Scope of Application [Return to the top of the page]

DEFINITION OF INVESTMENT

“Investment” means:

1. an enterprise;
2. an equity security of an enterprise;
3. a debt security of an enterprise

1. where the enterprise is an affiliate of the investor, or
2. where the original maturity of the debt security is at least three years, but does not include a debt security, regardless of original maturity, of state enterprise;

4. a loan to an enterprise

1. where the enterprise is an affiliate of the investor, or
2. where the original maturity of the loan is at least three years, but does not include a loan, regardless of original maturity, to a state enterprise;

5. an interest in an enterprise that entitles the owner to share in income or profits of the enterprise;
6. an interest in an enterprise that entitles the owner to share in the assets of that enterprise in dissolution, other than a debt security or a loan excluded from subparagraph (c) or (d);
7. real estate or other property, tangible or intangible, acquired in the expectation or used for the purpose of economic benefit or other business purposes; and
8. interests arising from the commitment of capital or other resources in the territory of a Party to economic activity in such territory, such as under

1. contracts involving the presence of an investor’s property in the territory of the Party, including turnkey or construction contracts, or concessions, or
2. contracts where remuneration depends substantially on the production, revenues or profits of an enterprise. (Article 1139 of NAFTA).

Investment does not mean:

• claims to money that arise solely from commercial contracts for the sale of goods or services by a national or enterprise in the territory of a Party to an enterprise in the territory of another Party, or the extension of credit in connection with a commercial transaction, such as trade financing, other than a loan covered by subparagraph (d); or
• any other claim to money, that do not involve the kinds of interests set out in subparagraphs (a) through (h). (Article 1139).

DEFINITION OF INVESTOR

“Investor of a Party” means a Party or state enterprise thereof, or a national or an enterprise of such Party, that seeks to make, is making or has made an investment. (Article 1139).

Application in Time (Entry into Force and Duration: Applicability to Investments made Prior to Entry into Force)

The North American Free Trade Agreement was signed by Canada, the United States, and Mexico on December 17, 1992, and came into effect on January 1, 1994.

Admission [Return to the top of the page]

A Party has the right to perform exclusively the economic activities set out in Annex III and to refuse to permit the establishment of investment in such activities. (Article 1101 (2)).

Nothing in Article 1102 shall be construed to prevent a Party from adopting or maintaining a measure that prescribes special formalities in connection with the establishment of investments by investors of another Party, such as a requirement that investors be residents of the Party or that investments be legally constituted under the laws or regulations of the Party, provided that such formalities do not materially impair the protections afforded by a Party to investors of another Party and investments of investors of another Party pursuant to this Chapter. (Article 1111(1)). There is no separate clause on admission. The issue is dealt with in the treatment provisions (see section on treatment).

Treatment [Return to the top of the page]

STANDARDS

Fair and Equitable Treatment

Each Party shall accord to investments of investors of another Party treatment in accordance with international law, including fair and equitable treatment and full protection and security. (Article 1105 (1)).

Full Protection and Security

Each Party shall accord to investments of investors of another Party treatment in accordance with international law, including fair and equitable treatment and full protection and security. (Article 1105 (1)).

Non-Discrimination

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National Treatment

Each Party shall accord to investors of another Party treatment no less favorable than that it accords, in like circumstances, to its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments. (Article 1102(1)).

Each Party shall accord to investments of investors of another Party treatment no less favorable than that it accords, in like circumstances, to investments of its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments. (Article 1102(2)).

The treatment accorded by a Party under paragraphs 1 and 2 means, with respect to a state or province, treatment no less favorable than the most favorable treatment accorded, in like circumstances, by a state or province to investors, and to investments of investors, of the Party of which it forms a part. (Article 1102(3)).

For greater certainty, no Party may:

1. impose on an investor of another Party a requirement that a minimum level of equity in an enterprise in the territory of the Party be held by its nationals, other than nominal qualifying shares for directors or incorporators of corporations; or
2. require an investor of another party, by reason of its nationality, to sell or otherwise dispose of an investment in the territory of the Party. (Article 1102(4)).

Each Party shall accord to investors of another Party and to investments of investors of another Party the better of either national treatment (Article 1102) or most-favored-nation treatment (Article 1103). (Article 1104).

