PHM-Exch> New website on investment arbitration - free trade agreements

[Claudio Schuftan]

From: David Legge <D.Legge at latrobe.edu.au>


One of the most worrying features of the NAFTA-type bilateral and regional
trade agreements is the provision for ‘investor protection’ and ‘investor
state dispute settlement’ (ISDS).  ****

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Currently Australia is subject to an ISDS claim by Philip Morris under the
Australia Hong Kong Bilateral Investment Treaty because of Australia’s new
plain packaging laws for cigarette packs.  See Gleeson and Legge (Sept 14,
2011) ‘Public health at risk in trade
talks<http://www.theage.com.au/opinion/politics/public-health-at-risk-in-trade-talks-20110914-1k94z.html#ixzz1XyOtY2CC>’.
****

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Wikipedia describes
ISDS<http://en.wikipedia.org/wiki/Investor_state_dispute_settlement>in
the following terms:
****

Traditionally, dispute settlement under international
law<http://en.wikipedia.org/wiki/International_law>
 has involved disputes between nation
states<http://en.wikipedia.org/wiki/Nation_states>.
Under customary international law, a foreign investor is required to seek
the resolution of such a dispute in the tribunals and/or courts of the
country concerned.[1]<http://en.wikipedia.org/wiki/Investor_state_dispute_settlement#cite_note-0>
[2]<http://en.wikipedia.org/wiki/Investor_state_dispute_settlement#cite_note-1>
 Over 2000 Bilateral Investment Treaties (BITs) currently exist and they
provide foreign investors with a direct means for redress against states for
breaches of breaches of such treaties. A notable example is Chapter 11 of
the North American Free Trade
Agreement<http://en.wikipedia.org/wiki/North_American_Free_Trade_Agreement>
 (NAFTA). NAFTA Chapter 11 allows investors of one NAFTA party (Canada,
United States or Mexico) to bring claims directly against the government of
another NAFTA party before an international panel of arbitrators.****

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For those who are concerned about the operation of these provisions a
fantastic new website has been created by Gus Van Harten from Osgoode Hall
Law School in Canada:  www.iiapp.org  ****

 ****

The site offers:****

**·        **access to a database of investment treaty cases****

**·        **an indication of the policy areas to which cases appear to
relate****

**·        **the appointment records of individual arbitrators****

**·        **other information and commentary on the system.****

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Consider for example: the *Centurion Health v Canada* case in which the
claimant, a U.S. national, and his company Centurion Health sued Canada
under NAFTA Chapter 11. The lawsuit arose after the claimant’s plans to open
a private health care facility in Vancouver, Canada, fell through. The
centre was to offer private surgical services ranging from cosmetic and
reconstructive plastic surgery to general surgery. According to the
claimant, federal, provincial, and municipal measures had prevented the
project from proceeding. The claimant argued that Canada had breached
several NAFTA Chapter 11 provisions, including national treatment and the
minimum standard of treatment, and sought (U.S.) $160,000,000 (plus interest
and costs) in compensation. ****

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This was the first case in which NAFTA Chapter 11 was used to challenge the
*Canada Health Act *and, by extension, publicly-funded health care services
in Canada. This case demonstrates that public health care is open to
investment treaty claims, especially as some provincial governments move to
increased privatization of health care services.****

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