Reportedly, the NAFTA Chapter 11 claims filed by Canadian softwood lumber exporters have been dismissed by the tribunal at a preliminary stage following jurisdictional arguments based on Article 1901(3) NAFTA which reads:
"Except for Article 2203 (Entry into Force), no provision of any other Chapter of this Agreement shall be construed as imposing obligations on a Party with respect to the Party's antidumping law or countervailing duty law".
In other words, the tribunal accepted the argument that AD/CVD measures are out of bounds for Chapter 11. Policywise, the outcome seems to make a lot of sense. AD/CVD being such a specialized area, NAFTA parties took care to subject it to an exclusive dispute settlement regime. And after all, private parties do have access to national investigative authorities, and can challenge their decisions through governmental channels (and have done so abundantly). Allowing subsequent investment arbitration smacks of forum shopping at its worst.
But is/was this really a jurisdictional issue? In the alternate, the tribunal could have allowed the claim, and then restricted its examination on the merits to Chapter 19 obligations. The investment-based challenge, subjecting the dispute to an investor-state procedure, does not necessarily in itself "impose obligations ... with respect to..." US AD/CVD law.
And this is when the entire issue might be moot once the US-Canada deal is finalized.
Judging by conference time, marketing, publications and web hype, the investment arbitration industry is mushrooming. And yet legal developments like this, and political ones (particularly in Latin America) seem to significantly restrict the potential of investment arbitration to become an important field of international law. Investment protection might be the legal parallel of the high-tech bubble of the '90s...
PS - Apparently, the tribunal did seize jurisdiction over claims relating to the Byrd Amendment, so this should not be read as a general bifurcation of trade/investment issues. But it might be more prudent to wait until the decision is made available, hopefully soon.