Most-Favored Nation Treatment

Each Party shall accord to investors of another Party treatment no less favorable than that it accords, in like circumstances, to investors of any other Party or of a non-Party with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments. (Article 1103(1)).

Each Party shall accord to investments of investors of another Party treatment no less favorable than that it accords, in like circumstances, to investments of investors of any other Party or of a non-Party with respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of investments. (Article 1103(2)).

Each Party shall accord to investors of another Party and to investments of investors of another Party the better of either national treatment (Article 1102) or most-favored-nation treatment (Article 1103)). (Article 1104).

Exceptions and Reservations

Articles 1102 [National Treatment], 1103 [MFN Treatment], 1106 [Performance Requirements] and 1107 [Senior Management and Boards of Directors] do not apply to:

1. any existing non-conforming measure that is maintained by

1. a Party at the federal level, as set out in its Schedule to Annex I or III;
2. a state or province, for two years after the date of entry into force of this Agreement, and thereafter as set out by a Party in its Schedule to Annex I, in accordance with paragraph 2, or
3. a local government;

2. the continuation or prompt renewal of any non-conforming measure referred to in subparagraph (a); or
3. an amendment to any non-conforming measure referred to in subparagraph (a) to the extent that the amendment does not decrease the conformity of the measure, as it existed immediately before the amendment, with Articles 1102, 1103, 1106 and 1107. (Article 1108(1)).

Each Party may set out in its Schedule to Annex I, within two years of the date of entry into force of this Agreement, any existing non-conforming measure maintained by a state or province, not including a local government. (Article 1108(2)).

Articles 1102, 1003, 1106, and 1107 do not apply to any measure that a Party adopts or maintains with respect to sectors, subsectors or activities, as set out in its Schedule to Annex II. (Article 1108(3)).

No Party may, under any measure adopted after the date of entry into force of this Agreement and covered by its Schedule to Annex II, require an investor of another Party, by reason of its nationality, to sell or otherwise dispose of an investment existing at the time the measure becomes effective. (Article 1108(4)).

Articles 1102 and 1103 do not apply to any measure that is an exception to, or derogation from, the obligations under Article 1703 (Intellectual Property-National Treatment) as specifically provided for in that Article. (Article 1108(5)).

Article 1103 does not apply to treatment accorded by a Party pursuant to agreements, or with respect to sectors, set out in its Schedule to Annex IV. (Article 1108(6)).

Articles 1102, 1003 and 1107 do not apply to:

1. procurement by a Party or a state enterprise; or
2. subsidies or grants provided by a Party or a state enterprise, including government-supported loans, guarantees and insurance. (Article 1108(7)).

The provisions of:

1. Article 1106(1)(a), (b) and (c), and (3)(a) and (b) do not apply to qualification requirements for goods or services with respect to export promotion and foreign aid programs;
2. Article 1106(1)(b), (c), (f) and (g), and (3)(a) and (b) do not apply to procurement by a Party or a state enterprise; and
3. Article 1106(3)(a) and (b) do not apply to requirements imposed by an importing Party relating to the content of goods necessary to qualify for preferential tariffs or preferential quotas. (Article 1108(8)).

Denial of benefits

A Party may deny the benefits of NAFTA Chapter 11 on Investment to an investor of another Party that is an enterprise of such Party and to investments of such investor if investors of a non-Party own or control the enterprise and the denying Party:

1. does not maintain diplomatic relations with the non-Party; or
2. adopts or maintains measures with respect to the non-Party that prohibit transactions with the enterprise or that would be violated or circumvented if the benefits of this Chapter were accorded to the enterprise or to its investments. (Article 1113(1)).

Subject to prior notification and consultation in accordance with Articles 1803 (Notification and Provision of Information) and 2006 (Consultations), a Party may deny the benefits of NAFTA Chapter 11 on Investment to an investor of another Party that is an enterprise of such Party and to investments of such investors if investors of a non-Party own or control the enterprise and the enterprise has no substantial business activities in the territory of the Party under whose law it is constituted or organized. (Article 1113(2)).

OTHER ASPECTS

Performance Requirements

No Party may impose or enforce any of the following requirements, or enforce any commitment or undertaking, in connection with the establishment, acquisition, expansion, management, conduct or operation of an investment of an investor of a Party or of a non-Party in its territory:

1. to export a given level or percentage of goods or services;
2. to achieve a given level or percentage of domestic content;
3. to purchase, use or accord a preference to goods produced or services provided in its territory, or to purchase goods or services from persons in its territory;
4. to relate in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with such investment;
5. to restrict sales of goods or services in its territory that such investment produces or provides by relating such sales in any way to the volume or value of its exports or foreign exchange earnings;
6. to transfer technology, a production process or other proprietary knowledge to a person in its territory, except when the requirement is imposed or the commitment or undertaking is enforced by a court, administrative tribunal or competition authority to remedy an alleged violation of competition laws or to act in a manner not inconsistent with other provisions of this Agreement; or
7. to act as the exclusive supplier of the goods it produces or services it provides to a specific region or world market. (Article 1106(1)).

A measure that requires an investment to use a technology to meet generally applicable health, safety or environmental requirements shall not be construed to be inconsistent with paragraph 1(f). For greater certainty, Articles 1102 [National Treatment] and 1103 [MFN Treatment] apply to the measure. (Article 1106(2)).

No Party may condition the receipt or continued receipt of an advantage, in connection with an investment in its territory of an investor of a Party or of a non-Party, on compliance with any of the following requirements:

1. to achieve a given level or percentage of domestic content;
2. to purchase, use or accord a preference to goods produced in its territory, or to purchase goods from producers in its territory;
3. to relate in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with such investment; or
4. to restrict sales of goods or services in its territory that such investment produces or provides by relating such sales in any way to the volume or value of its exports or foreign exchange earnings. (Article 1106(3)).

Nothing in paragraph 3 shall be construed to prevent a Party from conditioning the receipt or continued receipt of an advantage, in connection with an investment, in its territory of an investor of a Party or of a non-Party, on compliance with a requirement to locate production, provide a service, train or employ workers, construct or expand particular facilities, or carry out research and development, in its territory. (Article 1106(4)).

Paragraphs 1 and 3 do not apply to any requirement other than the requirements set out in those paragraphs (Article 1106(5)).

Provided that such measures are not applied in an arbitrary or unjustifiable manner, or do not constitute a disguised restriction on international trade or investment, nothing in paragraph 1(b) or (c) or 3(a) or (b) shall be construed to prevent any Party from adopting or maintaining measures, including environmental measures:

1. necessary to secure compliance with laws and regulations that are not inconsistent with the provisions of this Agreement;
2. necessary to protect human, animal or plant life or health; or
3. necessary for the conservation of living or non-living exhaustible natural resources. (Article 1106(6)).

Others

Without prejudice to Article 1105(1) and notwithstanding Article 1108(7)(b) [exceptions to Art. 1102 on National Treatment, Art. 1103 on the MFN treatment and Art. 1107 on Senior Management and Boards of Directors], each Party shall accord to investors of another Party, and to investments of investors of another Party, non-discriminatory treatment with respect to measures it adopts or maintains relating to losses suffered by investments in its territory owing to armed conflict or civil strife. (Art. 1105(2)). Paragraph 2 does no apply to existing measures relating to subsidies or grants that would be inconsistent with Art. 1102 but for Art. 1108(7)(b). (Article 1105(3)).

No Party may require that an enterprise of that Party that is an investment of an investor of another Party appoint to senior management positions individuals of any particular nationality. (Article 1107(1)).

A Party may require that a majority of the board of directors, or any committee thereof, of an enterprise of that Party that is an investment of an investor of another Party, be of a particular nationality, or resident in the territory of the Party, provided that the requirement does not materially impair the ability of the investor to exercise control over its investment. (Article 1107(2)).

Nothing in NAFTA Chapter 11 on Investment shall be construed to prevent a Party from adopting, maintaining or enforcing any measure otherwise consistent with this Chapter that it considers appropriate to ensure that investment activity in its territory is undertaken in a manner sensitive to environmental concerns. (Article 1114(1)).

