(EU) and the Common Market of the South (MERCOSUR)? - FDCL

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implicates that the dictum of national treatment, which is so popular among transnational
companies, is over stretched. Foreign market participants - by means of this
possibility of taking legal action at international courts - have opened a scope of action
for themselves, which cannot be accessed by domestic market participants.
The latter depends on national legislation, and there is also the fact that international
trade legislation breaks national law: Article 1105 of NAFTA demands a
“minimum treatment of foreign investors in accordance with international law.” 113
Transnational corporations are therefore not only out of control, but they have a lot
more power to control and enforce than domestic companies. Mexico’s NAFTA experience
and also the experiences of regional and local governments in the U.S. and
Canada are a perfect example of this.
If an investor regards legislation, local politics or mechanisms as a breach of the
NAFTA treaty, then the issue can be brought up with the UN Commission for International
Trade Law (UNCITRAL 114 ) or with the International Center for the Settlement of
Investment Disputes, (ICSID 115 ), an arbitration mechanism of the World Bank. These
cases are then deliberated by the respective juries, without the possibility to appeal.
For many years it was a common practice that while these committees met, no information
at all was passed on to the public (not even information on the counterparts
or the fact that a dispute existed). Since then under the strong pressure from civil
society the three NAFTA states, Mexico, Canada and the U.S.A., have finally agreed
to publish the cases brought to the ICSID court. The cases that are disputed, e.g.,
at the International Court of Arbitration 116 of the International Chamber of Commerce
(ICC) in Paris continue to lack transparency. 117
The most important international institutions for the settlement of disputes,
alongside the already mentioned ICSID and UNCITRAL, are the International Chamber
of Commerce (ICC) in Paris and the London Court of International Arbitration
(LCIA): The American Arbitration Association (AAA), the Arbitration Institute of the
113
For the relationship between national and international trade legislation see, e.g.: Stoll, Peter-Tobias: Globalisierung
und Legitimation, Göttingen, May 19, 2003, p. 4., http://www.cege.wiso.uni-goettingen.de/Veranstaltungen/
antrittsvorlstoll.pdf.
114
http://www.uncitral.org.
115
http://www.worldbank.org/icsid.
116
http://www.iccwbo.org/court/english/intro_court/introduction.asp.
117
See Peterson, Luke Eric: Research Note: Emerging Bilateral Investment Treaty Arbitration and Sustainable
Development, Invest-SD News Bulletin, International Institute for Sustainable Development (IISD), August 2003,