Analysis of the Draft Text

The report examines the draft investment chapter of the Free Trade Area of the Americas (FTAA), finding that it largely replicates NAFTA's Chapter 11. It warns that the proposed investor-state dispute settlement mechanism, broad definitions of expropriation, and restrictions on capital controls and performance requirements would empower corporations to challenge domestic laws and hinder sovereign economic and social development across the hemisphere.

• The draft FTAA includes a dispute settlement mechanism that is "virtually verbatim" to NAFTA Chapter 11, allowing foreign corporations to use "secretive and unaccountable international arbitration" instead of domestic courts to challenge democratically enacted laws.
• The proposed definitions of expropriation are as broad as those in NAFTA, covering direct, indirect, and "measures tantamount to expropriation," which the authors argue allows corporations to sue over any government action that diminishes profits.
• The draft includes a "vague and open-ended" obligation regarding the minimum standard of treatment, which has been used in all successful NAFTA claims to date and may be used to expand the scope of investor-state claims to include obligations outside investment rules.
• The FTAA draft proposes stricter limits on capital controls than NAFTA, explicitly requiring the free transfer of "contributions to capital" and payments related to intellectual property rights and natural resource royalties.
• The draft's "national treatment" obligation requires governments to treat foreign investors as favorably as domestic ones, with only a "one-time opportunity" to exempt existing measures via reservations, which the authors claim threatens national development policies.
• The draft repeats NAFTA's broad ban on performance requirements—conditions used to ensure investments support host country goals—which the authors describe as a "threat to democratic policy making."
• Negotiators are considering eight alternative definitions of investment, many of which are broader than NAFTA's and could extend protections to "futures, options and other derivatives," as well as commercial contracts and licenses.

APA

L., M. P. R., Porter, S., Anderson, S., Dillon, J., Lee, M., Sinclair, S., Traynor, K., & Shrybman, S. (n.d.). Analysis of the Draft Text. Center for International Environmental Law. https://www.ciel.org/wp-content/uploads/2015/05/HSAInvestmentAnalysisFinal.pdf

Chicago

L., Manuel Perez Rocha, Steve Porter, Sarah Anderson, John Dillon, Marc Lee, Scott Sinclair, Ken Traynor, and Steve Shrybman. Analysis of the Draft Text. Center for International Environmental Law, n.d. https://www.ciel.org/wp-content/uploads/2015/05/HSAInvestmentAnalysisFinal.pdf.

Wikipedia

{{cite report |last1=L. |first1=Manuel Perez Rocha |last2=Porter |first2=Steve |last3=Anderson |first3=Sarah |last4=Dillon |first4=John |last5=Lee |first5=Marc |last6=Sinclair |first6=Scott |last7=Traynor |first7=Ken |last8=Shrybman |first8=Steve |title=Analysis of the Draft Text |publisher=Center for International Environmental Law |url=https://www.ciel.org/wp-content/uploads/2015/05/HSAInvestmentAnalysisFinal.pdf |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{lndanalysis, author = {L., Manuel Perez Rocha and Porter, Steve and Anderson, Sarah and Dillon, John and Lee, Marc and Sinclair, Scott and Traynor, Ken and Shrybman, Steve}, title = {{Analysis of the Draft Text}}, institution = {Center for International Environmental Law}, url = {https://www.ciel.org/wp-content/uploads/2015/05/HSAInvestmentAnalysisFinal.pdf}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }