It is difficult in some respects to offer an ICSID perspective on NAFTA1 after fifteen years because a NAFTA case has yet to be arbitrated under the ICSID Convention Rules.2 While NAFTA Article 1120 expressly offers arbitration under the ICSID Convention for a claim under NAFTA, this option is not yet available because only one NAFTA Party (the United States) has ratified the ICSID Convention.3 In practice, NAFTA cases can thus proceed at ICSID in only one of the following two ways:
- under the Additional Facility Rules;4 or
- as an UNCITRAL5 case that is administered by ICSID.
Despite this situation, ICSID has been involved in more than half of all NAFTA cases. As of April 2011, fourteen NAFTA cases had been arbitrated under the Additional Facility Rules, and a further eleven NAFTA cases were governed by the UNCITRAL Rules but administered by ICSID.6 This experience certainly provides an excellent vantage point from which to make observations about NAFTA at its fifteenth anniversary.
Table of Contents:
I. The "Numbers Story"
II. Beyond the Numbers
III. Looking Forward - The Role of ICSID in NAFTA and Non-NAFTA Cases