Canada continues to build its investment treaty network. Since August 2016, the following FIPAs have been entered into force: Canada-Burkina Faso, Canada-Cameroon, Canada-Guinea, Canada-Hong Kong, Canada-Mongolia, and Canada-Senegal. The following FIPAs have been signed but not yet in force: Canada-Kosovo and Canada-Nigeria. Canada has also signed an expanded FTA with Ukraine, which entered into force on 1 August 2017.
In October 2016, Canada and EU signed CETA during the EU-Canada Summit. In February 2017, the European Parliament approved CETA. In May 2017, the Canadian bill to implement CETA received royal assent. CETA took provisional effect as of 21 September 2017. The investment arbitration provisions of the CETA did not take provisional effect.
On March 8, 2018, together with other signatory States, Canada signed the Comprehensive and Progressive Agreement for Trans-Pacific Partnership Agreement (CPTPP) in Santiago, Chile. The CPTPP incorporates most of the Trans-Pacific Partnership (TPP) by reference, and includes all previous TPP States with the exception of the United States. As of 31 July 2018, the issue of ratification remains before parliament.
US President Donald Trump threatened to terminate NAFTA if the parties (Canada, the United States of America and Mexico) do not agree to a massive overhaul to its terms. The parties are commenced formal negotiations starting the summer of 2017, with talks expected to proceed beyond 31 August 2018.
- Hugh M. Kindred & Phillip M. Saunders et al., International Law: Chiefly as interpreted and applied in Canada, 7th Ed. (Toronto: Emond Montgomery Publications, 2006) – provides the Canadian perspective of international law including its treaty-making practice
- Frédéric Bachand, “Overcoming Immunity-Based Objections to the Recognition and Enforcement in Canada of Investor-State Awards” (2009) 26:1 Journal of International Arbitration 56 – focuses on recognition and enforcement in Canada
- Gus Van Harten, “Reform of Investor-State Arbitration: A Perspective from Canada”, online: (2011) SSRN (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1960729) – Canada-specific content on reform
- Meg Kinnear, Andrea Bjorklund, John F. Hannaford, “Investment Disputes under NAFTA”, (2006) http://www.kluwerarbitration.com/book-toc.aspx?book=TOC_Kinnear_2006_V02 – provides a comprehensive review of the history of NAFTA disputes at the time
- Meg Kinnear & Robin Hansen, “The Influence of NAFTA Chapter 11 in the BIT Landscape” (2005) 12 U.C. Davis J. Int’l L. & Pol’y 101 – NAFTA investment arbitration practice description
- Tim Kennish, “NAFTA and Investment – A Canadian Perspective” in Seymour J. Rubin & Dean C. Alexander (Eds.), NAFTA and Investment (Unknown: Kluwer Law International, 1995) at 1 – provides the Canadian understanding of the NAFTA
- Ian Laird, Borzu Sabahi, Frederic Sourgens and Todd Weiler, eds, Investment Treaty Arbitration and International Law, Vol 7 (New York, USA: JurisNet, LLC, 2014) – focuses on international investment treaty arbitration in the energy sector
- Barry Leon, Andrew McDougall & John Siwiec, “Canada and investment treaty arbitration: three prominent issues - ICSID ratification, constituent subdivisions, and health and environmental regulation” (2011) 8 S.C. J. Int’l L. & Bus. 63
- James A.R. Nafziger & Angela M. Wanak, “United Parcel Service, Inc., v. Government of Canada: An Example of a Trend in the Arbitration of NAFTA-Related Investment Disputes” (2009) 17 Willamette J. Int’l L. & Disp. Resol. 49 – a description of prevailing practice at the time
- Sergio Puig & Meg N. Kinnear, “NAFTA Chapter Eleven at Fifteen: Contributions to a Systemic Approach in Investment Arbitration” (2010) 25 ICSID Review – F.I.L.J. 225 – one of the most recent surveys of the NAFTA investment arbitration in practice
- Huan Qi, “The Definition of Investment and Its Development: For the Reference of the Future BIT between China and Canada” (2011) 45 Revue Juridique Themis 541 – discusses one of the most highly-anticipated treaties Canada has concluded in recent times
- J Anthony VanDuzer, “NAFTA Chapter 11: ‘Canada’ in the Legal Protection of Foreign Investment: A Comparative Study”, online: (2012) SSRN (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2298693) – discussion of Canada’s domestic law and international commitments related to inward foreign investment
- Todd Weiler, NAFTA Investment Law and Arbitration: Past Issues, Current Practice, Future Prospects (Unknown: Transnational Publication, 2004) – provides an insight into the NAFTA investment arbitration practice 10 years after it came into force.
