Abstract
This article provides a solution to the concerns that NAFTA is not currently able to protect Foreign Direct Investment while safeguarding the environment. Concerns, NAFTA provisions, and potential solutions to the conflict are discussed as follows. A. Why Protection Is Needed for Foreign Direct Investment (FDI) • The upside and the downside of FDI B. How NAFTA Protects FDI • Article 1110: Expropriation and Compensation • The Investor-State Dispute Mechanism C. How NAFTA Protects the Environment • Chapter 11, The Preamble, and the Environmental Side Agreement D. Concerns about NAFTA Protection E. How Are the NAFTA Tribunals Doing? F. Can NAFTA Protect Both Investor and Environment? G. Good, Better and Best Solutions to the FDI-Environment Conflict • NAFTA Choice #1: Do Nothing • NAFTA Choice #2: Exemption • NAFTA Choice #3: Remove the “Tantamount to Expropriation” Clause • NAFTA Choice #4: Follow the US Law of Regulatory Taking • NAFTA's Best Choice: Extrinsic Interpretive Guidance
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