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Investor-State Dispute Settlement (ISDS) reappeared in the news last week. Writing for Toronto Star, Les Whittington alerts Canadians that our country is on the receiving end of a claim of $3.5 billion by the owner of the Ambassador Bridge which connects Windsor and Detroit. “Matty Moroun … is claiming damages from Ottawa in connection with Canada’s plan to help build a second bridge linking Ontario to Michigan at Detroit.”
It is the ISDS mechanism established within the North American Free Trade Agreement (NAFTA) that is providing the avenue of complaint for Moroun. I have written about ISDS before (most recently, see here); in essence, foreign corporations have recourse to sue governments, via private tribunal, when government or judicial actions of the home country are deemed to compromise the foreign investment. ISDS was introduced ostensibly to provide security to corporations when dealing in countries with less-than-robust systems of law, but has now become part and parcel of most bi-lateral or multi-lateral trade agreements. The recently agreed upon Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union, and the pending Trans-Pacific Partnership (TPP) which is described as the largest trade agreement negotiated outside of the World Trade Organization, are no exceptions. From a Canadian perspective though, it is perplexing that any government of Canada should embrace the continuance of ISDS in trade agreements.
Whittington draws from a newly–released compilation of actions against NAFTA governments, authored by Scott Sinclair for the Canadian Centre for Policy Alternatives (CCPA), to observe that, disproportionately, Canada receives most of the action. It could be argued that Canadian trade with the United States is of higher volume than that of Mexico, and thus such proportion is inevitable. One could also argue that Canada’s past commitments to public-wellbeing are more likely to impede a laissez-faire mantra, and that is why we attract unwanted attention. A day after Whittington’s article, Thomas Walkom also weighed in via Toronto Star: “… 69 of the 77 complaints made against governments in the three countries were leveled against public policy measures in areas such as environmental protection, land-use planning, drug regulation and health care.”
Whittington observes that the Canadian government sees concerns of ISDS as overdrawn; with respect to CETA, he quotes a representative: “Investment protections have long been a core element of trade policy in Canada and Europe, and will encourage job-creating investment and economic growth on both sides of the Atlantic.” But, in March of last year, Public Citizen issued a report which comprehensively illustrates that ISDS offers protection far beyond what occurred in the past and that “… countries bound by ISDS pacts have not seen significant FDI increases, [whereas] countries without such pacts have not lacked for foreign investment (p.3).” And in that same report, Public Citizen illustrates precisely how deleterious actions under ISDS are to public well-being.
For instance, both Uruguay and Australia have drawn fire for their anti-smoking efforts (larger warning labels and plain packaging requirements), despite the fact that the World Health Organization commends such effort. (Jim Armitage, writing for The Independent last fall, described in detail Uruguay’s success in reducing smoking rates among its population.) Yet tobacco company Phillip Morris, is challenging both countries by way of ISDS. As noted by Public Citizen, “Philip Morris is demanding compensation from the two governments claiming that the public health measures expropriate the corporation’s investments in violation of investor rights established in Bilateral Investment Treaties (p.2).” Neither Uruguay’s health success nor the fact that Australia’s regulations were upheld by its Supreme Court, will have much sway in the tribunal operations of ISDS.
Under ISDS, disputes are managed by a trio of corporate attorneys who rotate among the positions of representative and judge. These tribunals are not answerable to any electorate and do not address public well-being as a court of law would do when confronted with the same dispute. Even if one is willing to accept that such critical decisions are rendered outside the forum of any country’s judiciary, the lack of statutory guidance to the outcome is extraordinary; Public Citizen writes:
If a tribunal rules against a challenged policy, there is no limit to the amount of taxpayer money that the tribunal can order the government to pay the foreign corporation. Such compensation orders are based on what an ISDS tribunal surmises that an investor would have earned in the absence of the public policy it is attacking. The cases cannot be appealed on the merits. There are narrow technical and procedural grounds for annulment. Firms that win an award can collect by seizing a government’s assets if payment is not made promptly. Even when governments win cases, they are often ordered to pay for a share of the tribunal’s costs. Given that the costs just for defending a challenged policy in an ISDS case total $8 million on average, the mere filing of a case can create a chilling effect on government policymaking, even if the government expects to win (p.2-3).
