A First Look at the Interim Merits Award in S.D. Myers, Inc. v. Canada: It Is Possible to Balance Legitimate Environmental Concerns with Investment Protection

This Article is a response to Joseph de Pencier's paper Investment, Environment and Dispute Settlement: Arbitration Under NAFTA Chapter Eleven in issue 23:3-4 of this journal. This reply is based upon the author's experience as counsel for the investor in S.D. Myers, Inc. v. Canada (Myers) and similar cases. This Article provides a critical commentary on various elements of Mr. de Pencier's paper that deal with the Myers claim. It provides some tentative suggestions on how the substantive provisions of NAFTA Chapter 11 might be interpreted in future cases where investment protection and environmental protection appear to be at odds.