Bill C-9 (Historical)

Settlement of International Investment Disputes Act

An Act to implement the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention)

This enactment implements the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, opened for signature in Washington on March 18, 1965.

Settlement of International Investment Disputes Act

[Tony Clement, Conservative, Parry Sound—Muskoka, ON]

moved that the bill be read the third time and passed.

[Deepak Obhrai, Conservative, Parliamentary Secretary to the Minister of Foreign Affairs]

Mr. Speaker, I am pleased to speak today in support of Bill C-9, An Act to implement the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), which I will refer to as “the convention”.

The convention was sponsored by the World Bank to facilitate and increase the flow of international investment. It establishes rules under which investment disputes between states and nationals of other states may be resolved by means of conciliation or arbitration. It also creates the international centre for the settlement of investment disputes, known as ICSID.

Bill C-9 implements the ICSID convention for Canada. It deals with enforcement of ICSID awards for or against the federal government and foreign governments, including the constituent subdivisions designated by foreign governments.

The convention deals with what is commonly called the resolution of investor-state disputes. Such disputes arise in a variety of situations. For example, they can arise when a state where a foreign investor has invested adopts laws affecting the activities of the investor in a discriminatory manner or nationalizes the investment.

International arbitration is a recognized method for resolving disputes. It provides a way of resolving legal issues without resort to the domestic judicial process.

It has long been recognized that when parties to a dispute have recourse to arbitration, the result of the arbitral process ought to be recognized by the courts. Thus, for example, the awards resulting from commercial arbitration, in other words from arbitrations between business enterprises, are recognized and enforced by courts.

The decision as to whether to have recourse to arbitration or the judicial process is a decision for the parties to dispute. This flexibility is welcomed in many types of situations.

In the case of the convention being implemented by Bill C-9, one of the big advantages of having recourse to arbitration is that it “denationalizes” the process. Let me explain.

When a dispute arises between a foreign investor and the host country, one of the options is for the investor to pursue the case before the courts of that host country. In most cases, as would be the case in Canada, the foreign investor would benefit from a fair and equitable process; the national court would not prejudge the matter and would render a decision in conformity with the law.

However, in some situations this might not happen. The tribunal might favour its government to the detriment of the foreign investor.

The fact that the parties to an arbitration can select the arbitrators who will hear and decide the case is another advantage of the arbitral process. If the dispute involves a specialized matter, for example, petroleum exploration, or maritime issues, the ability to choose arbitrators with specialized knowledge on the subject matter of the dispute can make the entire process work much better and can lead to better decisions.

The arbitration mechanism established by the ICSID convention is one that is used for disputes between investors and states. The convention has been ratified by 143 states, making it one of the most widely ratified of all international instruments.

The distinguishing feature of ICSID, what makes it uniquely valuable, is the enforcement mechanism which this legislation will implement for Canada. The ICSID enforcement mechanism is very effective. This effectiveness contributes to the protection of the investor. ICSID's enforcement mechanism lies at the heart of the effectiveness of the ICSID convention.

An arbitral award from any other arbitral body is subject to review by a domestic court before it can be enforced, but an ICSID award merely has to be presented to a domestic court with a request that the court enforce it. Under Bill C-9 the award must be recognized and, with this recognition, enforcement mechanisms become available immediately. Enforcement could include payments seized by officers of the court.

In the great majority of cases the losing party in an arbitration will pay the award of an arbitral tribunal without the need for the successful party to take any enforcement proceedings. The same is true for investor-state arbitration.

In Canada, arbitral awards, including investor-state arbitral awards, are currently enforced pursuant to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

The New York convention permits a limited review of an arbitral award by domestic courts. It allows a court to refuse to enforce an award if to do so would be contrary to the public policy. In addition, it permits a state to exclude certain subjects from the application of the convention and thus from enforcement.

The ICSID provides a better enforcement mechanism. It does not permit a state to exclude from dispute settlement any matter which the state has consented to submit to arbitration. The ICSID awards are enforceable as if they were final decisions of a local court. This simple, efficient mechanism guarantees better protection for Canadian investors abroad.

Clause 8 of the bill authorizes any superior court in Canada to recognize and enforce awards as described in the bill. The Federal Court is a superior court. The Federal Court would have jurisdiction over awards involving the Government of Canada and awards involving foreign governments or their constituent subdivisions designated under the convention.

