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The Impact of the Nafta Experience on Canadian Policy Concerning Investor-State Arbitration /

4 Nov 2016

Ultimately, there are two strands to be discerned in the reaction of the NAFTA governments to criticism of Chapter 11 proceedings: the first seeks to ensure the broader acceptability of ISA procedures; the second seeks to enhance democratic accountability by protecting the authority of governments to act in the public interest. [...] However, the tribunal added the following: “The above having been said, it still appears to the Arbitral Tribunal that it would be of advantage to the orderly unfolding of the arbitral process and conducive to the maintenance of working relations between the Parties if during the proceedings they were both to limit public discussion of the case to a minimum, subject only to any externally imposed [...] It is also noteworthy that the Obama administration undertook a period of public consultation during the 2009 review of the US Model BIT in an attempt to reduce the democratic deficit.29 However, the secrecy of negotiations is still very much alive and an important issue in the context of the negotiations of the TPP and the Transatlantic Trade and Investment Partnership (TTIP), which have been hel [...] In the Mondev case, for instance, while the tribunal did not follow the lead of the Pope & Talbot tribunal that questioned the legitimacy of the FTC’s Notes of Interpretation, it still took a strong stand against the understanding of the standard of article 1105 as being fixed in time. [...] The Reaction to Concerns Related to the Traditional Standards of Protection under NAFTA To remedy the uncertainty surrounding the interpretation and application of traditional standards of treatment as illustrated above concerning the minimum standard of treatment protection, the three NAFTA parties used interpretation tools provided under NAFTA.105 In 2001 the NAFTA parties issued the FTC’s Notes
government politics economy international law international trade arbitration civil law expropriation government information international relations justice law wto nafta north american free trade agreement ceta investor-state dispute settlement fair and equitable treatment court comprehensive economic and trade agreement judiciary amicus curiae investor-state arbitration international centre for settlement of investment disputes international investment agreement ttip nafta chapter 11
Pages
32
Published in
Waterloo, ON, CA

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