Skip to content

Council of Canadians disagrees with Globe and Mail’s endorsement of CETA, ICS ‘reform’

Maude Barlow in Barcelona

Maude Barlow speaks against CETA, ICS and TTIP in Barcelona, Nov. 2015.

It should perhaps come as no surprise, but the Globe and Mail editorial board has endorsed the Canada-European Union Comprehensive Economic and Trade Agreement (CETA) and the proposed Investment Court System (ICS) ‘reform’ to the Investor-State Dispute Settlement (ISDS) provision currently in the deal.

In its defence of ISDS, the newspaper states, “The idea is to ensure that foreigners cannot be disadvantaged relative to domestic investors, or hit with regulations that are really just an expropriation in disguise.” But it does concede, “The Europeans’ concern has to do with the process for investment arbitration, and the quality of the adjudicators selected to render decisions. Unlike judges in Canada’s judicial system, they are paid by the job. They come and go, with varying expertise and consistency. The decisions aren’t treated as precedents. And there are no appeal proceedings.”

And it agrees with the European Commission’s Investment Court System proposal. The newspaper notes, “Given the big economic consequences, [the ISDS investment arbitration process is] all a bit ad hoc. Europe wants something that looks and operates more like a real, professional court. It’s not a bad idea. …The European push-back is an opportunity to fine-tune the Canada-Europe trade deal, which deserves passage. And changes to CETA’s investor-protection process could set a precedent for common rules eventually covering Canada, the EU and the U.S.”

The editorial board concludes, “Fixing CETA in this way would respond to critics of the deal, while improving it. Sounds like a win-win. Where do we sign?”

The Council of Canadians profoundly disagrees with this position.

Council of Canadians chairperson Maude Barlow says, “This [ICS] reform still fails to require foreign investors – like everyone else, including domestic investors – to go to a country’s domestic courts before seeking an international remedy. The proposed investment court system still gives a special status to foreign corporations by allowing them to challenge the laws that apply to everyone else through a special system outside established court systems.”

In short, investor state rules – whether ISDS or ICS – give special rights to corporations, but not basic protections to states, their populations or the land and water.

Our allies including War on Want, Transport & Environment, and Friends of the Earth Europe have also rejected the proposed ‘reform’. Global Justice Now has highlighted that 97 per cent of respondents in a consultation rejected investor-state provisions in any form. French MEP Yannick Jadot says, “It is necessary that Member States hear that European citizens do not just want a change at the margin of the arbitration, but removal of the provision.” And MEP Ska Keller says, “[This] would be little more than a PR stunt, ignoring the core of the problem. The proposal changes nothing about the fact that investors get an extra-judicial system that will only deal with their rights, not their obligations.”

Where’s the Liberal government on this?

On Jan. 21, CBC reported, “European Union officials quietly approached Justin Trudeau’s new government last fall with a request to revisit the controversial investment protection clause in the Canada-EU trade deal.” After that request last fall, Reuters reported, “Canada is open to rethinking the contentious issue of investor protection in its free-trade accord with the European Union…” That said, the Canadian position has been cautious given the United States has formally rejected the ICS ‘reform’ for the US-EU Transatlantic Trade and Investment Partnership (TTIP).

Steve Verheul, Canada’s chief CETA negotiator, has commented that the ICS proposal has “some appeal” but also that, “The U.S. has its own model of how investment disputes should operate… We don’t want our investors to be in a different situation to other investors inside the EU market. We have no interest in being put at a disadvantage.”

In April the Council of Canadians will be returning to the European Parliament as well as visiting a number of European countries – tentatively including Austria, Slovenia, Italy, Greece, Poland, Romania and Germany – to continue to help build opposition to CETA, ISDS and ICS. It is now believed that the Council of European trade ministers – representing the national government of all 28 EU member states – could sign CETA on May 13. Following that, it is anticipated that ratification votes could take place in the European Parliament later this year or early in 2017. After that, CETA would still need to be ratified by EU member state national legislatures.

For more on this issue, please see the ‘What about attempts to reform ISDS?’ section on page 13 of Barlow’s report Fighting TTIP, CETA and ISDS: Lessons from Canada.

Further reading
Council of Canadians rejects both ISDS and ICS in CETA (Nov. 20, 2015)
European Commission asks Canada to renegotiate key provision of CETA (Dec. 10, 2015)