CIIT Committee Report

Supplementary opinion of the New Democratic Party of Canada

New Democrats were disappointed that the committee declined to comment, or even mention, the testimony that it heard in respect of the role that investor-state dispute settlement (ISDS) mechanisms may yet play as the pandemic unfolds, as well as their place in post-pandemic international trade.

While the committee has undertaken a separate study on ISDS mechanisms in general, a report on the post-COVID trade environment cannot be considered complete without addressing these mechanisms. This is especially true in light of reports that some multinational companies are already preparing ISDS suits in order to recuperate profits lost as a result of public health measures implemented by governments in response to the pandemic.

We would therefore like to highlight the testimony of Ms. Angella MacEwen, Co-Chair of the Trade Justice Network, who said:

“[W]e think that in modern trade agreements, like the new NAFTA that was negotiated, we should be moving away from ISDS in those agreements. It prioritizes one thing above a whole host of other considerations that we think include government's responsibility in terms of public health and being able to respond in crises in ways that make sense without being afraid that they're on the hook for frivolous lawsuits from other companies.

. . . It makes sense right now to temporarily suspend any ISDS measures, but also, as we move forward in negotiations, we were quite upset to see that the U.K. agreement still had something around an investment court in it, when that hasn't actually even been finalized in CETA yet.

We think the way forward in trade agreements is to move away from ISDS, because it's proven to be so much of a barrier to progress on climate, human rights and indigenous rights that there's no excuse for keeping it anymore.”

The government would do well to heed her advice.