Wednesday, June 2, 2021

Canada, model investment agreements and the middle road?

Close on models of investment agreements, after the Indian BIT model and the Brazilian CIFA model, it is time for the Canadians to roll out theirs.

Kluwer Arbitration Blog has this detailed analysis of the new Canadian FIPA Model. I am not repeating the overview given there. Predictably, it has provisions relating to ISDS an a possible appellate mechanism.

A few observations:

The right to regulate find a prominent place in Article 3 of the Model Agreement.

The Parties reaffirm the right of each Party to regulate within its territory to achieve legitimate policy objectives, such as with respect to the protection of the environment and addressing climate change; social or consumer protection; or the promotion and protection of health, safety, rights of Indigenous peoples, gender equality, and cultural diversity.

Reference to the rights of indigenous peoples is something not found in standard BITs.

Responsible business conduct finds a place in Article 16

Taxation measures are ou of the scope of the agreement. However, there are exceptions to this exclusion which are listed in Article 11.The National Treatment and MFN provisions do apply to taxation measures (except income, capital gains or on the taxable capital of corporations) under certain conditions. All in all there is an exclusion to an exception of non-applicability!

Exhaustion of local/domestic remedies seems to be excluded from th scope of the agreement as seen in Section E.

I was surprised not to find any reference to the role of joint interpretative statements or commissions pursuant to the implementation of the Agreement, considering the NAFTA experience.

On treaty shopping using the MFN clause, as this Lexology report states, this has been prevented for procedures found in other investemnt agreements and substantive obligations unless measures have been enacted by the State.

A middle of the road model or titled towards ISDS still?

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