Canada’s Free Trade Agreements (FTAs) and Foreign Investment Promotion and Protection Agreements (FIPAs) include dispute settlement provisions that allow investors to settle disputes with foreign governments through a neutral non-judicial arbitration process. These investor-state dispute settlement procedures allow international business disputes to be settled, and subsequent awards enforced pursuant to internationally accepted rules and standards. Investors can rely on these rules to settle disputes and avoid the cost and uncertainty of foreign courts. Attempting to challenge a government action or measure, which has had a negative impact on your business in a foreign jurisdiction can be extremely complex, unreliable and often times, simply impossible. Therefore, as part of your business’ strategic planning, it is crucial to be aware of the applicable international trade agreements in order to leverage their Investor-State Dispute Settlement (ISDS) mechanisms to your company’s benefit.

North American Free Trade Agreement’s (NAFTA) Chapter 11 establishes an investor-state dispute settlement process which closely resembles the mechanisms used in other FIPAs and Free Trade Agreements (FTAs). Chapter 11, Section B establishes a procedural, rules-based discipline that allows individual and corporate investors of one of the NAFTA parties to seek redress in the form of monetary damages when one of the other NAFTA members breaches their rights as investors. These rights include national treatment, most-favoured-nation treatment, the right to fair and equitable treatment, and protection against expropriation or the imposition of performance requirements. Claims are typically for multi-millions of dollars in damages. Canada has a dozen FTAs in place, the most recent being the Canada-Korea Free Trade Agreement (CKFTA), as well as over thirty FIPAs in place or currently being negotiated, with similar ISDS provisions. The Canada-EU Comprehensive Economic and Trade Agreement (CETA) will also feature the same approach.

Woods, LaFortune LLP has in-depth knowledge and experience in the investor-state dispute settlement process. Our team includes lawyers who have negotiated these agreements and who have served as lead counsel on several cases including the largest consolidated NAFTA Chapter 11 case to date. We are well equipped to guide clients through international arbitration treaties such as the Convention on the Recognition and Execution of Foreign Arbitral Awards of 1958 (the New York Convention). We also have the ability to work with model law and procedures of the United Nations Commission on International Trade Law (UNCITRAL). Our legal team has hands-on experience in FIPA arbitrations as well and have significant experience in the context of the over 400 FTAs and 2000 plus Bilateral Investment Treaties (BITs) in place around the world.

Woods, LaFortune LLP  takes pride in its ability to advise clients in these growing and vital parts of international trade law, allowing its clients to structure their transactions and business strategies in the most complete and cost effective manner possible. Our investor-state dispute settlement practice includes expertise in:

  •  Investment provisions of NAFTA, CETA, Canada-Korea FTA
  • Investor-State disputes pursuant to rules under the International Centre for Settlement of Investor Disputes (ICISD) / United Nations Commission on International Trade Law (UNCITRAL)
  • Foreign Investment Promotion and Protection Agreements (FIPAs) and Bilateral Investment Treaties (BITs)
  • Canada-China investment policy
  • OECD codes and instrument

 

If you have any questions or concerns regarding NAFTA Chapter 11 or ISDS in general, please contact Michael Woods at (613) 355-0382 or by e-mail at woods@wl-tradelaw.com, or Catherine Walsh at (613)-513-7131 or by e-mail at walsh@wl-tradelaw.com for a no fee, no obligation consultation.