¹ Canada has opted to call its bilateral investment treaties (BITs) “foreign investment promotion and protection agreements” (FIPAs). There is no significance in this difference in language. For the purposes of this article, FIPA will be used only in relation to Canada’s bilateral treaty program.

² Ghosh, Madanmohan, and Wang, Weimin, China and U.S. Outward FDI and Exports: Are China and India Special? Industry Canada Working Paper no. 2007–05 (2007).Google Scholar

³ See Foreign Affairs and International Trade Canada, Background on the Canada-China Foreign Investment Promotion and Protection Agreement (FIPA), Foreign Affairs and International Trade Canada, <http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/fipa-apie/china-chine.aspx?lang=en&menu_id=13&menu=R> at para. 2.

⁴ See Statistics Canada, Foreign Direct Investment Positions at Year End, Statistics Canada, <http://www.statcan.gc.ca/daily-quotidien/090408/t0g0408ai-eng.htm>.

⁵ See Foreign Affairs and International Trade Canada, supra note 3 at para. 3.

⁶ Ibid. at para. 1.

⁷ For a list of relevant works, see note 176 in this article.

⁸ For instance, the General Agreement on Tariffs and Trade, 14 April 1994, in Marrakesh Agreement Establishing the World Trade Organization, Annex lA, 1867 U.N.T.S. 187, 33 I.L.M. 1153 (1994) (entered into force 15 April 1994) [WTO Agreement] [GATT]; General Agreement on Trade in Services, 1994, in WTO Agreement, Annex 1B, 284 (1999), 1869 U.N.T.S. 183, 33 I.L.M. 1167 (1994) (entered into force 15 April 1994) [GATS]; Agreement on Trade-Related Aspects of Intellectual Property Rights, 1994, in WTO Agreement, Annex 1C, 320 (1999), 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994) (entered into force 15 April 1994) [TRIPS Agreement]; and the many extra agreements, annexes, and schedules that make up the WTO regime.

⁹ From 1995 to 1998, the Organisation for Economic Co-operation and Development (OECD) attempted to negotiate a multilateral agreement on investment (MAI). Negotiations broke down, however, after states failed to reach consensus on a broad range of issues. The desire to reach a MAI was also pursued through the WTO’s Singapore Issues, which expanded the Agreement on Trade-Related Investment Measures (TRIMS). However, this again failed due to reticence from developing countries. See generally Kurtz, Jürgen,, “A General Investment Agreement in the WTO? Lessons from Chapter 11 of NAFTA and the Multilateral Agreement on Investment” (2002) 23 U. Pennsylvania J. Int’l Econ. L.Google Scholar; Schittecatte, C.,, “The Politics of the MAI: On the Social Opposition of the MAI and Its Role in the Demise of the Negotiations“ (2000) 1 J.W.I. 329Google Scholar; OECD, “The Multilateral Agreement on Investment (Report by the Chairman to the Negotiating Group” (1998) 98 DAFFE/MAI, <http://www.oecd.org/daf/mai/pdf/ng/ng989fe.pdf>; and Muchlinski, P., et al., eds., The Oxford Handbook of International Investment Law (New York: Oxford University Press, 2008)CrossRefGoogle Scholar.

¹⁰ See Statute of the International Court of Justice, Chapter XIV of the Charter of the United Nations, 26 June 1945, Can. T.S. 1945 No. 7. Article 38, para. 1 (b), refers to customary international law as “international custom, as evidence of a general practice accepted as law.” See also Lepard, Brian D., Customary International Law: A New Theory with Practical Applications (New York: Cambridge University Press,2010).CrossRefGoogle Scholar

¹¹ However, no common set of norms has developed over how compensation should be calculated. See Dolzer, Rudolf, and Schreuer, Christoph, Principles of International Investment Law (New York: Oxford University Press, 2008)CrossRefGoogle Scholar at 91. See notes 44 and 137 in this article for further discussion.

¹² Selective adaptation “involves a dynamic by which international rule regimes are mediated by local cultural norms.” See Potter, Pitman B.,, Selective Adaptation in Comparative Perspective: Approaches to Understanding Reception of International Law under Conditions of Globalization, Asia Pacific Dispute Resolution Programme, prepared for the Law and Society Association General Meeting (2007).Google Scholar For further discussion, see generally Biukovic, Ljiljana,, “Selective Adaptation of WTO Transparency Norms and Local Practices in China and Japan” (2008) 11 J. Int’l Econ. L. 803CrossRefGoogle Scholar; and Potter, Pitman B., “Legal Reform in China: Institutions, Culture, and Selective Adaptation” (2004) 28 Law & Soc. Inquiry 465.CrossRefGoogle Scholar

¹³ Convention on the Settlement of International Disputes between States and Nationals of Other States, 18 March 1965, 17 U.S.T. 1270, T.I.A.S. 6090, 575 U.N.T.S. 159 (entered into force 14 October 1966). It is often known as the Washington Convention. The International Centre for Settlement of Investment Disputes (ICSID) was the institution established under guidance from the World Bank to oversee the convention and its dispute settlement procedures.

¹⁴ It is uncertain the extent that BITs actually promote investment. The degree that investment will increase directly from the introduction of an investment agreement will reside in factors such as host country investment policies, pre-existing regulatory risks of the host country, the degree of protections afforded in a BIT, and whether or not one contracting party is a major capital exporter. For empirical studies on the efficacy of BITs in promoting investment, see Salacuse, Jeswald W., and Sullivan, Nicholas P., “Do BITs Really Work?: An Evaluation of Bilateral Investment Treaties and Their Grand Bargain” (2005) 46 Harv. Int’l L.J. 67Google Scholar; and Neumayer, Eric, and Spess, Laura, “Do Bilateral Investment Treaties Increase Foreign Direct Investment to Developing Countries” (2005) 22 World Development 1567.CrossRefGoogle Scholar

¹⁵ See Salucuse and Sullivan, supra note 14 at 15.

¹⁶ See United Nations Conference on Trade and Development, World Investment Report 2009: Transnational Corporations, Agricultural Production and Development (2009) at 32.

¹⁷ Developing country-developing country BITs are too numerous to mention here. It is a trend that started in the 1980s, but it has made far greater strides over the last decade. For a full discussion, see Elkins, Zachary, et al., “Competing for Capital: The Diffusion of Bilateral Investment Treaties, 1960–2000” (2006) Social Science Research Network at 7.Google Scholar

¹⁸ See the Canada-Soviet Union FIPA (1989). This has since become the Canada-Russian Federation FIPA post-dissolution of the Soviet Union.

¹⁹ The Standing Senate Committee on Canada-United States Relations ran from 1976 to 1982 and produced three volumes of reports. See Parliament of Canada, The Senate Today, Government of Canada, <http://www.parl.gc.ca/information/ about /process/Senate/Senatetoday/invest-e.html>.

²⁰ See Canada-US Free Trade Agreement, 2 January 1988, 27 I.L.M. 281 (entered into force 1 January 1989) [CUSFTA]. For a historical account, see generally Sawatsky, John, Mulroney: The Politics of Ambition (Toronto: Macfarlane, Walter, and Ross, 1991)Google Scholar; and Hart, Michael, “Free Trade and Brian Mulroney’s Economic Legacy,” in Blake, R.B., Transforming the Nation: Canada and Brian Mulroney (Montreal and Kingston: McGill-Queen’s University Press, 2007).Google Scholar

²¹ See North American Free Trade Agreement between the Government of Canada, the Government of Mexico and the Government of the United States, 17 De-cember 1992, Can. T.S. 1994 No. 2, 32 I.L.M. 289 (entered into force 1 January 1994) [NAFTA].

