After painstaking negotiations, the United States of America, Mexico, and Canada have finally reached a new agreement that will replace NAFTA: the United States-Mexico-Canada Agreement (“USMCA”). Although USMCA was reached and announced on September 30, 2018, the final version has not been published. However, a version, subject to legal review for accuracy, clarity, consistency, and language authentication was released. Once the parties have informed that they completed their internal approval processes, the USMCA will go into effect three (3) months following this announcement.
USMCA contains an investment chapter: Chapter 14. Like NAFTA, USMCA encompasses substantive protections as well as mechanisms to settle disputes arising out of violations of such investment protections. Chapter 14 does not apply to measures covered by Chapter 17 - Financial Services. Some of Chapter 14’s highlights include the following:
Chapter 14 applies only to the U.S. and Mexico
Although USMCA appears as a tri-partite treaty, Chapter 14 applies only to the U.S. and Mexico. In other words, Chapter 14 only protects Mexican nationals that invest in the U.S. and U.S. nationals investing in Mexico. However, existing investments in Canada and investments made by Canadian investors will be protected under the existing NAFTA regime for three (3) years after the USMCA goes into effect. Additionally, Mexico and Canada have signed the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (“CPTPP”). Once it goes into effect, Mexican and Canadian investors/investments will benefit from the investment protections and dispute settlement mechanisms established in the CPTPP.
Two protection schemes
Chapter 14 protects investments as follows:
- General Investments. Protected investors will benefit from the following substantive protections, regardless of the sector: (i) National Treatment¹ (post-established investment), (ii) Most Favored Nation (post-established investment), and (iii) Direct Expropriation. The USMCA does not protect pre-established investment activities.
- Covered Government Contracts. Investors that have a written agreement in a covered sector will benefit from the protections of the General Investments, plus: (i) Minimum Standard of Treatment, (ii) Transfers, (iii) Performance Requirements, (iv) Senior Management and Boards of Directors, and (v) Indirect Expropriation (even though the term “tantamount to expropriation” has been removed). Covered sectors include oil and gas production, telecommunications, transportation, certain infrastructure, and power generation.
Exhaustion of local remedies and statute of limitation
In sharp contrast to NAFTA, USMCA Chapter 14 expressly requires claimants to exhaust local remedies prior to initiating arbitration, except when “recourse to domestic remedies was obviously futile or manifestly ineffective.” Chapter 14 also requires claimants to obtain a final decision from respondent’s court of last resort or that thirty (30) months have elapsed from the date claimant initiated local proceedings.
Each system of protection grants different time limits for the submission of disputes to arbitration. In relation to General Investments, claimants should submit disputes to arbitration no more than four (4) years from the date on which claimant learned of the breach. With respect to Covered Government Contracts, no claims shall be submitted to arbitration if less than six (6) months have elapsed from the events giving rise to the claim and more than three (3) years have elapsed from the date on which the claimant learned of the breach.
Legacy Investment claims
Under USMCA, Annex 14-C, investments made during NAFTA’s life and those that remain when USMCA goes into effect will be protected under NAFTA for three (3) years after NAFTA’s end. Arbitrations that started under the provisions of NAFTA 1994 will continue and remain unaffected when the above term expires.
Changing of hats discussion
During the UNCITRAL thirty-fifth session, States expressed in the Report of Working Group III concerns regarding the conflict of interest created by some arbitrators acting with “triple” or even “quadruple” hatting. The USMCA, Annex 14-D, Article 6, provides that arbitrators need to comply with the IBA Guidelines on Conflicts of Interest and they must refrain from “changing hats;” that is, arbitrators cannot act as counsel, appointed expert, or witness in a pending arbitration under this Chapter. Further, challenges to arbitrators will be governed by the procedure set in the UNCITRAL Arbitration Rules.
The USMCA does not contain a Preamble like other recent FTAs involving the United States of America, stating that the protections provided to foreign investors in the USMCA shall be no more substantial than those provided under U.S. or domestic law.
Other departures from the NAFTA text deserve some comment but at this stage some of the main differences are pointed out above. We will be following up on this matter as it will have a huge impact on future investment proceedings.