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CCCA_V7No4_Dept-ForeignInvest-FIN_CCCA_V6No4 13-11-25 12:10 PM Page 12 International arbitration What it means for Canadian investment treaties — known as Foreign Agreement (“NAFTA”) that provide sub- foreign investors Investment Promotion and Protection stantive investor protections and make Canada’s membership complements most Agreements (“FIPAs”) — and five Free available arbitration for investors’ claims of Canada’s international investment Trade Agreements, most notably Chapter against host states. treaties. Canada currently has 24 bilateral Eleven of the North American Free Trade Canada’s FIPAs provide standards of protection for Canadian investors in treaty partner countries. They provide mecha- nisms to settle investment disputes includ- ing the arbitration rules of the United Nations Commission on International Trade Law (“UNCITRAL”) and ICSID arbitration. However, absent Canada’s membership in ICSID, Canadian investors could only utilize ICSID arbitration in a limited way, using the ICSID Additional Facility Rules. These rules apply where only one of the parties is a Convention member or a member state’s national and have a significant disadvantage: the award is subject to court review at the seat of arbitration. What took so long? Canada’s ratification of ICSID has been a long time coming, to much puzzlement inside and outside Canada. While Canada and Canadian companies stood to benefit, and despite calls for Canada to join (including by the Canadian Bar Association and Canadian Chamber of Commerce), Canada waited 40 years to sign the Convention in 2006, It’s your personal advisor. and another seven years before ratifying the Convention. The delay has largely been attributed to Lexis Practice Advisor Canada is a single a troubling inability of Canada to ‘get its SM act together’ in its self-interest. Many comprehensive resource for lawyers who handle attribute the delay in large part to transactional matters. Welcome to working smarter. Canada’s constitutional regime, particular- ly how powers are divided and the lack of To learn more, visit lexisnexis.ca/practice-advisor co-ordination between the two levels of government on issues of fundamental common interest. Second, many saw an inexplicable lack of political will to sign Lexis Practice Advisor Canada and then to ratify the Convention and a SM puzzling absence of a strong or consistent LexisNexis, Lexis and the Knowledge Burst logo are registered trademarks and Lexis Practice Advisor is a service mark voice from Canadian companies that of Reed Elsevier Properties Inc., used under licence. © 2013 LexisNexis Canada Inc. All rights reserved. would benefit. Happily, our two levels of 12 CCCA Canadian Corporate Counsel Association WINTER 2013