Mark Feldman, Assistant Professor, Peking University School of Transnational Law. Mr. Feldman previously served as Chief, NAFTA/CAFTA-DR Arbitration, Office of International Claims and Investment Disputes, Office of the Legal Adviser, U.S. Department of State. The views in this article are expressed by the author solely in his personal capacity and do not necessarily represent those of the U.S. Government.
Fifteen years after the entry into force of the North American Free Trade Agreement,1 the jurisprudence of tribunals constituted under Chapter 11 of that Agreement has provided greater certainty on two issues which are critically important for the proper operation of NAFTA’s investment chapter. First, with respect to jurisdiction, the tribunals in the Bayview2 and Canadian Cattlemen3 cases have confirmed that the only NAFTA claims covered by Chapter 11 are those concerning investments made, or sought to be made, in the territory of the host State. Second, with respect to substantive obligations, a string of Chapter 11 awards (most recently, the 2009 Glamis4 decision) has confirmed that the minimum standard of treatment obligation under Article 1105 sets out a strict standard, which requires that a high threshold be met for any finding of breach. By confirming the views of the NAFTA Parties on those two important issues, the jurisprudence has made significant contributions to the coherence and stability of Chapter 11 arbitration.
Table of Contents:
I. Investments Made or Sought to be Made in the Host State's Territory