Foreign Affairs committee  I will take a stab at this. First of all, in terms of the status, we don't know the status. We know, informally, that Mexico would like to assent to it, but we don't know anything further. This really is an in-house domestic matter for those countries. In terms of implications for Canadian investors, presumably it means that when they are dealing with those states, resort to the ICSID facilities would not be possible.

Foreign Affairs committee  Would this be Canadian investors in particular?

Foreign Affairs committee  I think Mr. Ready might want to speak to this a little bit as well. The Department of Foreign Affairs has various links with stakeholder groups, people who are interested. At times they will have companies that are investing in other countries and that are concerned or interested about this issue asking them, “Is there a treaty with this country, with what kind of protection?”

Foreign Affairs committee  It's not expected to lead to increased litigation because this convention would allow us to have ICSID as an arbitral facility. In other words, it makes it available as a facility, but it doesn't give any substantive rights to start any kind of actions or claims. So it doesn't give you additional rights, those are already there.

Foreign Affairs committee  If I may, I'll start with the last one. What took so long? That's a really good question. We ask ourselves that, and have for a long time. We always ask ourselves that because, frankly, we see this as a completely good-news story with no bad impacts. It really shouldn't be controversial.

Foreign Affairs committee  Yes, okay, I can do that. It goes back to one of the first issues we were discussing this morning. A variety of rights are standard in these treaties, and the FIPA provides substantive protection--the right, for example, not to be expropriated, and the right not to be discriminated against in terms of national treatment.

Foreign Affairs committee  We are just checking. We have a list of countries that have acceded and the territories they might have brought with them. I can't answer that off the top of my head, but it's certainly public knowledge, and we're trying to see if one of the materials we have from ICSID lists that.

Foreign Affairs committee  What the federal government has said to all the provinces is that if you want to be what's called “designated” as a constituent subdivision, just tell us and we will do that. The one thing you have to do before being designated is pass your own legislation, basically similar to this kind of legislation, enabling it.

Foreign Affairs committee  Transparency, as you know, has been a big issue in international arbitration. ICSID itself has actually taken a lead, and they amended their rules in April 2006 to go farther on transparency than any of the other existing regulations. Now at ICSID it is standard to have open hearings.

Foreign Affairs committee  There is a process now to ask tribunals to submit an amicus curiae brief, or the equivalent of that. It is always at the discretion of the tribunal, depending on how helpful it can be and on how relevant it is. That's exactly the same kind of test we have domestically.

Foreign Affairs committee  No, it's not on consent. A tribunal could, if it were interested; even if a party didn't want the amicus to submit a brief, the tribunal could say, no, we actually would like to hear this. In fact, that has happened.

Foreign Affairs committee  No. Again, I get back to the basic difference. There are two things to distinguish. On the one side, NAFTA--or FIPAs--gives you a substantive right. You will not expropriate, you will not discriminate--that kind of thing.

Foreign Affairs committee  Yes, there is a panel. That's right. And the procedural rights come under a variety of instruments. ICSID is but one of those instruments. If, for example, ICSID had been in place, if we had done this before those cases were brought up, the investor, for example, in the Canadian cattlemens' case, would have had the option of requesting that the case be heard by an ICSID convention panel at the ICSID facilities, and if they were successful, then enforcement would have come through ICSID.

Foreign Affairs committee  Definitely it would have been one more option...that's right; a positive option? It would have been one more choice they would have had. It would give them the option of...the leader in, you know, the world's running these and enforcement. It would have been the easiest enforcement mechanism--so not just another option but probably the best option.

Foreign Affairs committee  In terms of costs, the cost of the running of the organization essentially is already covered by the contributions Canada makes to the World Bank. So that's basically covered. Now, the fact is that in each individual arbitration, a tribunal has, at the end of the day, the right to say that one party or the other will cover the costs of the tribunal, that kind of issue.