²² There is disagreement to the degree that pre-FTA tariffs actually inhibited trade between Canada and the United States. Prior to the treaty’s entry into force, Canadian and US tariff levels were already significantly lower on each others’ imports than the average for the rest of the world. However, Canada stood to gain significantly with respect to the United States pre-FTA import tariffs on imported manufactured Canadian goods. See Trefler, Daniel, “The Long and Short of the Canada-U.S. Free Trade Agreement” (2004) [unpublished, archived at University of Toronto].Google Scholar

²³ See CUSFTA, supra note 20, Chapter 16; and NAFTA, supra note 21, Chapter 11.

²⁴ Congyan, Cai,, “China-US BIT Negotiations and the Future of Investment Treaty Regime: A Grand Bilateral Bargain with Multilateral Implications” (2009) 12 J. Int’l Econ. L. 457 at 464.CrossRefGoogle Scholar

²⁵ These include the Canada-Jordan Free Trade Agreement (2009); the Canada-Columbia Free Trade Agreement (2008); the Canada-Peru Free Trade Agreement (2009); the Canada-Costa Rica Free Trade Agreement (2002); the Canada-Chile Free Trade Agreement (1997); and the Canada-Israel Free Trade Agreement (1997). This also includes the Canada-European Free Trade Association Free Trade Agreement (2009), which has limited scope and minimal obligations.

²⁶ The European Free Trade Association is comprised of Iceland, Liechtenstein, Norway, and Switzerland.

²⁷ Canada-foreign FIPA co-signatories are: Argentina ( 1991 ); Armenia ( 1997); Barbados (1996); Costa Rica (1998); Croatia (1997); Czech Republic (1990); Ecuador (1996); Egypt (1996); Hungary (1991); Jordan (2009); Latvia (1995); Lebanon (1997); Panama (1996); Peru (2006); Philippines (1995); Poland (1990); Romania (1996); Russian Federation (1989); Slovak Republic (1990); Thailand (1997); Trinidad and Tobago (1995); Ukraine (1994); Uruguay (1997); and Venezuela (1996). Canada also signed FIPAs with El Salvador (1999) and South Africa (1995), but these treaties have not been ratified.

²⁸ The average 2008 per capita gross domestic product for Canada’s twenty-four ratified FIPA partners was US $9,567. Compiled using data from World Bank Development Indicators (2010), <http://databank.worldbank.org/ddp/home.do?Step=12&id=4&CNO=2>.

²⁹ However, the Czech Republic, Poland, and Slovakia were not OECD members when Canada-foreign FIPAs were signed with these countries.

³⁰ See Foreign Affairs and International Trade Canada, Canada’s FIPA Program: Its Purpose, Objective, and Content (2009), Foreign Affairs and International Trade Canada, <http://www.international.gc.ca/trade-agreements-accords-commerciaux/ agr-acc/fipa-apie/fipa-purpose.aspx?lang=en>.

³¹ Investment promotion is also not included in the Canada FIPA model’s substantive provisions. However, it has been included in the preambles of all agreements and in the text of some Canada-foreign FIPAs. For instance, Article II( 1 ) of the Canada-Czech Republic FIPA states that “each contracting Party shall encourage the creation of favourable conditions for investors of the other Contracting Party to make investments in its territory.” Although, Article II(3) goes on to expressly permit either party to use pre-establishment investment barriers, as long as it is applied equally to all states.

³² Canada’s FIPA model contains five sections with fifty-two articles and four annexes. For a copy of the FIPA model, see Foreign Affairs and International Trade Canada, supra note 3.

³³ See Lévesque, Céline, “Influences on the Canadian FIPA Model and the US Model BIT: NAFTA Chapter 11 and Beyond” (2006) 44 Can. Y.B. Int’l L. 249.CrossRefGoogle Scholar

³⁴ See Foreign Affairs and International Trade Canada, supra note 3.

³⁵ In the late 1990s and early 2000s, a series of investor-state disputes pursuant to NAFTA Chapter 11 led many legislative members in both Canada and the United States to view the investment chapter as a legal instrument that curtailed each country’s right to legitimately regulate. See Alvarez, Guillermo A., “The New Face of Investment Arbitration: NAFTA Chapter 11” (2003) 28 Yale J. Int’l L. 365.Google Scholar Cases against Canada that affected Canadian opinion on the matter include: Ethyl Corporation v. Canada, UNCITRAL (NAFTA), 38 I.L.M. 708 (Award on Jurisdiction, 24 June 1998); Pope & Talbot Inc. v. Canada, UNCITRAL (NAFTA) (Statement of Claim, 25 March 1999); and S.D. Myers, Inc. v. Canada, UNCITRAL (NAFTA), (Partial Award, 13 November 2000).

³⁶ See Yu, Guangyuan, Deng Xiaoping Shakes the World: An Eyewitness Account of China’s Party Work Conference at the Third Plenum (November-December 1978) (Norwalk: Eastbridge, 2004)Google Scholar; and Naughton, Barry, “Deng Xiaoping: The Economist” (1993) 135 China Quarterly 491.Google Scholar

³⁷ See generally Naughton, Barry, The Chinese Economy: Transitions and Growth (Cambridge, MA: MIT Press, 2007).Google Scholar

³⁸ See generally Luthi, Lorenz, The Sino-Soviet Split: Cold War in the Communist World (Princeton, NJ: Princeton University Press, 2008)Google Scholar; Immanuel Chung-Yueh Hsü, The Rise of Modern China (New York: Oxford University Press, 2000) at 671–88; and Spence, Jonathan, The Search for Modern China (New York: W.W. Norton, 1999) at 584–86.Google Scholar

³⁹ See Hsuing, James C., “China’s Recognition Practice and Its Implications in International Law,” in Cohen, Jerome A., ed., China’s Practice of International Law (Cambridge, MA: Harvard University Press, 1972), 14 at 15.Google Scholar

⁴⁰ See Chiu, Hungdah, “Chinese Views of Unequal Treaties,” in Cohen, Jerome A., ed., China’s Practice of International Law (Cambridge, MA: Harvard University Press, 1972), 239 at 258–66.Google Scholar The Communist Chinese took a much more vociferous stance on the issue of unequal treaties but never provided a clear definition of what the term meant. A common view at the time is exemplified by Chinese scholar Chou Keng-sheng’s definition — a definition that extends to most modern BITs. He espoused that “even those treaties which provide mutual benefit in form, but, due to the unequal economic position between two contracting parties, in fact yield unilateral benefits to one side and subject the other side only to exploitation, are neither treaties of mutual benefit nor equal international transactions.” See his article “The Principle of Peaceful Coexistence from the Viewpoint of International Law” (1955) 6(41) Cheng-fa Yen-chiu (Political Legal Research) at footnote 85, in Hungdah Chiu’s chapter.

