Investor Arbitration – Unease Continues

By | April 16, 2015

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 three-person arbitration panels having the authority to make virtually iron-clad and un-appealable decisions involving domestic regulatory measures.

In Bilcon, as noted in my previous post, the arbitration panel split 2-1, the majority holding that the Canadian environmental review process, which turned down a large quarry and marine project in Nova Scotia, breached the minimum standard of protection Canada owed the investor under NAFTA article 1105.

A strong dissenting opinion by highly-respected panel member Donald McRae said that irregularities of procedure and even breaches of domestic law in themselves do not give rise to breaches of the international standard of protection under the NAFTA. That international standard, he said, is of a higher order.

McRae said that the majority risks turning investment arbitration panels into supra courts of appeal, giving investors access to remedies that are not available to investors under local laws. This, he said, goes far beyond what investment protection agreements are set up to do.

Challenges under these treaties have been proliferating in recent years, with some law firms set up to take on these cases on a contingency basis. A case being followed with great interest is the arbitration launched by Philip Morris over Australian laws requiring plain cigarette packaging.

Unease over ISDS is being increasingly voiced by both left-wing and conservative circles in Canada, in the EU and in the US, largely centred on the unassailable power of arbitration panels, appointed on an ad hoc basis to determine the legitimacy of public policy and regulatory measures and not subject to appeal.

To the left, this gives unacceptable advantages to large, aggressive corporations. To the right, this is an assault on national sovereignty. It will be interesting to see how these opposing views play out in the days ahead, notably in the context of the Trans-Pacific Partnership negotiations and in the European Union’s ratification of the Canada-EU trade deal.