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Trade - UPS: AffidavitsAlex Neve, Secretary General of Amnesty International Canada. The affidavit stresses the importance of ensuring that the protection of human rights is paramount in any contest with corporate rights, and was filed in support of the Charter Committee on Poverty Issue's (CPPI) application for leave to appeal. 2007. Professor M. Sornarajah is one of the foremost international authorities on international investment arbitration and has written two of the leading textbooks on the subject. He has served on the faculties of several law schools, and as a consultant to the United Nations Conference on Trade and Development (UNCTD) and to the United Nations Development Programme. He is also the Director of the Training Programme on Investment Treaties conducted jointly by the WTO and by the UNCTD. Professor Sornarajah’s evidence describes how investor-State arbitration employs dispute resolution procedures drawn from the sphere of private international commercial arbitration, but enlists them for a purpose for which they were never intended and are ill-equipped to serve - namely, to resolve disputes about government policy, programs and law that have broad public implications and which often affect many in society. Yet once empowered, investor-State arbitral tribunals operate entirely outside the framework of domestic law and constitutional safeguards. Andree Lajoie is a Professor at the Faculty of Law of the University of Montreal. She is a well-known constitutional law scholar who has published 15 books and numerous articles on the subject. She has served as a consultant to several Royal Commissions, including the Macdonald Commission, 1983-1985 and the Dussault-Erasmus Commission, 1993-1996, and was a Commissioner of the Seguin Commission on fiscal disequilibrium, 2000-2002. Professor Lajoie’s evidence examines the nature and extent of the authority of Canadian superior courts in relation to disputes between the Crown and foreign corporations concerning the exercise of governmental authority affecting the proprietary and contractual interests of such foreign investors. She concludes that prior to the advent of Chapter 11 of NAFTA, many of the disputes that have been brought pursuant to these investment rules would have been the exclusive preserve of Canadian superior courts. Accordingly, her evidence supports the groups’ contention that the delegation of this authority to unaccountable international tribunals is not permitted under Canada’s Constitution. Stephen Clarkson is a well-known Professor of Political Science at the University of Toronto. He has written extensively on a variety of contemporary political affairs. The central focus of his scholarly work has been on the Canada-U.S. relationship in the context of the growing pressures deriving from the economic integration of North America’s three national economies. His analysis explores the impacts and implications of free trade in North America and under the World Trade Organization as having established new forms of global governance. Professor Clarkson’s evidence presents the following conclusion. "In sharp contrast with most international agreements, NAFTA creates a new mode of economic regulation with such broad scope and such unusual judicial authority that it has transformed the political order of the three states that are parties to it." He explains that NAFTA, for various reasons, so closely conforms to the conventional notions of what comprises a constitution that it can best be understood as creating a supra-constitution for Canada. The result casts a dark shadow over the landscape of domestic policy and law. Governments must now chart a course through the uncertain terrain of international trade disciplines, which may be invoked or threatened with few constraints by foreign corporations discontented with Canadian policy and law. The effect is to constrain the authority of Canadian governments in the same manner as do the norms and limitations imposed by Canada’s Constitution and the common law. Manfred Bienefeld is a Professor in the School of Public Administration at Carleton University. He has written and published extensively on subjects relating to the international economy, particularly as these affect economic and social development in poorer nations. Professor Bienefeld’s evidence exposes the fallacies of Canada’s claim that foreign direct investment (FDI) benefits both recipient and capital exporting countries. He points out that the weight of the available evidence is very much to the contrary and reveals that policies seeking to attract FDI indiscriminately are always risky and often detrimental. In fact, Canadian government policies have long recognised the need to regulate foreign investment in the public interest. Professor Bienefeld also challenges Canada’s claim that binding international investment rules are important for attracting foreign investment to this country, or for protecting the interests of Canadian investors abroad. Citing a recent World Bank study, he points out that both the history of FDI flows into Canada, and the simple fact that China and several other Asian countries with relatively interventionist governments have received a large and growing share of the world’s FDI in recent years, undermines any claim that international investment treaties are “necessary” to secure high levels of FDI flows. David Schneiderman is an Associate Professor at the Faculty of Law at the University of Toronto who specializes in constitutional law. Professor Schneiderman has written extensively on the impact of free trade on sovereignty, and likens agreements such as NAFTA to quasi constitutions that supercede domestic values and norms. His evidence describes how the standard of protection for investors under NAFTA is highly discordant with Canada’s own constitutional commitments and is much more in keeping with U.S. values. He notes that such property rights protections as are found in the Fifth and Fourteenth Amendments to the U.S. Constitution were rejected by Canada as features of our own Constitution, but have nevertheless now been superimposed by NAFTA investment rules. Professor Schneiderman also challenges the federal government’s assertion that international trade and investment agreements have no impact on Canadian constitutional arrangements. He points out that NAFTA has already exerted a demonstrable chilling effect on public policy and law, as can most recently be observed in the fate of plans to establish a public auto insurance scheme in New Brunswick. In the face of threats by the Insurance Bureau of Canada to sue under NAFTA, the province simply backed away from plans to establish such a scheme. Similarly, threats have lead to the withdrawal of public health and environmental initiatives, including plain packaging regulations for cigarettes and a ban on the use of a neuro-toxic fuel additive. The groups are represented by Steven Shrybman, a partner in the law firm of SACK GOLDBLATT MITCHELL. |
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updated
February 1, 2007
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