Jordan C. Kahn


On June 9, 2009, a controversial and longstanding North American Free Trade Agreement ("NAFTA") arbitration was resolved in favor of the United States. Overviews of the dispute and NAFTA investor-state arbitrations are set forth in Parts I and II, respectively. Part III explains that the process employed was commendably transparent, especially in accommodating tribal interests, and should serve as a model for future proceedings. The award positively advances two international legal protections: regulatory takings and "fair and equitable treatment." Although the takings analysis described in Part IV confirms that NAFTA claimants have procedural advantages over domestic litigants, its pro-government framework goes beyond the U.S. law from which it derives to maximize the ability to regulate and should be adopted worldwide. The "fair and equitable treatment" analysis, detailed in Part V, sophistically equates modern-day customary international law with the standard articulated in 1926 and confusingly incorporates regulatory takings concepts.