In addition, the ICSID convention provides explicitly that the ICSID awards are binding between the parties and once parties have agreed to arbitration they cannot seek remedy before another body, such as courts of justice.

Therefore, it is not open to a foreign tribunal to refuse to enforce an award on the basis that the ICSID arbitration tribunal has exceeded its jurisdiction or was not validly constituted. These kinds of issues can affect enforcement of awards other than ICSID awards, thereby delaying resolution of the dispute. The ICSID does not permit such dilatory tactics.

Section 7 of the bill provides that an ICSID award is not subject to any remedy by a Canadian court. Remedies thus prohibited would include appeal, review and nullification. The decision to have recourse to arbitration is entirely voluntary, but once the parties have consented to ICSID arbitration they cannot seek review in another forum, such as the courts.

The only review of an ICSID award, if a party to a dispute considers it contains errors, is the review process provided by the convention itself. It provides that a request for revision, interpretation or annulment of an award must be made to the secretary-general of the ICSID. This procedure allows the parties to avoid having national courts involved in assessing allegations that claim there is something wrong with an award, while at the same time ensuring the awards which are erroneous can be corrected.

There are numerous reasons to support Canada's adherence to the convention. It would provide additional protection for Canadian investors abroad by allowing them to have recourse to the ICSID arbitration in their contracts with foreign states.

It would also allow investors of Canada and foreign investors in Canada to bring investment claims under the ICSID arbitral rules where such clauses are contained in our foreign investment protection agreements and free trade agreements.

To date, 143 states have ratified the ICSID convention. The majority of our trading partners are parties to it, except for Mexico, India and Brazil. Ratifying the ICSID would bring Canadian policy into line with our OECD partners. In a survey conducted by the ICSID center in 2004, 79% of the respondents said that the ICSID played a vital role in their country's legal framework and 61% said that the ICSID membership had contributed to a positive investment climate.

We know, anecdotally, that Canadian investors are trying to find ways to benefit from the ICSID, even though Canada is not party to the convention. Firms have, for example, arranged investments through a third country that is party to the ICSID. However, such convoluted financing is not possible for all investments by Canadian investors.

International investment arbitration is growing in importance. The stock of Canadian direct investment abroad in 2005 increased to a record $469 billion. As a result of the globalization of investment, the number of investment disputes has greatly increased in the last five years.

ICSID arbitration has soared: only 110 ICSID arbitrations have been completed over the past 40 years but 105 proceedings are now under way. The NAFTA parties alone have faced over 40 investor-state arbitration claims since NAFTA entered into force.

The tremendous growth in investment and investor-state disputes has made Canada's failure to ratify the ICSID the focus of attention by Canadian businesses, the Canadian legal community and our trading partners.

The ICSID regime provides several important advantages. Compared to other arbitration mechanisms, the ICSID regime provides better guarantees regarding enforcement of awards and more limited local court intervention.

Any arbitral award rendered under the auspices of ICSID is binding and any resulting obligation must be enforced as if the award were a final domestic court judgment. Moreover, all ICSID contracting states, whether or not parties to the dispute, are required by the convention to recognize and enforce the ICSID arbitral awards.

Investors often prefer to rely on such arbitrations rather than on the local courts of the country whose measures are in dispute to ensure an independent resolution of the dispute.

The ICSID's relationship with the World Bank assists investors in obtaining compliance with the ICSID award and its roster of arbitrators gives investors access to well-qualified arbitrators at ICSID controlled rates, with extensive experience in international investment arbitration.

The ICSID also provides important institutional support for litigants. The ICSID convention is a well known tool for settlement of investment disputes. Therefore, the interpretation of the convention and its usefulness are predictable.

Canada already has numerous links with the ICSID. Provisions consenting to ICSID arbitration are commonly found in contracts between governments of other countries and Canadian investors. The NAFTA in chapter 11, the Canada-Chile FTA and most of our bilateral foreign investment protection agreements known as FIPAs all provide for the ICSID as a dispute settlement option that can be chosen by an investor if both the state of the investor and the host state for the investment are party to the ICSID.

