Judicial Review of NAFTA Chapter 11 Arbitral Awards - Chapter 5 - Fifteen Years of NAFTA Chapter 11 Arbitration

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Fifteen Years of NAFTA Chapter 11 Arbitration

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Judicial Review of NAFTA Chapter 11
Arbitral Awards
Henri C. Alvarez ∗

The North American Free Trade Agreement1 has been
celebrated as a defining moment in the evolution of trade
liberalization and protection of foreign investment in North
America. Chapter 11 of the agreement, aimed at providing an
effective mechanism for the resolution of disputes between
individual foreign investors and host governments, has particularly
revolutionized the foreign investment landscape. Nonetheless,
difficulties arising from the dispute resolution mechanism
contained in Chapter 11 have not gone unnoticed.2 One line of
criticism relates to the fact that Chapter 11 lacks an internal appeal
mechanism. Rather, it relies in this regard on the annulment and
ad hoc Committee process provided under the ICSID Convention,3
or on judicial review by the courts at the seat of arbitration under
the ICSID Additional Facility Rules4 and the UNCITRAL Rules,5
depending on the dispute resolution regime selected by the
investor. To date, Mexico has not signed, and Canada has not
ratified, the ICSID Convention. Therefore, until this situation
changes, disputes arising under Chapter 11 may only be arbitrated
in accordance with the Additional Facility Rules or the
UNCITRAL Rules, both of which provide for review of awards by
the national courts at the seat of the arbitration.