CUSLI lecture explores Trans-Pacific Partnership

Ian Laird, a Canadian-trained investment lawyer at Crowell Moring, LLP in Washington, DC, spoke about the problems and prospects for the Trans-Pacific Partnership (TPP) at the 9th Canada-U.S. Law Institute Distinguished Lecture held on Nov. 17 in conjunction with the Western’s campus-wide International Week.

Laird said that Canada’s existing trade and investment treaties have worked reasonably well to expand Canada’s foreign trade and subject Canada and its trade partners to international investment standards. The new TPP, a trade deal between Canada, the United States and 10 other countries in the Asia-Pacific region, concluded on October 5 but not yet signed or ratified, follows earlier trade agreements like NAFTA in providing for investment claims arbitration.

However, since NAFTA’s activation in 1994 the original rules contained in that treaty have been substantially updated through practice. Laird said the TPP attempts to incorporate these changes by clarifying standards of treatment, including recognized carve outs for prudential regulation, and bolstering transparency and ethical rules for arbitrators.

At the same time, Laird cautioned that it might be some time before the TPP is signed and ratified. Considerable opposition has been expressed to the agreement already.

“The TPP may simply serve as a ‘platform’ for future negotiations between United States and other countries like the EU and China in the hopes that a broader based deal might be reached one day and brought in to the World Trade Organization,” he said.  

In the meantime, Laird said there would be pressure for investment arbitration in the TPP to look more ‘court’ like, with “the possibility of more judicialized proceedings and appellate review”. Recently, the EU in ongoing negotiations with the U.S. has floated this possibility for a projected Transatlantic Trade and Investment Partnership (TTIP).

“Legislators contemplating ratification of the TPP in Canada and elsewhere will have to determine whether arbitral proceedings, which are often held in private before arbitrators with little public vetting, should yield to a more formalized procedure in the interests of legitimacy,” he stated.

The Canada-U.S. Law Institute hosts the annual CUSLI Distinguished Lecture to provide the opportunity for a respected figure to give a public address on a subject of importance to the Canada-U.S. relationship.Previous CUSLI Distinguished Lectures have been given by Allan Gotlieb, Q.C. (2007); Christopher Sands, the Hudson Institute (2008); Prof. Janice Stein, University of Toronto (2009); Prof. Stephen Clarkson, University of Toronto (2010); Patricia Birkholz, Director of the State of Michigan's Office of the Great Lakes (2011); Richard Cunningham, Steptoe & Johnson LLP (2012), Commissioner Gordon Walker, International Joint Commission (2013) and Diane Francis, National Post (2014).