This Dissertation analyses the viability of Chapter 11, of the North American Free Trade Agreement (NAFTA), in the context of expanding trade and investment agreements. This mechanism, which was created to safeguard NAFTA foreign direct investment (FDI), is at a cross-roads where it will either continue its evolution as a cutting edge investment protection protocol, or fade into obscurity as a tried, but failed relic of the Twentieth Century. This Dissertation makes the case that while it has served the interests of stakeholders, it is timely to rethink some its controversial aspects The notion that Chapter 11 is misplaced, in the modern regulatory era, is refuted. As the NAFTA does not define expropriation, police powers or property concepts, Chapter 11 tribunals, guided by amorphous international standards, have been tasked with defining the delicate societal burden sharing, which is implicit in the expropriation analysis. Chapter 11 litigation has highlighted troubling questions, in the context of indirect expropriation, relating to the intersection of international law and tribunals with the competing values placed on domestic regulation and court decisions. Notwithstanding these troubling concerns, this Dissertation argues that, with few exceptions, Chapter 11 has usefully advanced FDI protocols This Dissertation rejects the often-heard arguments that Chapter 11 should be replaced by another existing framework. It argues that a quick fix to the problem does not exist and urges patience with the development of a mature jurisprudence. In exploring the potential solutions, it calls for the Parties to approach Chapter 11's perceived shortcomings on a holistic basis, commensurate with the existing political will, through thoughtful recalibration of its substantive provisions and enhancement of its procedural provisions. Specifically, a three-part test is proffered, which is aimed at drawing the appropriate linkages between expropriation, the State's police powers and evolving property principles. As well, the enhancement of public scrutiny, through improved transparency and increased public participation, is sure to facilitate efficiency and legitimacy in the process, while removing the impetus to usurp Chapter 11. Such an approach would also be more effective in striking a balance between the FDI concerns of investors abroad with the domestic needs of regulators / acase@tulane.edu
| Identifer | oai:union.ndltd.org:TULANE/oai:http://digitallibrary.tulane.edu/:tulane_26038 |
| Date | January 2007 |
| Contributors | Ranieri, Nicola William (Author), Sherman, Edward (Thesis advisor) |
| Publisher | Tulane University |
| Source Sets | Tulane University |
| Language | English |
| Detected Language | English |
| Rights | Access requires a license to the Dissertations and Theses (ProQuest) database., Copyright is in accordance with U.S. Copyright law |
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