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NAFTA Arbitration Substitutes May Spur Issues Of Their Own

April 11, 2018, Law360

Marney Cheek is quoted in a Law360 article regarding issues that could exist under USTR Lighthizer's proposed alternatives to investor-state arbitration in a renegotiated NAFTA. "I think the main problem with his proposed solutions is that they're all limited in scope, and so there's very serious enforcement gaps," says Cheek.

Commenting on the fact that investor-state arbitration has been meant to depoliticize disputes and relying on Chapter 20 would have the opposite effect, Cheek adds, "Under state-to-state dispute settlement, even if the investor has a valid claim, it's subject to the broader political dynamics between the U.S. and that host country. The U.S. government might have many reasons for not wanting to bring a dispute, even if it's a meritorious dispute."

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