| Q-13242 — April 24, 2013 — — With regard to the Canada-China Foreign Investment Promotion and Protection Agreement (FIPA), and new developments in investment arbitration which have arisen since the text of the agreement was finalized in early 2012: (a) has the government conducted any study on the fiscal risk or regulatory impacts that may arise from the litigation and resolution of the North American Free Trade Agreement (NAFTA) claim against Quebec’s moratorium on gas fracturing (also known as fracking); (b) has the government reviewed its approach to reservations in the FIPA and other treaties that provide for investor-state arbitration in light of the decision in Mobil Investments Inc. and Murphy Oil Corporation v. Government of Canada, with particular reference to the fact that a majority of the tribunal rejected Canada’s argument by concluding that subsidiary measures (introduced under legislation that was reserved under the treaty) must be consistent not only with the reserved legislation but also with prior subsidiary measures introduced under the relevant legislation; (c) has the government examined Canada’s vulnerability to investor claims arising from domestic court decisions and domestic judicial doctrines, as in the recent Eli Lilly claim against Canada and the Deutsche Bank award against Sri Lanka; (d) on what basis does the government conclude that its previously-stated intention not to violate the Canada-China FIPA is a prudent and reasonable assumption given that Canada has been found to have violated similar obligations in Chapter 11 of NAFTA in the past and faces numerous outstanding NAFTA Chapter 11 claims; (e) has the government assessed its risks and liabilities arising from investor-state arbitration under the Canada-China FIPA in light of the experience of other countries pursuant to other treaties that provide for investor-state arbitration (for example, bilateral investment treaties, Central America Free Trade Agreement, the Energy Charter Treaty) or has the government limited its assessment in this regard to the experience under Chapter 11 of NAFTA, and, if so, on what basis does the government conclude that the experience under the former is not relevant to the Canada-China FIPA; (f) with particular reference to the fact that the government has cited projections that Chinese outbound investment may reach $1 trillion by 2020, and given that Canada’s share of Chinese outbound investment in 2011 was approximately one sixth of total Chinese outbound investment, does the government accept that it is reasonable to expect that Chinese investment in Canada will reach one hundred billion dollars or more during the minimum lifespan of the Canada-China FIPA, and, if the government does not accept this, what steps does the government intend to take to limit the amount of Chinese investment in Canada; (g) has the government committed in writing to cover all costs and liabilities arising from investor-state arbitration claims under the Canada-China FIPA where such claims arise from measures of a provincial, territorial, municipal, aboriginal, or other sub-national decision-maker in Canada; (h) is the government aware of any connection between the payment of $15 million by Ontario to the claimant in St. Mary's VCNA, LLC v. Government of Canada and the claimant's agreement to withdraw its NAFTA claim against Canada and to agree to the related consent award with the government; (i) is the government aware of any payment of compensation by Quebec to the claimant in William Jay Greiner and Malbaie River Outfitters Inc. v. Government of Canada in relation to the claimant’s withdrawal of its NAFTA claim against Canada in that case; (j) were Canadian Embassy staff in Beijing consulted on or involved in the negotiation of the Canada-China FIPA during 2011 and 2012, and if so, (i) what was the process for consulting Canadian Embassy staff and how were they involved, (ii) was the process similar to that used in previous consultations with the in-country Canadian embassy or consulate for the negotiation of other bilateral investment treaties, and if so, in what respects; (k) with regard to the Canada-China FIPA, has the government done an assessment of the implications of extending the FIPA's performance requirements obligation to provincial and other sub-national decision-makers, with particular reference to the fact that Article 1109 of NAFTA exempts existing provincial measures from the performance requirements obligation referred to in NAFTA Article 1108; (l) as a result of the most-favoured-nation treatment clause in NAFTA, will the Canada-China FIPA’s extension of the performance requirements obligation to the provinces and other sub-national decision-makers allow U.S. investors to bring claims against Canada arising from provincial decisions or other measures in circumstances where Canadian investors would not be able to bring claims against the U.S. where the challenged measure was taken by a U.S. state or other sub-national decision-maker; (m) has the government done any assessment of the implications of not extending the treaty’s reservations on aboriginal rights, pursuant to Annex II of the Canada-Peru FTA, to Article 9 of the Canada-China FIPA on performance requirements, with particular reference to the fact that the comparator reservation in NAFTA does extend to NAFTA Article 1108 on performance requirements; (n) has the government done any assessments of potential conflicts or inconsistencies between the provisions of the Canada-China FIPA and Chapter 6 (Energy and Basic Petrochemicals) of NAFTA and, in particular, the provisions on measures restricting imports and exports of energy and basic petrochemical goods; (o) with regard to the Final Environmental Assessment of the Canada-China FIPA, who decided and how was it determined that (i) there was no causal relationship between the Canada-China FIPA and inbound Chinese investment in Canada, (ii) there was, as a result, no environmental impact from the FIPA, and on what evidence did the government rely to make these determinations; (p) how many public submissions did the government receive as part of its Environmental Assessment of the Canada–China FIPA, and how many public submissions did the government receive for each other FIPA negotiated for which an Environmental Assessment was conducted; (q) which negotiators and environmental experts were involved in the Environmental Assessment of the Canada-China FIPA and how were the environmental considerations of the experts and the public integrated into the negotiating strategy; (r) what, if any, studies has the government undertaken to assess the impact on future model bilateral investment treaties of extending most-favoured-nation treatment in the Canada-China FIPA to treatment accorded under any bilateral or multilateral international agreement in force on or after January 1, 1994; (s) how will the government ensure that any settlements of claims against Canada under the Canada-China FIPA, or under any other treaty that provides for investor-state arbitration, to which a provincial government is a party will be made public; and (t) does the government know if China has ratified the Canada-China FIPA? |