Chicago Journal of International Law


The success of the anti-Multi-Lateral Agreement on Investment ("MAI") forces in the spring of 1998, and the events of Seattle in December 1999, have emboldened anti-free traders and arguably forced the debate to a level of hyperbole that has made Blair's appeal to reason timely. The success of anti-free trade activists has apparently spooked the Canadian government into defensive positions about their support for the promotion of international trade and investment. Canadian Trade Minister Pierre Pettigrew recently re-confirmed his "preoccupation" with Chapter 11 and the policy position that Canada will no longer include Chapter 11-like investment protection provisions in future trade agreements such as the Free Trade Area of the Americas ("FTAA"). This political shortsightedness is evidence of governments succumbing to a Seattle induced hysteria, rather than arguing the benefits of an open trade and investment rules-based system. The story of Chicken Little comes to mind because, like with all children s fables, it embodies real life lessons. Just as Chicken Little sought the answer to his baseless fear in authority, by searching for the King to attend to his problems, this paper is a brief attempt to appeal to some measure of reason. The issues that have generated the most smoke, if not real heat, concerning international investment provisions like NAFTA Chapter 11 are those of expropriation and the transparency of NAFTA tribunal proceedings. A key element of the Metalclad decision that Mexico is seeking to set aside in British Columbia is the expropriation provision in NAFTA Article 1110. The question this article will try to address: is the sky falling or should we just remember to look up when we walk under acorn trees?