⁴¹ See Kim, Samuel S., “The People’s Republic of China in the United Nations” (1974) 26 World Politics 299.CrossRefGoogle Scholar

⁴² See Permanent Sovereignty over Natural Resources, GA Res. 1803, UNGAOR, 17th Sess. (14 December 1962); Permanent Sovereignty over Natural Resources, GA Res. 2158, 21st Sess. (25 November 1966); Permanent Sovereignty over Natural Resources, GA Res. 2386, UNGAOR, 23rd Sess. (19 November 1968); Permanent Sovereignty over Natural Resources of Developing Countries and Expansion of Domestic Sources of Accumulation for Economic Development, GA Res. 2692, UNGAOR, 25th Sess. (11 December 1970); Permanent Sovereignty over Natural Resources of Developing Countries, GA Res. 3016, UNGAOR, 27th Sess. (18 December 1972); and Permanent Sovereignty of Natural Resources, GA Res. 3171, UNGAOR, 28th Sess. (17 December 1973).

⁴³ See Declaration on the Establishment of a New International Economic Order, GA Res. 3201, UNGAOR, 28th Sess. (1 May 1974) [NIEO Declaration]. See also Charter of Economic Rights and Duties of States, GA Res. 3281, UNGAOR, 29th Sess. (12 December 1974) [CERDS]. China’s role in the assertion of developing country sovereign rights was mixed. For instance, it declined joining the “Group of 77” developing states. See Lanteigne, Marc, China and International Institutions: Alternate Paths to Global Power (New York: Routledge, 2005) at 37.CrossRefGoogle Scholar However, it did provide some support to the new international economic order (NIEO) movement. While the NIEO Declaration posits a reconciliatory interpretation of the common norms surrounding arbitration and international adjudication, it asserted the primacy of the sovereign in decision making and its domestic legal framework as the defining force in legal interpretation. Perhaps the largest break from customary international law in this document was the choice of language surrounding compensation, having discarded the compensatory cannons of the Hull Rule with a single attribute — “appropriate” compensation, according to the laws of the host nation. See Article 2.2 of CERDS, which states that every state has the right “to nationalize, expropriate, or transfer ownership of foreign property, in which case compensation should be paid by the State adopting such measures, taking into account its relevant laws and regulations in all circumstances that the State considers pertinent.” See note 146 in this article for further discussion on compensation.

⁴⁴ See Jiang, Zhaodong, “China’s Tax Preferences to Foreign Investment: Policy, Culture, and Modern Concepts” 18 Nw. J. Int’l L. & Bus. 549.Google Scholar

⁴⁵ See National Bureau of Statistics, China Statistical Yearbook 2008 (2009).

⁴⁶ China-Germany BIT was amended in 2003.

⁴⁷ See Cai, supra note 24 at 461. For further discussion on national treatment, see the later sections of this article.

⁴⁸ Berger, Alex, “China’s New Bilateral Investment Treaty Programme: Substance, Rational, and Implications for International Investment Law Making” (paper presented to the American Society of International Law International Economic Law Interest Group 2008 Biennial Conference, “The Politics of Inter-national Economic Law: The Next Four Years,” Washington, DC, 2008).Google Scholar

⁴⁹ Cai, Kevin G., “Outward Foreign Direct Investment: A Novel Dimension of China’s Integration into the Regional and Global Economy” (1999) 160 China Quarterly 856.Google Scholar

⁵⁰ See ibid. at 863.

⁵¹ See Buckley, Peter J., et al., “The Determinants of Chinese Outward Direct Investment” 38 J. Int’l Bus. Stud. 499CrossRefGoogle Scholar; and Deng, Ping, “Investing for Strategic Resources and Its Rationale: The Case of Outward FDI from Chinese Companies” 50 Business Horizons 71.Google Scholar

⁵² See Buckley, supra note 51 at 504.

⁵³ See Hanson, Stephanie, China, Africa, and Oil (2008)Google Scholar, Council on Foreign Relations, <http://www.cfr.org/publication/9557/>.

⁵⁴ See Deng, supra note 51 at 73.

⁵⁵ Not surprisingly, many of the China’s initial second-generation BITs were with developing countries that it had some form of economic relationship with, largely with respect to investment in natural resources. Such treaties include: the China-Ethiopia BIT (1998); the Botswana-China BIT (2000); the China-Congo BIT (2000); the China-Iran BIT (2000); the China-Kenya BIT (2001); the China-Nigeria BIT (2001); the China-Sierra Leone BIT (2001); the China-Myanmar BIT (2001); and the China-Uganda BIT (2004). The average 2008 per capita gross domestic product for China’s ninety-nine ratified FIPA partners was US $16,102, considerably higher than Canada’s FIPA partners’ $9,567. See World Bank Development Indicators, supra note 28.

⁵⁶ The most liberal of which can be considered some of its most recent BITs: the China-Bosnia Herzegovina (2002); the China-Germany BIT (2003); the China-Netherlands BIT (2004); and the China-Finland BIT (2006). See note 72 in this article for further discussion.

⁵⁷ See Berger, supra note 48 at 3.

⁵⁸ In 2009, China’s financial and capital account surplus was US $109.1 billion. See Batson, A., “China’s Current Account Surplus Fell in 2009,” Wall Street Journal (13 February 2009)Google Scholar, <http://online.wsj.com/article/NA_WSJ_PUB: SB10001424052748704041504575046230753948598 .html>.

⁵⁹ Andrew Newcombe, personal communication, 9June 2010.

⁶⁰ See Canada FIPA model, Annex III 1): “Article 4 shall not apply to treatment accorded under all bilateral or multilateral international agreements in force or signed prior to the date of entry into force of this Agreement.”

⁶¹ Compiled using data from Trade Data Online, Industry Canada, <http://www.ic.gc.ca/eic/site/tdo-dcd.nsf/eng/Home>.

⁶² Ibid.

⁶³ See Foreign Affairs and International Trade Canada, supra note 3.

⁶⁴ See generally Goldfarb, Danielle, “Too Many Eggs in One Basket? Evaluating Canada’s Need to Diversify Trade” (2006) 236Google Scholar Howe, C.D., Institute, Commentary; and Daryl Copeland, “Diversifying Canada’s Dependence: Look East” (2003) 27 Asian Perspective 277.Google Scholar

⁶⁵ See Foreign Affairs and International Trade Canada, Expanding Canadian Access to Global Markets and Networks, Foreign Affairs and International Trade Canada, <http://www.international.gc.ca/commerce/strategy-strategie/markets-marches. aspx>.

⁶⁶ See China Daily, “Canadian PM’s Visit to China Re-Energizes Ties,“ China Daily (9 December 2009), Xinhua, <http://www.chinadaily.com.cn/world/2009-12/09/content_9149242.htm>.

⁶⁷ Lebow, Richard Ned, The Art of Bargaining (Baltimore: Johns Hopkins University Press, 1996) at 116.CrossRefGoogle Scholar

⁶⁸ See United States Trade Representative, 2008 Report to Congress on China’s WTO Compliance 2008 (2008) at 59–60. An example of this is that many US firms have voiced concerns that Chinese government officials often “encourage” technology transfer without actually formally requiring it.

⁶⁹ For instance, the China-Mexico BIT (2008). See Feng, Tian, Meiguo ban zhong mei shuangbian touzi xieding zhi yi, JRJ.com, <http://finance.jrj.com.cn/2008/12/0104392922830.shtml>..>Google Scholar

⁷⁰ See Peter Muchlinski et al., eds., supra note 9 at 264. The minimum standard in international law as we have come to know it can be viewed as the sum of the legal doctrines, incidents, cases, and decisions that took place throughout the nineteenth and the first half of the twentieth centuries. This includes the Russian Revolution (1917), Neer v. Mexico (1926), and the Mexican nationalization of American interests (1936), and the Hull Rule (1936). See Andreas Roth, H., The Minimum Standard of International Law Applied to Aliens (Leiden: A.W. Sijthoff, 1949)Google Scholar; and L.F.H. Neer and Pauline Neer v. United Mexican States, Docket no. 136, General Claims Commission United States and Mexico (Opinion Rendered, 15 October 1926).