- Paul Meyer, John A Terry, and Elliot J Feldman, “North American dispute resolution”, Canada-United States Law Journal Spring 2010: 399
- Anthony J. VanDuzer, “Enhancing the procedural legitimacy of investor-state arbitration through transparency and amicus curiae participation”, McGill Law Journal Winter 2007: 681
- Gus Van Harten, and Dayna Nadine Scott, “Investment Treaties and the Internal Vetting of Regulatory Proposals: A Case Study from Canada”, (December 7, 2015). Osgoode Legal Studies Research Paper No. 26/2016. Available at SSRN: http://ssrn.com/abstract=2700238 or http://dx.doi.org/10.2139/ssrn.2700238
- Anthony J. VanDuzer, “Canadian Investment Treaties with African Countries: What Do They Tell Us About Investment Treaty Making in Africa?”, (July 5, 2016). Society of International Economic Law (SIEL), Fifth Biennial Global Conference Working Paper No. 2016/23. Available at SSRN: http://ssrn.com/abstract=2804907
- Dan Ciuriak and Dmitry Lysenko and Jingliang Xiao, “Province-Level Impacts of Canada’s Trade Agreements: Ontario and the Canada-Korea FTA”, (December 24, 2014). International Trade Journal, published online 11 September 2015, DOI: 10.1080/08853908.2015.1064333. Available at SSRN: http://ssrn.com/abstract=2542568 or http://dx.doi.org/10.2139/ssrn.2542568
- Dan Ciuriak, “Advantages and Disadvantages for Canada of Multilateral, Regional and Bilateral Trade Agreements”, Regional and Bilateral Trade Agreements (February 18, 2016) (2016).
- Matthew Levine, “Canada-China FIPA & Canada-Korea FTA: Recent Canadian Pieces in the Pacific-Rim Investment Treaty Jig-Saw”, Transnational Dispute Management (TDM) 12.1 (2015).
- Kurt Hubner, Anne-Sophie Deman and Tugce Balik, “EU and trade policy-making: the contentious case of CETA”, Journal of European Integration, Volume 39, 2017 – analyses the CETA agreement critically and assesses how CETA was pushed by a coalition of sectoral actors amongst an anti-free trade background.
- Nathalie Bernasconi-Osterwalder and Howard Mann, “A response to the European Commission’s December 2013 Document ‘Investment Provisions in the EU-Canada Free Trade Agreement (CETA)’”, 2014 IISD Report – examination of the text of the draft CETA investment chapter
- Gus Van Harten, “Comments on the European Commission’s Approach to Investor-State Arbitration in TIPP and CETA”, online: (2014) SSRN (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2466688) – response to the European Commission’s proposed approach to investor-state arbitration
- Kevin Ackhurst, Stephen Nattrass and Erin Brown, “CETA, the Investment Canada Act and SOEs: A Brave New World for Free Trade” ICSID Review 31.1 (2016): 58-76.
The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and Trans-Pacific Partnership (TPP)
- Jeff Kucharski, “Energy, Trade And Geopolitics In Asia: The Implications For Canada”, (July 2018) The University of Calgary School of Public Policy
- Office of the Chief Economist, “Economic Impact of Canada’s Participation in the Comprehensive and Progressive Agreement for Trans-Pacific Partnership”, (February 16, 2018) Global Affairs Canada
- Brook K. Baker, and Katrina Geddes, “Corporate Power Unbound: Investor-State Arbitration of IP Monopolies on Medicines - Eli Lilly v. Canada and the Trans-Pacific Partnership Agreement”, (September 29, 2015). Northeastern University School of Law Research Paper No. 242-2015; Dean Rusk International Center Research Paper No. 2016-13. Available at SSRN: http://ssrn.com/abstract=2667062 or http://dx.doi.org/10.2139/ssrn.2667062
- Caroline Henckels, “Protecting Regulatory Autonomy Through Greater Precision in Investment Treaties: The TPP, CETA and TTIP”, (January 25, 2016). 19(1) Journal of International Economic Law, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2721523
- Laura Ritchie Dawson and Bartucci Stefania, “Canada and the Trans-Pacific Partnership: Entering a New Era of Strategic Trade Policy”, (September 5, 2013). Fraser Institute, September 2013. Available at SSRN: http://ssrn.com/abstract=2321920
- Dan Ciuriak, “Canada and the Trans-Pacific Partnership: Considerations for the Ratification Debate”, (June 25, 2016). Available at SSRN: http://ssrn.com/abstract=2798438
- Laura Ritchie Dawson, “Can Canada Join the Trans-Pacific Partnership? Why Just Wanting it is Not Enough”, (February 9, 2012). Available at SSRN: http://ssrn.com/abstract=2023963 or http://dx.doi.org/10.2139/ssrn.2023963
- Dan Ciuriak, Ali Dadkhah and Jingliang Xiao “Better in than Out? Canada and the Trans-Pacific Partnership”, Canada and the Trans-Pacific Partnership (April 21, 2016). CD Howe Institute ebrief 236 (2016).
