Presenter:
Paul Manly
Filmmaker, Researcher and Community Organizer
International Trade and Investment critic Green Party of Canada
Based in part on research and power point presentation by:
Stuart Trew, The Canadian Centre for Policy Alternatives
Steven Shrybman, public interest and trade lawyer, Sack Goldblatt Mitchell LLP
Janet M Eaton, PhD
NAFTA, CAFTA, FIPPA, SPP, TPP, TTIP, CETA…
Forget the Acronyms… It’s all about the Agenda
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Free Trade Agreements FTA’s. These need to be ratified by a
vote in parliament)
Investment Treaties - BIT’s Bilateral Investment Treaties –
Canadian model is Foreign Investment Promotion and
Protection Agreements (FIPPA). These do not need to be
ratified in parliament with a vote.
These agreements and treaties that Canada has signed or is
negotiating all contain Investment Chapters with Investor State
Dispute Settlement provisions (ISDS).
ISDS provisions give foreign corporations extraordinary powers
to sue governments in secretive tribunals for laws and policies
that limit their profits, including health, safety, labour and
environmental regulations and standards.
FTA’s in force and in process (26)
FTA’s in Force (11)
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Canada - Korea - Brought into force: January 1, 2015
Canada - Honduras - Brought into force: October 1, 2014
Canada - Panama - Brought into force: April 1, 2013
Canada - Jordan - Brought into force: October 1, 2012
Canada - Colombia - Brought into force: August 15, 2011
Canada - Peru - Brought into force: August 1, 2009
Canada - European Free Trade Association - Brought into
force: July 1, 2009
Canada - Costa Rica - Brought into force: November 1, 2002
Canada - Chile - Brought into force: July 5, 1997
Canada - Israel - Brought into force: January 1, 1997
North American Free Trade Agreement (NAFTA) - Brought
into force: January 1, 1994
Canada - U.S. Free Trade Agreement (CUSFTA) - Brought
into force: January 1, 1989 (superseded by NAFTA, which
includes Mexico)
FTA’s Concluded (3)
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Canada - Trans-Pacific Partnership - October 5, 2015
Canada - European Union: Comprehensive Economic
and Trade Agreement (CETA) - August 5, 2014
Canada - Ukraine - July 14, 2015
Ongoing FTA Negotiations (8)
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Canada - Caribbean Community (CARICOM)
Canada - Canada-Guatemala, Nicaragua and El
Salvador
Canada - Dominican Republic
Canada – India
Canada – Japan
Canada – Morocco
Canada – Singapore
Modernization of the Canada-Costa Rica Free Trade
Agreement
Exploratory Discussions (4)
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Source: Global Affairs Canada http://www.international.gc.ca
Canada - MERCOSUR Exploratory Trade Discussions
Canada - Turkey Exploratory Trade Discussions
Exploratory Discussions for a Canada Philippines Free Trade Discussions
Exploratory Discussions for a Canada - Thailand Free
Trade Agreement
FIPA’s in force and in process (51)
FIPA’s Brought into Force (29)
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Canada - Argentina (FIPA) - April 29, 1993
Canada - Armenia (FIPA) - March 29, 1999
Canada - Barbados (FIPA) - January 17, 1997
Canada - Benin (FIPA) - May 12, 2014
Canada - China (FIPA) - October 1, 2014
Canada - Costa Rica (FIPA) - September 29, 1999
Canada - Côte d'Ivoire (FIPA) - December 14, 2015
Canada - Croatia (FIPA) - January 30, 2001
Canada - Czech Republic (FIPA) - January 22, 2012
Canada - Ecuador (FIPA) - June 6, 1997
Canada - Egypt (FIPA) - November 3, 1997
Canada - Hungary (FIPA) - November 21, 1993
Canada - Jordan (FIPA) - December 14, 2009
Canada - Kuwait (FIPA) - February 19, 2014
Canada - Latvia (FIPA) - November 24, 2011
Canada - Lebanon (FIPA) - June 19, 1999
Canada - Panama (FIPA) - February 13, 1998
Canada - Peru (FIPA) - June 20, 2007
Canada - Philippines (FIPA) - November 13, 1996
Canada - Poland (FIPA) - November 22, 1990
Source: Global Affairs Canada http://www.international.gc.ca
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Canada - Romania (FIPA) - November 23, 2011
Canada - Russian Federation (FIPA)* - June 27,
1991
*Further to the dissolution of the USSR in 1991,
the FIPA now binds Russia as the continuing State.
