Renegotiating NAFTA: Reducing the number of Chapter 11 claims for Canada

This paper explores NAFTA Chapter 11 claims filed against Canada through a closer examination of claim funding. Findings indicate that where investor-state dispute settlement cases were once brought forward to protect foreign investors against state expropriation, they are now considered a viable avenue of financial speculation. Familiar speculative tools identified as portfolio investments, third party funding, and shareholder reflective loss are transforming the very rationale of investor-state dispute settlement. Amid greater calls for transparency, this paper analyzes and proposes four policy options to reduce NAFTA Chapter 11 claims against Canada. Aside from the status quo, proposed options, which are conditional on complete transparency, include full disclosure of claim funding, capping the award recovery to funders, and prohibiting all financial speculation. Analysis based on five societal and governmental criteria indicates that full disclosure of claim funding will best meet the objective of reducing the number of NAFTA claims against Canada.