- Clifford Sosnow and Leslie Milton, “Trans-Pacific Partnership: Key Takeaways on Canada” Global Trade and Customs Journal 11.4 (2016): 203-209.
- James Rude and Henry An, “Trans-Pacific Partnership: Implications for the Canadian industrial dairy sector” Canadian Public Policy 39.3 (2013): 393-410.
- Chin L.Lim, Deborah Kay Elms, and Patrick Low, “The trans-pacific partnership: a quest for a twenty-first century trade agreement”, Cambridge University Press, 2012.
- Daniel Kiselbach et al. “Demystifying the Trans-Pacific Partnership: An American and Canadian Perspective”, Global Trade and Customs Journal 8.11 (2013): 413-429.
- Kennedy Michael, “Canada and the Trans-Pacific Partnership”, Munich, GRIN Verlag, (2012) Availaible at: http://www.grin.com/en/e-book/201516/canada-and-the-trans-pacific-partnership
- N.Gal-Or, “Canada’s Anti-Corruption Framework and the Relevance to the Pacific Rim and TPP Negotiations” Transnational Dispute Management (TDM) 12.1 (2015).
*With thanks to Scott Lin (in 2018); Jake Zhong (in 2017); Chiedza Museredza and Bianca Ponziani (in 2016); Roger Tangry and Jennifer Choi (in 2015); Paul Moon and Inaki Gomez (in 2014); and Alejandro Barragan and Paul Moon (in 2013) for their valuable assistance.
1 The majority of Canada’s bilateral investment treaties (BITs) are known as Foreign Investment Promotion and Protection Agreements (FIPAs). Canada’s sole multi-lateral investment treaty (MIT) is Chapter Eleven of NAFTA. Canada also has a limited number of bilateral free trade agreements (FTAs) containing an investment chapter (FIPAs, NAFTA and relevant FTAs are collectively referred to herein as treaties). As of 10 August 2018, Global Affairs Canada reports that, in 2014, Canada and Kosovo agreed to begin negotiations towards a FIPA, which was signed by Ministers on March 6, 2018, in Toronto. Moreover, in addition to the treaties listed on its website as being in force or signed (but not yet in force), Canada has concluded negotiations of FIPAs with Albania, Bahrain, Madagascar, Moldova, the United Arab Emirates and Zambia. It is also engaged in ongoing FIPA negotiations with Democratic Republic of Congo, Gabon, Georgia, Ghana, India, Kazakhstan, Kenya, Macedonia, Mauritania, Mozambique, Pakistan, Qatar, Rwanda, and Tunisia. Negotiations over future FTAs with the Caribbean Community, the Dominican Republic, El Salvador, Guatemala, Nicaragua, India, Japan, Mercosur (Argentina, Brazil, Paraguay, Uruguay), Morocco, and Singapore remain ongoing.
A current list of Canada’s treaties in force, signed, and under concluded or ongoing negotiation is available at http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/index.aspx?lang=eng&view=d.
Certain treaties, such as the Canada – Israel Free Trade Agreement (CIFTA) and the Canada-European Free Trade Association (EFTA) FTA, do not contain investment protection provisions and are not included in the table.
CETA: In October 2016, Canada and the European Union (EU) signed the Comprehensive Economic and Trade Agreement (CETA) during the EU-Canada Summit. In February 2017, the European Parliament approved CETA. In May 2017, the Canadian bill to implement CETA received royal assent and the agreement took provisional effect on 21 September 2017, but not the investment arbitration provisions.
CPTPP: On 8 March 2018, together with other signatory States, Canada signed the Comprehensive and Progressive Agreement for Trans-Pacific Partnership Agreement (CPTPP) in Santiago, Chile. The CPTPP incorporates most of the Trans-Pacific Partnership (TPP) by reference, and includes all previous TPP States with the exception of the United States. Canada has yet to ratify the CPTPP. As of 31 July 2018, the issue of ratification remains before parliament.
NAFTA: On 16 August 2017, the United States, Canada and Mexico began renegotiations of NAFTA with the goal of modernizing the trade deal. After months of talks, NAFTA parties have failed to reach a deal thus far.
