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

Posted: 29 Feb 2008

See all articles by Gilbert Gagné

Gilbert Gagné

Bishop's University

Jean-Frederic Morin

Université Laval - Departement de Science Politique

Date Written: June 2006

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.

Suggested Citation

Gagné, Gilbert and Morin, Jean-Frederic, The Evolving American Policy on Investment Protection: Evidence from Recent Ftas and the 2004 Model Bit (June 2006). Journal of International Economic Law, Vol. 9, No. 2, pp. 357-382, June 2006, Available at SSRN: https://ssrn.com/abstract=915619 or http://dx.doi.org/10.1093/jiel/jgl006

Gilbert Gagné (Contact Author)

Bishop's University ( email )

quebec
Canada

Jean-Frederic Morin

Université Laval - Departement de Science Politique ( email )

Ste-Foy, Quebec G1K 7P4
Canada

HOME PAGE: http://https://ulaval.academia.edu/JeanFredericMorin

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