Don't Trust the Arbitrators? Belgium-Based 'Corporate Europe Observatory' Blasts the International Investment Arbitration System

By Keith Edmund White, Editor-in-Chief

Yikes, do we need to shine more light on the the rule-enforcers for international trade?

Corporate Europe Observatory Observatory (CEO) and the Transnational Institute have released a report slamming international arbitration arbitrators:

"Yet rather than acting as fair and neutral intermediaries, it has become clear that the arbitration industry has a vested interest in perpetuating an investment regime that prioritises the rights of investors at the expense of democratically elected national governments and sovereign states. They have built a multimillion-dollar, self-serving industry, dominated by a narrow exclusive elite of law firms and lawyers whose interconnectedness and multiple financial interests raise serious concerns about their commitment to deliver fair and independent judgments."  [Source: Profiting from Injustice: How law firms, arbitrators and financiers are fuelling an investment arbitration boom]

And Rabble.ca blogs on the report, giving a nice backdrop to how important the arbitration system to trade deals and why is has particular relevance for recent Canada trade policy moves.

From Stuart Trew's posting for Rabble.ca:

There's nothing fair or just about the investor-state dispute settlement (ISDS) process inside Canada's free trade deals and Foreign Investment Protection and Promotion Agreements (FIPAs). Actually, according to a new European report, ISDS looks more like a racket, supported by an inner circle of secretive investment lawyers and arbitrators with "a vested interest in perpetuating an investment regime that prioritizes the rights of investors at the expense of democratically elected national governments and sovereign states."

The controversy about a recent FIPA with China continues to burn. Ontario and Quebec have just been hit by two ridiculous NAFTA lawsuits against a ban on fracking and amoratorium on offshore wind developments. And there is news suggesting an investment treaty inside the Canada-EU free trade deal could be much worse than either NAFTA or the China FIPA by expanding the opportunities for European firms to seek compensation from changes to Canadian health, environmental or safety rules that lower profit expectations. 

A Few Elites Really Run Everything?

From page 38 of the report:

And from Page 45:

Where's the Beef?  How Are Arbitrators Regulated?

The report is an interesting read, and so is Trew's article. And the report's Chapter 4 does point out some worrisome trends.  But is this cherry-picking, or the canary in the coalmine? 

This points to be a big omission in both sources:  Is there an analogous system for professional responsibility to U.S. state Board of Bar Examiners to police international arbitrators?  And, if not, how does ethics in international arbitration work?  Without this as a baseline, it's hard to gauge opinions on whether CEO gets it right or wrong.

But, at the very least, I would have to guess that 'the regulation of arbitrators' is not a main topic when nations are coming together and crafting or updating foreign investment treaties or free trade deals.  

Side-Note for All Those Who Had to Take the Multistate Professional Responsibility Exam

And, naturally, as a one-time law student who took Professional Responsibility and had to pass a national exam on lawyerly ethics, I--at least--want to make sure arbitrators who may be dealing with international law, multiple domestic systems of law, and perhaps troubling conflict of interest concerns, have to do what lawyers do so well--passing ethical tests.

Next Steps for Interested Readers

I'm working on getting more information on the subject of Professional Responsibility and International Arbitrators (i.e. getting a one-time professor to do some searching on the side me! [Thanks, Prof!])--my quick Google searches were rather unsatisfying. If it comes quick and easy, I'll update the post.  Otherwise, I'll do some digging--and readers should keep their eye out for a in-depth posting soon!

Naturally, anyone with more information on this should shoot me a line at cuslinexus@gmail.com.

I did find these rough sources that may help out:

International Bar Association materials

United Nations Commission on International Trade Law (UNCITRAL)

Morning News Wrap: "Cyber-NORAD," CAN-U.S. Border and Generic Drugs, Toronto’s Mayor Wins Stay, U.S. Loses Out at WTO, Canada’s Provinces Steal the Show, and More

By Keith Edmund White, Editor-in-Chief

Woodrow Wilson Center’s Canada Institute Talks NORAD and Cyber-Security @ 1 PM.  Cyber-security and protecting critical infrastructure are big (and irksome) issues facing both Canada and the United States.  You can watch the event here.

