Judicial Review of NAFTA Chapter 11 Arbitral Awards - Chapter 5 - Fifteen Years of NAFTA Chapter 11 Arbitration
Henri C. Alvarez is a Partner at the Vancouver office of Fasken Martineau DuMoulin LLP.
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.
I. Review of NAFTA Arbitral Awards by Canadian Courts
II. Review of NAFTA Arbitral Awards by American Courts
III. Review of NAFTA Arbitral Awards by Mexican Courts
IV. Analysis of the Stadard of Review