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Journal of International Economic Law Advance Access published online on May 4, 2006
Journal of International Economic Law, doi:10.1093/jiel/jgl006
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© Oxford University Press 2006, all rights reserved

Article

The Evolving American Policy on Investment Protection: Evidence from Recent Ftas and the 2004 Model Bit

Gilbert Gagné 1 * and Jean-Frédéric Morin 2

1 Associate Professor, Department of Political Studies, Bishop’s University, Lennoxville, Quebec, Canada J1M 1Z7 and Director, Groupe de recherche sur l’intégration continentale, Université du Québec à Montréal
2 Research Associate, Groupe de recherche sur l’intégration continentale, Université du Québec à Montréal, P.O. Box 8888, Stn. Centre-ville, Montreal, Quebec, Canada H3C 3P8

* To whom correspondence should be addressed.
Gilbert Gagné, E-mail: ggagne{at}ubishops.ca


  Abstract

Twelve years after the inception of the North American Free Trade Agreement (NAFTA), the US policy on the protection of foreign investment is evolving. This article compares the provisions on investment in the recent US free trade agreements (FTAs) and the 2004 model bilateral investment treaty (BIT) with NAFTA’s. While most of the provisions are similar, some differences can be identified, both in substantive and procedural forms. We explain this evolution by a learning process of the US administration from the NAFTA experience. We argue that the new features of the FTAs and of the revised model BIT result from the US interest in reaching a better balance between the protection of investment and the protection of state sovereignty. This American concern stems from a reaction to the claims filed by foreign investors under NAFTA Chapter 11, at least some of which were perceived as ‘frivolous’ by the US government. However, the recent US FTAs and model BIT do not reveal a thorough policy reorientation but rather adjustments to the policy at the basis of NAFTA’s investment chapter.


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