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NAFTA Chapter 11 Investor-State Cases 1994-2005

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NAFTA Chapter 11 Investor-State Cases 1994-2005 NAFTA’S THREAT TO SOVEREIGNTY AND DEMOCRACY: The Record of NAFTA Chapter 11 Investor-State Cases 1994-2005 Lessons for the Central America Free Trade Agreement February 2005 © 2005 by Public Citizens Global Trade Watch. All rights reserved. No part of this document may be reproduced or utilized in any form or by any means, electronic or mechanical, including photography, recording, or by information exchange and retrieval systems, without written permission from the authors. Public Citizen Publication Number: E9014 Public Citizen is a nonprofit membership organization in Washington, D.C., dedicated to advancing consumer rights through lobbying, litigation, research, publications and information services. Since its founding by Ralph Nader in 1971, Public Citizen has fought for consumer rights in the marketplace, for safe and secure health care, for fair trade, for clean and safe energy sources, and for corporate and government accountability. Visit our web page at http://www.citizen.org. Acknowledgments: This report was written by Mary Bottari and Lori Wallach. Additional writing and invaluable research assistance was provided by Runako Kumbula, David Waskow (Friends of the Earth), Josh Kolsky, Joshua Chanin, and Heather Goss. Other assistance was provided by Juan Marchini, Carlos La Hoz, Todd Tucker, Libby Sinback, Paul Levy, Alyssa Prorok, Susan Ellsworth, John Gibler, David Edeli, Angela Bradbery, Timi Gerson, Peter Lurie, Patricial Lovera, Tony Corbo and Sara Johnson. Special thanks to Chris Slevin at Public Citizen, Matthew Porterfield and Robert Stumberg at Georgetown University, Marcos Orellana at Center for International Environmental Law, Luke Peterson from the International Institute of Sustainable Development, and Martin Wagner at Earthjustice. This report builds on an earlier publication, by Bottari, Wallach and Waskow “NAFTA Chapter 11 Investor-to-State Cases: Bankrupting Democracy” (Public Citizen, 2001). Additional copies of this document are available from: Public Citizen’s Global Trade Watch 215 Pennsylvania Ave SE, Washington, DC 20003 (202) 546-4996 Other Titles By Public Citizen’s Global Trade Watch: Fool Me Twice?: Chamber of Commerce Distorts NAFTA Record, Hides CAFTA Costs (March 2005) Another Americas is Possible: The Impact of NAFTA on the U.S. Latino Community and Lessons for Future Trade Agreements, written with Labor Council for Latin American Advancement (LCLAA) (August 2004) Whose Trade Organization?: A Comprehensive Guide to the WTO (New Press, 2004) No FTAA: Everything You Need to Know to Stop NAFTA Expansion (November 2003) The WTO Comes to Dinner: U.S. Implementation of Trade Rules Bypasses Food Safety Requirements (July 2003) Trade Adjustment Assistance: Too Little Too Late (August 2002) NAFTA Chapter 11 Investor-to-State Cases: Bankrupting Democracy (September 2001) (español, portugûes) Down on the Farm: NAFTA’s Seven-Years War on Farmers and Ranchers in the U.S., Canada and Mexico (June 2001) (español) NAFTA Chapter 11 Investor-State Cases TABLE OF CONTENTS TABLE OF NAFTA CHAPTER 11 INVESTOR-STATE CASES & CLAIMS ................... i EXECUTIVE SUMMARY ............................................................................................... vi I. BACKGROUND........................................................................................................... 1 Investors and Their New NAFTA Rights and Privileges ............................................ 2 NAFTA Corporate Dispute Resolution: Private Enforcement of a Public Treaty ....... 4 As Criticism of Chapter 11 Builds, NAFTA Trade Ministers Issue a “Clarification” .... 6 New Investment Rules in CAFTA/ FTAs Fail to Meet Congressionally Required “No Greater Rights” Standard .......................................................................................... 8 II. MAJOR NAFTA CHAPTER 11 CASES.................................................................... 21 Ethyl v. Canada – MMT Gasoline Additive .............................................................. 21 Loewen v. United States – Funeral Home Conglomerate ....................................... 23 Metalclad v. Mexico − Toxic Waste Facility............................................................. 27 Methanex v. United States – MTBE Gasoline Additive............................................ 31 Gami, Corn Products, ADF & Staley v. Mexico – Sweeteners Cases ..................... 35 Pope & Talbot v. Canada – Softwood Lumber ........................................................ 39 S.D. Myers v. Canada – PCB Treatment................................................................. 42 UPS v. Canada – Federal Postal Services.............................................................. 45 III. NEW NAFTA CLAIMS OF PUBLIC INTEREST ...................................................... 48 Canadian Cattlemen for Fair Trade v. United States – Mad Cow Disease.............. 48 Glamis Gold v. United States – Mining & Culture.................................................... 52 Grand River v. United States – U.S. Tobacco Settlements ..................................... 55 Thunderbird Gaming v. Mexico – Gambling ............................................................ 57 IV. OTHER NAFTA CHAPTER 11 ARBITRATIONS.................................................... 59 Public Citizen’s Global Trade Watch, February 2005 ADF Group v. United States – Buy America Contract ............................................. 59 Azinian v. Mexico – Municipal Waste Disposal Contract......................................... 60 Crompton v. Canada – Pesticide Phase-Out........................................................... 61 Fireman’s Fund Insurance Company v. Mexico – Bank Capitalization.................... 62 Karpa (Feldman) v. Mexico – Cigarette Excise Taxes............................................. 62 Kenex v. United States – Drug Enforcement Policy ................................................ 63 Mondev v. United States – City Development Dispute............................................ 64 Softwood Lumber Firms v. United States − Antidumping & Countervailing Duties.. 65 Waste Management v. Mexico – Municipal Waste Disposal Contract..................... 66 V. OTHER NAFTA CHAPTER 11 CLAIMS .................................................................. 68 Adams, et. al. v. Mexico – Land Dispute ................................................................. 68 Amtrade International v. Mexico – Oil Contracts ..................................................... 68 Bayview Irrigation District, et. al. v. Mexico – Water Rights..................................... 68 Scott Ashton-Blair v. Mexico – Land Dispute .......................................................... 69 James Russel Baird v. United States – Nuclear Waste Disposal Patent................. 69 Calmark Commercial Development v. Mexico – Land Dispute................................ 70 Connolly v. Canada – Land Dispute........................................................................ 70 Robert J. Frank v. Mexico – Land Dispute .............................................................. 71 Francis Kenneth Haas v. Mexico – Investment Partnership Dispute....................... 71 Lomas Santa Fe Investments v. Mexico – Land Dispute......................................... 71 Ontario Limited v. United States – RICO Investigation............................................ 71 Signa v. Canada – CIPRO Antibiotic Patent............................................................ 72 Sun Belt v. Canada − Bulk Water Shipments.......................................................... 72 Trammel Crow Company v. Canada – Federal Postal Contract.............................. 73 VI. THREATENED NAFTA CHAPTER 11 CASES....................................................... 74 CONCLUSION AND RECOMMENDATIONS ............................................................... 76 ENDNOTES .................................................................................................................. 86 NAFTA Chapter 11 Investor-State Cases 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). Corporation Venue Damages Status of Issue or Investor Sought Case (U.S.$) Cases & Claims Against the United States Loewen ICSID $725 million Dismissed Canadian funeral conglomerate challenged large Mississippi state court Oct. 30, 1998* 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 ICSID $50 million Dismissed Canadian real estate developer challenged City of Boston’s actions in Sep. 1, 1999* development contract dispute and adverse
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