⁷¹ See Dolzer and Schreuer, supra note 11 at 11–12.

⁷² See Newcombe, Andrew, and Paradell, Lluís Lluís Lluís Lluís Lluís, Law and Practice of Investment Treaties: Standards of Treatment (New York: Wolters Kluwer, 2009) at 233.Google Scholar

⁷³ Arbitrary or discriminatory measures, however, while technically being a relative standard because it relies upon a comparison between investors are often placed in minimum standard of treatment provisions within the nomenclature of international investment law. See ibid. at 235.

⁷⁴ See ibid. at 233.

⁷⁵ See Dolzer and Schreur, supra note 11 at 119; and Newcombe and Paradell, supra note 72 at 255. The full protection and security standard is the other primary element of minimum standard of treatment and is often included alongside fair and equitable treatment in BIT minimum standard provisions. Full protection and security has its roots in securing investor protection from physical violence, but it has evolved to guarantee protections from host-state laws and regulations that infringe upon investor rights. The responsibility for the state, however, is not one of strict liability. Instead, host states must use due diligence in assuring the protection and security of investors.

⁷⁶ See Table 1 in this article.

⁷⁷ Canada has consistently used this wording throughout its BIT and FTA-investment programs. The FIPA model wording is almost an exact mirror of the wording used in Canada’s first FIPA with the Soviet Union. Article 3(1 ) of that agreement states that “investments or returns of investors of either Contracting Party shall at all times be accorded fair and equitable treatment in accordance with principles of international law and shall enjoy full protection and security in the territory of the other Contracting Party.” NAFTA Article 1105(1) also uses this wording. The NAFTA FTA issued an interpretative statement relating NAFTA Article 1105 ( 1 ) with the minimum treatment standards of customary international law. See Waste Management, Inc. v. Mexico, ICSID Case no. ARB(AF)/98/2 (Award, 30 April 2004) at para. 90 [Waste Management II].

⁷⁸ See Dolzer and Schreuer, supra note 11 at 119.

⁷⁹ Ibid. at 119.

⁸⁰ See Newcombe and Paradell, supra note 72 at 263.

⁸¹ See Vasciannie, Stephen, “The Fair and Equitable Treatment Standard in International Investment Law and Practice” (2000) 70 Brit. Y.B. Int’l L. 99Google Scholar; and OECD, Fair and Equitable Treatment Standard in International Investment Law, Working Papers on International Investment (2004).

⁸² See NAFTA Free Trade Commission (FTC), Notes of Interpretation of Certain NAFTA Chapter 11 Provisions (31 July 2001). The NAFTA FTC’s interpretation of fair and equitable treatment is a binding interpretation.

⁸³ See Newcombe and Paradell, supra note 72 at 264. For case examples, see MTD Equity Sdn. Bhd. & MTD Chile S.A. v. Chile, ICSID Case no. ARB/01/7 (Award, 25 May 2004); Occidental Exploration and Production Company v. Ecuador, LCIA Case no. UN3467 (Final Award, 1 July 2004); LG&E International Inc. v. Argentina, ICSID Case no. ARB/02/1 (Decision on Liability, 3 October 2006); PSEG Global Inc. and Konya Ilgin Elektrik Üretim ve Ticaret Limited Sirketi v. Turkey, ICSID Case no. ARB/02/5 (Award, 19January 2007); and SiemensA.G. v. Argentina, ICSID Case no. ARB/ 02/8 (Award, 6 February 2007).

⁸⁴ See Newcombe and Paradell, supra note 72 at 272.

⁸⁵ See Waste Management, Inc. v. Mexico (Waste Management II), ICSID Case no. ARB(AF)/00/3 (NAFTA) (Award, 30 April 2004); S.D. Myers, Inc. v. Canada, UNCITRAL (NAFTA) (Partial Award, 13 November 2000); and Mondev International Ltd. v. United States, ICSID Case no. ARB(AF)/99/2 (NAFTA) (Award, 11 October 2002).

⁸⁶ See Dolzer and Schreuer, supra note 11 at 134. A legal framework is composed of legislation and treaties, guarantees contained in decrees, contractual obligations, and executive assurances.

⁸⁷ See Muchlinksi et al., eds., supra note 9 at 272–90.

⁸⁸ See ibid. at 278. The issue of transparency as a customary legal norm has arguably been shaped, inter alia, through provisions in the GATS, supra note 8, Article III and in GATT, supra note 8, Article X(2).

⁸⁹ See China BIT model, Article 3 in Table 1. See also Congyan, supra note 24 at 468.

⁹⁰ See China-New Zealand Free Trade Agreement (7 April 2008) (entered into force 1 October 2008).

⁹¹ See Cai, supra note 24 at 468.

⁹² See NAFTA Free Trade Commission, supra note 82.

⁹³ See Table 1 for the text of this provision. Translated text from the China BIT model are taken from Dolzer and Schrueur, supra note 11 .

⁹⁴ See Newcombe and Paradell, supra note 72 at 148–49.

⁹⁵ The Schedule of Canada in the Canada-Jordan FIPA (2009) lists relevant statutes as: Investment Canada Act, R.S.C. 1985, c. 28 (1st Supp.) and Investment Canada Regulations, SOR/85–611 (measures that deal with the acquisition and establishment of businesses in Canada by foreigners or foreign entities); Canada Business Corporations Act, R.S.C. 1985, c. C44; Canada Corporations Act, R.S.C. 1970, c. C32; Canada Business Corporations Act (CBCA) Regulations, SOR/79–316 (measures pertaining to Canadian ownership levels); Citizenship Act, R.S.C. 1985, c. C-29; Foreign Ownership of Land Regulations, SOR/ 79–416 (measures pertaining to the foreign ownership of land); Air Canada Public Participation Act, R.S.C. 1985, c. C-29; Canadian Arsenals Limited Divestiture Authorization Act, S.C. 1986 c. 20; Eldorado Nuclear Limited Reorganization and Divestiture Act, S.C. 1988, c. 41; Nordion and Theratronics Divestiture Authorization Act, S.C. 1990, c. 4 (measures that establish limits on the non-residential ownership of shares in certain companies); Customs Act, R.S.C. 1985, c. 1 (2nd Supp.); Duty Free Shop Regulations, SOR/86–1072 (measures that establish residency requirements for duty free shop operations); Cultural Property Export and Import Act, R.S.C. 1985, c. C-51 (measures that outline restrictions on foreign participation in the import and export of cultural property); Patent Act, R.S.C. 1985, c. P-4; Patent Rules, C.R.C. 1978, c. 1250; Patent Cooperation Treaty Regulations, SOR/89–453 (measures that establish residency requirements for the registering of patents); Canada Petroleum Resources Act, R.S.C. 1985, c. 36 (2nd Supp.); Territorial Lands Act, R.S.C. 1985, c. T-7; Federal Real Property and Immovables Act, S.C. 1991, c. 50; Canada-Newfoundland Atlantic Accord Implementation Act, S.C. 1987, c. 3; Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act, S.C. 1988, c. 28; Canada Oil and Gas Land Regulations, C.R.C. 1978, c. 1518 (measures establishing Canadian ownership requirements for oil and gas production rights and licences); Investment Canada Act, R.S.C. 1985, c. 28 (1st Supp.); Investment Canada Regulations, SOR/85–611; Policy on Non Resident Ownership in the Uranium Mining Sector, 1987 (measures pertaining to non-resident ownership in the uranium mining sector); Coastal Fisheries Protection Act, R.S.C. 1985, c. C33; Fisheries Act, R.S.C. 1985, c. F14; Coastal Fisheries Protection Regulations, C.R.C. 1978, c. 413; Policy on Foreign Investment in the Canadian Fisheries Sector, 1985; Commercial Fisheries Licensing Policy, 1996 (measures that deal with foreign fishing vessels and the foreign ownership of fish processing enterprises); Canada Transportation Act, S.C. 1996, c. 10; Aeronautics Act, R.S.C. 1985, c. A-2; Canadian Aviation Regulations — Part II and IV, 1996 (measures that restrict foreign participation in the air services sector or foreigners wishing to register or operate Canadian aircraft); Canada Shipping Act, R.S.C. 1985, c. S-9, Part I; and Marine Certification Regulations, SOR 97–391 (requirements for owning a ship on the Canadian register).

