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Regionalism in International Investment Law$
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Leon Trakman and Nicola Ranieri

Print publication date: 2013

Print ISBN-13: 9780195389005

Published to Oxford Scholarship Online: May 2014

DOI: 10.1093/acprof:oso/9780195389005.001.0001

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Investors’ Rights, Legal Concepts, and Public Policy in the Nafta Context

Investors’ Rights, Legal Concepts, and Public Policy in the Nafta Context

Chapter:
(p.400) 14 Investors’ Rights, Legal Concepts, and Public Policy in the Nafta Context
Source:
Regionalism in International Investment Law
Author(s):

Nicola W. Ranieri

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195389005.003.0014

This chapter focuses on Chapter 11 of the North American Free Trade Agreement (NATFA), arguing that its continued evolution as a cutting-edge dispute resolution mechanism requires attention. Section I explores the legitimacy crisis threatening the evolution of Chapter 11. Section II proposes a three-step test aimed at enabling tribunals to more accurately distinguish regulation from expropriation by identifying and balancing all the relevant interests. This test focuses on the relationship between expropriation, the police powers principle, and evolving property concepts. It is argued that although the NAFTA should be lauded for breaking new ground in promoting private party participation in proceedings involving public issues, it needs to evolve in order to provide a framework for the more complex, future trade agreements being contemplated by the NAFTA Parties. This evolution requires both substantive and procedural changes. Chapter 11 jurisprudence must develop in a way that facilitates the perceived substantive conflicts between regulation and expropriation. Party intervention will also be required to bring about the procedural modifications needed to ensure more effective public participation.

Keywords:   North American Free Trade Agreement, investment policy, legitimacy, regulation, expropriation, police powers principle, property, public participation, dispute resolution

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