Electronic Thesis and Dissertation Repository

Degree

Master of Laws

Program

Law

Supervisor

Chios Carmody

Abstract

NAFTA is much more than a free trade agreement. Under Chapter 11 of the treaty, a multi-lateral investment agreement was introduced which was unprecedented in scope. For the first time, private investors from any NAFTA country were provided with an independent right of action directly against a host government. The objective underlying Chapter 11 was to facilitate foreign investment among NAFTA countries by providing assurances to investors that their investments would be protected against undue regulatory interference. As such, a central consideration as to the effectiveness of Chapter 11 is the speed, impartiality, and efficiency with which investment disputes are settled. This requires that courts charged with reviewing Chapter 11 investment arbitrations operate consistently and with a high degree of deference. This thesis examines the jurisprudence relating to the judicial review of Chapter 11 arbitrations with an eye towards the consistency and deference applied. To the extent that courts do demonstrate inconsistency and lack of deference, this thesis explores whether Canada ought to ratify the ICSID Convention as a means of precluding judicial review and facilitating FDI flows among NAFTA countries. To answer this question, this thesis examines some of the problems inherent in ICSID, along with the levels of consistency and deference applied by ICSID’s annulment committees vis-à-vis the North American courts. Through such an analysis, this thesis endeavours to recommend a policy course for the Harper Government to pursue as it relates to NAFTA Chapter 11 and the ratification of the ICSID Convention, and proposes some further alternatives.


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