⁹⁶ For instance, the original China-Finland (1983) and the China-Singapore BIT (1985) do not include national treatment in their substantive texts. The China-Finland BIT was renegotiated in 2006; the new agreement includes national treatment provisions.

⁹⁷ See Beamish, Paul W., “The Characteristics of Joint Ventures in the People’s Republic of China” (1993) 1 J. Int’l Marketing 29CrossRefGoogle Scholar; and Tian, Xiaowen, Managing International Business in China (New York: Cambridge University Press, 2007) at 30.CrossRefGoogle Scholar

⁹⁸ The adoption of the People’s Republic of China Company Law of 1994 provided the legal framework necessary to transition state-owned enterprises (SOEs) into legal corporate entities. See Naughton, supra note 36 at 301–2.

⁹⁹ This includes established equity joint ventures, whereby the foreign partner seeks to acquire the interests held by the Chinese partner. See Arai, Toshiyuki, “Changing Trends in Japanese Direct Investment in China” (October 2004) China Law and Practice.Google Scholar

¹⁰⁰ See Buckley et al., supra note 51 .

¹⁰¹ Other policies include “grasping the large and letting go the small” (zhuada fangxiao), which was adopted in 1995 and then formally promulgated during the fifteenth Communist Party Congress in 1997. This saw the restructuring of thousands of SOEs of various sizes. Some were privatized, but many merged to increase competitiveness, although still remained under state control. By the end of 1996, approximately 70 percent of small SOEs had been privatized in some provinces. See Cao, Yuanzheng, “From Federalism, Chinese Style to Privatization, Chinese Style” (1999) 7 Economics of Transition 103.CrossRefGoogle Scholar

¹⁰² See China BIT model, Article 3(2), in Table 2 in this article.

¹⁰³ See Cai, supra note 24 at 460. It is important to note that Cai does not necessarily subscribe to such views.

¹⁰⁴ See the China-Bosnia Herzegovina (2002), Article 3(1 ); the China-Netherlands BIT (2004), Article 3(3); the China-Germany BIT (2003), Article 3(2); and the China-Finland BIT (2006), Article 3(2). While the relative bargaining position of Germany and the Netherlands might explain why national treatment provisions are liberal for Chinese standards, the fact that Bosnia Herzegovina was the first of such Sino-foreign treaties confirms that this is a policy projected from the leadership of the central government of the People’s Republic of China.

¹⁰⁵ It is interesting to note that this agreement only allows China to use non-conforming measures and not Finland. Essentially, China’s policy-makers are still able to use existing laws and regulations against Finish investors, while Chinese investors are able to take advantage of the agreement’s substantive provisions when investing in Finland on a basis that is no less favourable than domestic investors. The imbalance that exists here is perhaps representative of the special and differential treatment that European nations often give in good faith to developing countries with the idea that as their economies liberalize their economies will be better equipped to remove non-conforming measures. With respect to this, the protocol states that “the People’s Republic of China will take all appropriate measures to progressively remove all non-conforming measures.” For further discussion, see Berger, supra note 48 at 13.

¹⁰⁶ The Canada-Ecuador FIPA (1997) even goes so far as to prescribe a standalone provision on the establishment of investment. Article II(3) states: “Each Contracting Party shall permit establishment of a new business enterprise or acquisition of an existing business enterprise or a share of such enterprise by investors or prospective investors of the other Contracting Party on a basis no less favourable than that which, in like circumstances, it permits such acquisition or establishment.”

¹⁰⁷ However, it should be noted that, and perhaps indicative of its tough stance on pre-establishment rights with limited use of non-conforming measures, the United States has only successfully concluded one BIT since 2003 — the US-Uruguay BIT (2006).

¹⁰⁸ See Article 1 (1) of the China BIT model.

¹⁰⁹ See section A of the Canada FIPA model.

¹¹⁰ See Newcombe and Paradell, supra note 72 at 160.

¹¹¹ See Table 2 in this article for Canada and China’s BIT model national treatment language.

¹¹² See Newcombe and Paradell, supra note 72 at 161. For tribunal interpretations on the matter, see Pope & Talbot Inc. v. Canada, UNCITRAL (NAFTA) (Statement of Claim, 25 March 1999); and S.D. Myers v. Canada, UNCITRAL (NAFTA) (First Partial Award, 13 November 2000) 40 I.L.M. (2001).

¹¹³ See Canada FIPA model, Article 19.

¹¹⁴ See the Foreign Investment Industrial Guidance Catalogue (amended in 2007) in China Law and Practice (December 2007/January 2008).

¹¹⁵ See United States Trade Representative, supra note 65 at 95–97.

¹¹⁶ See Hornbeck, Stanley K., “The Most Favoured Nation Clause” (1909) 3 Am. J. Int’l L. 395CrossRefGoogle Scholar, referred to in Vesel, Scott, “Clearing a Path through a Tangled Jurisprudence: Most-Favoured Nation Clauses and Dispute Settlement Provisions in Bilateral Investment Treaties” (2007) 32 Yale J. Int’l L. 125.Google Scholar

¹¹⁷ GATT, supra note 8. Article I states: “With respect to customs duties and charges of any kind imposed on or in connection with importation or exportation or imposed on the international transfer of payments for imports or exports, and with respect to the method of levying such duties and charges, and with respect to all rules and formalities in connection with importation and exportation, and with respect to all matters referred to in paragraphs 2 and 4 of Article III, any advantage, favour, privilege or immunity granted by any contracting party to any product originating in or destined for any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other contracting parties” (footnotes omitted).

