One of the most controversial provisions in trade and investment agreements is the following provision, taken from CAFTA: "Article 10.7.1: No Party may expropriate or nationalize a covered investment either directly or indirectly through measures equivalent to expropriation or nationalization (“expropriation”)..." CAFTA goes on to say:
The Parties confirm their shared understanding that:...
3. Article 10.7.1 addresses two situations. The first is direct expropriation, where an investment is nationalized or otherwise directly expropriated through formal transfer of title or outright seizure.
4. The second situation addressed by Article 10.7.1 is indirect expropriation, where an action or series of actions by a Party has an effect equivalent to direct expropriation without formal transfer of title or outright seizure.
(a) The determination of whether an action or series of actions by a Party, in a specific fact situation, constitutes an indirect expropriation, requires a case-by-case, fact-based inquiry that considers, among other factors:
(i) the economic impact of the government action, although the fact that an action or series of actions by a Party has an adverse effect on the economic value of an investment, standing alone, does not establish that an indirect expropriation has occurred;
(ii) the extent to which the government action interferes with distinct, reasonable investment-backed expectations; and
(iii) the character of the government action...
Virtually every NAFTA investor-state case has claimed that certain policies were "tantamount to" an expropriation (the language was changed to "equivalent to" in the post-NAFTA period). We did a report that touched on some of these issues back in 2005. As we wrote then:
NAFTA’s investment rules give foreign
investors new rights that go significantly beyond the rights available
to U.S. citizens or business under the Takings Clause of the
Constitution. In the 1993 Concrete Pipe case, the U.S. Supreme Court
held that “our cases have long established that mere diminution in the
value of property, however serious, is insufficient to demonstrate a
taking.” In contrast, NAFTA Chapter 11 tribunals have defined
compensable takings as “the incidental interference” with the use of
property that need only cause a “significant” or “substantial”
impairment of an investment. Thus, in the Metalclad case, a
municipality’s denial of a construction permit to a U.S. company
seeking to expand an existing toxic waste facility on land it had
purchased was found to be an indirect expropriation requiring
compensation under NAFTA. Rather than fixing the problems caused by
NAFTA’s loose rules and troubling case history, the USTR has merely
made cosmetic changes in the new FTA’s foreign investor protection
provisions. For instance, one “fix” the USTR attempted in CAFTA was to
eliminate the phrase government actions “tantamount to” an
expropriation that appears in the NAFTA text as activity requiring compensation. However, that change is merely cosmetic. The new FTAs
still require compensation for “indirect” expropriations, which is the
operative term NAFTA panels have relied on in finding regulatory
takings. Indeed at least two NAFTA panels have held that the
“tantamount to” clause in NAFTA is redundant and does not expand upon
the scope of NAFTA’s terms requiring compensation for direct and
indirect expropriation. The Bush administration could have conformed
the new FTAs to U.S. law which, among other things, requires the
demonstration of a near total takings of the property as a whole before
a regulatory takings is found, but failed to do so. The end result is
that foreign firms are still being granted substantive and procedural
legal rights that go beyond what is provided in the U.S. Constitution
as interpreted by the U.S. Supreme Court.
These
provisions not only expose governments to liability that they often
would not have under domestic law with domestic investors, but can also
chill policy initiatives. As we said in our report:
A
March 16, 2002, article in the Toronto Globe and Mail surprised
Canadian health officials who were preparing to issue a new regulation
on cigarette labeling. The newspaper reported that Philip Morris, the
U.S. tobacco giant, was considering a Chapter 11 investor-state suit
under NAFTA because of a proposed public health rule that would ban the
words “light” and “mild” from cigarette packaging, terms that have
misled smokers into believing that they were using a safer product.
In
a submission to the Canadian government, Philip Morris argued that the
proposed ban of the descriptors “light” and “mild” would be “tantamount
to an expropriation” of its tobacco trademarks containing those words
in violation of NAFTA Article 1110, because it had invested millions
“developing brand identity and consumer loyalty.”...
While
Philip Morris has told Public Citizen that it is not moving forward
with the threatened NAFTA case, the Canadian public health legislation
is not moving forward either. A spokesperson for Physicians for a Smoke
Free Canada thinks that the Philip Morris threat as well as threatened
domestic court action has played a role in stalling passage of this
important public health policy.