Is it Ratification of the TPP or Not?
Monday (February 15, 2016) , a new investor-state hearing began here in Toronto. This was the opening of the Windstream case. Though I seldom comment on these proceedings, especially as I’ve participated in quite a number of these investor-state cases, and their hearings, this opening, at least with respect to the Government of Canada’s statement on subsequent practice and or agreement deserves highlighting.
My colleague's (Sean Stephenson) recent blog post here at IELP, dated February 1st and titled, “Canada Must Sign in New Zealand with Other Ministers, According to the Government of Canada. Is This Right?” examined International Trade Minister, Chrystia Freeland’s statement in a "Public Letter to Canadians" that the signing of the TPP with other states had no effect but that Canada was required to sign the TPP on February 4, 2016 to maintain its "full TPP membership." This open letter was followed up in one of
Canada’s leading papers by the former Director General of the Department of Global Affairs (formerly DFATD), Matthew Kronby, now back in private practice, who supported Minister Freeland’s statement.
Now in the blog post by Sean Stephenson, he concluded that the Minister's statement was misleading at best, noting that the TPP was silent on the actual process and effects of signing of the Agreement, and that the Entry into Force provisions could not be interpreted to mean that Canada was "bound" to sign the TPP with other countries who negotiated the TPP, and as a result in not doing so Canada would not lose its "full status."
So what does the question of signing this multilateral trade agreement with the ministers of the other countries have to do with the opening statement of the Government of Canada in an investor-state case? The case is called Windstream Energy. The case was filed under chapter 11 of the NAFTA and Windstream, the complainant has sought damages for the failure of the Government of Ontario (under the NAFTA of course the Party, Canada acts as the Respondent in the case) to enable Windstream to build an offshore wind farm that the Ontario Power Authority had contracted with Windstream to build at a guaranteed rate.
All good so far. But what raised a concern (while I was not in the webcast room, my colleague Sean Stephenson was) were submissions by Sylvie Tabet the General Counsel and Director, Trade Law Bureau on the question of subsequent practice and or agreement. As most of you are aware Article 31(3) of Vienna Convention (VCLT) codifies customary law with respect to subsequent practice. The interpretation includes:
- There shall be taken into account, together with the context:
- any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation.
Why the concern? Well, Counsel in her submissions referenced the TPP. This is curious on at least two counts. First, and with reference to interpretation, how does a separate treaty with well more than the NAFTA parties as signatories reflect subsequent agreement or practice or have anything meaningfully to say about the subsequent practice of the three NAFTA Parties.
But beyond this, and more critically, how can Canada’s Counsel reference a Treaty that the Minister made clear that notwithstanding its signing by Canada just shortly before, nevertheless said nothing about Canada’s ratification of the Treaty. The Minister stated clearly that Canada’s adherence to the TPP is to be determined in the future and after broad consultation with Canadians. So Counsel’s reference to the TPP is either meaningless, and should be ignored, or the statement by the Minister to the Canadian public is meaningless. The latter, however, would be a serious undermining of Canadian democratic practice.