Meaning, Ambiguity and Legitimacy: Judicial (Re-)Construction of NAFTA Chapter 11

Afilalo, Ari | January 1, 2005

Chapter 11 of the North American Free Trade Agreement (NAFTA) benignly named the “Investment Chapter,” is a theater for some of the most advanced issues of 21st century international law and adjudication. The Chapter gives private parties the right to challenge national policies that burden their ability to do business freely. It empowers arbitral tribunals to assess damages against the governments of NAFTA parties. The adjudicators, as this Article illustrates, render opinions with a constitutional flavor in that they assess the validity of domestic norms against larger principles of international economic law. In a drastic move away from classical century international law that is reminiscent of the system of judicial remedies ushered into the European Union, the Investment Chapter binds governments by empowering panels to render damage awards against national governments that are enforceable in national courts.