Canada - Serbia (FIPA) - April 27, 2015
Canada - Slovak Republic (FIPA) - March 14, 2012
Canada - Thailand (FIPA) - September 24, 1998
Canada - Trinidad and Tobago (FIPA) - July 8, 1996
Canada - Ukraine (FIPA) - July 24, 1995
Canada - Uruguay (FIPA) - June 2, 1999
Canada - Venezuela (FIPA) - January 28, 1998
FIPAs in force and in process (51)
FIPA’s Signed (7)
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Ongoing FIPA Negotiations (10)
Canada - Burkina Faso - Date of signature: April 2015
Canada - Cameroon - Date of signature: March 2014
Canada - Guinea - Date of signature: May 2015
Canada - Hong Kong - Date of signature: February 2016
Canada - Mali - Date of signature: November 2014
Canada - Nigeria - Date of signature: May 2014
Canada - Senegal - Date of signature: November 2014
 Canada – Ghana
 Canada – India
 Canada – Kazakhstan
 Canada – Kenya
 Canada – Kosovo
 Canada – Macedonia
 Canada – Mongolia
Concluded FIPA Negotiations (5)
 Canada – Pakistan
 Canada – Tunisia
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Canada - Albania - Negotiations concluded: November 2013
Canada - Bahrain - Negotiations concluded: February 2010
Canada - Madagascar - Negotiations concluded: August 2008
Canada - Moldova - Negotiations concluded: December 2013
Canada - Zambia - Negotiations concluded: March 2013
Source: Global Affairs Canada http://www.international.gc.ca
 Canada - United Arab Emirates
What do these agreements protect?
These are key words and phrases in these agreements
 National Treatment
 Most-Favoured Nation Treatment
 Prohibition on performance requirements (e.g. local
content, minimum processing)
 Minimum Standards of Treatment (e.g. Fair and
Equitable Treatment) - expansive
 Expropriation (direct and indirect)
 Right to compensation at fair market value
 From defense to offense: these are tools of deregulation
and corporate power
ISDS Arbitration process
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Privatized Dispute Settlement via tribunals with private
sector international trade lawyers:
Not paid by government
No tenure
No body of established law
No permanent court or location
Conflict of Interest
Rulings don’t rely on binding precedent
Huge awards for damages paid out by governments
No appeal process (CETA adapted to include appeals)
For corporations only – governments can’t sue the
corporation
Profiting from Injustice: How Law Firms and Financiers are fuelling an investment arbitration
boom. http://corporateeurope.org/international-trade/2012/11/profiting-injustice
Investment arbitration racket
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This is a growing industry – participants have a vested
interest in siding with companies (Matthew Kronby)
Law firms will send letters to companies offering their
government-suing services
Bay Street trying to pitch Toronto as an “investment
arbitration hub”
Small group of 15 elite arbitrators
decide more than 50 % of cases
Legal fees can get up to $1,000
per hour
More info: Profiting from Injustice, report by Transnational
Institute and Corporate Europe Observatory
Important Canadian and
international ISDS cases
AbitibiBowater - $130-million settlement w/ Canada
(NAFTA)
 Bilcon - $300-million settlement w/Canada (NAFTA)
 Vattenfall – Unknown $ settlement w/ Germany in power
plant case (Energy Charter Treaty)
 Ethyl Corporation - $13 million settlement w/ Canada
(NAFTA)
 Occidental Oil - $1.7 billion case versus Ecuador
 Churchill Mining vs. Indonesia (ICSID) - $2-billion
 Cargill - $77-million case versus Mexico (NAFTA)
 ExxonMobil - ??? Award vs. Canada (NAFTA)
 Azurix vs. Argentina - $165 million award (U.S.Argentina BIT)
 Renco vs. Peru (U.S.-Peru FTA) - $800-mil
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This is the tip of an iceberg
Cases Studies I am investigating
for the film ‘Investor State’
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Lone Pine vs. Canada (NAFTA) - $250-mil
OceanaGold vs. El Salvador (ICSID) $300-mil
Eli Lilly vs Canada $500 mil
Bilcon - $300-million settlement w/Canada
(NAFTA)
TransCanada Pipeline vs USA $15 Billion
Philip Morris vs Australia, Uruguay, Togo
Canada’s experience with investment
chapter in NAFTA
Twice as many total claims (35) vs Canada
compared to vs U.S. (20) or Mexico (22)
 Paid more than $170-million (losses,
settlements): Abitibi, Ethyl, SD Myers, Exxon
 Environmental, health and resource
legislation and decisions targeted
 Zero (0) successful claims for Cdn investors
 About CDN $6 billion in current nine (9)
claims (incl. Eli Lilly)
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(figures as of January 2015)
Why do we need ISDS?
