"Private party direct access: A comparison of the NAFTA and the EU disciplines"

Abstract

This paper will study the subject of locus standi of non-state actors within the dispute resolution regimes established by the EU and NAFTA. While NAFTA addresses the issue on a sectoral basis, the EU deals with it as an institutional and constitutional matter. The purpose of the paper is to juxtapose the different approaches and their solutions to the issue of the protection of the rights of private parties as devised in the two regional arrangements. The first part will discuss the nature of the two agreements and will focus on NAFTA as a regional agreement without institutions in comparison to the EU which represents an enterprise in regional integration equipped with powerful and authoritative institutions. The setting explained, I will elaborate on the concept of private party and follow with a general review of the choice of remedy (or the selection of dispute resolution mechanisms). Then, the distinction between direct versus non-direct access will be explored, for the main challenge to the private party's right to remedy arising from the inter- and supranational arrangements lies in this particular detail. Next, I will analyze the private party direct access to dispute resolution in NAFTA. Most relevant to this paper is the NAFTA Chapter 11 Section B dealing with dispute resolution regarding investments and the investor's right direct access. Dispute resolution and private party direct access in the EU will involve a discussion of the Community court system and of ART. 173 (4) of the EC treaty in particular. The paper will conclude with observations on the difference between NAFTA and the EU concerning approaches to private party direct access