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We have previously called attention to the growing use of private arbitration by Canadian, U.S. and Mexican investors to assert damage claims against their host governments under Chapter 11 of the North American Free Trade Agreement (NAFTA), which requires the NAFTA parties (1) to afford such investors “national treatment,” (2) to comply with international law (including “fair and equitable treatment”) in dealing with their investments and (3) to refrain from acting in a manner that either expropriates their property or is “tantamount to an expropriation” without compensation. (See Stephen L. Kass, “NAFTA’s Chapter 11: Regulatory Takings Revisited,” The New York Law Journal, Sept. 11, 2000; and Stephen L. Kass and Jean M. McCarroll, “The Metalclad Decision under NAFTA’s Chapter,” NYLJ, Oct. 27, 2000).

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