However, Canada and Canadian investors cannot benefit from this choice if Canada is not a member.

It is important that Bill C-9 be passed in order to facilitate adherence by Canada to the ICSID convention as soon as possible.

[Chris Charlton, NDP, Hamilton Mountain, ON]

Mr. Speaker, for me this has a bit of the same feel to it as the multilateral agreement on investment did under the former Liberal agreement. I have concerns about transparency and about accessibility for people to actually participate in the process.

However, I guess my most important concern focuses on accountability. As I look at all of this, the decisions issued through an ICSID arbitration are binding and there are limited grounds under which the process can be appealed. They are all very narrow reasons. They include: the tribunal was not properly constituted; it manifestly exceeded its powers; there was corruption on the tribunal; there was a breach in the rules of procedure; or, the award failed to state the reasons on which it was based. These grounds make absolutely no allowances for other substantive reasons for which a sovereign state might well decide, for the benefit of its citizens, to disagree with an arbitration decision.

I wonder if the member could elaborate a little more on why he feels comfortable, as a member on the government side, to do this to the Canadian public, to support a process that, as I said earlier, has no transparency, no accountability and no accessibility.

[Deepak Obhrai, Conservative, Calgary East, AB]

Mr. Speaker, I thank the member for asking a question that many would want to ask. She wants to know why we have the ICSID convention because it is under the World Bank and it gives transparency under the World Bank rules to ensure that what she has expressed as a concern is overridden. The confidence level given by this convention is what investors are looking for.

However, there is a provision in the convention where the secretary-general of the ICSID can accept a request for a revision, interpretation or annulment of an award.

As I mentioned in my speech, this convention, as signed by 143 countries, has put international confidence in the mechanism for investment where both the investor and the government can have confidence. We cannot have confidence on one side where we can say that the investor is subjected to a government board or a court of law where he feels he did not receive justice.

At the end of the day, the issue is about receiving fair treatment and justice and that it is transparent. This convention provides that, which is why 143 countries have signed on to it.

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Speaker, I listened carefully to the parliamentary secretary's comments on the bill and certainly listened carefully at committee to presentations and representations by those who brought forward their opinions.

At committee we heard from those who are backing this bill that the sky would not fall and that productivity and investment would still continue if the bill does not pass. If we were to listen to the government and the official opposition party, we would think that this is something that we need, that this is key to Canada's success and to investment coming into Canada.

However, what was not touched upon is the opinion of some of the provinces. I find it passing strange that the Bloc will be supporting the bill because it would actually take away, in some respects, sovereignty, particularly in the case of financial oversight from Canada. I am surprised that the Bloc would support taking decisions that could be made here in Canada and really throwing them over to the World Bank which, as we know, is situated elsewhere. That is not to mention the concerns people have had as of late in terms of transparency and accountability at the World Bank. I need not go into that narrative. It is a long one and we know the recent problems at the top.

At committee we heard very clearly that notwithstanding that countries have signed on to this, this is a file that has been around for quite awhile. We also heard that this would not guarantee increased investment but that there is jeopardy in terms of handing over accountability.

Why would the government, which has told the Canadian public many times that it believes in accountability in its own operations, hand this kind of process procedure over to the World Bank when those decisions should be made right here in Canada, have Canadian oversight and remain a tool that we can use? Once we sign on to this, we are handing it over to another institution and, indeed, to another jurisdiction.

[Deepak Obhrai, Conservative, Calgary East, AB]

Mr. Speaker, one would not expect the NDP to look at the advantages of foreign investment in Canada. The member seems to forget the other side of the coin with investment going out of the country.

Over 45% of Canada's GDP is based on imports and exports. We are a trading nation. We need prosperity. We need mechanisms that not only provide for foreigners to invest in Canada but provide Canadians with the opportunity to invest overseas as well. That is the way our country prospers. We need mechanisms in place that would give confidence to both sides of the coin.

The NDP would never want that. The NDP wants Canada to live in a cocoon of its own. I am happy to say that is not what Canadians want. That is not what the Canadian business community wants either. With 143 states signing, this gives confidence now.

It is surprising to me that NDP members are today saying that they have no confidence in the World Bank because they are known as the biggest supporters of the World Bank. At the end of the day, those members want development and all these things. The World Bank is one of the institutions that does that.

