Vanderbilt Journal of Transnational Law

First Page



The North American Free Trade Agreement (NAFTA) came into force on January 1, 1994. Its Eleventh Chapter establishes substantive guarantees and an arbitral mechanism by which qualifying investors may seek damages for breach of those guarantees. The much-discussed investor-state arbitration apparatus was first invoked in September 1996, and since then has been resorted to several times against each NAFTA state. Many cases have concluded, while others are nearing completion. Though a mature jurisprudence has by no means emerged, substantive trends have been established and several of Chapter l's distinctive features, strengths, and weaknesses have been illuminated.

NAFTA's investor-state docket has generated predictably high levels of interest among international law scholars and practitioners. It has also sustained a remarkable collection of observers beyond specialist circles. Numerous critiques have issued from both groups, and reactions to NAFTA have prefigured much of the debate that will ensue in relation to its more ambitious proposed successor, the Free Trade Area of the Americas (FTAA). In assessing Chapter 1's dispute regime, it is difficult to fully divorce substance from procedure. Accordingly, while the following interim appraisal of Chapter 11 is concerned primarily with the investor-state arbitration regime, that framework's impact on the substantive jurisprudence of NAFTA will also be treated, albeit not comprehensively.

Part II surveys elements of architecture and develops certain themes. Part III identifies emerging docket patterns. Part IV considers processes and sources that influence the formation of Chapter 11 jurisprudence. Part V discusses selected conceptions and misgivings that have recurred concerning Chapter 11. Part VI considers the mechanisms intended to exert control on Chapter 11 awards and introduces proposals for refining the associated framework. In general, this essay concludes that the existing arrangement is neither fundamentally flawed nor entirely free of troubling features.