One of the first and foremost agreements which has been driven by policy considerations is the NAFTA agreement. This agreement was especially created so that three important countries in the world (US, Mexico and Canada) would benefit economically. On clearly assessing this agreement, a layman could probably conclude that the NAFTA Union is similar to the EU. The main difference is with regard to the currency operation. That being said, NAFTA does not have a uniform currency for its trade operation while the EU uses a common currency. To delve further into the agreement, it should be noted that the NAFTA agreement mainly focuses on being a trade liberalization agreement by increasing ?substantial investment opportunities in the territories of the NAFTA Parties.' In order to achieve this goal, adequate protection of the parties involved in trade/investments had to be granted. Therefore, it was necessary to introduce the correct and appropriate instruments that would satisfy the needs of this objective. One of the major aspects of the NAFTA agreement is its willingness to protect investors against potential discriminatory treatments on behalf of its host states. This protection is granted with the aim of ensuring that all the players receive equality in terms of competition and opportunity. The introduction of this kind of protection is essential to permit the proper functioning of the whole mechanism set up by the NAFTA. However, it should be noted that the introduction of this type of protection is very complex. Indeed, the notion of discrimination is immense and that makes it an arduous task to define. More so, the notion of discrimination is a concept having a variable and indefinite geometry. Apart from NAFTA helping three prime countries benefit economically through trade, another aspect gaining momentum is immigration between the three countries which is blooming.
[...] One last point must be mentioned. The NAFTA system in many aspects refers to the notion of balance of interests between the different parties. For instance, in cases of alleged discrimination, where a measure appears to procure an arbitrary or unfair result for the foreigner, the government that initiated that measure can justify it through the identification of a rational and non-discriminatory policy goal. This reasoning permits to establish a balance between the rights of the investors and the rights of the host states. [...]
[...] The concepts used might be more or less well defined but all of them tend to the same aim: protecting the investments of foreign investors. While interpreting the concepts used in the agreement, one should be guided by this principle as well as by case law. Case law seems to give the proper guidelines. The resort to multiple factual clues seems to be the appropriate method to be adopted towards this kind of cases. I believe that all the concepts can not be rigidly defined. The system functions thanks to its flexibility. [...]
[...] Bibliography Chapter 11 of the NAFTA T. Weiler, Prohibitions against discrimination in NAFTA Chapter 11, from Weiler, ed., NAFTA Investment Law and Arbitration: Past Issues, Current Practice, Future Prospects (2004) Clark, Grey, Clark, Shih and Associates, National Treatment under GATT and NAFTA: A current comment, Transnational Dispute Management (July 2003) R. Hudec, GATT/WTO Constraints on National Regulation: Requiem for an and Effects”, Test 32 Int'l Law (1998) S.D. Myers v. Canada, Partial Award of 13 Nov Marvin Feldman v. [...]
[...] NAFTA's Chapter Eleven and Non-Discriminatory Treatment The NAFTA agreement is first and foremost an agreement driven by policy considerations. It's first goal is to be a trade liberalization agreement, increasing “substantially investment opportunities in the territories of the NAFTA Parties”. In order to achieve such a goal, it had to introduce an adequate protection of the parties involved in trade/investments and therefore to introduce the right instruments that would serve this objective. One of the major aspects of the NAFTA agreement is its willingness to protect investors against potential discriminatory treatments on behalf of host-states. [...]
[...] The absolute standard is a clear reference to international law reasoning, whereas the introduction of a comparative test refers more to reasoning adopted in international trade law. These two kinds of protection are completing each other and offer together a wide range of protections to investors. To this respect, Weiler mentions the example of Oscar Chin's case. He demonstrates how in this particular case customary international law turned out to be insufficient and how the defendant would have needed a modern national treatment provision such as NAFTA article 1102 to win his case. [...]
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