ABSTRACT
The novelty of North American Free Trade Agreement (NAFTA) investor-State arbitration has been overstated. An example may serve to illustrate the issue. Some commentators have characterized NAFTA investor-State arbitration as an "end-run around the Constitution" in that it could "open the US civil justice system to challenge" under international law. This chapter compares NAFTA investor-State arbitration with its historical antecedents and review precisely what about the institution is old and what is new. It begins with a brief description of the institution, and then considers those elements of the NAFTA arbitration mechanism that have significant precedents as well as those that may be seen as departures. The discussion concludes with a few observations about the innovation of NAFTA investor-State arbitration in light of these elements. Some aspects of NAFTA investor-State arbitration do depart from historical precedents, but these departures are more incremental innovations than radical changes.
