With a feature presentation on “Major Milestones in Canadian Arbitration Law”, the Canadian Journal of Commercial Arbitration launched last week before an online audience of several hundred arbitration practitioners, scholars, and students from around the world. “Our aspiration for the Journal is to contribute materially to bringing together, and strengthening the professional bond, among all…

On June 26, 2020, the Supreme Court of Canada (“SCC”) released a decision with significant implications for international businesses by placing significant limits on the application of arbitration clauses.   Background The case, Uber Technologies Inc. v Heller (2020 SCC 16 ) (“Heller”), involved a challenge to Uber’s standard agreement with drivers requiring disputes to…

Amid global economic uncertainty, the years-long project of the United States-Mexico-Canada Agreement (“USMCA”) (also known as “the new-NAFTA” or “NAFTA 2.0”) has finally reached fruition. On March 13, 2020, Canada became the final North American party to ratify the agreement and now the treaty will enter into force on July 1, 2020. Kluwer Arbitration Blog has…

On July 1, 2020, the United States – Mexico – Canada Agreement (USMCA) will enter into force. Although the media widely refers to the treaty by its American name, USMCA, it also carries two other names: Canada has adopted it as the Canada – United States – Mexico Agreement (CUSMA), while Mexico has settled on…

The Supreme Court of Canada’s recent decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 potentially poses an inadvertent, yet serious, threat to judicial deference to domestic commercial arbitration in Canada. Until Vavilov, courts hearing appeals on questions of law from arbitral tribunals applied the deferential “reasonableness” standard of review. Vavilov…

Introduction The United States, Mexico, and Canada renegotiated the 25-year-old North American Free Trade Agreement (NAFTA) in 2018. As a result of these renegotiations, the parties agreed on new terms to formulate “NAFTA 2.0” or the U.S.-Mexico-Canada Agreement (USMCA) in the United States, the CUSMA in Canada and, the T-MEC in Mexico. The USMCA aims…

Introduction The World Trade Organization (the “WTO”) is at an inflection point. As global dynamics shift, members must consider whether the institution, as it is currently configured, has passed its prime. The success of the WTO to date epitomizes the pinnacle of an apparent ideological consensus. However, the current recession of that consensus is forcing…

Introduction The United States and its neighbor to the north, Canada, share the world’s longest border, a common language, and similar values, resulting in one of the most stable and mutually beneficial international business relationships in the world. Indeed the United States is Canada’s largest trading partner, and Canada is the United States’ second largest…

On Friday December 7th, a distinguished panel of government negotiators, experienced investment arbitrators and senior legal advisors gathered in Paris at the law faculty of the University Paris II Panthéon-Assas (Paris II) to discuss the US-Mexico-Canada Trade Agreement (USMCA) also called the “New NAFTA” signed on November 30th. The panel was held as part of…

Introduction: The Pro-State Orientation of the USMCA Chapter 14 of the United States-Mexico-Canada Agreement (USMCA) presents a model of investor-state dispute settlement (ISDS) that fundamentally realigns the balance between investors and states in favor of the latter. This realignment consists in the USMCA’s structure and specific provisions. Structurally, the USMCA eliminates ISDS between Canadian investors…

President Trump’s October 1, 2018 announcement that the United States, Canada, and Mexico have reached an agreement to replace the 1994 North American Free Trade Agreement (NAFTA) marks a veritable sea change in investor-state dispute settlement in the region. Previous and prospective users of NAFTA’s dispute resolution procedures will immediately note that this new free-trade…

In the context of the backlash against investor-state dispute settlement (“ISDS”), one of the main criticisms is the asymmetric nature of investment treaties, which impose numerous obligations on the States, but do not seem to hold corporations accountable for the social, environmental and economic consequences of their activities. Some recent developments reflect a redirection away…

Principles of adverse inferences are applied universally. International law endorses the arbitrator’s inherent authority to draw adverse inferences against a party for unjustified non-compliance with an order to produce information. Moreover, arbitrators can rely on general principles of law when applying adverse inferences as a basis for decisions. The general principle of good faith imposes…

On the heels of a year that has seen the rise of populist nationalism, skepticism of multilateral trade agreements and calls to tighten in some ways the flow of people across borders – perhaps most visibly in the United States and across Europe, but with manifestations elsewhere – many communities saw a retreat from international…

Debates about the propriety of investor-state dispute settlement (ISDS) were revived by a recent letter by U.S. academics, which urged the abandonment of ISDS in the renegotiated North American Free Trade Agreement (NAFTA). This letter repeated arguments that are familiar from prior ISDS debates, such as that ISDS “grants foreign corporations and investors rights to skirt domestic…

On June 6, 2016, the ICSID Secretary General registered a request for arbitration in Global Telecom Holding (GTH) v. Canada. Although the text of the arbitral claim is not yet public, it appears likely that the dispute relates to GTH’s involvement (or attempted involvement) in Canada’s wireless telecommunications sector. This claim may be historic for…

by Catherine H. Gibson (Assistant Editor for North America) The Trans-Pacific Partnership (TPP) Agreement (official text here) is one in a series of significant investment agreements that the United States will negotiate in the coming months and years – next in line are the Transatlantic Trade Investment Partnership (TTIP) Agreement and the United States-China bilateral…

For natural persons, possession of the nationality of the host state is an absolute bar to becoming a party to ICSID proceedings against that state. Article 25 of the ICSID Convention delimits the scope of arbitral jurisdiction to investment disputes between a ‘Contracting State’ and a ‘national of another Contracting State’, defined as ‘any natural…

In the past two years, Canada has signed BITs with nine African states: Benin (January 2013), United Republic of Tanzania (May 2013), Cameroon (March 2014), Nigeria (May 2014), Senegal (November 2014), Mali (November 2014), Cote d’Ivoire (November 2014), Burkina Faso (April 2015) and most recently Guinea (May 2015). The first eight of these treaties (the…

If the Canada-China BIT is any guide, then the US-China BIT may prove to be profoundly state-friendly. Unlike Canada’s 2004 model investment agreement and the investment chapter of the 2014 Canada-European Union Comprehensive Trade and Economic Agreement (CETA), the Canada-China BIT offers only negligible establishment-phase protections and lacks disciplines on state-owned enterprises. With such provisions,…

In an Award on Jurisdiction rendered earlier this year under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the “ICSID Convention”) in ICSID Case No. ARB/11/7 – National Gas S.A.E. v. Arab Republic of Egypt (a copy of which is electronically available on the official Investment Treaty Arbitration…

The pronouncements of the highest-ranking court are key indicators of a legal system’s stance vis-à-vis arbitration and other private means of dispute resolution. Over the past decade, the Supreme Court of Canada has dealt with arbitration in a number of cases, and it initially did so in a manner that revealed a very supportive attitude….

In recent years, Canada has an enjoyed a reputation as an arbitration-friendly country. This is due to a number of factors, including the incorporation or adaptation of the Model Law into the arbitration legislation at the provincial and federal level, a sophisticated arbitration community well versed in both the common and civil law traditions, and,…

The Obama Administration’s only current regional trade negotiations, the Trans-Pacific Partnership (TPP), continue slowly toward a possible conclusion in 2013, with 12 rounds of negotiations having been completed as of the end of May 2012. A major element of a re-energized American focus on political, security and economic considerations in Asia, the TPP if it…