¹¹⁸ See Aceves, William J., “The Vienna Convention on Consular Relations: A Study of Rights, Wrongs, and Remedies” (1998) 31 Vand. J. Int’l L. 257.Google Scholar

¹¹⁹ See Schill, Stephen W., “Tearing Down the Great Wall: The New Generation Investment Treaties of the People’s Republic of China” (2007) 15 Cardozo J. Int’l & Comp. L. 73 at 100–1.Google Scholar

¹²⁰ See Hornbeck, supra note 116 at 126. The five ICSID cases that have tackled this issue are: Maffezini v. Spain, ICSID Case no. ARB/97/7 (Decision on Jurisdiction, 25 January, 2000) 5 ICSID (W. Bank) 396 (2000); Siemens A. G. v. Argentina, ICSID Case no. ARB/02/8 (Decision of Jurisdiction, 3 August 2004); Salini Costruttori S.p.A. v. Jordan, ICSID Case no. ARB/02/13 (Decision on Jurisdiction, 9 November 2004), 44 I.L.M. 573 (2005); Plama Consortium v. Bulgaria, ICSID Case no. ARB/03/24 (Decision on Jurisdiction, 8 February 2005), 44 I.L.M. 721 (2005); and Gas Natural SDG v. Argentina, ICSID Case no. ARB/03/10 (Decision of the Tribunal on Preliminary Questions on Jurisdiction, 17 June 2005).

¹²¹ See Table 3 in this article for the text of the provision.

¹²² See Canada FIPA model, supra note 60.

¹²³ For a full explanation of what was learned from NAFTA and the NAFTA claims process, see Lévesque, supra note 33.

¹²⁴ As such, it should take no issue in Canada’s insistence to include an Annex III type clause in the FIPA.

¹²⁵ Article 3(4) of China’s BIT model says regarding Article 3(3) on MFN treatment that it “shall not be construed as to oblige one Contracting Party to extend to investors of the other Contracting Party the benefit of any treatment, preference, or privilege by virtue of: (a) any customs union, free trade zone, economic union, and any international agreement resulting in such unions, or similar institutions; (b) any international agreement or arrangement relating wholly or mainly to taxation; (c) any arrangements for facilitating small scale frontier trade in border areas.”

¹²⁶ For instance, with respect to national treatment, Article 129(3) of the China-Peru FTA (2009) states that “the Parties reserve the right to adopt or maintain any measure that accords differential treatment to socially or economically disadvantaged minorities or ethnic groups.”

¹²⁷ For example, see Article 3(4) of the Germany-Ethiopia BIT (2005).

¹²⁸ There has been significant discussion surrounding whether MFN treatment protections should extend beyond substantive and into the realm of procedural. If some of China’s new agreements afford much greater access for investors to investment dispute mechanisms, then it is argued that MFN treatment should accord these same rights to investors in third-party agreements. See Chandler, Aaron, “BITs, MFN Treatment and the PRC: The Impact of China’s Ever-Evolving Bilateral Investment Treaty Practice” (2009) 43 Int’l L. 1301.Google Scholar

¹²⁹ Article 131 (2) of the China-Peru FTA (see Table 3 in this article) is footnoted with the following: “For greater certainty, treatment ’with respect to the estab-lishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments referred to in paragraphs 1 and 2 of Article 131 (Most-Favoured-Nation Treatment) does not encompass dispute settlement mechanisms, such as those in Article 138 (Settlement of Disputes between Par-ties) and Article 139 (Investor-State Dispute Settlement), that are provided for in international investment treaties or trade agreements.”

¹³⁰ See Newcombe and Paradell, supra note 72 at 321. See also Norwegian Shipowners Claims (Norway v. United States), Permanent Court of Arbitration (Award of the Tribunal, 13 October 1922).

¹³¹ However, not all countries accept the due process rule as being part of customary international law. See Newcombe and Paradell, supra note 72 at 321 and 369.

¹³² For such an example, see Walter Fletcher Smith Claim (Cuba v. United States), II R.I.A.A. 915 (1929). This case covered the expropriation by a Cuban municipal government of Captain Smith’s Mariano Beach property. In the award, the tribunal ruled that the “expropriation proceedings were not, in good faith, for the purpose of public utility.” Moreover, the expropriated property went on “to be used by the defendant for purposes of amusement and private profit, without any reference to public utility.”

¹³³ Newcombe and Paradell, supra note 72 at 324.

¹³⁴ See Sornarajah, M., The International Law on Foreign Investment (Cambridge: Cambridge University Press, 2004) at 110CrossRefGoogle Scholar. Article 5 of the People’s Republic of China’s (PRC) Law of Wholly Foreign-Owned Enterprises (2000) states: “The State will not nationalize or expropriate wholly foreign-owned enterprises. Under special circumstances, the State, based on the need of social and public interests, may expropriate wholly foreign-owned enterprises pursuant to legal procedures and give commensurate compensation.” However, the Regulations for the Implementation of the PRC Law on Joint Ventures Using Chinese and Foreign Investment (2001) are vaguer on the issue and do not include a standalone provision. In Article 2, it merely states that such investments are “Chinese legal persons and are subject to the jurisdiction and protection of Chinese law.”

¹³⁵ See OECD, Indirect Expropriation and the ’Right to Regulate’ in International Investment Law, OECD Working Papers on International Investment no. 2004/4 (2005).

¹³⁶ Being UN General Assembly resolutions, the NIEO Declaration and CERDS, supra note 44, were non-binding and ended up having very limited relevance to overall balance of customary international law. However, they were bold assertions of sovereignty that generated significant political overtones that shaped the way international investment would be perceived by both developing and developed countries.

¹³⁷ The Hull Rule of “prompt, adequate, and effective” compensation was first articulated by United States secretary of state Cordell Hull in a letter he wrote to the Mexican president after the Mexican nationalization of American petroleum companies in 1936. See Hull, Cordell,, Addresses and Statements by the Honorable Cordell Hull, Secretary of State of the United States of America: In Connection with His Trip to South American to Attend the Inter-American Conference for the Maintenance of Peace Held at Buenos Aries, Argentina, December 1–23, 1936 (Washington, DC: Government Printing Office, 1936)Google Scholar. See also Dolzer, Rudolf,, “New Foundations of the Law of Expropriation of Alien Property” (1981) 75 Am. J. Int’l L. 553CrossRefGoogle Scholar. The Hull Rule was the key guiding principle in customary international law on the issue of compensation until developing countries challenged its legitimacy during the 1960s and 1970s.

¹³⁸ See Calvo, Carlos, Derecho internacional teórico y práctico de Europa y América (Paris: Amyot Librairie Diplomatique, 1868)Google Scholar; and Calvo, C., Le Droit International Théo-retique etPratique, 5th edition (Paris, 1896).Google Scholar

¹³⁹ See Brower, Charles N., “The Charter of Economic Rights and Duties of States: A Reflection or Rejection of International Law” (1975) 9 Int. L. 295.Google Scholar

¹⁴⁰ See CERDS, supra note 43, Article 2 (2) subparagraph (a): “Each State has the right to regulate and exercise authority over foreign investment within its national jurisdiction in accordance with its laws and regulations and in conformity with its national objectives and priorities. No State shall be compelled to grant preferential treatment to foreign investment.”

¹⁴¹ See Salacuse and Sullivan, supra note 14 at 68.

¹⁴² See Shan, Wenhua, The Legal Framework of EU-China Investment Relations: A Critical Appraisal (Oxford: Hart Publishing, 2005).Google Scholar

¹⁴³ See Table 4 on the China-Peru BIT, Article 133(2) on expropriation in this article,. Article 4(2) of the China-Finland BIT (2006) also uses this language. For further discussion on valuation methods of expropriations, see Hu, Henry T.C., “Compensation in Expropriations: A Preliminary Economic Analysis” (1979) 20 Va. J. Int’l L. 61.Google Scholar

¹⁴⁴ See Table 4 on Canada FIPA model, Article 13(2) in this article.