For Canadians, that last sentence is not conjecture; Walkom writes “[In 2013] … the Ontario government paid a U.S.-based company $15 million to withdraw its complaint.” Moreover, the phrase “would have earned in the absence of the public policy it is attacking” should send chills down everyone’s spine. Clean air, clean water, access to medicine, and, worker and public safety, all sit on the cost side of any ledger. It is unrealistic to expect that measures addressing these social needs would have been voluntarily adopted by entire industries, and then maintained by those industries, without some prodding from government. The appropriate forum to address dispute between corporate expectation and government commitment to public well-being, can only be a court of law.
Harold Innis (1894-1952) once remarked upon the brilliant achievement that was the development of law; that law represented “an alternative to force.” True, in the 21st century, citizens of nation states do not fear marauding armies traipsing through the streets in a hostile takeover of the nation. But we should not lose sight of the fact that nations can be taken over in a far more insidious way; losing the supremacy of our judiciary and the autonomy of our government should be an early warning sign.
According to recent news, Comcast is being sued because it is taking advantage of users’ resources to build up its own nationwide Wi-Fi network. Since mid-2013 the company has been updating consumers’ routers by installing new firmware that makes the router partially devoted to the “home-user” network and partially devoted to the “mobile-user” network (a […]
Verizon’s practice of injecting a unique ID into the HTTP headers of traffic originating on their wireless network has alarmed privacy advocates and researchers. Jonathan Mayer detailed how this header is already being used by third-parties to create zombie cookies. In this post, I summarize just how much information Verizon collects and shares under their […]
As the misuse of the Canada’s copyright notice-and-notice system continues to attract attention, Industry Canada has taken the first step to try to alleviate public concern. The department has posted an advisory on the notice-and-notice system which seeks to assuage consumer concern, noting that U.S. copyright penalties do not apply in Canada and that the statutory damages cap for non-commercial infringement is C$5000. It also states:
This is important information that provides much needed context for the notices. As I noted last week, some Internet providers are forwarding similar information to their subscribers.
But not all. A reader recently sent me the Videotron copyright notice, which is notable for at least two reasons. First, the notice ignores the existence of user rights such as fair dealing and protection for non-commercial user generated content. While those provisions permit usage of copyright materials without permission, Videotron warns that “generally, you must obtain the permission or rights in order to reproduce any protected material.”
Second, the notice oddly claims to protect the privacy of the rights holder sending the complaint, stating:
Because of privacy concerns, we cannot give any information regarding the plaintiff, as we do not provide any information to the plaintiff about you except if ordered by a court of law. If you want to know who the plaintiff is, you can search on the internet who is the copyright owner of the material referenced in the complaint.
This is bizarre statement since the notice does identify the copyright owner and complainant. In fact, providing the name and address of the complainant is a statutory requirement under the Canadian law. Why Videotron would claim to safeguard such information when it is a legal requirement to disclose it suggests that the company might want to take a closer look at both the law and the notices that it forwards.
A full copy of the Videotron notice (which contains both English and French versions) is posted below.
English Version Follows]
The post Videotron’s Odd Copyright Notices: No User Rights and Inaccurate Privacy Information appeared first on Michael Geist.
When hackers believed by the U.S. government to have been sponsored by the state of North Korea infiltrated Sony Pictures’ corporate network and leaked reams of sensitive documents, the act was quickly labeled an act of “cyberterrorism.” When hackers claiming to be affiliated with ISIS subsequently hijacked the YouTube and Twitter accounts of the U.S. […]
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