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©2010 John D. Rosero ALL RIGHTS ©2010 John D. Rosero ALL RIGHTS RESERVED PRIVATE v PUBLIC AUTHORITY IN NAFTA: THE PROCYCLICALITY OF INVESTOR PROTECTIONS AND GLOBAL GOVERNANCE ISSUES by JOHN D. ROSERO A Dissertation submitted to the Graduate School-Newark Rutgers, The State University of New Jersey in partial fulfillment of the requirements for the degree of Doctor of Philosophy Graduate Program in Global Affairs written under the direction of Yale H. Ferguson and approved by ________________________ ________________________ ________________________ Newark, New Jersey May 2010 ABSTRACT OF THE DISSERTATION Private v Public Authority in NAFTA: The Procyclicality of Investor Protections and Global Governance Issues by JOHN D. ROSERO Dissertation Director: Professor Yale H. Ferguson As states fiercely compete for international trade, there is growing concern about the emergence of private authority in global governance systems. States have delegated various aspects of their regulatory authority to private actors to facilitate the expansion of free trade in the global markets. This delegation of authority has generated the expansion of private international administrative law involving states. An unintentional, or perhaps intentional, consequence of this change in authority is the empowerment of private actors over states. When states seek to compete in a globalized financial market and increase foreign investment flows, investors demand protection from ―unfair‖ state actions in exchange for their investments. As regulatory activities and investment transactions increase so often does the volume of disputes between public and private actors. The result can be the development of an effective investor-state dispute settlement mechanism. This study examines the procyclicality of investor protections and global governance issues, with particular attention to the North American Free Trade Agreement‘s (NAFTA) Chapter 11 ii on investments. The current literature on global political economy has not yet fully explored the complex interdependency between states and private actors. NAFTA established an investor-to-state dispute arbitration mechanism to deter states from unfair national treatment and even expropriation. Under this structure, private investors may file claims directly against a state for monetary damages. Unlike national courts presided over by publicly appointed or elected judges, these tribunals consist of private individuals selected by the investors and member states. This dissertation examines the expansion of private authority through NAFTA tribunals, as a case study of the accommodation accorded to firms in evolving patterns of global governance. The analysis also includes a review of relevant global political economy literature; a comprehensive analysis of newly released U.S. National Archives and White House documents related to NAFTA; an overview of the U.S.-Mexican Claims Commissions (1838-1946); and key information obtained through candid interviews with former senior U.S. and Mexican officials regarding NAFTA and its Chapter 11 tribunals. iii ACKNOWLEDGEMENT A study of this magnitude invariably reflects the contribution of a large number of people. I could not have achieved this goal without the assistance and support from numerous individuals. First, I am deeply grateful to Professor Yale H. Ferguson for his relentless support and encouragement throughout my journey to complete this thesis. He continually challenged me to expand my thinking and to view the various theories and issues under different lenses. In addition, he provided me with vital comments that enhanced this study. I am also grateful to Professors Richard Langhorne and John Cantwell who volunteered to join my dissertation committee without hesitation. Their comments and insights were key contributions to this thesis. This research was funded, in part, by the George Bush Presidential Library Foundation. A special acknowledgement is owed to Ambassador Roman Popadiuk. He not only shared with me his professional experience working for Presidents Ronald Reagan and George H.W. Bush (―Bush 41‖), but he also provided me with invaluable assistance by introducing me to numerous former senior White House officials who participated in extensive interviews. There is no doubt this study would not have contained the in-depth ―insider‘s view‖ of the Bush 41 White House or NAFTA negotiations without his assistance. This research contains the views of many individuals who were, and some still iv are, major players in the development, expansion, and study of free trade and international arbitrations. I would like to express my gratitude to the many terrific people who contributed to this scholarship. The following individuals were generous with their time and assisted me to learn more about the White House and legislative decision- making process related to trade issues, the negotiation and implementation of NAFTA, and NAFTA‘s investor-state dispute settlement mechanism: General Brent Scowcroft, Ambassador Carla A. Hills, Ambassador Andrés Rozental, Dr. Robert A. Pastor, Ph.D., Professor Andreas F. Lowenfeld, Professor Andrea K. Bjorklund, Jon E. Huenemann, James W. Cicconi, Guillermo Aguilar-Alvarez, Charles (Chip) Roh, Nicholas E. Calio, Warren H. Maruyama, Mélida N. Hodgson, J. French Hill, Frederick D. McClure, Stephen P. Farrar, Ari Fleischer, and Daniel M. Price. I would also like to thank Dr. Eric Melby, Ph.D., who participated in multiple interviews to discuss his White House experience working on NAFTA, including an extensive review of his White House files obtained from the National Archives. Through it all, he always kept our discussions lively and fascinating. I am indebted to him for his kindness and assistance. Also, a special thanks to Robert E. Herzstein who shared his vast professional and personal experience related to NAFTA and other U.S.-Mexican trade issues over the last forty years. I am grateful for his generosity in allowing me access to his personal papers regarding the Mexico-U.S. Business Committee (MEXUS) and Bilateral Framework Agreement on Trade and Investments. His in-depth knowledge on U.S. trade history and public policy greatly enhanced this research. v In particular, I would like to express my gratitude to those current and former government officials and international arbitrators who were interviewed off the record. Their thoughtful comments provided indispensable information and identified important aspects of the NAFTA issues examined in this manuscript. In addition, there are others who facilitated the interviews with the individuals noted above, or were instrumental in locating a myriad of archive records. I wish to acknowledge the assistance of Kathy Olson and Elizabeth Myers of the National Archives staff at the George Bush Presidential Library. Many thanks to Jonathan R. Weinberger and Jacqueline B. Caldwell whose herculean efforts to locate documents from the Office of the U.S. Trade Representative‘s archaic records system were commendable. I would also like to express my gratitude to Kiersten King who went the extra mile to facilitate the scheduling of a critical interview that made a significant difference in this study. Furthermore, I am grateful for the hard work of Charles Messina who assisted me to retrieve and photocopy numerous century-old documents at the National Archives. Finally, I would like to thank my family for their patience and support. I could not have completed this thesis without the loving support of my wife and children. This manuscript is dedicated to my father, Hugh Rosero, whose selfless devotion to his family and endless pursuit of knowledge inspired me to achieve higher goals in life. vi TABLE OF CONTENTS Abstract .............................................................................................................. ii Acknowledgement ............................................................................................. iv Chapters 1. Introduction ............................................................................................. 1 2. Literature Review .................................................................................... 12 2.1 Key Concepts of the Firm and the Law ...................................... 12 2.2 Private Authority as Global Governance .................................... 13 2.3 Private International Regimes-Cutler‘s Perspective ................... 15 2.4 Overview of the Current Globalization Era of Financial Markets ....................................................................................... 25 2.5 Sassen on Private Authority and International Arbitrations ....... 32 2.6 The Expanding Geography of Power .......................................... 36 2.7 Expansion of Private Administrative Law .................................. 40 2.8 NAFTA as a Subdivision of the Global Governance Framework .................................................................................. 43 2.9 NAFTA Critics and Supporters: Irreconcilable Differences ...... 46 2.10 Do NAFTA Tribunals Promote Transparency of Governance? . 52 2.11 Has NAFTA‘s Private Arbitration Tribunals Caused States to Lose Their Sovereignty? ......................................................... 58 3. The History of U.S.-Mexican Claims Commissions .............................. 64 3.1 The Emergence of Mexico as an Independent State and the Conflict Over Its Northwestern Territory (1821-1845) .............. 65 3.2 War Between Neighboring States Splinters Mexico and Expands U.S. Territory (1846-1848) .........................................
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