¹⁴⁵ The most commonly used method for determining market value in lawful expropriations has been the discounted cash flow method. See Dolzer and Schreuer, supra note 11 at 274.

¹⁴⁶ See Table 5 in this article.

¹⁴⁷ See Anti-Monopoly Law of the People’s Republic of China (promulgated by the Standing Commitee of the National People’s Congress on 30 August 2007 and effective 1 August 2008). TRIPS Agreement, supra note 8.

¹⁴⁸ See the Economist Intelligence Unit, “Evaluating a Potential US-China Bilateral Investment Treaty” (prepared for the US-China Economic and Security Review Commission, 2010).

¹⁴⁹ See the American Chamber of Commerce in the People’s Republic of China, American Business in China 2009 White Paper (2009) at 34.

¹⁵⁰ See Canada FIPA model, Annex B.13(1), subparagraph (b)ii.

¹⁵¹ State-state disputes typically surround the clarification and interpretation of investment treaty provisions. This article will focus on investor-state dispute resolution provisions, as these are the most important procedural provisions to consider in such an analysis.

¹⁵² See Dolzer and Schreuer, supra note 11 at 214.

¹⁵³ See Cohen, Jerome A., “China’s Legal Reform at the Crossroads” (2006) 169 Far Eastern Economic Review 23Google Scholar; and Henderson, Keith E., “Halfway Home and a Long Way to Go,” in Judicial Independence in China: Lessonsfor Global Rule of Law Promotion, edited by Peerenboom, Randall, (New York: Cambridge University Press, 2010).Google Scholar

¹⁵⁴ See Dolzer and Schreuer, supra note 11 at 214.

¹⁵⁵ Ibid. at 215.

¹⁵⁶ For a broader discussion in the assimilation of various international legal norms in China, see Clarke, Donald C., and Feinerman, James V., “Contradictions: Criminal Law and Human Rights in China” (1995) 141 China Quarterly 135CrossRefGoogle Scholar; Potter, Pitman B., “The Chinese Legal System: Continuing Commitment to the Primacy of State Power” (1999) 159 China Quarterly 673CrossRefGoogle Scholar; Biddulph, Sarah, “The Production of Legal Norms: A Case Study of Administrative Detention in China” (2003) 20 U.C.L.A. Pacific Basin Journal 217Google Scholar; and Lubman, Stanley, “Bird in a Cage: Chinese Law Reform after Twenty Years” (2000) 20 N.W.J. Int’l L. & Bus. 425.Google Scholar

¹⁵⁷ For a list of all pending and concluded ICSID cases, see <http://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=ListCases>.

¹⁵⁸ For instance, when Australia and the United States were negotiating their FTA, Australia convinced the United States that each country’s pre-existing legal protections meant that such clauses were not required. In fact, after examining the political and regulatory consequences associated with NAFTA Chapter 11, the Australian side “simply refused to consider the inclusion of such an investor-state dispute resolution mechanism in its FTA.” See Capling, Ann, and Nossal, Kim Richard, “Blowback: Investor-State Dispute Mechanisms in International Trade Agreements” (2006) 19 Governance: An International Journal of Policy, Administration, and Institutions 151 at 152.CrossRefGoogle Scholar

¹⁵⁹ An example of this is the China-Denmark BIT (1985), which in Article 8(3) states that “if a dispute involving the amount of compensation resulting from expropriation mentioned in Article 4 cannot be settled within six months after resorting to the procedure specified in Paragraph 1 of this Article by the na-tional or company concerned it may be submitted to an international arbitral tribunal established by both parties.”

¹⁶⁰ See generally Cymrot, Mark A., “Investment Disputes with China” (2006) 6 Disp. Resol. J. 80.Google Scholar

¹⁶¹ See Schill, supra note 119 at 93.

¹⁶² Although China’s newer BITs allow for comprehensive dispute resolution mechanisms, these BITs still require that such disputes to exhaust China’s domestic administrative review procedures. See China-Finland BIT (2006), Article 9.

¹⁶³ Even with the procedural protections that these new BITs afford investors by way of guaranteed access to international tribunals, China has still not once been party to an investment dispute involving ICSID. See ICSID, List of Cases, <http://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=ListCases>.

¹⁶⁴ See Tza Yap Shum. v. The Republic of Peru, ICSID ARB/07/6 (2007).

¹⁶⁵ See Reinstein, Ellen, “Finding a Happy Ending for Foreign Investors: The Enforcement of Arbitration Awards in the People’s Republic of China” (2005) 16 Ind. Int’l & Comp. L. Rev. 37.Google Scholar

¹⁶⁶ See generally Cymrot, supra note 160.

¹⁶⁷ See ibid. at 85.

¹⁶⁸ Canada is considered to possess a “dualist” legal regime, whereby international law needs to be translated into domestic law in order for it to have a legal basis. In terms of international treaties, the federal Parliament, and in many cases provincial legislatures, are required to pass legislation in order for a given international treaty to be implemented. For a full discussion of the relationship between international law and domestic law in Canada, see Bunnée, Jutta, and Toope, Stephen J., “A Hesitant Embrace: The Application of International Law by Canadian Courts” (2003) 40 Can. Y.B. Int’l L. 3CrossRefGoogle Scholar. Dualism exists in contrast to the “monist” regime, whereby international law is not required to be trans-lated into domestic law. For instance, the ratification of international treaties in the United States merely requires for a ratification bill to pass through the Senate. Furthermore, the Executive Office of the United States is constitutionally permitted to enter into executive-congressional agreements that afford the executive to enter into international treaties without ratification, so long as pre-arranged conditions are reflected in the treaty provisions.

¹⁶⁹ See Ullrich, Dierk, “Inch by Inch: Canada Moves toward New Investment Protection Legislation,” Bar Talk (June 2008)Google Scholar, Canadian Bar Association: British Columbia Branch, <http://www.cba.org/BC/bartalk_06_10/06_08/guest_ullrich.aspx>. Provincial legislation is required as arbitral procedure is a matter of justice within jurisdiction of the province. Provinces that have enacted such legislation include: British Columbia’s Settlement of International Disputes Act, S.B.C. 2006, C. 16; Newfoundland and Labrador’s Settlement of International Disputes Act, S.N.L. 2006, c. S-13.3; Saskatchewan’s Settlement of International Disputes Act, S.S. 2006, c. S-47.2; Ontario’s Settlement of International Disputes Act, S.O. 1999, c. 12 schedule D; and the Northwest Territories’ Settlement of International Disputes Act, S.N.W.T. 2009. See also Valasek, Martin, and Hussain, Azim, “Investor-State Arbitration, Court Intervention, and the ICSID Convention in Canada,” Canadian Bar Association Bulletin (December 2009Google Scholar), Canadian Bar Association, <http://www.cba.org/CBA/newsletters-sections/pdf/11_09_intl-icsid.pdf>.

¹⁷⁰ See Canada FIPA model, Article 27(1), subparagraph (d).

¹⁷¹ Pierre-Olivier Savoie, “ICSID: Prospects for Canadian Investors and Foreign Investors in Canada,” International Disputes (Quarterly: Focus on Construction Arbitration (Winter 2008), White and Case, <http://www.whitecase.com/idq/winter_2008_ca1_2/>.

¹⁷² See Canada FIPA model, Article 38.

¹⁷³ See Canada FIPA model, Article 39.

