5. North American Free Trade Agreement (NAFTA) Disputes

Abstract

In 2015, an important decision was issued under Chapter 11 of NAFTA in the case of Clayton/Bilcon v Government of Canada. This decision received a substantial amount of publicity as a result of its potential impact on the future implementation and application of environmental regulations by NAFTA states. Details of this decision are set out in the second section of this review. Although the notice of arbitration filed against Canada in 2014 in the case of JML Heirs LLC and J.M. Longyear LLC v Government of Canada was withdrawn in 2015, other cases that consider the question as to whether, and when, regulations that are allegedly introduced by states to protect environmental goods or aims can fall foul of the provisions of Chapter 11 of NAFTA, continue to progress. In particular, there were procedural developments in the cases of Lone Pine Resources Inc. v Government of Canada, Windstream Energy LLC v Government of Canada, Mercer International Inc. v Government of Canada, and Mesa Power Group LLC v Government of Canada. There were also developments in the long-running dispute of Mobil Investments Inc. and Murphy Oil Corporation v the Government of Canada. These developments are discussed further in the third section of this review.