Thread: NAFTA’S THREAT TO SOVEREIGNTY AND DEMOCRACY

NAFTA’S THREAT TO
SOVEREIGNTY AND DEMOCRACY:

EXECUTIVE SUMMARY

Eleven years ago, the North American Free Trade Agreement (NAFTA) between the United States, Canada and Mexico went into effect after heated debate.1 NAFTA was called a trade agreement. Yet, much of it focused on investment issues – establishing rights for foreign investors to acquire, own and operate broad categories of NAFTA-defined “investmentsâ€

TABLE OF NAFTA CHAPTER 11 INVESTOR-STATE CASES & CLAIMS
February 2005

Key

**Indicates date Notice of Intent to File a Claim was filed, the first step in the NAFTA investor-state process when an investor notifies a government that it intends to bring a NAFTA Chapter 11 suit against that government.

*Indicates date Notice of Arbitration filed, the second step in the NAFTA investor-state process when investor notifies an arbitration body that it is ready to commence arbitration under NAFTA Chapter 11.

The two venues for the adjudication of NAFTA Chapter 11 disputes are the World Bank’s International Center for the Settlement of Investment Disputes (ICSID) and the United Nation’s Commission on International Trade Law (UNCITRAL).

Cases & Claims Against the United States

Loewen
Oct. 30, 1998*
$725 million
Dismissed

Canadian funeral conglomerate challenged large Mississippi state court damage award granted by a jury in a contract dispute suit by a local company claiming Loewen engaged in anti-competitive, predatory business practices.
June 2003 – Claim dismissed on procedural basis. Tribunal found that Loewen’s reorganization as a U.S. corporation under U.S. bankruptcy law destroyed the firm’s ability to bring the NAFTA claim as a foreign investor.

Mondev
Sep. 1, 1999*
$50 million
Dismissed

Canadian real estate developer challenged City of Boston’s actions in development contract dispute and adverse state supreme court ruling that denied the firm compensation on the grounds that city actions were shielded by principle of sovereign immunity.
October 2002 – Claim dismissed on procedural grounds. Tribunal found that the majority of Mondev’s claims, including of expropriation, were time-barred meaning that the dispute on which the claim was based predated NAFTA and that court rulings were well founded in state law.

Methanex
Dec. 3, 1999*
$970 million
Pending

Canadian corporation which produces methanol, a component chemical of gasoline additive MTBE, challenges California phase-out of MTBE, which is contaminating drinking water throughout the state.
August 2002 – Jurisdictional ruling indicates that because Methanex only produces a component ingredient of MTBE, methanol, not the actual product, company is to “distantâ€