The Future of NAFTA Chapter 11: The Next Fifteen Years - Chapter 8 - Fifteen Years of NAFTA Chapter 11 Arbitration
Luis González García , Member of Matrix Chambers, London. Luis González García was Deputy-General Counsel at the Ministry of Economy in Mexico, where he appeared as legal counsel for Mexico in investment treaty arbitrations under the NAFTA. He also participated in the negotiation of bilateral investment treaties.
When we reflect upon the future of the NAFTA1 Chapter 11, we have to ask ourselves two important questions. The first is whether Chapter 11 has been a success. This is a contentious question. After fifteen years of NAFTA experience, two lines of criticism have emerged. Some argue that the rules set out in NAFTA Chapter 11 undermine the governments’ ability to regulate in the public interest.2 For other stakeholders, the role of the NAFTA governments and the Free Trade Commission (FTC) jeopardizes the rights of investors and threatens the rule of law.3 The fact is that most of the cases brought against NAFTA parties have triggered extreme opposition. The outcome of most of these cases, the judicial review of some NAFTA awards and the intervention of the Free Trade Commission, have all been extremely controversial. Some view things more positively, claiming that NAFTA Chapter 11 has worked adequately over the past fifteen years. But even if we are to conclude that Chapter 11 has worked adequately, the conclusion on the adequacy does not mean that NAFTA Chapter 11 should stagnate. The second important question is which parts, if any, of Chapter 11 need to be either clarified or developed?
To talk about the future of NAFTA Chapter 11 requires me to enter to some extent into a world of speculation. This is not desirable for a lawyer, so what I will do is to explore the future of Chapter 11 as an extension of which we witness at present. I will address these questions set out above but first I will start by examining Chapter 11's development over the past fifteen years.
I. The Development of Chapter 11
II. Has NAFTA Chapter 11 Been a Succes?
III. The Challenges
IV. The Future of Chapter 11