From WWC: 

Experts expect that cyber attacks from hostile nations and rogue actors will represent one of the most dangerous threats to Canada and the United States in the coming decades. The perils are numerous and the consequences are severe for such an attack. However, there are many measures that both nations can take, individually and collectively, to ensure peace and prosperity, free from the threat of a "cyber Pearl Harbor" disaster. The Canada Institute is pleased to host a distinguished panel to discuss these threats as well as the most effective measures and best practices that the private and public sector actors can use to make both countries more secure. The panel will discuss many issues including: the vulnerability of our linked supply chain system, the role of the private sector in enhancing the national security of the United States and Canada, policy options for creating a better information sharing process while respecting privacy rights, threats to energy production in Canada, and the possibility of creating a “cyber-NORAD” to help deal with our shared threats in the most efficient way possible.

Provincial Politics Take Center Stage.  The Globe and Mail offers an excellent province-by-province political round-up piece.  (Note to self:  copy G&M.).  In short:  Alberta—character politics are beating out attempts for Alberta’s Conservatives to push a national energy policy; British Columbia—the NDP seems on course to capture to provincial parliament; Quebec—between the Charbonneau corruption commission and the PQ’s PR blunders (they tired to remove the Maple Leaf from Quebec’s parliamentary building!), the great fear a of a resurgent PQ and separation anxiety has been allayed.    

Generic Drugs Crashes Canada-U.S. Border Policy Competing Economic, Security, and Public Health Demands.   Prescription Drugs + Border Security + Generics + Health Advocates = Border Policy Nightmare.  From WSJ: 

The White House has alerted police and border agents to prepare for a possible influx of addictive pain drugs from Canada, where cheaper, generic versions of OxyContin will soon become available. U.S. drug czar Gil Kerlikowske also called Canada's health minister last week to discuss the issue and offer assistance to address the wave of prescription-drug abuse sweeping both countries, Mr. Kerlikowske's office said. In an alert to law-enforcement agencies sent Tuesday, the White House Office of National Drug Control Policy warned law enforcement to be on the lookout for cheap copies of OxyContin, which it said could hit the market as soon as next month.

Will Toronto’s Mayor Be Out Next Week, Or Live to Appeal in Office?  Globe and Mail offers real-time court updates.  Update:  Rob Ford won a temporary stay, and will stay in office while his conflict-of-interest case is appealed.

America Given Deadline to Comply With WTO Country-of-Origin Meat-Labeling Rules.  The ever-fast wheels of international trade justice!  Having lost on an meat-labeling case to Canada and Mexico in June, the United States has been given a May 2013 compliance deadline.  The Kansas City Star reports on progressive unease with the WTO tinkering with U.S. labeling requirements: 

“Consumers in the U.S. have been clear: They want dolphin-safe tuna, and if we’re not able to label tuna in the way we want to label it, I think U.S. consumers are going to be pretty angry,” said Democratic Rep. Rick Larsen of Washington state, who likened the situation to having replacement referees decide the outcome of games in the National Football League.In the most recent development, Larsen and 21 other members of Congress sent a letter last month to U.S. Trade Representative Ron Kirk, complaining that the WTO is threatening to turn back the clock to the days when tens of thousands of dolphins were killed each year "in a tuna fishing free-for-all." Critics say the WTO is running roughshod over U.S. laws that govern everything from the environment to food safety and public health.

Joan Crockatt Gets the Hill Times Treatment.  And in a nice ‘slice of life’ piece at The Hill Times, Bea Vongdouangchanh writes on one of Parliament's newest members:  Joan Crockatt.

From The Hill Times: 

Prior to getting elected, Ms. Crockatt was an outspoken pundit who appeared on several political TV panels. Mr. Martin said he hopes the PMO, known for its tight message control, will allow her to continue to be a spokesperson on several issue.  “She’ll be as scripted as any of them [Conservative MPs], I’m sure, but Joan sometimes does freelance a little bit in her commentaries and that’s always a good thing. I hope they make her into a bit of a media presence because she does do good television. But if she takes one misstep, they’ll take her off the tube and never put her back on,” he said, adding that Ms. Crockatt does give a good first impression as an MP. “She’s always walked to her own beat type of thing and suddenly becoming shoe-horned into a borg-like group think is something that’s going to be a new experience for her.” Meanwhile, both the Liberal and Green parties increased their vote share in the byelection in Calgary Centre. The Liberals increased by 15.4 percentage points and Green candidate, Chris Turner, by 14.7 percentage points from 2011 election results. That increase came at the NDP’s expense, with Dan Meades losing 11 percentages points from 2011.

