NAFTA: CASES AND CLAIMS . . . . .

NAFTA: CASES AND CLAIMS . . . . .

Postby Oscar » Sat Jan 21, 2012 11:27 am

TABLE OF FOREIGN INVESTOR-STATE CASES AND CLAIMS UNDER NAFTA AND OTHER U.S. TRADE DEALS

[ http://www.citizen.org/documents/invest ... chart1.pdf ]

January 2012

The North American Free Trade Agreement (NAFTA) included an array of new corporate investment rights and protections that were unprecedented in scope and power. NAFTA’s extreme rules have been replicated in various U.S. "free trade agreements" (FTAs), including CAFTA, the Peru and Oman FTAs, and the recently passed deals with Korea, Panama and Colombia.

These special privileges provide foreign investors new rights to own and control other countries’ natural resources and land, establish or acquire local firms, and to operate them under privileged terms relative to domestic enterprises. The scope of the "investments" covered by these rules is vast, including derivatives and other financial instruments, intellectual property rights, government licenses and permits, as well as more traditional forms of investment.

The pacts provide foreign firms with a way to attack domestic public interest, land use, regulatory and other laws if they feel that a domestic policy or government decision has undermined the firms’ new trade pact privileges, such as threatening their "expected future profits." These firms have access under the trade deals to an investor-state enforcement system, which allows them to skirt national court systems and privately enforce their extraordinary new investor privileges by directly suing national governments. These "investor-state" cases are litigated outside the U.S. court system in special international arbitration bodies of the World Bank and the United Nations. A three-person panel composed of professional arbitrators listens to arguments in the case, with powers to award an unlimited amount of taxpayer dollars to corporations. Because the mechanism elevates private firms and investors to the same status as sovereign governments, it amounts to a privatization of the justice system.

If a corporation wins its private enforcement case, the taxpayers of the "losing" country must foot the bill. Over $350 million in compensation has already been paid out to corporations in a series of investor-state cases under NAFTA-style deals. This includes attacks on natural resource policies, environmental protection and health and safety measures, and more. In fact, of the over $12.5 billion in the 17 pending claims under NAFTA-style deals, all relate to environmental, public health and transportation policy – not traditional trade issues.

The investor-state system has numerous worrying implications. Many worry that it promotes the offshoring of jobs by providing special protections and rights for firms that relocate, removing the risk of foreign investors having to use local court systems. And the bipartisan National Conference of State Legislatures (the national association of U.S. state parliamentary bodies) has strongly opposed this system for its negative impact on federalism. States whose laws are challenged have no standing in the cases and must rely on the federal government to defend state policies which the federal government may or may not support.

TABLE:

[ http://www.citizen.org/documents/invest ... chart1.pdf ]
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Re: 2012 - CASES AND CLAIMS UNDER NAFTA . . . . .

Postby Oscar » Mon Mar 23, 2015 11:27 am

Bilcon wins NAFTA challenge against Canada over gravel quarry expansion

[ http://www.canadians.org/blog/bilcon-wi ... -expansion ]

March 20, 2015 - 3:50 pm

The Council of Canadians opposed the expansion of the Whites Point gravel quarry in Digby Neck, Nova Scotia by the Delaware-based company Bilcon. We also opposed the company's use of the Chapter 11 investor-state provision in the North American Free Trade Agreement (NAFTA) when the expansion of the quarry was rejected by the provincial government.

Metro News now reports, "A U.S. company that proposed expanding a quarry in southwestern Nova Scotia says it is seeking at least US$300 million in damages from Canada after winning a NAFTA ruling. ...Bilcon will seek damages during a NAFTA hearing expected to take place next year." [ http://metronews.ca/news/canada/1318861 ... y-dispute/ ]

In 2008, the company had sought about $188 million in damages.
[ http://canadians.org/node/5487 ]

The newspaper explains, "Bilcon proposed the expansion at the Whites Point quarry in Digby Neck in September 2002 but the Nova Scotia and federal governments rejected it after a federal-provincial joint review panel recommended it not proceed. ...A NAFTA tribunal concluded that the joint review panel considered factors outside Canada’s environmental legislation that were not disclosed to Bilcon during the review process. The tribunal’s March 17 ruling says it was unjust for officials to encourage the expansion of the quarry and later determine that the area was a 'no go' zone for such a development."

The Council of Canadians and its allies in Nova Scotia have previously warned in relation to this case that a similar investor-state dispute settlement (ISDS) mechanism exists in the not-yet-ratified Canada-European Comprehensive Economic and Trade Agreement (CETA).
[ http://www.vivelecanada.ca/article/2359 ... gotiations ]

This tribunal ruling follows the recent judgement in favour of ExxonMobil and Murphy Oil in their NAFTA investor-state challenge against a rule that required them to spend some of their profits from offshore drilling in the Hibernia and Terra Nova oil fields on research in development in Newfoundland and Labrador. More on that here.
[ http://canadians.org/blog/icsid-awards- ... -challenge ]

For more on our campaign to stop ISDS in CETA, please click here:
[ http://canadians.org/ceta ]

Brent Patterson's blog
Political Director of the Council of Canadians
[ http://www.canadians.org/blogs/brent-patterson ]

= = = =

RELATED:

1) Whites Point quarry expansion wins NAFTA ruling – CBC News – March 20, 2015

[ http://www.cbc.ca/news/canada/nova-scot ... -1.3003501 ]

