The Significance of Domestic Environmental Regulatory Regimes in Evaluating Breaches of Minimum Standards of Treatment; Lessons Learned from Glamis Gold v. United States
Journal of Arab Arbitration, Vol. 15, p. 21, December 2010
14 Pages Posted: 9 Mar 2011
Date Written: December 29, 2010
Abstract
Domestic regulatory regimes are increasingly important in international commercial and investor-state arbitration. Over a year ago, the arbitral tribunal in Glamis Gold v. United States, found that a Canadian mining company doing business in the United States was treated in accordance with minimum standards of treatment in part due to the strong, relatively transparent environmental regulatory regimes in place. This article argues that Latin American countries would benefit from similarly strong regulatory regimes, especially in cases involving the environment, because they offer transparency and cohesion – two elements that counter accusations of arbitrary and unfair treatment. Part II provides a brief background on Chapter Eleven of NAFTA, relevant U.S. regulatory regimes, and the Glamis decision. Part III explores the minimum standards of treatment framework under NAFTA, identifies elements of regulatory regimes that comply with this framework, and suggests where these are lacking in Latin American regimes. Part IV concludes that Latin American governments should look to the United States as a model for regulation more likely to withstand the scrutiny of alleged violations of minimum standards of treatment in international arbitral tribunals.
Keywords: International Arbitration, NAFTA, Environment
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