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CCCA_V7No1_CoverStory-FIN_CCCA 2/12/13 4:47 PM Page 26 Cover Like similar agreements that Canada has signed with other Proponents of the FIPA say that Canadians should be focused on countries, this FIPA “serves to promote investment by Canadian what this new paradigm means now that bilateral investment investors abroad and to protect their investments,” says Greg between these two nations is growing at a remarkable pace. In fact, Kanargelidis, a partner with Blake, Cassels & Graydon LLP in according to the federal government, foreign direct investment Toronto who focuses on international trade law. “The promotion between Canada and China has increased more than five-fold aspect is assisted by the fact that investors will feel more protected; between 2005 and 2011 to a total of $15.4 billion — and the poten- there’s a guarantee of certain rights and obligations that the host tial for increased Canadian investment in China is significant given country — in this case, China — has to abide by.” that it’s expected to become the world’s largest economy by 2020. In fact, FIPA “is a relatively minor agreement,” according to “China is a huge, huge economy and a huge country,” says Michael Hart, professor of international affairs at Carleton Laura Dawson, president of Dawson Strategic, an Ottawa-based University in Ottawa and a former official in Canada’s consulting firm specializing in international trade and investment, Department of Foreign Affairs and International Trade. “We have “but I would rather deal with China in a rules-based framework 24 of these agreements and there are another dozen in the where the rules are written down and, if they’re violated, we have pipeline. We negotiate these with countries where we’re not con- some recourse, than in a state of anarchy and no rules, which is fident that they have a judicial system to ensure that investors will what we have now.” be well-treated. China falls into that category. It’s a fact of life that “In the absence of a rules-based investment law regime, which their judicial system is not as reliable as ours is.” this agreement establishes,” adds Kanargelidis, “what would be the Adds Milos Barutciski, partner and co-head of international recourse that investors would have? Well, they would have recourse trade law with Bennett Jones LLP in Toronto: “For Canadian busi- to the local courts and local laws and they would seek assistance nesses, China is a very opaque place to do business in. The rule of from the Government of Canada; that’s where the government law is at times uncertain, the legal system itself is frequently may be reticent to engage the Chinese government on behalf of a unclear and the legal and regulatory actors are, at times, unclear. So, private investor because of the political risk. There’s no requirement what this agreement does is provide Canadian investors who want or need here to involve the Government of Canada because we to do business in China with certain guarantees they simply did will have a rules-based structure.” not have before.” The fact that this deal opens the possibility for Canadian Michael Hart Professor of international affairs Carleton University MIKE PINDER Ottawa 26