2) Bilcon seeks US$300m after win in quarry dispute – Chronicle Herald – March 21, 2015
[ http://thechronicleherald.ca/novascotia ... ry-dispute ]

3) Sierra Club of Canada analysis which argued some of the reasons why the Quarry should be stopped see the following report presented to the Canadian Environmental Assessment Agency
[ https://www.ceaa-acee.gc.ca/B4777C6B-docs/WP-1637.pdf ]

4) Digby Neck, Nova Scotia vs Mega-Quarry, SPP and Atlantica: Struggling to Maintain a Small Scale Sustainble Economy in Face of Imposed Extractive Economy:
[ http://www.thealliancefordemocracy.org/ ... 08sprd.pdf ]

- - - -

COMMENT: Dr. Janet Eaton – SLIDE PRESENTATION: NAFTA Growing Resistance & Calls for Renegotiation & Oversight – June 2008, P. 34
[ http://stopthehogs.com/pdf/nafta-resistance.pdf ]

When Bilcon announced its intention to take the case forward seven years ago, a Sierra Club Canada media release noted:

"According to Dr. Janet Eaton, a NAFTA critic who participated in the Digby Neck Quarry assessment, NAFTA’s Chapter 11 Investor State Mechanism is flawed and undemocratic as revealed in a range of studies. “The fact that this company can challenge the findings of a fair and balanced democratic environmental assessment adds impetus to the many voices calling for NAFTA to be reconsidered.. We need to re-craft a trade approach with the US, one that recognizes the asymmetry in the relationship and one which is based on 'fair trade' principles that address the imperatives of the environment, community values, Canadian sovereignty, poverty and job creation.” – Dr. Janet Eaton, Sierra Club of Canada

That imperative to abandon Investor -State Dispute Settlement [ISDS] is more crucial than ever now as Canada's Trade Justice Network [ http://www.tradejustice.ca/en/ ] well knows in challengng, with counterparts in Europe, the EU-Canada Comprehensive Economic and Trade Agreement [CETA] for numerous reasons including ISDS inclusion in the agreement.

Professor Gus Van Harten highlights the financial risk of ISDS in CETA noting that although the federal trade officials downplay the risk, the trade deal with Europe undeniably heightens the prospect of dubious yet costly awards against Canada. Stuart Trew, Canadian NGO trade expert reminds us that there is extensive European investment in Canada, and in particular in mining, energy and other resource projects that will attract an increasing number of investor-state disputes.

What makes this all the more unconscionable is that in many countries from Latin America to South America, India, Australia, etc, there are initiatives under way to eliminate this undemocratic and pro-corporate mechanism from free trade agreements and in some countries they have done so already.
For more on this see: [ http://www.commonfrontiers.ca/Single_Pa ... -paper.pdf ] [pp 3-7]

In the paper referenced immediately above I argue that it would behoove Canada to consider rejecting investor-state agreements, as Australia did under previous governments, for the following reasons:

(a) the threat of increasing numbers of Investor-State cases with an accompanying burden on taxpayers of increasing costs of arbitration and settlements;

(b) the threat of the increased number of challenges to domestic legislation protecting citizens, public health,and the environment, thereby compromising sovereignty and democratic process; and finally

(c) the absolute unacceptability of having unaccountable tribunal processes replace and compromise the integrity of the host countries’ judicial system.
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Re: NAFTA: CASES AND CLAIMS . . . . .

Postby Oscar » Tue Mar 24, 2015 4:22 pm

Nova Scotia taxpayers may be on hook for NAFTA defeat - Bilcon denied quarry approval, now seeking $300M in damages

[ http://www.cbc.ca/news/canada/nova-scot ... -1.3006319 ]

By Paul Withers, CBC News Posted: Mar 24, 2015 6:15 AM AT Last Updated: Mar 24, 2015 6:15 AM AT

The tribunal's March 17 ruling says it was unjust for officials to encourage the expansion of the quarry and later determine that the area was a "no go" zone for such a development.

Nova Scotia taxpayers will be on the hook for damages coming to a New Jersey concrete company that successfully appealed the 2008 denial of its quarry proposal on Digby Neck, says the company lawyer.

Last week an international tribunal ruled Bilcon was unfairly treated when its proposal for a 50-year quarry at Whites Point was rejected by Ottawa and Nova Scotia after an "unprecedented" and "unexpected " examination of the project.

The tribunal ruled the company was entitled to compensatory damages. Future hearings will determine the amount.

"Its certainly no less than $300 million," says Barry Appleton, who represented Bilcon when it appealed to a NAFTA tribunal claiming the quarry decision breached international law.

Appleton says Ottawa will cut the cheque but Nova Scotia will also pay, since the tribunal found both levels of government were to blame.

"The federal government is responsible. They signed the NAFTA. But I know they do have an agreement with Nova Scotia that talks about splitting certain costs," says Appleton.

"I am sure the federal government will look to Nova Scotia to share some of the costs."

Bilcon successfully argued it had been unfairly blind sided by a joint review panel created by the province and Ottawa to examine the project.

The panel rejected the quarry on the grounds it compromised "community core values," a vague criteria never actually raised at the hearing.

MORE:

[ http://www.cbc.ca/news/canada/nova-scot ... -1.3006319 ]
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