Canada targeted by more claims than U.S., Mexico under NAFTA

OTTAWA—Canada has been the target of more claims in the North American Free Trade Agreement (NAFTA) than its Mexican and American partners, a new study has found.

As a result, Canada has been forced to shell out more than $150 million in damages and tens of millions more in legal fees since the trade deal came into force in 1994, according to a report from the left-leaning Canadian Centre for Policy Alternatives (CCPA).

The study’s author found that 45 per cent of claims through NAFTA’s investor-state dispute settlement (ISDS) mechanism, also known as Chapter 11, were directed at Canada.

On top of that, the number of submissions against Canada have accelerated in the last 10 years, said Scott Sinclair.

“Clearly, Canadians and their government are being singled out under NAFTA,” said Sinclair, a senior research fellow with the CCPA.

“From the perspective of foreign investors, it’s quite attractive to the roll the dice and launch a NAFTA investor-state claim against Canada.”

The Department of International Trade says Chapter 11 aims to provide companies with a “predictable, rules-based investment climate” when they do business in another country.

It says the measure features dispute-settlement procedures via an impartial tribunal.

Chapter 11 has also been a source of controversy for years.

Supporters of investor protection mechanisms argue they protect Canadian companies from the uncertainty of conducting business in emerging markets, where decisions by local governments could put investments at risk.

Chapter 11 was added to NAFTA over concerns, at the time, about the effectiveness of Mexico’s justice system.

A spokesperson for International Trade Minister Ed Fast said ISDS has been a key part of government trade policy for years because it shields Canadian investors from discrimination abroad.

Investor protection provisions have been part of Canada’s recent deals, such as its European Union (EU) trade agreement.

But critics of the tools, like Sinclair, warn they put too much power in the hands of multinational corporations, while they also risk discouraging democratic governments from acting in the public’s interest on policy and regulation decisions.

Opponents also fear foreign investors might use the ISDS process as a way to bypass Canadian courts.

Sinclair said 12 claims were made against Canada between 1995 and 2005, while 23 were submitted in the last decade under Chapter 11.

Nine ongoing claims have yet to be resolved, he added.

Claims against Canada under Chapter 11 have dealt with issues ranging from a Canadian ban on imports of a gasoline additive, to the illegal seizure of assets, to government measures that affected a plan to transform farmland near Hamilton, Ont., into a quarry.

Sinclair said one of the ongoing claims was submitted by Lone Pine Resources Inc., wherein the company made the challenge against Quebec over the province’s moratorium on hydraulic fracturing for natural gas.

Lone Pine had purchased leases and paid rentals when the ban was imposed.

Overall, he said Canada has lost or settled six claims for a total of more than $170 million in pay outs.

By comparison, Sinclair added the United States has never lost a case, while Mexico has paid US$204 million in damages after losing five claims.

Sinclair said governments in some parts of the world are turning away from ISDS, while Canada has continued to include the mechanism in its international trade deals.

“In Canada, there’s surprisingly little debate and I think that’s the first thing that has to change,” he said.

Fast’s office said Canada has paid $158 million in damages in the last two decades under NAFTA—the vast majority of which came from one case.

The federal government agreed to pay AbitibiBowater Inc. $130 million in 2010 to settle the company’s claim that Newfoundland and Labrador illegally seized some of its assets.

By comparison, Fast spokesperson Max Moncaster wrote in an email that U.S. investment in Canada now totals $352.1 billion.

International trade consultant Laura Dawson said Chapter 11 has struck a reasonable balance between public interest and corporate rights.

She doesn’t believe the number of settled cases against Canada is out of proportion.

“Investor-state dispute settlement is not nearly the scourge on policy sovereignty that the anti-trade community would claim that it is,” said Dawson, president of Ottawa-based Dawson Strategic.

“It’s neither an angel or a demon.”

She said the claims numbers may seem high because it’s very easy to get a challenge started without a lawyer.

But from there, it can be a long and complicated road.

Dawson sees NAFTA’s complex ISDS, which she described as a “very cumbersome, unwieldy, awkward, limited mechanism,” as a last resort for her clients because it can take years to lead to a decision.

But overall she believes ISDS tools have a role in future trade deals because they help encourage Canadian companies to invest abroad, particularly in riskier, emerging markets.