Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Canada STILL Has Not Ratified ICSID

It is embarrassing - Canada signed the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID or the Washington Convention) on December 15, 2006 and passed legislation granting the Canadian Government power to ratify the ICSID; but, Canada has not yet ratified the ICSID.  This means that Canadians can not utilize the full benefits of the ICSID international investment arbitration procedures.  As a results, Canadian businesses do not receive full benefits that flow from Canada's Foreign investment Protection & Promotion Agreements and Investment Chapters of Canada's free trade agreements (e.g. Chapter 11 of NAFTA).  Canadian businesses do receive some of the benefits, but there are ICSID rights that are out of reach.

There are over 140 Member States to the ICSID.  Haiti ratified the ICSID on October 29, 2009.  However, Canada has not ratified the ICSID.

The "problem" (or excuse) is that Canada is a federation. ICSID does not contain a federalism clause. Under Canada's constitutional structure, provincial legislation is needed to implement the ICSID obligations across Canada. The federal government has lobbied its provincial counterparts for several years to ensure a uniform application of ICSID.  There are a number hold-out provinces that have not taken the steps necessary to implement the obligations of the ICSID under provincial law.

British Columbia, Saskatchewan, Ontario and Newfoundland and Labrador (4 of 10 provinces) and Northwest Territories & Nunavut (two of the three territories) have adopted implementing legislation. Please see Settlement of International Disputes Act (British Columbia) S.B.C., 2006, c-16, Settlement of International Disputes Act (Saskatchewan) S.S., 2006, c-S-47.2, Settlement of International Disputes Act (Ontario) S.O., 1999, c-12, schedule D, Settlement of International Disputes Act (Newfoundland & Labrador) S.N.L., 2006, c-S-13.2, Settlement of International Disputes Act (Northwest Territories) S.N.W.T., 2009, c-15.

There does not seem to be momentum in the hold-outs.  This is disappointing.

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