My name is Michael Woods. I'm a trade lawyer at Heenan Blaikie just down the street here on Metcalfe. That's why I'm here--because I'm just down the street on Metcalfe. The person you really wanted to hear from, Professor Todd Weiler, my good friend, wasn't able to make it from London because of the weather. He sends his apology.
I won't make a real opening statement. I'm just here to explain that I'm pinch-hitting and that I wasn't involved in the case on either side. I can answer questions to the best of my ability. I haven't delved into the case in any great detail. We in the trade bar, of course, follow these different chapter 11 cases.
I'm very interested in the federal-provincial aspect. I'm very interested in the questions of how people perceive the NAFTA going forward. I'm very interested in the idea that we should not consider ourselves being at a fixed point. It's awfully hard to open trade agreements and amend them, and the danger of doing that—and we've had those discussions before about NAFTA—is that you could lose the whole agreement. I think there's a trade-off in terms of the NAFTA, and indeed NAFTA chapter 11, and it would be a bad day if we had to tear up the whole agreement or if it were to be de-liberalized, let's say.
That said, I think there's lots of scope and lots of room for administrative mechanisms and ways to approach trade as we're going forward.
I'm proud to say that my firm advises the Government of Quebec in the Canada-EU free trade negotiations, and in that context I believe we are seeing more involvement. I'm not directly involved in those discussions--it's Pierre Marc Johnson and Véronique Bastien of our Montreal office--but I see more and more interchange between the provinces and the federal government as we move forward with these trade agreements, because there's a recognition that the trade agreements affect provincial jurisdictions as well as federal and that there's a lot at stake.
It's not a one-way situation. The reason we have the aspects of chapter 11 and investor-state dispute settlement, which is the big issue, is that it's a mechanism that's 100 years old and has been protecting Canadian, European, and American investors all around the world. It's something we seek to protect our investments.
Trade works as a two-way street. Countries that were the developing countries that we wanted protection in are now countries like Brazil, which are investing huge amounts of money in Canada. The investment between the United States and Canada is huge. I don't have the statistics with me, but there's this added protection.
Obviously I have a vested interest. I've been counsel on NAFTA cases. I've been co-counsel with Todd Weiler, so I have that particular point of view, but I think that progress can and should be made on the federal-provincial aspects. It is possible and it's doable.
Finally I'd like to say that having just come in as a pinch-hitter and looked through the case very briefly, my view is.... I've worked at the trade law division. I was there when we negotiated the NAFTA. I was there when we negotiated the FTA. I was there during the Uruguay Round. I'm not that old, so I wasn't there during the Tokyo Round, but I've been there: I've acted on government teams defending and I've acted as claimant counsel.
The only documents I have are the claim for arbitration, the notice of intent, and the claim itself. I know the lawyers on both sides. I think the lawyers took a calculated view of the situation, and they came out with a settlement. I can't comment on the politics of the settlement and I can't comment on how the situation came to be where it was, but if I were sitting there as counsel on either side, I would think that the deal that was struck would be a reasonable one. If I were sitting with the trade law division going back to government, or if I were advising AbitibiBowater, I would say that there would be risks in going forward and that this is a settlement we can live with.
As to the other related elements, I don't have a clear picture of what was going on because I wasn't involved. Perhaps that allows me to speak more freely; I am speaking today as an individual. However, I can tell you this: if you have a hard question and you get two answers from two different lawyers, as you were saying, I have with me Alexandra Logvin, who joined the firm as a student working on a NAFTA chapter 11 case. She has great experience in international arbitration. She's worked with the federal government as well. She worked on the UPS case. She's worked with us and with Todd Weiler on claimants' cases.
That includes, I must tell you, for those of you who wonder about the balance of how the NAFTA could work, that I'm proud to say that we fought for the feedlot operators of Picture Butte and Lethbridge and so on when the border was shut because of BSE. We took a case forward for individual cattle lot operators, and we consolidated the case.
So it's not just about big corporations suing or making claims against the government; the tool can be used by anybody who has an investment. One of the problems, frankly, and one of the things that I would like to see would be more empowerment for individuals, for corporations, to be able to take on governments directly, at their own expense, and to find ways to set up tribunals so that they're less ad hoc and more cost-effective--and therefore less costly--for individuals who should be able to take on countries that are harming their investments or their trade rights, just as you can sue the government in Canada.
I said I wasn't going to make an opening statement, but if you put a lawyer in front of a mike, that's what happens.