Listening to some of the apocalyptic rhetoric surrounding the pending investment treaty between Canada and China, one might think Canada is the first country to conclude an agreement to protect its investors in China and grant protections to Chinese investors abroad.
It’s not. About 70 other countries, many of them developed and democratic, have similar deals with China, including New Zealand, Germany, the Netherlands, Belgium and Japan.
So why the concern? Some of it seems to stem from a confluence of events: The treaty is before Parliament for review at the same time that the government is considering whether to approve the $15.1-billion takeover of Calgary-based Nexen Inc. by a state-owned Chinese energy company.
Awkward though this timing may be, the legal reality is that the treaty places virtually no restrictions on Canada’s ability to reject deals such as Nexen or on the conditions it can impose for approving them.
As in all of its investment treaties (and Canada itself has close to 30, including those that form a part of its free-trade agreements), Canada has reserved for itself with China the freedom to review and approve new investments and takeovers under the Investment Canada Act, including those by state-owned enterprises. And as with those other treaties, those decisions are not subject to any sort of dispute settlement claims by aggrieved prospective investors.
In fact, the Canada-China investment treaty is even less restrictive in this respect than similar Canadian commitments in agreements with other countries, including those in NAFTA. Those other agreements do impose other disciplines on how Canada treats prospective investors (so-called “pre-establishment” obligations). By contrast, the Canada-China treaty imposes almost no obligations on either party with regard to such investors; it focuses on what happens once investments have been admitted.
Another concern seems to be the prospect that Chinese investors will swamp Canada with investment claims. The argument is that China is a capital exporter like the United States, and just look what happened under NAFTA.
In reality, very little has happened under NAFTA. Yes, there have been cases brought against Canada by U.S. investors but few with any merit. None of the fears voiced by NAFTA’s critics that investment claims could undermine environmental or health protections have come to pass. What’s more, the Canada-China treaty is even more explicit than NAFTA that genuine health, safety, environmental and conservation measures do not give rise to credible claims.
Given China’s network of investment treaties, including many with countries not known for the rule of law and many, since the late 1990s, providing liberal access to arbitration for investors, one might also expect the concern of a litigation flood to find support in the volume of claims brought by Chinese investors elsewhere in the world.
But the evidence does not support the doomsayers. There have been just three such claims reported under China’s investment treaties, and only one against a developed country. Nor do the critics acknowledge the billions of dollars of Canadian investment in China ($4.5-billion as of 2011 and growing), investments that can only benefit from the additional predictability and potential recourse to independent arbitration afforded by the treaty.
A further criticism is that the treaty’s transparency provisions are not as robust for investment disputes as in other such Canadian treaties. That’s true to a point, but only part of the story. All decisions by arbitration tribunals will be publicly available. In addition, when defending claims, Canada or China will have the unilateral discretion to make available the investor’s submissions to the tribunal as well as its own, and to open hearings to the public.
Canada has been at the forefront of the transparency movement in investment and trade disputes, so it’s a safe bet that any cases brought against it will be subject to full public scrutiny. One can hope that China, too, will come to appreciate the added legitimacy that transparency brings to investor-state dispute settlement. There’s precedent among countries at the World Trade Organization for such an evolution in attitudes.
Like many countries, Canada enters into investment treaties to protect its investors abroad, particularly in places where the rule of law is not assured. This necessarily means offering reciprocal protections to our treaty partners. Misplaced fears should not be used to deprive Canadians of the same protections that other developed democracies have obtained for their investors in China and elsewhere.
Matthew Kronby was head of the federal government’s Trade Law Bureau from 2009 until he joined Bennett Jones in 2012. During his 15 years in the bureau, he frequently represented Canada before WTO panels and the Appellate Body. He was also the government’s lead lawyer in the negotiation of trade and investment agreements with Singapore, Colombia, Peru and, most recently, the European Union.