We do have dispute mechanisms in other areas. As I alluded to in my speech, this is one of the best dispute mechanisms and it would give investor confidence to both sides of the business community.

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, transparency is one of the things the public is particularly concerned about not only in this agreement but with government processes in particular. People tell me that they have no idea what is going on, that they do not know how to get information and that the information seems quite secretive.

There will be no transparency in this process because the agreements will not be released to the public. The public will not know how the agreements are awarded. If we are interested in transparency or in making a cogent decision, it is interesting to note that there is no allowance for third party, or amicus curiae as the document refers to, to get more information on a decision about to be made.

The bill states that once the consent of a party is given it cannot be revoked. I understand the need for stability and that consent is not given lightly because many things may be dependent upon that. However, it is very worrisome to say that under no circumstances, no matter what happens, consent cannot be revoked. We are not always able to foresee the future. We are not able to say that it will always be fine under these circumstances, that this will be a very binding agreement.

Decisions about how the awards are made will not be available to the public. These decisions will affect the public both here in Canada and abroad in a variety of ways. For the public not to have access to this kind of information because of the lack of transparency is a problem.

Could the parliamentary secretary perhaps describe why no information about the awards should be made available to the public under any circumstances?

[Deepak Obhrai, Conservative, Calgary East, AB]

Mr. Speaker, this dispute is between two parties that have agreed to go in front of an arbitration tribunal. Therefore, it is important to recognize that when two parties go there, they decide what they would like to discuss and how, and they like to keep their affairs out of the public domain unless it is part of a public policy issue.

When an investment is made, the laws of the country are always maintained. As the Parliament of Canada, we create the laws as to how companies will operate in Canada. Any investment that comes into our country will be required to operate under our laws as made by Parliament. That will never change.

The arbitration tribunal will not override the laws of our country. It will only make decisions based on a dispute mechanism for reasons of investment, but our laws, as established by the Parliament of Canada, will be protected.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Mr. Speaker, I am pleased to speak to Bill C-9. It is interesting that the government introduced the bill to promote cross-border investment at a time when it has shown a complete lack of understanding and, indeed, incompetence when it comes to this very issue. Nevertheless, the bill would create a set of rules for mutually agreed upon arbitration, which is important, for hearings between investors and foreign governments.

There is no question that 156 countries have signed on to this and over 144 now have ratified this agreement. Therefore, it is important that Canada be one of those, considering some of our major trading partners, including the United States and Japan, have signed on to it.

There is no question, though, that the government, in doing this, has nevertheless mishandled parts of the economy, as we have seen. We look at the forestry industry as a good example. We look at the manufacturing sector. Clearly, we need to be aggressive in international markets. It is important that our investors have certainty in terms of the investment climate, the investment regime when they are investing abroad. The vast majority of countries, as I said, have signed the ICSID. Therefore, it is incumbent upon Canada to do so.

There is no question that increased trade with countries such as China is important and that we have a governing structure that meets the demands and the needs of Canadian investors abroad. They need to have that assurance with regard to an arbitration mechanism. There is no question it is important that we protect and enhance the rights of Canadian investors.

The ICSID convention is an international instrument sponsored by the World Bank. There may be some members who have concerns about that. I do not. In 2006 the transparency aspects of the governance procedures were toughened. It is important to facilitate the increased flow of cross-border investment, something that we know all too much about in this country.

The convention certainly establishes a mechanism which gives that assurance to Canadian investors, something the investment community has demanded for a while. They believe it is important for them in order to do business, and on this side of the House we agree.

It is also important that we have dispute mechanisms because of problems we have seen in the past. Some countries want investment but are not prepared to provide the kind of investment regime that is stable and that provides the rules of the game for investors.

We cannot encourage people to invest abroad in a particular sector if we are not sure if that investment is protected. We have seen cases of nationalization. These are concerns. We have seen problems in Indonesia when we had the situation with Manulife. To deal with that, it was taken to the supreme court in Indonesia.

Having a stable investment regime is important. Having a mechanism to deal with arbitration is critical.

This has been around since 1966. It is interesting that of the 143 countries that have ratified those instruments, many of them are our major trading partners. We need to be in lockstep with them to ensure we are on the same playing field.

