Thank you for the question. I think it's a good one, and I think it starts moving us towards solutions. While we're dealing with the conflict in this scenario, it does point us towards the need for changes. It also gives me a chance to provide what I think is a different perspective from what Mr. Shrybman provided in relation to Peter Julian's questions on Canada's negotiations of bilateral investment treaties and what direction they have taken on investment negotiations.
First, in terms of distinct improvements that could and should be made in the future, it's very clear that we need the Canadian government to negotiate very clear, bright-line distinctions as much as possible between what are compensable expropriations—whether they're direct or indirect expropriations—and what are non-compensable public regulations. That's absolutely critical.
The second area where the bilateral investment treaties or chapter 11 types of provisions could be improved in terms of promoting sustainability while we're promoting international trade and investment...and this goes back to a point that Mr. Shrybman made earlier, that chapter 11 is a decidedly one-way street. It guarantees foreign investor protections by the host state that the foreign investor can enforce through arbitration; however, there are no corresponding obligations on the foreign investor. There are no mechanisms to hold foreign investors accountable for breaches of international law—for instance, international human rights law and environmental law—through a binding arbitration mechanism. They have a mechanism to challenge measures that they feel affect their investment, but citizens of the states of the party or the parties themselves don't have that same mechanism to challenge their actions. So I think it has to be made a two-way street.
I would simply say, though, to return to Mr. Julian's question—I don't think it would be fair to say that the Canadian government has been standing still in relation to its investment treaties. I think they have definitely made some improvements, and the history of chapter 11 disputes has assisted them in moving towards improved investment protection processes. In 2001 the NAFTA Free Trade Commission issued an interpretive statement on chapter 11—this was really one of the first steps forward—and it issued guidelines on non-disputing party participation in chapter 11 arbitrations. Those are people like us who want to be part of the process. They made it clearer that the arbitrations would be open to the public and that the draft negotiating texts, when they're negotiating these deals, would be made open to the public.
Canada has released--and this is old news, from 2004--a new model foreign investment protection agreement, a FIPA, which serves as the template for negotiations of bilateral investment treaties and for chapter 11-like provisions in trade agreements.
I would certainly not suggest that the 2004 FIPA is perfect; I think there are a lot of things that could be improved with it. This is simply to say that since NAFTA has been signed, Canada has been moving forward and they've been making suggestions for changes in these bilateral investment treaties in relation to issues that we're talking about here: scope of expropriation, a minimum standard of treatment, and access to hearings.
The yardsticks have been moving forward, but not enough. I'm happy to speak to some of the areas where they have moved forward. I don't want this to be all doom and gloom. I think a balanced perspective is necessary on this issue. I don't think it's necessarily helpful to have a really polarized discussion about chapter 11. But if chapter 11 were to be reopened, if there were a will to do that, I think many measures could be taken to ensure not only that investors are protected but also that civil society is protected and the measures go in both directions.