Category Archives: Investment Disputes

Rescuing CETA – Yes, It’s Possible

The investor-State dispute settlement (ISDS) part of the CETA is the focus of Wallonia’s objections to the deal. We can actually solve that roadblock. ISDS was never a sine qua non for Canada. We replicated the NAFTA model (making some later improvements) without any real thought or analysis of whether the Canadian investment community saw ISDS as… Read More »

Canada-Europe Trade Agreement and the Walloons

There was a most unfortunate development in October 2016 preventing the European side from approving the Canada-EU trade agreement, formally known as the Comprehensive Economic and Trade Agreement (CETA). On 24 October, tiny Wallonia refused to allow Belgium to agree to the CETA, resulting in a cancellation of the planned treaty signature the same week… Read More »

BC’s Non-Resident Home Purchase Taxes and International Trade

Comments have been made in some quarters about the recently-announced 15% tax imposed by the BC government on non-resident purchases of residential property to the effect the measure might offend Canada’s obligations under the NAFTA. These come as a surprise, since few would have thought that an internal measure like this would even remotely involve… Read More »

House of Commons Trade Committee – TPP Presentation

Lawrence Herman appeared before the House of Commons Trade Committee, at their request, on 5 May 2016, to present testimony on the Trans-Pacific Partnership Agreement (TPP). The following are notes from Mr. Herman tabled with the Committee. Lawrence L. Herman Notes for Presentation, 5 May 2016 Introduction The following are general comments on the TPPA… Read More »

Canada and Investment Disputes-Tallying the Numbers

Canada Pays Out The federal government just announced that it was paying Mobil Investments and Murphy Oil some $19 million to satisfy a decision of a NAFTA investment arbitration panel last year. The tribunal found that certain guidelines of the Canada-Newfoundland Offshore Petroleum Board were discriminatory and thereby breached Canada’s NAFTA obligations. Although the government… Read More »

Investor Arbitration – Unease Continues

Further to my post below (23 March 2015), there is growing concern in well-informed legal and public policy circles over the recent Bilcon v. Canada arbitration award under NAFTA Chapter 11. These concerns are fueling opposition to investor-State dispute settlement (ISDS) as constituted in the NAFTA and a wide array of other investment treaties, with… Read More »

Canada Loses Another Investment Dispute under NAFTA

A NAFTA arbitration panel has decided against Canada in a long-standing investment dispute over a large coastal quarry and marine project in Nova Scotia that had been turned down over environmental and social concerns (Clayton/Bilcon v. Canada). A majority of the panel said that Canada and Nova Scotia breached the minimum standard of treatment under… Read More »

ISDS Redux: Canada Loses – But Very Little

It’s been reported that a NAFTA investment dispute panel has ordered Canada to pay $17 million in compensation to Exxon-Mobil and Murphy Oil due to changes to the  to the Canada-Newfoundland Offshore Petroleum Board Guidelines governing offshore oil and gas development on the continental shelf off Newfoundland and Labrador. The award isn’t public as yet, but… Read More »