The Ties That Bind
NAFTA's architects created an investor-state arbitration process to rein in Mexico. Then claims were filed against Canada and the United States.
The American Lawyer
By Luke Eric Peterson
August 01, 2009
If you play with handcuffs, you could get caught yourself. Just ask Canada and the United States. When they decided in the early nineties to expand their free trade pact by adding Mexico, they wanted to make sure that their new partner would respect the property rights of their own investors. Concerned about past nationalizations in Mexico, the architects of the North American Free Trade Agreement included a range of procedural and property rights to protect cross-border holdings. Plus, they added a mechanism that permitted individual investors to skip local courts by bringing disputes to international arbitration.
Initially the provisions worked as planned. In the first major NAFTA investor-state arbitration, a U.S. company won damages for a project that had been blocked by local Mexican authorities. But then something unexpected happened: Canadian investors started bringing claims against the United States, and U.S. companies did the same against Canada. In fact, the vast majority of investor-state arbitrations under NAFTA have involved those two countries. It's now clear that all three signatories to the trade pact must let arbitrators review the actions of their legislatures, bureaucracies, and even courts.
Below we review 12 significant investor-state claims under NAFTA--seven that have been decided, and five that are still pending.
Blocked by a Cactus: Metalclad v. Mexico
Waste Not, Want Not: S.D. Myers v. Canada
Do Not Resuscitate: The Loewen Group Inc. and Raymond Loewen v. United States
Adding Fuel to the Fire: Methanex v. United States
Return to Sender: UPS v. Canada
Not So Sweet: Corn Products International et al. v. Mexico
Claim Doesn't Pan Out: Glamis v. United States
Slow Burn: Grand River et al. v. United States
No Price Tag Attached: Mobil Investments and Murphy Oil v. Canada
Basalt Blocks: Bilcon et al. v. Canada
Search for a Cure: Apotex v. United States
Lawn and Order: Dow AgroSciences v. Canada
