A Canadian Commentary on Constructive Expropriation Law Under NAFTA Article 1110

  • Raymond E. Young Partner, Lidstone Young Anderson, Vancouver, British Columbia


By virtue of the Constitution Act, 1982. Canada has established that some rights andfreedoms are beyond the reach ofgovernment. However, the protection of properly, especially with regard to the guaranteeing of compensation ifproperty is taken by the state, has not been elevated to this same level of constitutional protection. This article examines regulatory takings claims under Article 1110 ofthe North American Free Trade Agreement and provides an exposition of the law insofar as it has developed in the NAFTA context. It begins with a survey of constructive takings in international and domestic U.S. law and concludes by highlighting the obvious differences between the protection afforded to foreign NAFTA investors in Canada and domestic owners of properly when property is taken.