The Toronto Star tells Canada to look to the United States on climate policy.  From the op-ed: 

In other words, nearly three-quarters of U.S. gains will come from tougher regulation to curb emissions, “green” government procurement, grants and loans to promote renewable electricity, and fuel conservation in vehicles and buildings. Pollution taxes, higher oil pricing and emission trading systems will also have an impact. The implications for Canada, and Ontario, are obvious. The Canadian Council of Chief Executives has called for a coherent federal climate policy, including “a clear, nationally consistent carbon price” across the economy. And the National Round Table on the Environment and the Economy has urged more investment in low-carbon innovation, a major growth sector.
Until now the Harper government has adopted a wait-and-see-what-the-U.S.-does attitude, repudiated the Kyoto Protocol as too costly, and failed to come up with a credible plan to make the painful adjustments that will be necessary to develop the oil and gas sector in a more balanced and sustainable fashion, mitigating emissions. As things stand there’s no federal constraint on oilsands pollution, Pembina argues. Now Ontario, too, is falling short. The Americans don’t have all the answers. They remain huge polluters. But they are bending the curve in a better direction. We should aim to do no less.

Canada Political Flash-Back: Stockwell Day and the Conservatives Wilderness Moment

Liberals and NDP, take heart! Not too long ago, Canada's Conservatives were in the wilderness--and the perceived leadership woes of one-time Canadian Alliance leader Stockwell Day paled the criticism now facing Liberal leader-aspirant Justin Trudeau.

For a sense of the evolution of Canada's conservative politics, and the important role Day and others played in it, check out this October 2012 article in the Edmonton Journal.

From TVO's Inside Agenda Blog:

Afternoon Tea: Canada – U.S. News Wrap

By Keith Edmund White, Editor-in-Chief

Enjoy some mid-afternoon tea, and read about Canada and the TPP, Canada & energy, Ottawa's political misfires, just what the Governor-General does, and DHS cracks down on moose poachers.

Canada and the Trans-Pacific Partnership (TPP).  While Canada joined the TPP as an observer in October, but the ongoing 15th round of negotiations is the first to include Canada and Mexico.  The main focus of the talks, according to Western Farm Press, are sanitary and phyto-sanitary standards [or "food safety and animal and plant health measures"]:

Sanitary and phyto-sanitary (SPS) issues will be the real market access determiners in the talks.  Commitments need to go beyond those made under the WTO, often referred to as ‘WTO-plus’.  The USTR may propose new language making SPS disciplines fully enforceable, including those that go beyond WTO rules.  If they would not be enforceable under TPP dispute settlement, they would not be settled at the WTO because they would be stricter than WTO requirements.

But the National Hog Farmer highlights challenges to Canada’s pork subsidization program:

NPPC President R.C. Hunt added: “In reality, we cannot compete on a level playing field. In the upcoming TPP round, you can bet your bottom dollar we will be putting pressure on Canada to do something about its pork subsidy programs.”   

Canada Energy Updates.  Mondaq delivers, per usual, a helpful primer on Canadian energy updates prepared by Doug Black et al from Fraser Milner Casgrain LLP.  I particularly recommend checking out the On the Horizon section that shows fascinating work to both cut the amount of water used in oil sands energy development and lower GHG emissions from CNRL natural gas production.  Two additions worth mentioning: 

• Prime Minister Harper finalized federal loan support, to the tune of $1 billion (CAN), to support a hydro-megaproject in the provinces of Nova Scotia and Newfoundland and Labrador.  Learn more about the project, and Quebec complaints over the loan, from the Winnipeg Free Press.