¹⁷⁴ Andrew Newcombe, personal communication, 9 June 2010.

¹⁷⁵ See note 129 in this article.

¹⁷⁶ For comprehensive work on this matter, see Hafner-Burton, Emilie M., Forced to Be Good (New York: Cornell University Press, 2009)Google Scholar; Dupuy, Pierre-Marie, et al., eds., Human Rights in International Investment Law and Arbitration (New York: Oxford University Press, 2009)CrossRefGoogle Scholar; Mann, Howard, International Investment Agreements, Business and Human Rights: Key Issues and Opportunities (2008), International Institute for Sustainable Development, <http://www.iisd.org/pdf/2008/iia_business_human_rights.pdf>>Google Scholar; Suda, Ryan, “The Effect of Bilateral Investment Treaties on Human Rights: Enforcement and Realization” (paper presented to the Symposium on Transnational Corporations and Human Rights, Global Working Papers, NYU Law, 2005)Google Scholar; and Muchlinksi, Peter, “Regulating Multinationals: Foreign Investment, Development and the Balance of Corporate and Home Country Rights and Responsibilities in a Globalizing World” (paper presented to the second Columbia International Investment Conference, 2007).Google Scholar

¹⁷⁷ See Potter, Pitman B., “Co-ordinating Corporate Governance and Corporate Social Responsibility” (2009) 39 H.K.L.J. 677.Google Scholar

¹⁷⁸ See Department of Foreign Affairs and International Trade, Framework for Conducting Environmental Assessments of Trade Negotiations (February 2001), Foreign Affairs and International Trade, <http://www.international.gc.ca/trade-agreements-accords-commerciaux/assets/pdfs/FinalFramework-e.pdf>.

¹⁷⁹ See Natural Resources Canada, “Government of Canada Positions Mining Industry for Continued Success,” TheNewsRoom (11 May 2009), Natural Resources Canada, <http://news.gc.ca/web/article-eng.do?m=/index&nid=449359>.

¹⁸⁰ China continues to be the world’s largest gold producer, and Canadian firms have developed a presence in China developing gold fields. However, China has taken a fairly restrictive approach on the admission of foreign investment in its natural resources sector, as all such investments are required to be done under the auspices of a joint venture with a Chinese entity. Furthermore, China has taken a highly restrictive approach in both the investment and international trade in rare earth metals mined in China. For Chinese laws and regulations relating to foreign investment in China’s natural resources sector, see inter alia, the PRC Mineral Resources Law (enacted 19 March 1996); and Measures for the Administration of Foreign-Invested Mineral (promulgated by the Ministry of Commerce and Ministry of Land and Resources, 18 July 2008).

¹⁸¹ See Rights and Democracy, Bilateral Human Rights Dialogue with China (2001), Rights and Democracy, <http://www.ichrdd.ca/site/publications/index.php?id=1290&subsection=catalogue>; and Potter, Pitman B., “China and the International Legal System: Challenges of Participation” (2007) 191 China Quarterly 699.CrossRefGoogle Scholar

¹⁸² See the chapter “Tracking Dissent on the High Plateau: Communication Technology on the Gormo-Lhasa Railway,” in Rights and Democracy, Human Rights Impact Assessments for Foreign Projects Investment Projects, International Centre for Human Rights and Democracy (2007). This chapter provides a critical examination into the human rights implications of Nortel’s work in developing the telecommunications system for the Gormo-Lhasa Railroad.

¹⁸³ For a CSR analysis of big-box retailers, see Kolk, Ans, et al., “Corporate Social Responsibility in China: An Analysis of Domestic and Foreign Retailers’ Sustainability Dimensions” (2008) Social Science Research Network.Google Scholar

¹⁸⁴ See ibid. at 10–14.

¹⁸⁵ For instance, the preamble of the Canada-Jordan FIPA (2009) provides the following paragraph: “recognizing that the promotion and the protection of investments of investors of one Party in the territory of the other Party will be conducive to the stimulation of mutually beneficial business activity, to the development of economic cooperation between them and to the promotion of sustainable development.”

¹⁸⁶ See generally Hafner-Burton, supra note 176.

¹⁸⁷ See the US Trade Act, U.S.C. 107–210 (enacted 6 August 2002); and the Human Rights and Democracy Clause in EU Agreements, EU Resolution no. P6_TA0056 (2006). The executive-congressional agreement in the US Trade Act permits the executive office to negotiate trade-related agreements without the requirement of Senate ratification should workers’ rights clauses be included in the text of these treaties. It should be noted that the EU does not enter into investment treaties, as the jurisdiction for investment was left in the hands of the individual member states. Virtually, all EU members have avoided negotiating human rights or workers’ rights language into their BITs. The exception is Finland, however, which has embedded workers’ rights language in the preambles of some of its treaties. See, inter alia, the Finland-Guatemala BIT (2005). However, it is important to add that the same preambular language was not placed in the China-Finland BIT (2006).

¹⁸⁸ Both the Canada FIPA model, Article 11, and the US BIT model, Article 13(1), use identical language.

¹⁸⁹ Muchlinksi, Peter, “Regulating Multinationals: Foreign Investment, Development and the Balance of Corporate and Home Country Rights and Responsibilities in a Globalizing World” (paper presented for the second Columbia International Investment Conference, 2007).Google Scholar

¹⁹⁰ As of 1 March 2007, 97 percent of claims had cited a breach of Article 1105. See Scott Sinclair, “NAFTA Chapter 11 Investor-State Disputes,” Canadian Centre for Policy Alternatives (March 2007), Peter <http://www.policyalternatives.ca/sites/default/files/uploads/publications/National_Office_Pubs/2005/chapter11_january2005.pdf>.

¹⁹¹ See Mann, supra note 176 at section 3.1 .

¹⁹² See the Canada FIPA model, Article 10(1), states: “Subject to the requirement that such measures are not applied in a manner that would constitute arbitrary or unjustifiable discrimination between investments or between investors, or a disguised restriction on international trade or investment, nothing in this Agreement shall be construed to prevent a Party from adopting or enforcing measures necessary: (a) to protect human, animal or plant life or health; (b) to ensure compliance with laws and regulations that are not inconsistent with the provisions of this Agreement; or (c) for the conservation of living or non-living exhaustible natural resources.” Canada has employed this provision in its FIPA program in response to the string of NAFTA cases it was a respondent to, whereby complaints were made based on the enactment of environmental and health and safety regulation and the alleged infringement on the minimum standard of treatment rights. See Pope & Talbot Inc. v. Canada, supra note 112; and S.D. Myers v. Canada, supra note 112.

¹⁹³ For a general discussion of conflicting international human rights and investment protection norms in international investment treaties, see Suda, supra note 176.

¹⁹⁴ See Tiagi, Raaj, and Zhou, Lu, Canada’s Economic Relations with China (Vancouver: Fraser Institute, Studies in Chinese Economic Policy, 2009) at 81.Google Scholar

¹⁹⁵ See ibid. at 81 .

¹⁹⁶ See note 105 in this article.

¹⁹⁷ See note 162 in this article.

¹⁹⁸ See Blanchfield, Mike, “Canada-China Relations Improving, Growing: China Foreign Minister Yang Jiechi Met with Harper, Ignatieff,” Canwest News Services (23 June 2009), Canada-China Business Council, <http://www.ccbc.com/Portals/0/CanWest.pdf>.Google Scholar