| | Private rights, public problems |
| | 0,38 | | MB |
| | 124 | | stron |
| | 2642 | | ID | International Institute for Sustainable Development |
| | 2001 | | rok |
| | Table of Contents |
| | 1. Chapter 11 and the concerned citizen 1 |
| | 1.1 Two basic concerns 1 |
| | 1.2 The purpose of this guide 1 |
| | 2. What are international investment agreements, and why was one included in NAFTA? 5 |
| | 2.1 International investment agreements: A brief note 5 |
| | 2.2 Why an investment chapter was included in NAFTA 7 |
| | 3. Chapter 11 in a nutshell 9 |
| | 3.1 The scope of Chapter 11 9 |
| | 3.2 The rights of investors under Chapter 11 9 |
| | 3.3 The dispute settlement process 11 |
| | 3.4 Chapter 11’s environmental provisions 12 |
| | 4. Why have these provisions become such a concern? 15 |
| | 4.1 From shield to sword 16 |
| | 4.2 Broad interpretation of the obligations 16 |
| | 4.3 Narrow interpretation of the objectives 17 |
| | 4.4 Rights, but no responsibilities 19 |
| | 4.5 Lack of political constraints 19 |
| | 4.6 Lack of public access and accountability 20 |
| | 5. What does Chapter 11 cover? 23 |
| | 5.1 The broad approach to defining “investors” and “investments” 23 |
| | 5.2 Government “measures”: a broad and retroactive definition 24 |
| | 6. What are the obligations in Chapter 11? 25 |
| | 6.1 National treatment, most-favoured nation treatment 26 |
| | 6.2 Minimum international standards 28 |
| | 6.3 Performance requirements 29 |
| | 6.4 Expropriation 30 |
| | 6.5 Summary: The impact of the Chapter 11 obligations 33 |
| | 7. Enforcing the foreign investor’s rights: The investor-state arbitration process and its democratic |
| | deficits 37 |
| | 7.1 What is the investor-state process and how is it started? 37 |
| | 7.2 Appointment of the arbitral Tribunal 38 |
| | 7.3 Are there any constraints on initiating a case? 39 |
| | 7.4 What law is applied by the Tribunal? 40 |
| | 7.5 Can a Tribunal rule on a country’s domestic law? 41 |
| | 7.6 The role of previous cases 41 |
| | 7.7 How is the public made aware of 42 |
| | the cases and their content? |
| | 7.8 Can the public participate in the process? 44 |
| | 7.9 Can a decision be appealed? 45 |
| | 7.10 Summary 46 |
| | 8. Where to now? 49 |
| | 8.1 Lessons for other negotiations 50 |
| | Annex 1: Selected excerpts from NAFTA 53 |
| | Annex 2: Digest of known Chapter 11 cases, 1994–2000 69 |
| | |
| | Environment-related cases |
| | 1. Ethyl Corp. v. Canada 71 |
| | 2. Metalclad v.Mexico 74 |
| | 3. Robert Azinian et al. 79 |
| | (Desona de. C.V.) v.Mexico, |
| | 4. Waste Management 82 |
| | (Acaverde) v.Mexico, (No. 1) |
| | 5. Waste Management 83 |
| | (Acaverde) v.Mexico, (No. 2) |
| | 6. S.D.Myers v. Canada 84 |
| | 7. Sun Belt Water v. Canada 91 |
| | 8. Pope & Talbot v. Canada 92 |
| | 9. Methanex v. United States 96 |
| | 10. Ketchum Investments Inc. and Tysa Investments Inc. v. Canada 100 |
| | |
| | Non-environmental cases |
| | 11. Halchette Distribution System v.Mexico 101 |
| | 12. Signa S.A. de C.V. v. Canada 101 |
| | 13. Marvin Ray Feldman Karpa v.Mexico 102 |
| | 14. Loewen Group v. United States 103 |
| | 15. Mondev International v. United States 105 |
| | 16. U.P.S. v. Canada 106 |
| | 17. A.D.F. Group v. United States 108 |