• Read from Fuel Fix, reporting on a Manhattan Institute event, on why a strong Canada-U.S. energy relationship, along with Mexico, may just turn the energy market on its head.  Notable panelist:  John Prato, Consul General of Canada in New York.

Misfire Alert:  Conservatives Over-Shoot on Trudeau Alberta Comments, Trudeau Returns (Mis-)Fire On Canada’s Long Gun Registry.  Conservatives kinda-sorta-but-not really plan to drag Justin Trudeau before a parliamentary committee because of poorly chosen words on Alberta and the Progressive Conservative Party.  But, don’t worry, while this move was derided by pretty much everyone, Justin Trudeau shot himself in the foot again—over not resurrecting Canada’s long gun registry.

Governor General David Johnston’s “Invisible” But Important Role in Canadian Trade Policy.  The Globe and Mail offered a fantastic piece last week focusing on the evolving role of Canada’s Governor-General.  (For American readers, the Governor General is the acting head of State of Canada).  Not only does this article show the unique nature of Canada’s constitutional monarchy and parliamentary democracy, it shows a fascinating dimension of Canadian foreign policy—and something alien to the American experience.  From the article discussing the preparations for Governor General Johnston’s visit to Mexico, where he and other foreign dignitaries will join in swearing-in festivities for the swearing in of Mexico’s new president, Enrique Pena of the PRI:

But once the ceremony is over, Mr. Johnston’s hard work begins.

He said he intends to start by buttonholing several of the other 75 foreign leaders at the ceremony to discuss bilateral relations. Then, he’ll turn his attention to increasing two-way trade trade and investment. He also hopes to find more ways to share Canadian expertise in mining, justice, policing and governance.

He is travelling with a sizable entourage of senior officials, members of Parliament, business and education representatives, a judge and several ambassadors.

When he gets back, he’ll be reporting, in detail, straight to the prime minister. The two men speak and share ideas regularly, but after a foreign trip, Mr. Johnston has a formal responsibility to check in.

“When I come back, [I need to] be pretty candid and say, ‘Yep, this is going well,’ or, ‘No, this is not going well and here’s where we have to adjust our approaches,’” Mr. Johnston said.

The governor-general’s trip to Latin America should be the beginning of a larger Canadian attempt to revive its relationship with the region, Mr. Robertson said.

New DHS Initiative Catches Canadian Moose-Poachers.  From New Hampshire’s Nashua Telegraph:

Pittsburg [New Hampshire] shares approximately 56 miles of soft border with Canada; along the stretch are hundreds of Canadian hunting shacks and blinds. Some of the shacks are rudimentary, and others resemble elevated camps, fully equipped with propane heaters, cook stoves and sleeping bunks.

Thanks in part to a federal Homeland Security grant titled “Operation Stonegarden,” teams of officers conducted surveillance of several hunting shacks, as well as foot patrols on the border in the upper reaches of Hall Stream.

"With the Green Party’s intervention, it’s a good bet he’ll been looking at his second decade as PM soon."

By Keith Edmund White, Editor-in-Chief

Yes, Canada's Left is under-cutting itself.  But personality-politics should settle this question before Canada's next round of parliamentary election.  So, stop complaining about the Liberal-NDP divide, let alone the Greens delivering Harper another term as Prime Minister. Though, as The Real Story blog shows, is can make for entertaining reading.

The Real Story, a Canadian political blog, mocks a defense of having three centre-left political parties on Canada's national political scene.  With the NDP-Liberals-Greens all competing for seats in Canada's ridings, a divided Left is going to deliver Canada another two terms of Conservative Prime Minister Harper:

Because for all the Green Party’s disclaimers about vote splitting [(1) you owe it to your supporters to run & (2) non-voters will only come out if you show political alternatives] one truth remains.

The truth – and Calgary Centre proves it – is that three parties on the centre left is useful to only one person in Canada. And that’s Stephen Harper. With the Green Party’s intervention, it’s a good bet he’ll been looking at his second decade as PM soon.

TRS isn't alone in this assessment, though it's logic-evisceration of Chris Turner's, the Green's candidate in Calgary by-election last week--op-ed claiming he didn't throw the election to the Conservatives is particularly delicious. 

