When Chapter 11 Does Not Mean Bankruptcy

Within the United States, free trade works to the benefit of all. Goods and services pass easily between Pennsylvania and Maryland, between California and Nevada, between Georgia and Florida. One reason internal US trade works is that the rule of law exists. If a fraudulent transaction takes place in one state, there is a reasonable chance that someone in another state can achieve effective recourse in the courts. In addition, although states can enact legislation locally, the federal government retains the exclusive right to regulate interstate commerce. Indeed, it was the impediments to free trade between states under the Articles of Confederation that motivated the writers of the Constitution to prohibit the states from regulating interstate commerce.

The presence of barriers to international commerce had been an impediment to prosperity in Europe. The rise of the European Union represents a recognition of this. Europe is on a rapid track to full economic integration, now that these countries largely share a common currency.

The North American Free Trade Agreement (NAFTA) is an attempt to largely achieve the benefits of free trade between the United States, Canada, and Mexico. The increase in trade and prosperity following the enactment of the agreement is a testimony to the benefits of free trade. There was not the great “sucking sound” of jobs being vacuumed out of the United States predicted by some.

Nonetheless, Bill Moyers in the PBS program Now: Trading Democracy focuses on what may turn out to be an important if not fatal flaw in the agreement. Whereas most corporations would like to avoid Chapter 11 when it refers to bankruptcy, some that invest in foreign countries are trying exploit Chapter 11 of NAFTA. The offending section Chapter reads:

“No Party may directly or indirectly nationalize or expropriate an investment of an investor of another Party in its territory or take a measure tantamount to nationalization or expropriation of such an investment (“expropriation”), except: (a) for a public purpose; (b) on a nondiscriminatory basis; (c) in accordance with due process of law and Article 1105(1); and (d) on payment of compensation….”

Actually, the provision seems to make sense. If one wants to encourage investment, the investors must be confident that their investments will not be arbitrarily seized. The penalty for the expropriation is payment of fair market compensation.

The problem that Moyers focuses on in his special is potential overly broad interpretation of the “tantamount to expropriation” clause. Apparently, California passed an environmental regulation limiting the chemical additive MTBE in gasoline. The chemical had found its way into ground water and there are serious questions about the long-term health consequences of human exposure to MTBE. The Canadian company, Methanex is a major manufacturor of MTBE. It is now suing California under Chapter 11 of NAFTA. Methanex is submitting to an arbitration tribunal set up as part of NAFTA a request for nearly $1 billion in compensation for an act that is “tantamount to nationalization or expropriation.”

Essentially, the thesis of Moyers Special is that the corporations will be able to use the Chapter 11 provision of NAFTA to assert that any government action that might reduce profits is equivalent to expropriation. While such creative interpretations are possible by the tribunal, they are not likely to survive long. Either the tribunal’s rulings will be consistently reasonable or the treaty will be re-negotiated.

The clause cited above specifically gives governments the right to regulate so long as the regulation is directed to a “public purpose” and “nondiscriminator.” Indeed, later in the NAFTA agreement, environmental regulations are specifically allowed.

“Nothing in this Chapter 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.”

It is always possible for creative lawyers to conjure up new interpretations of a law inconsistent with the original understanding of those who drafted the legislation. Indeed, that is the goal of much of modern interpretation of Constitutional law. It is the purpose of courts and other tribunals to dismiss interpretations that are too expansive. It was disappointing that Moyers did not discuss in greater details the other provisions of Chapter 11 relating to environmental regulation.

What was amusing was to see in the Now program, the solemn hand wringing of William Greider of the Liberal Nation magazine and Martin Wagner of Earthjustice Legal Defense Fund concerned about national sovereignty. I suspect that neither would shed a tear about national sovereignty if international environment agreements were used to compel compliance to stricter environmental regulations even if they US cost jobs and trumped local or national decisions.

There are very important and legitimate concerns about limitations of sovereignty in any international agreement. It is nice to see the Left learn such a concern. Possible unreasonable interpretations of NAFTA ought to be scrutinized. Nonetheless, it does seem that a dispassionate reading of the entire NAFTA agreement would preclude the problems cited in the Moyers special. If, however, the NAFTA tribunal makes consistently unreasonable or expansive interpretations, NAFTA should be reconsidered. The problem that Moyers focuses on is not a problem with the concept of free trade, but in the details in implementing a free trade protocol in the age of creative interpretation of the law.

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