The Parties recognize that it is inappropriate to encourage investment by relaxing domestic health, safety or environmental measures. Accordingly, a Party should not waive or otherwise derogate from, or offer to waive or otherwise derogate from, such measures as an encouragement for the establishment, acquisition, expansion or retention in its territory of an investment of an investor. If a Party considers that another Party has offered such an encouragement, it may request consultations with the other Party and the two Parties shall consult with a view to avoiding any such encouragement. (Article 1114(2)).

Transfers [Return to the top of the page]

TYPES OF PAYMENT

Each Party shall permit all transfers relating to an investment of an investor of another Party in the territory of the Party to be made freely and without delay.

Such transfers include:

1. profits, dividends, interest, capital gains, royalty payments, management fees, technical assistance and other fees, returns in kind and other amounts derived from the investment;
2. proceeds from the sale of all or any part of the investment or from the partial or complete liquidation of the investment;
3. payments made under a contract entered into by an investor, or its investment, including payments made pursuant to a loan agreement;
4. payments made pursuant to Article 1110; and
5. payments arising under Section B. (Article 1109(1)).

No Party may require its investors to transfer, or penalize its investors that fail to transfer, the income, earnings, profits or other amounts derived from, or attributable to, investments in the territory of another Party. (Article 1109(3)).

Article 1109(3) shall not be construed to prevent a Party from imposing any measure through the equitable, non-discriminatory and good faith application of its laws relating to the matters set out in subparagraphs (a) through (e) of paragraph 4. (Article 1109(5)).

Notwithstanding Article 1109(1), a Party may restrict transfers of returns in kind in circumstances where it could otherwise restrict such transfers under this Agreement, including as set out in paragraph 4. (Article 1109(6)).

CONVERTIBILITY, EXCHANGE RATES, AND TIMES OF TRANSFER

Each Party shall permit all transfers relating to an investment of an investor of another Party in the territory of the Party to be made freely and without delay. (Article 1109(1)).

Each Party shall permit transfers to be made in a freely usable currency at the market rate of exchange prevailing on the date of transfer with respect to spot transactions in the currency to be transferred. (Article 1109(2)).

Notwithstanding paragraphs 1 and 2, a Party may prevent a transfer through the equitable, non-discriminatory and good faith application of its laws relating to:

1. bankruptcy, insolvency or the protection of the rights of creditors;
2. issuing, trading or dealing in securities;
3. criminal or penal offenses;
4. reports of transfers of currency or other monetary instruments; or e) ensuring the satisfaction of judgments in adjudicatory proceedings. (Article 1109(4)).

Expropriation [Return to the top of the page]

CONDITIONS

No party may directly or indirectly nationalize or expropriate an investment of an investor of another Party in its territory or take measures tantamount to nationalization or expropriation of such an investment, except: for a public purpose; on a non-discriminatory basis; in accordance with due process of law and in accordance with international law, including fair and equitable treatment and full protection and security; and, on payment of compensation. (Article 1110 (1)).

COMPENSATION

Compensation shall be equivalent to the fair market value of the expropriated investment immediately before the expropriation took place, and shall not reflect any change in value occurring because the intended expropriation had become known earlier. Valuation criteria shall include going concern value, asset value including declared tax value of tangible property, and other criteria, as appropriate. (Article 1110 (2)).

Compensation shall be paid without delay, be fully realizable and freely transferable. If made in a G7 currency, compensation shall include interest at a commercially reasonable rate for that currency from the date of expropriation until the date of actual payment. Norms are also included for those cases where payment is made in a non G7 currency. (Article 1110 (3)(4)(5)(6)).

Settlement of Disputes between Contracting Parties
[Return to the top of the page]

Provisions of Chapter XX relating to “Institutional Arrangements and Dispute Settlement Procedures”, are applicable.

Settlement of Disputes between a Contracting Party and an Investor [Return to the top of the page]

PREARBITRAL CONSULTATIONS

The disputing parties should first attempt to settle a claim through consultation or negotiation. (Article 1118).

