Private v public authority in NAFTA: The procyclicality of investor protections and global governance issues.

摘要

As states fiercely compete for international trade, there is growing concern about the emergence of private authority in global governance systems. States have delegated various aspects of their regulatory authority to private actors to facilitate the expansion of free trade in the global markets. This delegation of authority has generated the expansion of private international administrative law involving states. An unintentional, or perhaps intentional, consequence of this change in authority is the empowerment of private actors over states.;When states seek to compete in a globalized financial market and increase foreign investment flows, investors demand protection from "unfair" state actions in exchange for their investments. As regulatory activities and investment transactions increase so often does the volume of disputes between public and private actors. The result can be the development of an effective investor-state dispute settlement mechanism. This study examines the procyclicality of investor protections and global governance issues, with particular attention to the North American Free Trade Agreement's (NAFTA) Chapter 11 on investments.;The current literature on global political economy has not yet fully explored the complex interdependency between states and private actors. NAFTA established an investor-to-state dispute arbitration mechanism to deter states from unfair national treatment and even expropriation. Under this structure, private investors may file claims directly against a state for monetary damages. Unlike national courts presided over by publicly appointed or elected judges, these tribunals consist of private individuals selected by the investors and member states.;This dissertation examines the expansion of private authority through NAFTA tribunals, as a case study of the accommodation accorded to firms in evolving patterns of global governance. The analysis also includes a review of relevant global political economy literature; a comprehensive analysis of newly released U.S. National Archives and White House documents related to NAFTA; an overview of the U.S.-Mexican Claims Commissions (1838-1946); and key information obtained through candid interviews with former senior U.S. and Mexican officials regarding NAFTA and its Chapter 11 tribunals.