Posted by Woods LaFortune LLP on Dec 2, 2014

ALENA Chapitre 11

Posted by Woods LaFortune LLP on Nov 21, 2014

The Webinar entitled “Exporting to Canada: Where Do We Begin”, a joint effort between Woods, LaFortune LLP, the U.S. Commercial Service in Ottawa and Shane Brown of Thompson Ahern International, was held on November 12, 2014. The presentation provided new exporters information on a number of topics that should be considered when beginning to export such as: the Canadian Market; Shipping; IP Protection and Export Plans. The full presentation materials are available here –Exporting to Canada – Where do We...

Posted by Woods LaFortune LLP on Nov 7, 2014

*By Gordon LaFortune – Managing Partner at Woods, LaFortune LLP The Government of Canada is a major purchaser of goods and services. In 2012, the last year for which full year data is available, the Federal Government purchased approximately $15 billion worth of goods and services through 386,601 contracts. By any measure, the Government of Canada is potentially an important customer that can make a real difference to a seller’s bottom line. Procurements by the Government of Canada differ from purchases by private sector corporations because the Government entities are subject to specific obligations that are intended to make the procurements competitive, fair and open to reduce purchasing costs and to support the growth of a strong economy. These rules are set out in law in the obligations concerning government procurement in Canada’s Free Trade Agreements and in Canada’s Agreement on Internal Trade. Government of Canada procurements can be reviewed by the Courts under Canadian law or can be reviewed by the Canadian International Trade Tribunal (CITT) through its bid challenge procedure. The CITT reviews government procurement in light of the procurement obligations in the Free Trade Agreements and in the Agreement on Internal Trade (AIT). As a result of the obligations imposed on government and the ability to enforce those obligations through the Courts or the CITT, potential suppliers have rights and remedies that they can rely on to ensure that they benefit from fair and open procurement. Although government is bound by these obligations, it is up to potential suppliers to make sure that government lives up to these obligations. Only by understanding these rights and how to effectively enforce them can potential suppliers gain the maximum benefit from their efforts to sell to the Government of Canada. The purpose of this article is to provide a brief overview of the procurement obligations imposed on the Government of Canada and how CITT bid challenge review can be used by potential suppliers. This publication does not however address the separate question of how the Courts can be used to enforce procurement obligations. Trade Agreements Canada has negotiated a number of Free Trade Agreements, such as the NAFTA, with...

Posted by Woods LaFortune LLP on Sep 22, 2014

Amendments to the Investment Canada Act: A More Restrictive Approach to Foreign State-Owned Enterprise (SOE) Investment in Canada   Click on the following link for the full article – Amendments to the Investment Canada Act – Impact on...

Posted by Woods LaFortune LLP on Jul 31, 2014

The Canadian business community has been handed new challenges and, more importantly, new opportunities as a result of two recent decisions by the Supreme Court of Canada. First Nations, governments and the private sector face a number of new realities, opportunities and challenges for conducting business on Aboriginal title land and Treaty territory in Canada. This major shift will require new, creative and flexible approaches on all sides, to ensure that Canada continues to strengthen its global competitiveness and to enhance its economic prosperity. First, in a landmark decision*1, the Supreme Court of Canada confirmed the Tsilhoqot’in people’s exclusive Aboriginal title to British Columbia Interior lands. The Court also outlined a legal test for other First Nations across Canada seeking recognition of their title rights.  Wherever a First Nation’s claim passes this test and Aboriginal title is recognized, underlying Crown Interest in the land is not retained. The Court has determined that First Nations able to  successfully establish themselves as Aboriginal land title holders will have the right to extensive possession in addition to ownership rights, including the right to decide the use of the land, the right to profit from economic development of the land, and the right to pro-actively use and manage the land. Those wishing to conduct business wherever Aboriginal title is demonstrated, or may potentially be shown to exist, will need to work with First Nations to negotiate the land title holder’s consent.  As we move forward, business decisions will need to be based on a good understanding of this new reality, including the legal rights, obligations and interests of all concerned. Second, in an equally-important case*2, the Supreme Court of Canada made a major decision on Aboriginal Treaty territory. Regarding the Treaty Number 3 Grassy Narrows First Nation challenge to the issuance of forestry licences, the Court ruled that a Canadian province (Ontario, in this case) has the authority to “take up” the lands in question, and that the federal government need not be involved in the province’s exercise of this authority. Citing its earlier Tsilhqot’in decision, the Court also reinforced its language on the requirement that governments “consult” and “accommodate” the affected First...

Posted by Woods LaFortune LLP on Jul 8, 2014

Article by Catherine Walsh*1 and Michael G. Woods Negotiations for a bilateral Foreign Investment Promotion and Protection Agreement [“FIPA”] between Canada and China have been ongoing for over a decade. An agreement was finally signed on September 9, 2012 during Prime Minster Harper’s visit to China. This agreement represents China’s 140th bilateral investment treaty and Canada’s 25th. Once ratified by both Govern¬ments, the Canada-China FIPA [“C-C FIPA” or the “Agreement”], will come into force, for a minimum period of 15 years. Part I in this series compared the substantive investor protections afforded under the C-C FIPA including national treatment, most-favoured-nation, minimum standard of treatment, performance requirements and expropriation with those provided under Canada’s Model FIPA [“Model”]. This second note will look at the C-C FIPA’s investor-state dispute settlement provisions through a similar lens, with a focus on the process of making a claim. CANADA’S MODEL FIPA Canada’s Model FIPA was designed to be used as a template in negotiations for bilateral investment rules, building on lessons learned from Chapter 11 of the North-American Free Trade Agreement [“NAFTA”]. The Model sets a base for Cana¬dian negotiators and fosters transparency and efficiency in the overall dispute settlement process.*3 It is useful to compare the C-C FIPA’s text with that of the Model to learn more about the Agreement and to identify areas of conten¬tion in the negotiations leading up to the Agreement. INVESTOR-STATE DISPUTE SETTLEMENT IN GENERAL Investment treaties have increasingly been including provi¬sions relating to investor-state dispute settlement [“ISDS”] mechanisms in their text. In general, the ISDS mechanisms found in investment treaties such as FIPAs or Bilateral Investment Treaties provide foreign investors the right to seek compensation for damages arising out of breaches of investment-related obligations by host state governments.*4 These provisions allow private investors of a contracting party to launch an action for compensation directly against a contracting state where that state implements or enforces measures that damage the foreign investor’s investment. Under the C-C FIPA, the ISDS mechanism gives an investor the option of pursuing its rights for damages before an impartial international tribunal. This is perhaps the most important development in international investment law – the provisions...