Investment disputes are brought under the convention and are administered by the International Centre for the Settlement of Investment Disputes in Washington, D.C. Its activity has increased over the last number of years. At one time it only handled 110 arbitrations in total for 40 years, but as more and more countries have come on board, it is currently dealing with about 105 disputes at the present time. It is obviously a mechanism that people are using. It is a mechanism in which people believe. It is a mechanism that this side of the House supports.

Obviously the centre was established in the very beginning to provide a reliable and effective instrument for resolving investment disputes. I think that is the one thing that we heard at committee. That is the one thing we continually hear: that this gives certainty and that it is the kind of thing the investment community certainly wants to see.

Once this is ratified, it will allow Canadian investors abroad to go out and make contracts with foreign states. They have that option. If they want to go to the ICSID convention, they can do that. It is an option they will have under this agreement.

As well, Canadian investors doing business in a country in which Canada has a foreign investment protection and promotion agreement will have recourse to this arbitration for violators of the agreement. Again, this is providing assistance in that regard.

I think probably the most important advantage is the enforcement of arbitrary awards. Again, this is something that the committee heard about. Again, it is something that we believe is important. Unlike awards issued by other arbitrary institutions, domestic courts cannot refuse to enforce these decisions that are issued under the ICSID. That is important.

Such awards are enforceable in any country, which is important to underline. It can be enforced in any country that has ratified the convention. I think that makes it extremely important for investors and it is why we need to be part of this. When the final judgments are made, they are enforced.

Canada signed this convention in December 2006. In our federation, British Columbia, Newfoundland and Labrador, Nunavut, Ontario and Saskatchewan have already adopted their own implementing legislation. I think it is important that, again in concert with the provinces and the territories, we move forward on this legislation.

When it comes to investment, the international community is very competitive. If a company is going to make a major decision to invest abroad, it needs to have that certainty. As a country, I think we certainly want to encourage good investment. We want to make sure that when our investors are abroad they are not going to be held to ransom or made hostage to arbitrary changes in government policy abroad.

That is why so many countries have signed on. They believe this is an effective way to go and that it does provide the kind of assurance we need. Certainly on the issues of transparency, the committee heard how that was strengthened. At times, I think, it is important to be part of these international conventions, these international covenants, in order to provide the kind of security we need.

Clearly when countries like the United States, the United Kingdom, and Japan sign on, it is important. Japan has the second largest economy in the world. The Japanese are signators. Japan is a very important market for Canadian business. We often overlook Japan and think about China, but Japan has an economy greater than that all of Asia combined, including China. Again, we have tremendous opportunities in Japan.

There may an opportunity down the road to look at a free trade agreement with the Japanese. The Japanese have become very aggressive lately in signing deals with the Philippines and Mexico, countries with large agricultural sectors. For the Japanese, the agricultural sector is very sacred, yet they have been able to come to agreements with those two countries.

The Japanese are watching Canada's negotiations with South Korea very carefully. Obviously we have issues to deal with, not only in the agricultural sector, and certainly in the automotive sector. Of course, our party has made it very clear that we do not want a deal at any price. We want to make sure that our automotive sector has the kind of ability to go into the South Korean market that we see others enjoy, certainly in terms of what the Japanese are doing here. The Japanese are investing in Canada in the automotive sector and the South Koreans are not. Therefore, we cannot do that.

It is important that the Japanese have signed on. The Germans have signed on. The French have signed on. Again, all of these countries have signed on because they realize how important this convention is. For those of us who understand those market conditions, it clearly is important that we are part of this, so we will support the government on Bill C-9 when it comes to passage of this legislation.

Obviously we are concerned that Mexico, India and Brazil have not yet signed on. Again, the need to continue to encourage them to be part of this international convention is important. It is important to look at the benefits for their investors, as well as ours, as we move forward in this regard.

In terms of its international participation in promoting Canadian companies, the government has had a checkered past, but at least this bill will provide rights for our investors in other jurisdictions. At least on this issue, the government has it right.

Unfortunately, the government still does not understand the problems that our own domestic sectors are having, particularly in the forestry, the manufacturing and the auto sectors. These are issues that this party, the Liberal Party, has articulated for a long time.

