In this Article, Professor Brower examines the investment chapter of the North American Free Trade Agreement (NAFTA). He argues that the relevant treaty provisions lack a substantial measure of textual clarity. In addition, he argues that ad hoc tribunals based on the commercial arbitration model have generated incoherent doctrine and are relatively less accountable, transparent, and accessible than permanent tribunals. Furthermore, he argues that the NAFTA Parties and their courts so far appear to place a higher priority on the pursuit of narrow self-interest than on the principled administration of international governance. Collectively, these circumstances help to explain the frequency and intensity with which claimants, tribunals, and the NAFTA Parties refer to the perceived illegitimacy of investor-state arbitration under NAFTA. While superior proposals may emerge, Professor Brower suggests that mitigation of this legitimacy crisis may require the continuation of ad hoc arbitration, followed by review by a standing appellate body and supervised by an accountable, transparent Free Trade Commission.
Charles H. Brower, II,
Structure, Legitimacy, and NAFTA's Investment Chapter,
36 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol36/iss1/8