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Submissions to the Special Legislative Committee on the Multilateral Agreement on Investment (MAI) Regarding the Constitutionality of the Investment Provisions of NAFTA

Environmental Assessment, Trade
Shrybman, Steven

Thank you for providing us with another opportunity to appear before this Committee to express our concerns about the establishment of investor-rights as part of Canada’s international treaty obligations. While the Multilateral Agreement on Investment is now unlikely to proceed further under the auspices of the OECD, as this Committee will know, the prototypes upon which the MAI was based are currently in place in NAFTA and several bilateral investment treaties Canada has negotiated and is currently bound by. Moreover Canada has declared its intentions to use these precedents as a platform upon which further international investment agreements will be negotiated. For these reasons we believe that the subject of international investment treaties remains as important today as it did before the demise of the MAI as an OECD project, and we applaud this Committee’s decision to continue with its enquiry.

On an earlier appearance before this Committee we participated on a panel addressing the dispute resolution provisions of the MAI, which are virtually identical to those found in Chapter 11 of NAFTA, under the heading Investment. On that occasion we had an opportunity to consider the implications of one of the first cases to invoke investor-state dispute resolution under Chapter 11 — the Ethyl Corporation challenge to federal regulation effectively banning the use of a toxic fuel additive, MMT.

Since that time, there have been at least three additional suits that have been brought against the Government of Canada that have invoked the extra-judicial remedies provided by this unprecedented dispute resolution regime. As this Committee will likely know, two of those cases relate to investment activity that is taking place in or was planned for British Columbia.1 We believe that these cases raise important constitutional issues beyond those described in our earlier submissions. For this reason we decided to take advantage of this opportunity to add to the concerns that we have already expressed to this Committee.

Publication Date: 
March 1, 1999
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