Article from: TDM 1 (2016), in Editorial
CETA is the first of the three landmark agreements that will shape world trade and investment in the twenty-first century-the others being the Trans-Pacific Partnership Agreement (TPP) and the Transatlantic Trade and Investment Partnership (TTIP). This Special Issue undertakes a broad-ranging study of CETA, viewing it as an indicator of the evolution of EU trade and investment policy, and of the kinds of tensions and innovations that can be expected to arise as a new generation of twenty-first century trade and investment agreements emerges. The Special Issue aims to provide an overview of CETA's key characteristics and of the controversy that has surrounded certain of its key features, placing these provisions within the context of the agreement as a whole and emphasizing a recurring tension between nationalism and internationalism, in particular regarding international arbitration of investment disputes, that runs through the individual papers' analyses of discrete provisions in the agreement.
The Special Issue contains five main sections, examining key characteristics and innovations of CETA relating to investor-state dispute resolution, state-state dispute resolution, issues of scope and attribution of responsibility to the parties to CETA, the codification of substantive protections for investments, and the regulatory space created for CETA's parties to pursue legitimate policy goals through exemption clauses. Taken together, these sections provide a comprehensive overview of key characteristics of CETA, while the individual papers, written by practitioners and academics with experience in Canadian and European jurisdictions, offer diverse perspectives on both the innovations and potential pitfalls of the agreement, as well as proposing corrective reforms of CETA.
Offering a high level view from the perspectives of both Canada and the European Union, the prefaces to this Special Issue rightly draw attention to a key tension between national and international legal jurisdiction that is at the root of much of the debate surrounding CETA's controversial provisions. CETA, as a trade and investment treaty, pursues the often contradictory goals of, on the one hand, promoting the openness and accessibility of international markets and, on the other, seeking to protect states' rights to pursue legitimate policy regulations regarding health, environmental, social, and cultural concerns. The question becomes how and to what extent states' right to regulate domestically ought to be protected from potential liability under an international treaty.
In the context of CETA, this tension between the national and the international is particularly visible in the controversy surrounding the agreement's inclusion of provisions on investor-state dispute resolution (ISDS). CETA's ISDS system would allow private investors to have recourse to international arbitration panels in order to seek damages for the infringement of their rights by states' regulatory measures. While the 2014 draft of CETA's ISDS mechanism was based on ad hoc arbitration, the 2016 final text introduces a newly conceived tribunal of 15 members that, while retaining many features of arbitration, more closely resembles an institutionalized court. Some reformers would seek further to protect state sovereignty, for instance, by reducing international arbitration under CETA to a subsidiary remedy, to be used only once recourse to the allegedly infringing state's courts has been exhausted. Many, however, note the characteristics of international arbitration that make it uniquely effective in the international context, and instead advocate openness to proposed reforms that strengthen the effectiveness and legitimacy of international investment arbitration, and by extension, of the international legal system.
It is hoped that this Special Issue will make a useful contribution to the important debates that are shaping and will continue to shape international law and the governance of world trade and investment in this century.
The editors first wish to acknowledge the unfailing support of the TDM publisher whose enthusiasm and patience allowed us to carry the project through to completion. Mark Kantor was also involved in providing welcome editorial advice at key junctures in the project.
The considerable work involved in preparing and editing the papers was made possible in large part by the Private Justice and the Rule of Law Research Team, whose funding comes from the Quebec granting agency, FQRSC. We also acknowledge the support of the Yves Fortier Chair, at McGill, whose initiative it was to convene the conference on CETA from which many of the papers were derived.
We also wish to thank the Dean of Law at McGill, Daniel Jutras, whose unflinching support over the years has greatly facilitated the conduct of projects such as this, which aim to bring academics and practitioners together in a collaboration we see as both fruitful and necessary.
Our thanks go to Mathieu Taschereau and Lukas Vanhonnaeker, who did some of the preparatory and editorial work. Primary responsibility for editing the papers was assumed by Emily Grant, whose excellence and unswerving determination ultimately saw us through. Much of the credit for the completion of this project goes to her.
AKB, JG, FG, HW.