Yes, that is a good question. I would like to come back to Mr. Shrybman's argument, which in my view hits the nail on the head.
Before deciding if we should make improvements to chapter 11, we should determine whether it helps promote investments. It is quite unclear whether chapter 11 and the protections therein, especially its arbitration measures, foster investments in Canada and abroad. The first step is to determine whether the arbitration process is useful. If it is found to be a good way to promote investment, then changes could be made.
Clearly, one has to distinguish between a non-compensable regulation and a compensable expropriation, whether it be direct or indirect. Chapter 11 is very clear on that issue: expropriation, whether direct or indirect, is compensable. The chapter refers to “measures tantamount to expropriation”, meaning measures that very closely resemble expropriation. There could be a very clear definition of a non-compensable regulation, so that Canadian jurisdictions are aware, from the outset, of the measures that can be taken in the interest of Canadians, without having to worry about any potential arbitration.