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Fifteen Years of NAFTA Chapter 11 Arbitration

ISBN: 978-1-933833-76-7
Author: Emmanuel Gaillard, General Editor; Frédéric Bachand, Editor
Page Count: 316
Published: September 2011
Media Desc: 1 Hardcover Volume. Index. Appendices.
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About the IAI Series on International Arbitration:
The IAI (International Arbitration Institute) Series on International Arbitration is a publication focusing on topical questions of international arbitration discussed at conferences organized by the IAI.

About the IAI:
The International Arbitration Institute (IAI) is an organization created under the auspices of the Comité Français de l'Arbitrage (CFA) with the purpose of fostering exchanges in the field of international arbitration. It currently has over 600 members on a worldwide basis. Its activities include the organization of international conferences, as well as the publication of a Directory of Members, which is the most highly regarded freely accessible source of information on international arbitration specialists.


About the Book:
The seventh in the International Arbitration Institute (IAI) series, Fifteen Years of NAFTA: Section 11 Arbitration compiles the papers from leading authorities on NAFTA dispute resolution, presented at the international academic conference, 15 Years of NAFTA Chapter 11 Arbitration, in Montreal on 25 September 2009. Where necessary. the chapters were revised and updated before publication.   As a result, the reader receives up-to-date practical tips and important analyses of difficult issues.

Dealing wholly with investment arbitration, the work focuses specifically on the controversial Chapter 11 feature of the NAFTA agreement and its influence on international investment law. Chapter 11 arbitration is an area of growing importance for both practitioners and academics, and the work covers both substantive and procedural issues.


Table of Contents

Frédéric Bachand



Is NAFTA Arbitration "International"
Thomas E. Carbonneau

NAFTA at Fifteen--A View from ICSID
Meg Kinnear



Local Remedies under NAFTA Chapter 11
William S. Dodge

Lessons of Chapter 11: Procedural Integrity and Systemic Integrity
Armand de Mestral

Judicial Review of NAFTA Chapter 11 Arbitral Awards
Henri C. Alvarez



Interpretive Powers of theFree Trade Commission and the Rule of Law
Gabrielle Kaufmann-Kohler

NAFTA Chapter 11 and the Environment: An Assessment after Fifteen Years
Andrea K. Bjorklund

The Future of NAFTA Chapter 11: The Next Fifteen Years
Luis González García



NAFTA Chapter 11 at Fifteen: A Few Key Questions Resolved
Mark Feldman


Relevant Provisions of the North American Free Trade Agreement

Notes of Interpretation of Certain Chapter 11 Provisions (NAFTA Free Trade Commission, July 31, 2001)

Statement of the Free Trade Commission on Non-Disputing Party Participation (October 7, 2003)

List of Participants to the Joint McGill-IAI Conference Held in Montreal on September 25, 2009

Table of Abbreviations


Author Detail

About the Editors:

Emmanuel Gaillard, Chairman of the IAI, is acknowledged as one of the world's leading experts on international arbitration. He has written extensively on all aspects of international arbitration law, in French and in English. Professor Gaillard teaches International Arbitration and Private International Law at the University of Paris XII. He has acted as arbitrator, counsel and expert in over 250 international arbitration proceedings and Chair of Shearman & Sterling LLP International Arbitration practice.


Frédéric Bachand has been a Professor of law at McGill University since 2003,  He currently teaches transsystemic courses on evidence in civil matters, civil procedure, extrajudicial means of dispute resolution and NAFTA Chapter 11 arbitration. Professor Bachand holds doctoral degrees from Université Panthéon-Assas (Paris II) and Université de Montréal, as well as an LL.M. from the University of Cambridge. He is the co-director, with Professor Thomas E. Carbonneau of Penn State University, of the McGill Summer Program in Arbitration and is a member of the NAFTA Advisory Committee on Private Commercial Disputes. 


Contributing Authors:

Thomas E. Carbonneau holds the Samuel P. Orlando Distinguished Professorship at Penn State Law and directs The Penn State Institute on Arbitration Law and Practice. In his thirty-year career in law teaching, he has taught law and arbitration at Tulane University, Fordham, McGill, University of Denver, Hamline Dispute Resolution Institute, and University of California at Davis. He is a former Editor-in-Chief of the World Arbitration and Mediation Report and is the author of nearly twenty books and numerous articles on law and arbitration. He is the faculty adviser for the Penn State Yearbook on Arbitration and Mediation and its Vis Moot Court team.


Meg Kinnear is the Secretary-General of the International Centre for Settlement of Investment disputes (ICSID). The former Senior General Counsel and Director General of the Trade Law Bureau of Canada, a joint legal unit of the Department of Justice and of Foreign Affairs and International Trade of Canada, Ms. Kinnear was responsible for the conduct of all international investment and trade litigation involving Canada. She was also responsible for legal support for investment and trade treaty negotiations and for the implementation of such treaties.


William S. Dodge, is a Professor of Law at the University of California, Hastings College of the Law. Professor Dodge received his B.A., summa cum laude, from Yale College and his J.D. from Yale Law School. He served as a law clerk to Justice Harry A. Blackmun on the United States Supreme Court and practiced law in Washington, D.C., before joining the UC Hastings faculty in 1995. At Hastings, he teaches International Business Transactions, International Litigation and Arbitration, Investor-State Arbitration Under NAFTA, and Contracts.

Professor Dodge is the co-author (with Detlev Vagts and Harold Hongju Koh) of the coursebook "Transnational Business Problems" (3d ed. 2003) and the co-editor (with Jack J. Coe, Jr and Charles H. Brower II) of "NAFTA Chapter Eleven Reports" (2005-). He has published widely on investor-state arbitration, extraterritoriality and the enforcement of judgments, the alien tort statute, and contract law. Professor Dodge is a member of the California Bar.