Clearly because of the good management of previous Liberal governments, we were able to leave an impressive cupboard in terms of the economic tools that the government has been able to use over the last couple of years. The Conservatives did not do it. It was the Liberal government, working with Canadians, that was able to eliminate the $42.5 billion deficit it inherited from the Conservatives and that was able to make us the only G-7 state paying off our national debt. That is a very impressive record.

When the Conservatives talk about the last 13 years, the last thing they want to talk about is the last 13 years of good Liberal economic management. That is okay, because we know and Canadians know the economic record of this country.

We know what is important in terms of dealing with the business community abroad. That is why we will support this legislation. We believe very strongly that good fiscal tools at home and good investment tools abroad obviously are good for Canadians. They will promote jobs and they will secure jobs. We believe very strongly that this is the way to go.

I would suggest that at the end of the day, when presumably this legislation is adopted, the rules of the game will be very clear. They will be helpful. We should see an increase in people wanting to invest and also of course in encouraging other countries to invest here, because the rules work both ways for those who have signed on. Again, we are looking at 144 countries that have ratified this particular convention so it is something that we see as important.

Of course on this side of the House we believe in sound economic principles and obviously we are prepared, when we see good legislation come forward, to work with the government on it. Obviously if there is bad legislation we are not going to support it, but there is no question that in the standing committee we heard very clearly the need for this legislation and the rationale for it. Again, we will support this legislation as we move forward.

I take it that there will not be support from some of the parties in the House, but nevertheless I think that at the end of the day Canadians will be supportive and appreciative of the fact that the right thing was done and the rules have been made very clear on arbitrational issues. I think that is what is needed and we support it.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Speaker, I thought my hon. colleague's speech was fascinating. It actually fits in very well with an article I was reading in the Winnipeg Free Press today. The headline is: “Grits? Conservatives? Same thing. Poll says Canadians find the two major parties interchangeable”. According to the Canadian Press Harris-Decima survey, Canadians “view the two main political competitors--the Conservatives and the Liberals--as interchangeable”.

If we want proof of that, we only have to listen to what we hear from over there. Of course it was the Liberals as the champions of free trade who told us we would have clear investment rules with NAFTA. What we ended up with were secret tribunals under chapter 11.

I will bring forward the example of Metalclad, the company that went after the Mexican government because it felt that its right to dump toxic waste in a neighbourhood in Mexico was violated. Of course the Liberal Party thought Metalclad's position certainly was violated because it was a corporate investor.

Even though a municipal government, working with the state government and the federal government to protect its citizens, came forward with legislation to stop this toxic dumping, Metalclad had the ability to go before the chapter 11 tribunal, which is similar to what is being proposed with the kangaroo court at the World Bank, where there was an unaccountable forum, where the community and the country could not even bring legal depositions before it, and where the appeals process does not exist.

I love this: at the World Bank, it is going to be secret. It does not even have to tell people when they have been stuck in the back so of course the Liberal Party loves this. This is the Liberals' idea of free trade. It fits in perfectly with the Conservatives' idea.

I have a question for the member. Why do the Liberals not just join up with the Conservatives? They certainly have the same view of the World Bank, which is already a discredited institution in terms of development. They would allow unaccountable, hidden tribunals to go forward with no right of appeal. What does that say for the people of this country?

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Mr. Speaker, the one thing that Canadians will never confuse is the fact that there are only two parties in the House that could be in government and that certainly will not be the member's party. There is no question that when it comes to understanding the economy and investment, it is not that party in the corner.

Obviously the member was not listening. There is no question that when it comes to sound economic policies and understanding them, it was this side of the House, the Liberal Party, in conjunction with Canadians, that was able to turn what was considered by economists and others a basket case in 1995 into an economic marvel. The fact is that we paid off the national deficit and we were paying down the national debt.

The only similarity with the present government in power is that it is simply carrying on the good policies of the Liberal Party in terms of paying off the national debt. That is something the NDP does not know. The NDP is the party that one day stands in the House and says we should spend $5 billion and the next day says we should cut $2 billion. Mathematics is not the forte of the New Democratic Party, so it is understandable that when it puts two and two together and get five those members think that is okay. This side of the House does not believe that.

