International Trade committee  Yes. I support international commercial arbitration, what I would call forums of arbitration where it's classical, it's reciprocal. Either side can sue each other. The companies can sue each other under the contract. If it's a state and a company, they can sue each other under th

International Trade committee  My point would be yes. That's the point: the contract includes agreements to go to commercial arbitration. That's entirely appropriate. But the treaty arbitrators have not done what courts would typically do, which is show deference to party autonomy based on the contract. They d

International Trade committee  Many of the disputes under these kinds of treaties involve what I would call privatizations gone wrong. A privatization contract has been concluded, is put into effect, and there is public concern—public opposition, or the government has concerns—about how the private operator is

International Trade committee  Have I worked in the private sector as a lawyer or researcher? No.

International Trade committee  It's interesting. When I first encountered this stuff about 15 years ago as a student, I was quite skeptical. I encountered it especially through an agreement called the Multilateral Agreement on Investment, and at that time I had a lot of reservations. Since doing my Ph.D., I've

International Trade committee  If it were a judicial process, there would be a roster of individuals who are members of the court. They would be assigned case by case based on some rules of the court, whether through rotation or random assignment, some decision of the chief justice of the court. In this case

International Trade committee  I personally have raised concerns. In the literature, in the discussion about it in the field, it's usually called the club. The arbitrators come from the club of arbitrators. I think it's fair to say they appear to have an interest in favouring claimants, because if claimants do

International Trade committee  It depends a bit. If the claim is brought at ICSID, which seems quite possible under the Canada-EU CETA, there would be an opportunity to seek annulment of an award. The annulment committee would be made up of three other arbitrators, all of whom are appointed under the authority

International Trade committee  Canada has won about half of the time when they have been sued. But Canadian investors, when invoking the investor-state arbitration mechanism under NAFTA against the United States, or in a number of FIPAs against a number of countries, have a record of zero wins and eighteen los

International Trade committee  Okay. Thank you. Maybe I'll just highlight one other aspect that I thought was significant in light of both the technical summary and the leaked draft. The technical summary makes a claim that the right to regulate of Canada and of European governments has been preserved. Ther

International Trade committee  I'm afraid my French is not that good, but I understood you to ask who the persons are, in a sense, in the arbitration process. I don't have a translation device.

International Trade committee  Thanks very much. I obviously need to come here more often.

International Trade committee  Thank you very much, Mr. Chair. It's always an honour to have the opportunity to present to this committee. The Canada-EU CETA was announced in October as having been a completed deal. Since that time over four months ago, still no text of the deal is available publicly, so it m

International Trade committee  Yes, we're very familiar with it in our own domestic law systems in many countries. We have courts that are independent. In some cases, they can override legislatures. That's all very familiar and well established. Investor-state arbitration is different because it's not a judici

International Trade committee  I would suggest that many of our FIPAs don't raise the issue to the same degree as the FIPAs do—and I'll mention the FIPA with China—with major countries or the CETA with Europe, because they just really don't cover very much investment in Canada. So I would suggest perhaps that