NAFTA Arbitration Panel to Consider Opening Its Doors to Canadian NGO

IISD request to submit amicus brief leads to examination by concerned parties of public interest group participation in previously secretive NAFTA investor-state dispute mechanism

WINNIPEG — The International Institute for Sustainable Development may yet get an opportunity to present its amicus (friend of the court) brief before the arbitration tribunal hearing a NAFTA dispute between Methanex, a Canadian firm, and the government of the United States. The arbitration tribunal, convened under the rules of the United Nations Centre for International Trade Law, considered IISD's request on September 7, 2000 and decided to delay a final decision in order to give all concerned parties more time to submit arguments on the participation of public interest groups in such cases. The delay is a sign that the tribunal is taking seriously the first-ever such request under NAFTA's closed-door Chapter 11 proceedings.

Methanex is claiming that a Californian environmental regulation banning MTBE - a gasoline additive with suspected carcinogenic properties -- amounts to unfair treatment and expropriation of its investments in the United States. NAFTA's Chapter 11, designed to protect foreign investors from expropriation and other unfair treatment, has been invoked against environmental regulations in several recent cases. IISD believes that the issues raised in the Methanex case have a critical impact on environmental protection at the federal, state, provincial and municipal levels across North America. It is because of this vital public interest dimension that the IISD has sought permission to submit an amicus brief in this case.

"The tribunal has acted with commendable responsibility to ensure a full opportunity to consider all the issues and perspectives, including the views of all three NAFTA parties," said David Runnalls IISD President. "While we would obviously have preferred a positive reply on Thursday, we see this as a constructive recognition of the importance of this issue, and of the need to address it in a responsible way."

The tribunal has given all parties an opportunity to submit written arguments on whether public interest groups can make representations in the otherwise private proceedings between foreign companies and governments. The IISD, Canada and Mexico have until October 13 to submit arguments on the participation of public interest groups as friends of the court in this case. The United States and Methanex, as litigants in this case, will then have until October 27 to submit their arguments. This will be an important test of the NAFTA member nations' publicly stated commitment to openness and transparency.

"This decision is important on several fronts," said David Runnalls, IISD's president, "The fact that the tribunal is giving further consideration to IISD's request means that they have taken our arguments seriously. It also forces Mexico, Canada and the US to state their positions clearly on this important question."