Armand de Mestral C.M.,  is the Jean Monnet Professor of Law, at McGill University, teaches international law, international trade law, and the law of the European Community. His current research interest is the law of international economic integration. He has prepared books, articles and studies in English and French on international trade law and on Canadian comparative and constitutional law and international law. He has served on WTO and NAFTA dispute settlement and arbitration tribunals. He served as president of the Canadian Red Cross Society from 1999 - 2001. He was made member of the Order of Canada in December 2007.


Henri Alvarez is the Co-Chair of Fasken Martineau Dumoulin, LLP’s International Law Practice Group. Mr. Alvarez has over 20 years of experience in the field of international commercial arbitration and dispute resolution. Since 1985, he has taught a course in this field at the Faculty of Law at The University of British Columbia. He has acted as both an arbitrator and as counsel in international and domestic commercial arbitrations involving investments, trade, franchising, licensing, distributorship, construction, forestry, oil and gas, energy, banking, corporate and general commercial disputes. Mr. Alvarez has served as a sole arbitrator, party-appointed arbitrator and Chairman in a number of international matters and conducted arbitrations in English, Spanish and French.


Marc Lalondea was a Partner with Stikeman Elliot and has served as Minister of Justice, Energy and Finance, respectively, in various Canadian governments.  He was also  the Chairman of the Board of Governors of the Organizing Committee of the ICCA Congress in Montreal in 2006 and, as such, was very instrumental in the success of that event, which had, up to that time, the largest number of participants ever in any ICCA event.

After 22 years as a partner and senior counsel at Stikeman Elliott LLP, Mr. Lalonde is now a sole practitioner acting exclusively as international arbitrator and mediator. He has participated in some 100 cases under the major international arbitration institutions as well in ad hoc cases. Between 1995 and 2005, he served as Ad Hoc Judge of the International Court of Justice in two cases. He also served as Special Envoy in the Canada-Brazil regional aircraft dispute (1998).

Mr. Lalonde is a member of the Quebec and Ontario Bars and sits on a number of committees of international arbitral institutions. He is also member of the Arbitration Panel under Chapter 20 of NAFTA and mediator for the Court of Arbitration for Sport. He is a Certified Arbitrator of the Canadian Institute of Arbitration and Mediation.


Gabrielle Kauffman-Kohler has been a partner with Levy Kaufmann-Kohler since 1 January 2008 and has also been a Professor of international private law at the University of Geneva since 1997. Between 1996 and 2007 she was a partner at the Schellenberg Wittmer law firm. From 1985 to 1995 she was a partner at Baker & McKenzie law firm. She is a member of the Geneva Bar (since 1976) and of the New York State Bar (since 1981) and is known worldwide for her expertise in international arbitration. Ms. Kaufmann-Kohler completed her legal studies at the University of Basel in 1977 and received her doctorate from the same institution in 1979. She was born on 3 November 1952. Ms. Kaufmann-Kohler is a member of the American Arbitration Association.


Andrea K. Bjorklund is an Acting Professor at the University of California, Davis, School of Law. She specializes in international economic law, international arbitration and litigation, international trade, and conflict of laws. Before starting at Davis, she spent two years as a Bigelow Fellow and Lecturer in Law at the University of Chicago Law School. From 1999-2001, Ms. Bjorklund was an attorney-adviser in the Office of the Legal Adviser at the U.S. Department of State, where she defended the United States in investor-State arbitrations brought under Chapter Eleven of the North American Free Trade Agreement.

Ms. Bjorklund has also served as Senior Counsel to Commissioner Thelma J. Askey at the U.S. International Trade Commission, and has worked in the international group at Miller & Chevalier, Chartered, in Washington, D.C. She received her J.D. from Yale Law School and clerked for Judge Sam J. Ervin, III, on the U.S. Court of Appeals for the Fourth Circuit.


Luis Gonzalez Garcia specializes in public international law, international arbitration and international trade at Matrix Chambers. He advises and acts for governments, international organizations and corporations in international law matters concerning, for example, treaty negotiations, the law of treaties, State responsibility, foreign investment and investment arbitration. Mr. Gonzalez Garcia has acted as counsel in arbitrations under the UNCITRAL, ICSID and its Additional Facility Rules.

Before joining Matrix, he worked as a lawyer in the Office of the General Counsel for International Trade Negotiations at Mexico's Secretariat of Economy. He provided legal advice on the negotiation of international treaties, including free trade agreements and bilateral investment treaties and appeared as counsel and lead counsel for Mexico in investment treaty arbitrations under the NAFTA and BITs. In an arbitral award, the Mexican defence team was described as "a well integrated, highly competent, coordinated and seamlessly functioning government defence team".

Mr. Gonzalez Garcia is an external consultant to the United Nations Conference on Trade and Development (UNCTAD) on investment treaty matters. He also has provided technical assistance to numerous Latin American governments on investment arbitration and revisions to their Model BITs. He has been invited as a lecturer at the World Trade Institute of the University of Bern. He is a regular speaker at conferences on international dispute settlement, including investment arbitration.


Mark Feldman, Assistant Professor, Peking University School of Transnational Law. Mr. Feldman previously served as Chief, NAFTA/CAFTA-DR Arbitration, Office of International Claims and Investment Disputes, Office of the Legal Adviser, U.S. Department of State. The views in this article are expressed by the author solely in his personal capacity and do not necessarily represent those of the U.S. Government.

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