Some decided to interpret it broadly.32 Some decided to interpret it narrowly.33 Because different tribunals can interpret this doctrine differently, an ISDS award can be unpredictable to both claimants and NAFTA governments.34 Article 1110 prevents NAFTA countries from nationalizing or expropriating an investment of a NAFTA investor.35 A NAFTA country may only nationalize or expropriate such investment when there is a public purpose, the procedures are conducted on a non-discriminatory basis and in accordance with due process of law and article 1105(1), and the government must compensate such NAFTA investor in accordance with article 1110(2).36 The key issue of this article is what "tantamount to expropriation" means. If "tantamount to expropriation" is defined too broadly, it may be difficult for governments to regulate without being sued by companies who believe their opportunities to make a profit have been expropriated.37 But, if defined too narrowly, the government will have greater leeway to regulate, possibly creating a disincentive for foreign investment.38 Similar to article 1105, this article also raises the concern of the unpredictability of the ISDS mechanism to both claimants and NAFTA governments.39 Several cases from 2007 to 2017 have raised the question of whether, or in what circumstances, governments may be required to pay compensation to foreign investors because environmental protection measures violate a Chapter 11 article. Windstream Energy LLC v. Gov't Can., PCA Case No. 2013-22, Notice of Intent to Submit a Claim to Arbitration Under NAFTA Chapter 11 (Oct. 17, 2012), ¶ 3, available at http://www.italaw.com/sites/default/files/case-documents/italawl 141 .pdf......

A REVIEW OF NAFTA INVESTOR-STATE DISPUTE SETTLEMENT CLAIMS FROM 2007 TO 2017