We don’t!
 We live in an established democratic
society.
 We have an established and advanced
judicial system
 If we are trading with countries that are
undemocratic and lack a robust, fair
judicial system then improving those
systems should be part of the deal
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Fighting back…
South Africa cancelling BITS with European
countries
 Ecuador and 12 Latin American countries
beginning review of investor “rights” model,
pulling out of ICSID and cancelling BITs with
United States and EU countries
 Argentina refusing to pay awards related to
public services (water)
 Europeans want CETA Investor chapter
adapted
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The right to say no to fracking
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Canadian company with office in
Delaware suing Canadian government
Province of Quebec placed a
moratorium on hydraulic fracking in the
St. Lawrence basin – the water supply
for millions of people.
Lone Pine is seeking damages of $250
million for lost potential profit
Globally recognized threat drawing
attention to ISDS in Europe - report
Bilcon vs Canada
Bilcon’s application for a quarry failed
the joint federal provincial environmental
assessment
 Endangered species at risk from the
project
 Project was contrary to ‘community core
values’.
 Bilcon won and now is seeking $300
million for the loss of potential profit
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The Trans Pacific Partnership (TPP)
Twelve countries have signed on.
Several more would like to join.
TPP Countries in Yellow Source: www.aflcio.org
The Trans Pacific Partnership (TPP)
6000 page document - 30 chapters
 Only 4 chapters deal directly with trade issues
 Most tariffs are minimal - this is about non-tariff barriers
 Complicated and opaque language
 The other 26 chapters – non tariff related- constrain what
governments and citizens can do.
 Negotiated in secret with corporate input only
 Negotiation documents remain secret for another 4 years
 Hub and Spoke agreement – other countries can join
 Negotiations started in 2008, Canada joined in 2012 and
accepted all previous negotiations
 Agreement cannot be changed – must be accepted or
rejected as is
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TPP Contents – 30 Chapters
1. Initial Provisions and General
Definitions
2. Trade in Goods
3. Textiles and Apparel
4. Rules of Origin
5. Customs Administration and Trade
Facilitation
6. Sanitary and Phytosanitary (SPS)
Measures *
7. Technical Barriers to Trade (TBT)
8. Trade Remedies
9. Investment
10. Cross-Border Trade in Services
11. Financial Services
12. Temporary Entry for Business
Persons
13. Telecommunications
14. Electronic Commerce
15. Government Procurement
16. Competition Policy
17. State-Owned Enterprises (SOEs)
and Designated Monopolies
18. Intellectual Property *
19. Labour *
20. Environment *
21. Cooperation and Capacity
Building
22. Competitiveness and Business
Facilitation
23. Development
24. Small- and Medium-Sized
Enterprises
25. Regulatory Coherence *
26. Transparency and Anti-Corruption
28. Dispute Settlement *
29. Exceptions
30. Final Provisions
https://ustr.gov/about-us/policy-offices/press-office/pressreleases/2015/october/summary-trans-pacific-partnership
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The TPP Investment chapter has the same ISDS
terms and conditions as NAFTA
Some legal experts believe that it is worse than
NAFTA.
The TPP adds thousands of foreign corporations
which could challenge Canadian laws.