Let us go back to the point the member was making. In April 2006 the ICSID brought in reforms for transparency: open hearings. Maybe it is okay to have activities at the Montebello in a closed session, I do not know, but on this side of the House we believe in transparency. That is what was brought in: open hearings. Of course there are some caveats when dealing with specific business information, but in general the hearings are open and transparent. The member can read about the changes that occurred in April of 2006. They were established in response to the very issue that the member raises.

Again, Liberals do not support anything which would be done in the backrooms. We believe in transparency and accountability. If the member is suffering from any delusion that his party is ever going to be government, he obviously has consulted Tinkerbell.

[Penny Priddy, NDP, Surrey North, BC]

Mr. Speaker, I am interested, to say the least, in the comments that the member has made, the first one being that it will only ever be the Liberals or the Conservatives that are government. Talk about entitlement, that somehow this member has said that this is an entitlement, that there could only be two parties ever in Canada. I would suggest that perhaps not all Canadians would like their vote nullified and removed.

The other piece I was concerned about was the member talking about following the good policies of the Conservative government. Sometimes it is hard to tell because when members are sitting down during a vote, it is a little hard for me to know whether they are following or not following the policies of the Conservative government.

However, this is a secret tribunal and not every arbitration is secret as we heard argued earlier by the parliamentary secretary. These are secret. There is no access by the public to the results of the arbitration at all, so I do not know how anyone could argue that these are not secret tribunals and the information is therefore not kept secret afterward.

I would like to hear the member describe why he would not describe this as a secret tribunal if only the two parties and the people in the World Bank are the only individuals who are allowed access to that information.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Before I directly answer that question, Mr. Speaker, I would point out that for a party that has attacked the government for saying it is the “new government of Canada”, the New Democratic Party has been around for about 40-odd years and it is still only at 29 or 30 members. I would suggest that the reality at the moment is that the only two parties that seem to be realistically looking to form a government are the two here.

However, on the question of entitlement, those party members think they are entitled to make all sorts of statements that are not based on fiscal reality and yet expect people to buy them.

In answer to the question, maybe the member should go to the website. If the member went to the ICSID website, she would find that all awards by the tribunal are posted. So, I am not sure what the problem is. If the website posts all details of the awards, the information is there. It does require turning on a computer. It does require that one finds the website and it does require that one reads it. But beyond that, all the information is there.

I would suggest that this is accountability. It is very useful obviously, people are going to look at that. If the member does not have the website, I would be more than happy to share it with her later, but it is important not to suggest or mislead Canadians that somehow this is all done behind closed doors. There is a process.

I have made it very clear what that process is and from that perspective, that information is on the website in terms of all of those awards. Access to those awards is there. That is something we would expect, Canadians would expect, and it is there. Beyond that, I do not know what else to say. Access is right there at one's fingertips.

[Paul Dewar, NDP, Ottawa Centre, ON]

Mr. Speaker, I was not intending to make a comment or question but I do have to clarify something. I have the blues from committee in my hand and on the question of transparency, indeed there were changes made and proposed April 2006. What is important to note, and I asked the very question in committee to a witness, is that there are a couple of changes. In April 2006 the information I had suggested regarding amicus curiae briefs was not allowed and now the member is saying that has changed. The witness was responding with the same information as the member has given.

What it says and what the witness says is that there is a process now to ask tribunals to submit an amicus curiae brief or the equivalent of that at the discretion of the tribunal depending on how helpful it can be and how relevant it is.

Yes, there have been changes made. Obligations there are not. When the member says it is absolutely transparent and we can go on the website, I have done it, but one will not get chapter and verse. In fact, all one can get is what the tribunal deems to be relevant, deems to be something that it wishes to pass on. So it is important to clarify that and I would like my colleague to respond to that as well.

[Bryon Wilfert, Liberal, Richmond Hill, ON]

Mr. Speaker, I have some blues in front of me and as the member knows, the same application applies domestically. There are exceptions, absolutely, but to suggest, as his party has done, that everything is behind closed doors, that there is no transparency and that none of this exists is absolutely, blatantly false. We know that is false.

There are exceptions as there are domestically but the reality is that in the main we have an open, transparent process, and have the ability to look at the renderings of the tribunal. That is what we would expect, that is what is there, and it stands for itself.