ARBITRATION

Conditions

An investor of a Party may, on his own account or on behalf of an enterprise that it owns or effectively controls, submit to arbitration a claim that the other Party has breached an obligation under Section A of Chapter Eleven (Investment) or Article 1503(2) (State Enterprises) or Article 1502(3)(a) (Monopolies and State Enterprises), provided the investor or enterprise has incurred loss or damage by reason of, or arising out of, that breach. (Articles 1116 and 1117).

An investor may not make a claim pursuant to this Section, if more than three years have elapsed from the date on which the investor or the enterprise first acquired, or should have first acquired, knowledge of the alleged breach and knowledge that the investor or the enterprise has incurred loss or damage. (Articles 1116 and 1117).

An investment may not make a claim under this Section. (Article 1117(4)).

A disputing investor may submit a claim to arbitration under Article 1116 (on his own behalf) or under Article 1117 (on behalf of an enterprise) only if:

1. the investor consents to arbitration in accordance with the procedures set in this Agreement; and
2. the investor and, where the claim is for loss or damage to an interest in an enterprise of another Party that is a juridical person that the investor owns or controls directly or indirectly, the enterprise, waive their right to initiate or continue before any administrative tribunal or court under the law of any Party, or other dispute settlement procedures, any proceedings with respect to the measure of the disputing Party that is alleged to be a breach referred to in Article 1116, except for proceedings for injunctive, declaratory, or other extraordinary relief, not involving the payment of damages, before an administrative tribunal or court under the law of the disputing Party. (Article 1121(1)(2)).

Consent

Each Party consents to the submission of a claim to arbitration in accordance with the procedures set out in this Agreement. (Article 1122 (1)).

The consent given by paragraph 1 and the submission by a disputing investor of a claim to arbitration shall satisfy the requirement of:

1. chapter II of the ICSID Convention and the Additional Facility Rules for written consent of the Parties;
2. article II of the New York Convention for an agreement in writing; and
3. article I of the Inter-American Convention for an agreement. (Article 1122(2)).

Forms of Arbitration

Provided that six months have elapsed since the events giving rise to a claim, a disputing investor may submit the claim to arbitration under:

1. the ICSID Convention, provided that both the disputing Party and the Party of the investor are Parties of the Convention.
2. the Additional Facility Rules of ICSID, provided that either the disputing Party or the Party of the investor, but not both, is a Party to the ICSID Convention.
3. the UNCITRAL Arbitration Rules. (Article 1120(1)).

ARBITRAL PROCEDURES

Constitution of the Tribunal

Except in respect to a Tribunal established under Article 1126 (Consolidation), and unless the disputing parties otherwise agree, the Tribunal shall comprise three arbitrators, one arbitrator appointed by each of the disputing parties and the third, who shall be the presiding arbitrator, appointed by agreement of the disputing parties. (Article 1123).

When a Party fails to appoint an arbitrator or the disputing parties are unable to agree on a presiding arbitrator, the Secretary General [of ICSID] shall serve as appointing authority for an arbitration under this Section. (Article 1124(1)).

If a Tribunal, other than a Tribunal established under Article 1126 (Consolidation), has not been constituted within 90 days from the date that a claim is submitted to arbitration, the Secretary General [of ICSID], on the request of either disputing party, shall appoint, in his discretion, the arbitrator or arbitrators not yet appointed, except that the presiding arbitrator shall be appointed in accordance with paragraph 3. (Article 1124(2)).

The Secretary General [of ICSID] shall appoint the presiding arbitrator from the roster of presiding arbitrators referred to in paragraph 4, provided that the presiding arbitrator shall not be a national of the disputing Party or a national of the Party of the disputing investor. In the event that no such presiding arbitrator is available to serve, the Secretary General shall appoint, from the ICSID Panel of Arbitrators, a presiding arbitrator who is not a national of any of the Parties. (Article 1124(3).

On the date of entry into force of the Agreement, the Parties shall establish, and thereafter maintain, a roster of 45 presiding arbitrators meeting the qualifications of the ICSID Convention and rules referred to in Article 1120 and experienced in international law and investment matters. The roster members shall be appointed by consensus and without regard to nationality. (Article 1124(4)).

Consolidation

In the case of more than one investor submitting claims arising out of the same event, the claims should be heard together by a Tribunal established under Article 1126 (Consolidation), unless the Tribunal finds that the interests of a disputing party would be prejudiced thereby. (Article 1117(3)).

