NAFTA Chapter Eleven: Can TransCanada Break The U.S. Shutout?

US investors have successfully used investor-state arbitration under the NAFTA when they have thought themselves wronged by the actions of governments in Canada or Mexico. But the United States itself has never lost a NAFTA investment arbitration. The United States' record in NAFTA claims decided on the merits or on jurisdictional grounds is a perfect 9 wins and 0 losses. A number of those claims were ill-conceived, but others featured credible or even compelling claims (e.g., Loewen and Apotex).

A cynical but commonly-held view in arbitration circles is that arbitrators understand that the United States must not lose investment arbitrations because the political backlash, in particular from Congress, would imperil the US investment treaty program and possibly precipitate the demise of investment arbitration worldwide. That view has had currency at least since reports circulated of ex parte warnings by State Department officials to the US-appointed arbitrator in the