At Woods, LaFortune LPP, we advise clients that international business planning should include the potential application of international trade agreements and the strategic leveraging of Investor-State Dispute Settlement (ISDS) provisions. Our firms includes lawyers who have negotiated these agreements and who have served as counsel on several multi-millions of dollar cases including the largest consolidated NAFTA Chapter 11 challenge 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 can work with model law and procedures of the United Nations Commission on International Trade Law (UNCITRAL). We advise clients in this vital part of international trade law, allowing its clients to structure their transactions and business strategies in the most complete and cost-effective manner possible.
Challenging a government action or measure that has a negative impact on your business in a foreign jurisdiction can be extremely complex, unreliable and often, simply impossible. ISDS provisions allow investors to seek monetary compensation for breaches of trade agreements. This enables investors are able to by-pass the uncertainty of foreign courts and pursuant to which damage awards are enforced under internationally accepted rules and standards.
The 1994 North American Free Trade Agreement’s (NAFTA) Investment Chapter 11 established an ISDS process which allowed s individual and corporate investors of one of the NAFTA parties to seek redress in the form of monetary damages in the case of a breach of the obligations relating to:
- national treatment
- most-favoured-nation treatment,
- fair and equitable treatment,
- protection against expropriation
- the imposition of performance requirements.
With the signing of the Canada United States Mexico Agreement (CUSMA) the ISDS provisions are being phased out as between Canada and the United States. The provisions do remains in place for “legacy investment” established or acquired while NAFTA was in force for three years after NAFTA’s termination and pending claims will be permitted to proceed to their natural conclusion. Moreover, legacy of NAFTA Chapter 11 lives on with ISDS provisions in Canada-EU Comprehensive Economic and Trade Agreement (CETA), the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the other FTAs. ISDS provision are also integral parts of the over fifty FIPAs Canada has in place or is negotiating as well in the global network of over 3000 Bilateral Investment Treaties (BITs).
At Woods, LaFortune LLP, our team includes lawyers who have negotiated these agreements and who have served as counsel on several multi-millions of dollar cases including the largest consolidated NAFTA Chapter 11 challenge 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 can work with model law and procedures of the United Nations Commission on International Trade Law (UNCITRAL). We advise clients in this vital part 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 Major Trade Agreement
- 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, for a no fee, no obligation consultation.