A Tribunal established under Article 1126 (Consolidation) shall be established under the UNCITRAL Arbitration Rules and shall conduct its proceedings in accordance with those Rules, except as modified by this Section. (Article 1126(1)).

Where a Tribunal established under Article 1126 (Consolidation) is satisfied that claims have been submitted to arbitration under Article 1120 that have a question of law or fact in common, the Tribunal may, in the interests of fair and efficient resolution of the claims, and after hearing the disputing parties, by order:

1. assume jurisdiction over, and hear and determine together, all or part of the claims; or
2. assume jurisdiction over, and hear and determine one or more of the claims, the determination of which it believes would assist in the resolution of the others. (Article 1126(2)).

A disputing party that seeks an order under paragraph 2 shall request the Secretary General [of ICSID] to establish a Tribunal and shall specify in the request:

1. the name of the disputing Party or disputing investors against which the order is sought;
2. the nature of the order sought; and
3. the grounds on which the order is sought. (Article 1126(3)).

Numerals 4 to 12 contain provisions related to the constitution of the Tribunal as well as to the procedure and timing to settle the dispute. (Article 1126).

Applicable Law

A Tribunal established under Section B (Settlement of Disputes between a Party and an Investor of Another Party) shall decide the issues in dispute in accordance with this Agreement and applicable rules of international law. (Article 1131(1)).

An interpretation by the Commission of a provision of this Agreement shall be binding on a Tribunal established under Section B (Settlement of Disputes between a Party and an Investor of Another Party). (Article 1131(2)).

FINAL AWARD

Scope

Where a Tribunal makes a final award against a Party, the Tribunal may award, separately or in combination, only:

1. monetary damages and any applicable interest;
2. restitution of property, in which case the award shall provide that the disputing Party may pay monetary damages and any applicable interest in lieu of restitution, a tribunal may also award costs in accordance with the applicable arbitration rules. (Article 1135(1)).

Subject to paragraph 1, where a claim is made under Article 1117(1):

1. an award of restitution of property shall provide that restitution be made to the enterprise;
2. an award of monetary damages and any applicable interest shall provide that the sum be paid to the enterprise, and
3. the award shall provide that it is made without prejudice to any right that any person may have in the relief under applicable domestic law. (Article 1135(2)).

A Tribunal may not order a Party to pay punitive damages. (Article 1135(3)).

Finality and Enforcement

An award made by a Tribunal shall have no binding force except between the disputing parties and in respect of the particular case. (Article 1136(1)).

Subject to paragraph 3 and the applicable review procedures for an interim award, a disputing party shall abide by and comply with an award without delay. (Article 1136(2)).

A disputing party may not seek enforcement of a final award until:

1. in the case of a final award made under the ICSID Convention

1. 120 days have elapsed from the date the award was rendered and no disputing party has requested revision or annulment or the award, or
2. revision or annulment proceedings have been completed; and

2. in the case of a final award under the ICSID Additional Facility Rules or the UNCITRAL Arbitration Rules

1. three months have elapsed from the date the award was rendered and no disputing party has commenced a proceeding to revise, set aside or annul the award, or
2. a court has dismissed or allowed an application to revise, set aside or annul the award and there is no further appeal. (Article 1136(3)).

Each Party shall provide for the enforcement of an award in its territory. (Article 1136(4)).

If a disputing Party fails to abide by or comply with a final award, the Commission, on delivery of a request by a Party whose investor was a party to the arbitration, shall establish a panel under Article 2008 (Request for an Arbitral Panel). The requesting Party may seek in such proceedings:

1. a determination that the failure to abide by or comply with the final award is inconsistent with the obligations of this Agreement; and
2. a recommendation that the Party abide by or comply with the final award. (Article 1136(5)).

A disputing investor may seek enforcement of an arbitration award under the ICSID Convention, the New York Convention or the Inter-American Convention regardless of whether proceedings have been taken under paragraph 5. (Article 1136(6)).

A claim that is submitted to arbitration under this Section shall be considered to arise out of a commercial relationship or transaction for purposes of Article I of the Inter-American Convention. (Article 1136(7)).