2 Canada’s second generation treaties typically provide for a waiting period of six months from the date the dispute was first initiated. NAFTA, the FTAs and more recent FIPAs typically provide a notice period of 90 days (four months in the case of China) plus a requirement for the passage of six months from the occurrence of the events giving rise to the claim before it can be submitted to arbitration. The “cooling-off period” shown here is the prescribed waiting period following the initiation of a dispute or giving notice of intent to submit a claim to arbitration, as the case may be, but practitioners should be mindful of other conditions precedent to submission of a claim.
3 Canada’s earliest treaties contain no restrictions on access to the local courts of the host state and are thus shown as “Unrestricted”. Canada’s second generation of treaties typically provide that “An investor may submit a dispute as referred to in paragraph (1) to arbitration in accordance with para-graph (4) only if: […] (b) the investor has waived its right to initiate or continue any other proceed-ings in relation to the measure that is alleged to be in breach of this Agreement before the courts or tribunals of the Contracting Party concerned or in a dispute settlement procedure of any kind”. An analogous requirement usually exists for cases where the claim is brought on behalf of an enter-prise owned or controlled by the claimant investor that is incorporated under the law of the re-spondent state. These treaties are shown as “Limited”. Most of Canada’s recent treaties contain a similar provision but permit the claimant investor to initiate or continue proceedings for “injunctive, declaratory or other extraordinary relief, not involving the payment of damages”. These are shown as “Limited except for declaratory relief”.
4 Article X(3) of the treaty provides that: “The aforementioned disputes may be submitted to inter-national arbitration by one of the parties to the dispute in one of the following circumstances: (i) where the Contracting Party and the investor have so agreed; (ii) where, after a period of eighteen months has elapsed from the moment when the dispute was submitted to the competent tribunal of the Contracting Party in whose territory the investment was made, the said tribunal has not given its final decision; (iii) where the final decision of the aforementioned tribunal has been made but the Parties are still in dispute.”
5 The Canada-China FIPA contains a detailed set of requirements for initiating arbitration. Amongst these requirements is a 30-day cooling off period for consultation after the delivery of a notice of intent to commence arbitration. However, this is only one of several procedural pre-requisites to filing an arbitration claim, with others set out in Article 21 of the FIPA.
6 Article 21(2)(e) of the treaty requires the claimant investor to waive its right to initiate or continue dispute settlement proceedings under any agreement between a third state and the respondent host state in relation to the measure(s) at issue. Annex C. 21(2) provides that “An investor who has ini-tiated proceedings before any court of China with respect to the measure of China alleged to be a breach of an obligation under Part B may only submit a claim to arbitration under Article 20 if the investor has withdrawn the case from the national court before judgment has been made on the dis-pute. This requirement does not apply to the domestic administrative reconsideration procedure re-ferred to in paragraph 1”.
7 Section D of the treaty includes special provisions regarding arbitration for disputes arising from juridical stability contracts.
8 Canada and Costa Rica are also parties to an FTA of 1 November 2002, which refers to the earlier FIPA with respect to investment protection. There were discussions in an effort to broaden and modernize the FTA with Costa Rica. However, Foreign Affairs and International Trade Canada’s website no longer includes Costa Rica as a party to any ongoing or exploratory negotiations. Therefore, it is unclear if the modernization of the FTA will come to fruition.
9 On 19 May 2017, Canada received a notice by the Government of Ecuador terminating the Canada-Ecuador FIPA.
10 Article IX(2) of the treaty provides: “Any dispute that may arise under this Agreement between one Contracting Party and an investor of the other contracting Party, other than a dispute mentioned in paragraph (1) of this Article [i.e., expropriation], shall, to the extent possible, be settled amicably. If the dispute has not been settled amicably within a period of six months from the date on which the dispute was initiated, it shall be submitted to arbitration in accordance with paragraph (3) of this Article, upon agreement between that Contracting Party and the investor.”
11 The Canada–Jordan FTA was brought into force on 1 October 2012, but contains no investment chapter. The 2009 FIPA still applies.
12 The 2007 FIPA was superseded by the investment chapter in the Canada-Peru FTA (1 August 2009), but remains in force with respect to measures occurring prior to the entry in force of the FTA (See Canada-Peru FTA Article 801(2)).
13 Further to the dissolution of the USSR in 1991, the treaty now binds Russia as the continuing State.
14 Foreign Affairs and International Trade Canada’s website no longer includes this treaty in its list of FIPAs for which negotiations have been concluded. There is therefore no expectation that it will enter into force in the foreseeable future.
15 On 14 July 2015, the Governments of Canada and Ukraine announced the conclusion of negotiations to expand and modernize the Canada-Ukraine Free Trade Agreement (CUFTA). The CUFTA was signed on July 11, 2016, and entered into force on August 1, 2017.