International Trade committee  That's precisely the paragraph I'm most concerned about. In and of itself, it's open-ended drafting, whereas more modern drafting around the world is becoming much more specific and refined. The standard referred to there is an open-language standard of customary international law.

International Trade committee  Yes, there are. Specifically, there's one in India under a similar jurisdictional set-up to ours in terms of separation of powers, the judiciary and the legislative, and so on. There's a case against India that has done exactly that: a Supreme Court decision in favour of the government and an arbitration decision that reviewed, overrode, and essentially reversed that Supreme Court decision.

International Trade committee  Yes, but that doesn't make it any better for me. It seems to me that the standard we want is not one that simply amplifies and increases on a continual basis the rights of corporations, whether they're foreign corporations in Canada or Canadian corporations outside Canada. It seems to me the standard we ought to be achieving or striving for is one that's balanced, equitable, and properly reflects the ongoing right to regulate all investors and doesn't provide, let's say, hyper levels of protection to investors just because Canadian investors are also getting those abroad.

International Trade committee  It's correct that there's nothing that forbids or prevents or precludes governments from taking new measures in a legal sense. The problem arises from the risk of increased challenges on increasingly broad investor rights that can lead to more risk of the government having to pay damages, including the Canadian federal government having to pay damages, because Canada is party to the treaty, if a provincial measure is found to be inconsistent with CETA.

International Trade committee  No, I don't think so.

International Trade committee  Because it isn't the governments that initiate the arbitrations. It's purely the investors who have the right to do that, and because they have the right to do that, if they consider a change in the law to have an economic impact on them, and if they consider in some way that change is protected against by the investment treaty, irrespective of the level of environmental protection in their home state—that's simply an irrelevant factor—then they can initiate the arbitration.

International Trade committee  No, I wouldn't agree with that. We are very well-staffed with very competent lawyers in the Department of Justice—

International Trade committee  We're very well-staffed. I think we'd be much better off to invest the time and energy in being a little more careful in the drafting of the kinds of provisions I talked about.

International Trade committee  I don't think the narrowing of the definition of investor in this case has the impact of altering the financial benefits very much. There are still multiple ways around that. Yes, it's a welcome provision in terms of the technical details of the investor-state process, I agree with that.

International Trade committee  I presume not.

International Trade committee  Well, no less favourably is the technical language. So it doesn't have to be the same, but the net impact is no less favourable.

International Trade committee  Presumably, yes, as long as it was drafted that way.

International Trade committee  You're asking specifically on one particular provision—

International Trade committee  Yes. If the provision was drafted so that it would apply to all companies, that would be correct.

International Trade committee  Correct.