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Canadian law school opens the doors on investment arbitration

Investor challenges to government policy under existing trade and investment treaties (ex. NAFTA) are criticized globally for their secrecy. Today, professors and students at Osgoode Law School, led by Gus Van Harten, launched a searchable database of investment treaty cases to shed light on the role unelected trade tribunals and arbitrators play in government policy making, and to “highlight the case for more openness, independence, and public accountability in the system.” The website is at It is bound to become an important resource for the public, media and government officials globally, and in particular in Canada where the Harper government continues to aggressively pursue Foreign Investment Protection Agreements (FIPAs) and free trade deals that put investors first and environmental or public health protections somewhere else.

The IIAPP database is searchable by treaty (ex. NAFTA, CAFTA, ASEAN, other Bilateral Investment Treaties or BITs), by policy area (ex. agriculture, employment, energy, human rights, privatization, etc), or by case name or arbitrator. Importantly, the website sheds light on who these arbitrators are, how they are appointed, and what powers they have. It says:

Investment arbitration tribunals are unique in international adjudication. For example, they typically decide cases without prior involvement by domestic courts and their decisions are insulated from judicial review at the domestic and international level. Also, investment treaties allow investors to bring claims against states but do not allow states to sue investors for an alleged breach of an international obligation.

There is also a section on responses to the investor-state dispute process and alternatives to it. The website:

does not endorse any particular form of dispute resolution. However, it does present editorial comments based on the assumption that international adjudication of investment disputes — where it leads to final decisions on important questions of public law and public policy — should reflect well-established principles of open courts, judicial independence, and public accountability.

The Council of Canadians believes there is no place for heavy-handed investment guarantees in bilateral or regional free trade agreements, or as standalone deals the government has pursued with countries regardless of their democratic or human rights record.

Just this week, Canada announced it was close to signing a FIPA with China where freedom of speech, assembly, not to mention even more basic human rights are routinely ignored or abused by state authorities in control of the economy. The Harper government believes protection for Canadian investment in China is more important than human rights protections for people. The legal effect of the FIPA at home will be that Chinese investment is more important than stricter regulations to protect the environment.

The IIAPP website will be an important tool for activists fighting the Canada-EU free trade negotiations, in particular the inclusion of an investor-state dispute process in the agreement.