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Quebec considers ratifying ICSID Convention: Goodbye to judicial reviews of investor-state decisions

We learned last August that Canada was pressuring the provinces to ratify the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. Today, the RQIC network in Quebec is denouncing the Parti québécois for its motion of June 12 to move in that direction, saying it is clearly linked to Quebec’s desire to conclude a Canada-European Union free trade deal that will concede excessive powers to multinational corporations.

The ICSID Convention, as it’s more commonly known, establishes the International Centre for Settlement of Investment Disputes — one of several venues where investor-state lawsuits are heard and decided behind closed doors by paid arbitration panels. ICSID panel decisions–normally fines against countries for violating investment treaties such as NAFTA or Canada’s FIPAs–are final but can be reviewed by the courts in countries that have not fully ratified the convention.

Canada is an ICSID member but cannot fully ratify until all the provinces have done so as well. There are good reasons why they shouldn’t (not least of which is losing the ability to review arbitral awards), which we explained last fall in letters to the premiers of those provinces. We urged the provinces not to ratify, but that if they were exploring it, to let us know when they would be tabling legislation, and “to allow for adequate public input and debate in the legislature and at committee.”

As Canada under the Harper government rushes to get rid of any sovereign control it still might have over investment decisions–resource development in particular–countries such as Venezuela, Ecuador and Bolivia are removing themselves from ICSID. To find out why, see the updated report Mining For Profits out of the Institute for Policy Studies in Washington, DC, which explains:

The trend of using “investor-state” lawsuits as a hammer in resource rights fights is most evident in Latin America. Countries of this region make up only about 14% of the total 158 ICSID member governments, and yet they are the targets of 79 (46.7%) of the 169 pending ICSID cases (as of March 2013) and 31 (51%) of the 60 current extractive industries cases.

Pierre-Yves Serinet of RQIC asks today why Canada and Quebec wouldn’t take the same position as these Latin American countries when we are the sixth most sued country under investor rules at ICSID and elsewhere.

“The PQ still does not seem to understand how these provisions for companies can be harmful to the citizens of Quebec,” he says.This is even as Lone Pine Resources plans to sue Canada for $250 million, under Chapter 11 of NAFTA, in response to the suspension by the Quebec government of shale gas licenses in the St. Lawrence Valley. This should be ringing bells.

When we wrote to premiers in the fall, only Ontario, Newfoundland and Labrador, Saskatchewan and British Columbia had ratified the ICSID convention. This motion in the Quebec legislature is probably a good reason to follow-up with the remaining provinces, which I’ll be doing shortly. As always, more news when we have it…