Concerns for municipal government
Chapter 9 Investment Article 9.2: Scope 2. A Party’s
obligations under this Chapter shall apply to measures
adopted or maintained by: (a) the central, regional or
local governments or authorities of that Party;
 Chapter 10 Cross-border Trade in Services Article 10.1:
Definitions measures adopted or maintained by a Party
means measures adopted or maintained by: (a) central,
regional, or local governments or authorities;
 The TPP will restrict the ability of our local government
to encourage economic growth by procuring services
from local companies.
 Favoring local could trigger ISDS arbitration
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Chapter 2 National Treatment &
Market Access for Goods - Agriculture
Elimination of Supply Management System
 Regulatory standards for GMO’s - approvals, import
monitoring, labeling – could be trade barriers
 Local municipal, regional or provincial rules governing the
cultivation of GMOs, the use of GMO associated
herbicides, or increased food chain transparency could
be challenged.
 rBGH in dairy products
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Chapter 4 Rules of Origin
The 62.5% content rules under NAFTA are being
lowered to 45% under the TPP
 Under the new rules a vehicle with 55% Chinese
content could still qualify as Made in Canada or Made
within the TPP signatory countries.
 TPP will encourage the continued trend of off-shoring
manufacturing jobs from North America to countries with
lower labour and environmental standards and
enforcement.
 TPP will threaten 20,000 well-paying jobs in Canada's
auto sector alone
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Chapter 11 Financial Services
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TPP will constrain government’s abilities to regulate
their financial institutions and allow financial firms to
challenge financial stability measures.
Governments will not be able to impose regulations on
risky financial products such as derivatives or hedge
funds or ban risky new financial products and services if
other TPP countries permit them.
Large financial institutions from other TPP nations could
challenge Canadian financial regulations using ISDS
Capital controls and financial policies that regulate
capital flows to promote financial stability are forbidden
and subject to compensation demands
Chapter 18 Intellectual Property
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Extends patents on pharmaceuticals
It will increase the cost of medicine and health care for
Canadians
Disastrous for health care in developing countries
Chapter 18 Intellectual Property
Copyright extended by 20 years to 70 years after creators
death
 It will criminalize small-scale downloading – Canada just
revamped copyright law, now it will be even more
restrictive.
 Includes US style ‘notice and takedown rules’
 Less protective of free speech –
fair use and fair comment
 Will lock in US economic
advantage for high tech
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Chapter 19 Labour
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TPP countries adhere to International Labour
Organization (ILO) rules but ILO fails to set minimum
standards for those regulations.
e.g. ILO agreements call for minimum wages but
countries such as Vietnam and Brunei could establish
minimum wages that are pennies per hour and still be in
compliance with the ILO
Chapter 20 Environment
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TPP barely mentions climate change
Environmental rules are weak and lack specific
obligations and enforcement
terminology is aspirational and uses terms such as
“endeavor” and “promote”
non-binding lists of suggested measures that countries
“should” take.
ISDS could be used to undermine efforts to tackle
climate change and force governments to compensate
corporations for mitigation initiatives
ISDS has already been used to undermine efforts to
create energy alternative policies of national and state
governments.
Chapter 20 Environment
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India solar industry - USA challenge via WTO
Ontario Green Energy law – domestic content for feedin-tariff – Japan challenge via WTO
TransCanada Pipeline vs USA $15 billion ISDS suit over
Keystone XL pipeline rejection
Gus Van Harten research paper
Climate Action carve out necessary
1. Research Paper Number 38/2015
An ISDS Carve-Out to Support Action on
Climate Change
Professor Gus Van Harten, Osgoode Hall
Law School, York University
No major economic benefit
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Canada already has FTA’s with almost half of the TPP
countries
Canada already trading with the TPP countries – tariff
barriers are minimal, new trade will be minimal
World Bank estimates that Canada will have some of
the lowest growth rates from the agreement.
Studies estimate TPP will increase economic growth in
Canada at .28 percent over the first decade of the
agreement
Let your voice be heard!
Submit your comments to the Federal Government at
www.LetsTalkTPP.ca
(Council of Canadians, SumOfUs, Open Media, Stand)
Or email your comments to
TPP-PTP.Consultations@international.gc.ca
My analysis can be found at
www.ManlyMedia.com
Contact me if you want to help with film financing
paulmanly@shaw.ca