Introduction

This article makes two recommendations. First, when distinguishing investors from exporters, tribunals should look primarily to the capacity limitation, rather than the causation limitation (which lacks effectiveness) or the territorial limitation (which lacks flexibility). Second, when applying the capacity limitation, tribunals should be guided by the nature of a claimant's global business. The above two recommendations can be applied not only in NAFTA Chapter Eleven cases, but also more generally in investment treaty disputes under other agreements, so long as textual ...