRAYAL, SHOCK AND OUTRAGE - RECENT DEVELOPMENTS IN NAFTA ARTICLE 1105 Ian A. Laird* I. INTRODUCTION HAT DO STATE PARTIES to international investment treaties mean when they say they want to assure that investments of investors receive treatment in accordance with international law, including fair and equitable treatment and full protection and secu- rity? What is fair and equitable treatment? The interpretation of these simple terms has caused a great deal of controversy in the arbitrations under the investment dispute provisions of the North American Free Trade Agreement (NAFTA). At the centre of the controversy has been the attempt by the NAFTA Parties to re-write NAFTA Article 1105 (Article 1105) through the mechanism of an all Party inter- pretation. Professor Sir Robert Jennings, an eminent scholar, summarized the situation in an expert opinion he provided to one of the NAFTA Chapter 11 (Chapter 11) panels involving the United States as the respondent: It would be wrong to discuss these three-party 'interpreta- tions' of what have become key words of this arbitration, without protesting the impropriety of the three governments making such an intervention well into the process of arbi- tration, not only after the benefit of seeing the written plead- ings of the parties but also virtually prompted by them. In the present case, without even asking for leave, one of the actual Parties to the arbitration has quite evidently organ- ized a demarch intended to apply pressure on the Tribunal to find in a certain direction by amending the treaty to cur- tail investor protections. This is surely against the most ele- mentary rules of due process of justice. The phrase due process is itself of United States origin and has become international (see NAFTA Article 1110) because the United B.A. (McGill), LL.B. (Windsor), LL.M. (Cambridge). Ian is presently Chief of Staff to the Minister of Citizenship and Immigration Canada. Previously, he worked as counsel on some of the early NAFTA Chapter 11 arbitrations such as S.D. Myers, Pope & Talbot and UPS.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most