From the Canadian government's "Technical Summary" of CETA:
Investment protection rules
- Strong rules that take into consideration lessons learned from past FTAs and foreign investment promotion and protection agreements
- Commitments to treat investors from Canada and the EU fairly and equitably and in non-discriminatory manner
- Provisions on expropriation, including indirect expropriation
- annex clarifies that non-discriminatory, good-faith measures to protect health, safety and the environment do not constitute indirect expropriation
- Robust and innovative provision on minimum standard of treatment
- new format for article but substantively the same as NAFTA (that is, substantively the same as the customary international-law minimum standard of treatment)
- Investment-protection rules subject to ISDS on only a post-establishment basis
Investor-state dispute settlement (ISDS)
- Clear and detailed rules of procedure to promote the efficient resolution of investor-state disputes
- Enhanced consultations and new mediation provisions encourage early settlement of disputes without recourse to arbitration
- Transparent ISDS process, making submissions to the arbitral panel public and generally opening hearings to anyone interested
- Allows amicus curiae interventions (non-disputing individuals and organisations may seek leave to submit briefs to the arbitral panel)
- Provisions to allow for early dismissal of frivolous and stale claims to ensure that the process will not be abused
- Standing provision adjusted for the Convention on the Settlement of Investment Disputes between States and Nationals of other States (the “ICSID Convention”)
- allows an investor to bring a claim against the host state for a breach of obligation and for damages arising from that breach
- Canada plans to become a party to the ICSID Convention, which allows for locally established, foreign-owned companies to bring a claim.
- Accordingly, when the ICSID Convention arbitral rules apply, that foreign-owned company may initiate a claim
- does not change the result of Canada’s current standing approach
- To pursue an ISDS claim, an investor must file a waiver abandoning any other parallel claim it may have seeking damages related to the same measure(s).
- Future claims are also prohibited when the ISDS claim is dismissed on its merits.
- If the ISDS claim is dismissed in its early stages, such as on procedural or jurisdictional grounds, then an investor may pursue its claim elsewhere.
- If the ISDS claim is withdrawn within 12 months, the investor may pursue its claim elsewhere
- An ISDS tribunal cannot order the repeal of the host state’s measure.
- It may order an award, separately or in combination, for damages or restitution of property, as well as costs.
- When calculating a damages award, a tribunal must consider, amongst other factors, whether a measure has been voluntarily repealed or modified.
- This may serve to discount the amount of damages awarded to the investor
- Canada and the EU may adopt interpretations of a provision in the investment chapter that are binding on investor-state dispute-settlement arbitration tribunals.
- Such interpretations can be used to clarify the parties’ intent when the obligations were negotiated.
Among other things, I'm curious to learn more about the "Provisions to allow for early dismissal of frivolous and stale claims to ensure that the process will not be abused".