But, first, it's entirely too early for all this belly-aching.  There are years before the next election..

Second, when you look at recent national polling, Canada' voters--not politicians--need to settle the Left divide.  The Liberals and Greens are painstacking close in popular support, and as long as that holds up, how do you expect an insurgent political party to tell members to lose prestige in the main of winning an election they could still win on their own?  

And, in any case, the Greens won't make the difference nationally.

My advice:  Green and Liberals, show your policy and leadership differences and take a look at the polling in two years.

Last thought:  Personality-politics will settle this.  Thomas Mulcair's tenure as Leader of the Opposition should settle which party is the leader of the Left soon enough, one or the other.

U.S. Sunday Morning Political Show Highlight: Why Everyone Should Be Watching Bloomberg Government's Capital News

By Keith Edmund White, Editor-in-Chief

Bloomberg Government (or BGOV) has a new show, Capital Gains, which focuses on "business implications of government action." Hosted by Peter Cook, the show (1) adds depth to stories that talking heads usually just endlessly bandy about and (2) getting voices that wouldn't make the normal talk-show circuit but adds a needed viewpoint lacking from the national discussion.

In short, it's close to the web-news program I would one day would to produce.  And one you should watch. 

Side-note:  If BGOV and HuffPoTV teamed up, I think you could have, within 5 years, the first internet news channel that could compete and beat cable news for those who preferred Nate Silver's blog over ESPN this fall--and I know I would to watch it.

With so much focus on the emerging fiscal cliff, if you want a sense of how politicians are going to crunch the numbers of get past the ideologues carping more about strategy than policy, this is the show for you to watch.

Today Capital News/BGOV offers a fantastic segment with Aetna CEO on what a group of business leaders are advocating as part of a grand bargain, and a truly enlightening conversation with two Bloomberg number crunches on just how a fiscal deal can be reached--and common misconceptions of two leading ways to reign in Medicare spending.

The show re-airs on Bloomberg TV at noon and 5 PM, and I suspect by this evening or tomorrow morning, the full show will be available here.  In the meantime, watch some of the previous episodes.

In short, this is 'must-see' Sunday morning TV.

Want to know where to watch--online or otherwise--this fantastic program? From BGOV.com:

Bloomberg Government’s Capitol Gains airs Sunday mornings at 11:30AM EST on W*USA9 and on Bloomberg Television at 12:00PM EST and 5:00PM EST.

Follow Bloomberg Government and Peter Cook on Twitter at @BGov and @PeterCCook and follow the conversation at #CapitolGains.

FP Talks Canada-U.S. Territorial Disputes, Let's Add Some Legal Context

By Keith Edmund White, Editor-in-Chief

12/03/2012 Update:  Josh Keating was nice enough to put up with my good-natured sarcasm to tell me the Moot Court link provide below doesn't work.  Not sure why this is, but http://www.cusli.org/niagara/2010_2011_archive.html is the full site, and it's available through cusli.org.  [Full instructions:  go to cusli.org; put your mouse cursor over "Niagara" on the sites top banner; click "Archives"; and then,finally, click "2011"; at which point, you shall see the materials for the 2010-2011 Niaraga Moot Court Competition involving an Arctic martime dispute between Canada and the United States.]  Sorry for the technical difficulties.

FP's Joshua Keating blogs on outstanding Canada-U.S. territorial disputes.  He correctly notes that while Machias Island may be attracting the NYTimes attention--and that of Stephen R. Kelly of the Center for Canadian Studies at Duke University--that the perhaps issue may be emerging maritime claims between these two strong allies.

Craving more than a Wikipedia listing of disputes, and some legal analysis for how two of these issues may be resolved?  Check out CUSLI's archives for the 2011 Niagara International Moot Court.  It's a fascinating moot case, written by CWRU law professor Michael Scharf, dealing with the legal status of the emerging Northwest Passage and the Canadian-U.S. Beaufort Sea territorial disputes.

P.S.  Law students, take heart, while you can't use Wikipedia as a source, FP bloggers can.  Yes, this should be mocked, especially since spending another 30 seconds Googling would have found this much better graphic and article from The Globe and Mail which is sampled below: