Part of ongoing negotiations since 2009, an agreement in principle was finally reached on October 18, 2013 on the Canada-EU Comprehensive Economic and Trade Agreement (CETA). Described as Canada’s most ambitious trade agreement to date, the CETA will help solidify Canada’s important economic relationship to the EU. The Canada-EU relationship is currently a high priority for the Canadian government given the EU’s position as Canada’s second largest trading partner in goods and services. Since the conclusion of negotiations, CETA, and specifically its Investor State Dispute Settlement (ISDS) provisions, have been the subject of much controversy. Fueling critics is the fear that foreign investors and foreign corporations will now be able to seek and collect billions of dollars in compensation from the Host State’s Government, when it creates or enforces rules, laws or policies that negatively impact their bottom line. In addition, there is a growing fear that the ISDS provisions will result in the Host State Government’s loss of capacity to protect important industries of national interest (i.e. natural resources) to the benefit of foreign investors. In reality, the investment provisions of the CETA, including its ISDS provisions, are in line with best practices in EU member states’ existing Bilateral Investment Treaties (BITs). The provisions are also in line with Canada’s 2004 Model Foreign Investment Promotion and Protection Agreement (FIPA). The reason the inclusion of ISDS provisions is to provide foreign investors the right to seek compensation for damages arising out of breaches of investment related obligations (such as Expropriation, Most Favoured Nation, National Treatment and Fair and Equitable Treatment) by Host State Governments. In other words, the ISDS provisions allow a private investor of a Contracting Party to launch an action for compensation directly against a Contracting Party State where the State implements or enforces measures that damage the foreign investor’s investment. Investment protection measures, combined with ISDS, are meant to promote investment and enhance the overall predictability of the policy framework governing Foreign Direct Investment (FDI). In addition, the provisions maintain Host Countries’ rights to regulate public policy objectives. Much like the case of the Canada-China FIPA, a deeper and more detailed analysis of the text of...
Read MoreEquality Effect and 160 Girls: Making Human Rights Real in Africa
On October 14th, 2014, Michael Woods, senior partner at Woods, LaFortune LLP, attended the Ontario Bar Association’s (OBA) event – “How the Equality Effect and 160 Girls Are Making Human Rights “Real” in Africa.” The event, organized and presented by the Constitutional, Civil Liberties, and Human Rights Law/Women Lawyers Forum Sections of the OBA, highlighted the courage and determination of a group of 160 girls determined to fight for basic human rights in Africa and that of the inspiring and skillful lawyers who successfully took the Government of Kenya to court. Relying upon Kenya’s new Constitution, the girls, ranging in age from three to seventeen ,won a landmark High Court ruling that forces government officials (notably the police force) to enforce existing and previously ignored laws against rape and sexual violence. Michael Woods indicated that more lawyers should be made aware of this story to highlight the way that an international team of lawyers came together in a collaborative effort to make a lasting contribution. As Canadians, we should be very proud of the Equality Effect, a Toronto-based non-profit charity that “uses international human rights law as a crowbar to pry open justice for women and girls around the world.” For more information on Equality Effect and their projects, please visit...
Read MoreThe Canada-China FIPA: What it Means for Businesses and Investors
Negotiations for a bilateral Foreign Investment Promotion and Protection Agreement (“FIPA“) between Canada and China have been ongoing for over a decade. They commenced in 1994, were interrupted pending China’s accession to the World Trade Organization (“WTO“), and resumed in September 2004. After much debate and no shortage of opposition, the Canada-China FIPA (“C-C FIPA“) was signed on September 9, 2012 and officially came into force on October 1, 2014. The main purposes of a FIPA are to establish clear investment rules and measures to protect foreign investors against discriminatory or arbitrary government practices, to provide effective compensation in the event of an expropriation and to enhance the overall predictability of the policy framework governing foreign investments. The existence of a FIPA has proven to be useful in terms of promoting the parties’ respective markets as a stable destination for investment with clearly defined and enforceable rules. In fact, foreign investors often look to the existence of a strong investment protection agreement as a key consideration in their decision-making process. It is important for both Canadian and Chinese businesses and investors to understand what their respective rights are and how they will be protected under this new agreement. Foreign investment has become an essential corporate strategy for many Canadian companies competing in the global economy, allowing them to gain access to foreign markets, acquire new technologies, and gain access to investors and funding among a panoply of other important benefits. Although the statistics show that inflows of foreign direct investment (“FDI“) from China into Canada are increasing, they remain but a small portion of the total FDI inflows into Canada, leaving much potential for expansion and growth. The C-C FIPA represents the first major economy-wide agreement between Canada and China. Given the protections offered under the Agreement, Canadian businesses will have further impetus to expand their presence in, and partnerships and investments with China to truly take advantage of the economic possibilities. The C-C FIPA creates a certain degree of security which can only serve to encourage further investment between both countries and help Canadian businesses gain access to the rapidly developing Chinese market. The C-C FIPA does provide...
Read MoreGATT, WTO, NAFTA, CETA, and More – A Career in International Trade Law
* By Michael Woods – Senior Partner at Woods, LaFortune LLP After 35 years in both government and private practice, I consider myself very fortunate to have had the opportunity to build a fruitful career in international trade law. My own personal path to the exciting work I’ve had the privilege to participate in with respect to the General Agreement on Tariffs and Trade (GATT), World Trade Organization (WTO), and North American Free Trade Agreement (NAFTA) disputes and negotiations actually started in the small Northern Ontario town of Wawa. In recent years, I have often been approached by law students and new lawyers with questions about a career in the international trade law field. Often times, the question is in terms of “if” rather than “how”. While it is certainly a challenging area and a career path which may not be as straight forward as fields such as civil litigation, family, criminal and employment law, it is my view that international trade law is a great area for students and new lawyers to consider. In Canada, we have a great tradition and many world class international trade practitioners in both government and in the private sector. In my opinion, more should be done to connect the lawyers in these “two solitudes”. We should work together to leverage Canada’s special bi-juridical tradition because globalization and the growing complexity of the rules governing international trade and investment has created a need for strong international lawyers. Some of the “next generation” who have sought out my advice on the profession have told me that they have been discouraged by warnings that the odds are against those with trade law ambitions. Personally, I always encourage those who are passionate to follow their dreams and tell them about the one lawyer who successfully did. Attached is the text of my March 212 remarks to the International Law Students Association of the University of Ottawa on the topic of careers in international trade law – Speech to International Law Students Association University of Ottawa 2012...
Read MoreOWIT International Networking Event
Catherine Walsh of Woods, LaFortune LLP, who is also the Vice-President of Membership for the Organization of Women in International Trade (OWIT) Ottawa Chapter, recently attended the International Networking Event hosted by OWIT International on September 28, 2014 at the Fairmont Chateau Laurier in Ottawa. The International Networking Event was an immense success and brought together business and trade professionals from a wide range of sectors, both public and private. Guest speakers at the event included Karen Bland, President of OWIT International; Astrid Pregel, Executive Director for Canada WEConnect International; Brian Mitchell, Executive Director of TFO Canada; and Lois Brown, Parliamentary Secretary to the Minister of International Development. For more information about OWIT-Ottawa and its upcoming networking events, please visit http://www.owit-ottawa.ca....
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