Originally from: Fifteen Years of NAFTA Chapter 11 Arbitration 

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Books and numerous articles have been written about the interplay between NAFTA Chapter 11 and environmental protection.1 In this relatively short contribution I will limit myself to discussing three areas in which NAFTA Chapter 11 and its interaction with environmental issues have affected the subsequent development of investment laws and policies.

The first two areas will come as no surprise to followers of NAFTA Chapter 11 and its progeny—the investment agreements (and the trade agreements with investment chapters lodged within them) concluded primarily by the United States and Canada and affected in significant ways by the experiences of those two governments with NAFTA Chapter 11. One is the evolution of the definition of regulatory expropriation in the U.S. Model Bilateral Investment Treaty of 20042 and the Canadian Model Foreign Investment Promotion and Protection Agreement of 2003,3 as well as in those States’ post-NAFTA investment agreements and free trade agreements; the second is the strengthening of the environmental safeguards included in those agreements.