NAFTA Chapter 11 (1992) (NAFTA) - World Arbitration Reporter (WAR) - 2nd Edition

Claudia Frutos-Peterson is a consultant in the International Arbitration Group of Curtis, Mallet-Prevost, Colt and Mosle, LLP. She is also an Adjunct Professor at the American University Washington College of Law and a member of the Center on International Commercial Arbitration of the WCL. The views expressed in this paper are exclusively the author’s views. The author wishes to thank the Dean’s Fellows of the Center on International Commercial Arbitration of the WCL, Daniel Herzlin, Meg Kloth, Jordan Miller, Jennifer Mullins, and Sara Pak for their assistance in the research for this article.

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Originally from World Arbitration Reporter (WAR) - 2nd Edition

I. INTRODUCTION

A. Purpose and Historical Background

On December 17, 1992, the United States, Mexico and Canada signed the North American Free Trade Agreement (“NAFTA” or “the Agreement”).1 Article 102 set forth NAFTA’s main objectives. Among those objectives, NAFTA seeks to increase investment opportunities in the territories of the Parties and to create effective procedures for the implementation and application of the Agreement, including the resolution of disputes under the Agreement.2 NAFTA came into force on January 1, 1994.3 Since that date, trilateral merchandise trade between the United States, Mexico and Canada has nearly tripled, topping $1.0 trillion (USD) in 2008.4

Table of Contents:

NAFTA CHAPTER 11(1992)(NAFTA) - TABLE OF CONTENTS from World Arbitration Reporter (WAR) - 2nd Edition

NAFTA CHAPTER 11(1992)(NAFTA)

I. INTRODUCTION A. Purpose and Historical Background B. Structure of the Treaty 1. Scope 2. Substantive Rights and Obligations a) National Treatment and Most Favored Nation Treatment b) Transfers c) Expropriation and Compensation d) Performance Requirements and Management Conditions e) Reservations, Exceptions and Denial of Benefits f) Dispute Resolution Mechanism i) Jus Standi ii) Preliminary Requirements iii) Submission of a Claim to Arbitration iv) Arbitral Proceedings v) NAFTA Party’s Submissions vi) Free Trade Commission II. COMMENTARY A. Review of Arbitral Decisions Under Chapter 11 1. Lack of Jurisdiction 2. Article 1102 – National Treatment a) In like circumstances b) No Less Favorable Treatment 3. Article 1103 – Most Favored Nation 4. Article 1105 – Minimum Standard of Treatment 5. Article 1106 – Performance Requirements 6. Article 1110 – Expropriation B. The Impact of Chapter 11 of NAFTA on Investor State Arbitration III. APPENDIX A. Text of NAFTA Chapter 11