Sold Down the Yangtze

When legal experts finally saw the terms of the investment deal Canada had signed with China, they could hardly believe what their eyes. The deal was unprecedented — Canada had never given so much away to a trading partner. But Ottawa did not allow a full public review, and ultimately ratified the deal in 2014 with no changes. And the government moved forward with other trade deals that contain many of the same flaws.

In this book, investment treaty expert Gus Van Harten offers the first-ever independent take on the details of the China-Canada investment deal and what it means for Canadians. Many of the deal’s provisions are so extreme that readers may find it almost impossible to believe that the Canadian government agreed to them.

He explains how this agreement, and others like it, give multinational corporations and rich investors superpowers over governments. Secretive courts staffed by private lawyers, not judges, are able to order governments to pay these investors billions for policies and decisions they object to.

In simple language and easy to follow analysis, Van Harten offers a window into this secretive and obscure world. He documents the many ways Canadians lose out in the China-Canada deal, and how taxpayers may find themselves footing the bill for billions of dollars to Chinese investors who object to the actions of democratically-elected municipal, provincial and federal governments.

This deal — in place for a minimum 15 years — includes terms that may well turn up in other trade and investment agreements. Gus Van Harten offers practical steps for a better, more informed public debate on this vital topic.

Gus Van Harten

As an expert in investment deals and international law, GUS VAN HARTEN is uniquely qualified to explain what the Canada-China agreement means for Canada. He is currently a professor at Osgoode Hall Law School in Toronto, working previously as a tenured faculty member in the Department of Law at the London School of Economics in the United Kingdom. He has written over twenty academic studies on investment treaties, and has provided commentary to governments, international organizations, and media such as Bloomberg, the CBC, The Globe and Mail, the Guardian, and the Toronto Star. He lives in Burlington, Ontario.

Chapter Title Abstract Contributors Pages Year Price

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Outline of how Van Harten will approach his analysis of the FIPA and what is wrong with the deal for both Canadians and Chinese people 6 $0.60

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How the Harper Governments association with China lef to the FIPA which favours China’s agenda and disregards economc and democratic priorities of Canada 9 $0.90

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The FIPA does provide stronger protection for Canadian investors in China but here Van Harten outlines why they are not strong protections 6 $0.60

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Outlines the lopsided nature of the FIPA regarding the fact that China has more law in place against foreign investment than Canada does. 9 $0.90

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Canadians assume more of the risk and constraints because Chinese companies own more in Canada, making Canada the capitalimporter in the relationship. By implication, the FIPA’s negative … 12 $1.20

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It is especially telling that the government, in its environmental assessment of the China FIPA, discounted entirely the possibility of environmental impacts of new Chinese investment in Canada. … 9 $0.90

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Chinese companies have a general right in the FIPA to buy into Canada’s economy, which is then subject to limitations in some cases. On the other hand, Canadian investors have no general … 11 $1.10

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It is true that the FIPA has a carve-out for the Investment Canada Act. This carve-out lets the federal government block specific Chinese takeovers of Canadian companies. On the other hand, the … 9 $0.90

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not all Chinese investment in Canada is objectionable. Yet, for many Canadians, it seems possible that Chinese investment will undermine their priorities when it comes to jobs, health, or the … 9 $0.90

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under the FIPA, Chinese investors now have a power to sidestep Canada’s legal system by starting a lawsuit under the FIPA. Or, they can go to the courts in Canada to attempt to strike down … 9 $0.90

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By analyzing the number of investment lawsuits by country Canada has been a much more inviting target for foreign investor lawsuits, regardless of the rule of law. The FIPA promoters’ … 7 $0.70

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overview of the history of foreign investor lawsuits and how FIPA has accelerated them 9 $0.90

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all of the decisions of investor-state arbitrators are open to doubt because of the absence of judicial safeguards: secure tenure, a set salary, an objective method of case assignment, and so on. … 9 $0.90

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brought to you by the FIPA. Arbitrators can make decisions that affect Canadians, without ever hearing from them. 6 $0.60

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Another troubling thing about the China FIPA is its special allowances for secret lawsuits and secret settlements. In this chapter, I outline this problem and why it is so serious under the FIPA. 8 $0.80

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The expansions of the treaties’ vague protections for foreign investors have a corresponding impact on voters who want a government to be able to change its policies, or on taxpayers who … 9 $0.90

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Chinese investors can use the FIPA to challenge anything that a legislature or government or court in Canada does. They may not win, but the ability to sue in this way is a powerful tool by … 7 $0.70

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Analyzes some murky NAFTA settlements to demonstrate why we should be wary of FIPA 8 $0.80

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Opponents of investor-state arbitration have long warned that it may lead to so-called “regulatory chill,” by creating financial risks for countries that deter responsible regulation … 10 $1.00

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it is next to impossible to evaluate what is happening in settlements. Even if we know that a settlement exists, its terms are rarely public. The terms should be public, at least in a democratic … 8 $0.80

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One of the key flaws in investor-state arbitration is that it leads to final decisions about issues of great importance for countries (and foreign investors too), but does not use a judicial … 9 $0.90

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Awards of compensation for foreign investors have risen to billions of dollars, and now tens of billions. Lawyers have developed new and creative arguments for compensating foreign investors, … 6 $0.60

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This example shows how investor-state arbitrators can review a country’s highest courts, and order its people to pay for whatever the arbitrators order as a protection for foreign … 14 $1.40

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The public opposition to the China FIPA included thousands of people who took steps to support an effort by the Hupacasath First Nation, an aboriginal community on Vancouver Island in British … 11 $1.10

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Through focusing on the arguments of the government’s foreign investment expert, J. Christopher Thomas, and how the courts favoured his opinions Van Harten outlines how the legal challenge … 10 $1.00

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Van Harten outline how his expert witness my opinion was apparently doomed from the start because I had previously expressed views about investor-state arbitration and the FIPA. 10 $1.00

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after Chief Justice Crampton dismissed my opinion in his judgment, I took more of an interest in him. I lay out aspects of his background here, not to suggest that Chief Justice Crampton was … 13 $1.30

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Analyzes the media’s poorly informed spin on the FIPA and how this fueled government led propaganda 11 $1.10

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Analyzes arguments made by Andrew Coyne in his role as a columnist for the National Post 6 $0.60

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Looks at John Ivison’s attack on NDP leader Thomas Mulcair in relation to the FIPA 7 $0.70

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Analyzes arguments made by Andrew Coyne in his role as a columnist for the National Post 11 $1.10

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Another group that emerged to defend the FIPA after it became controversial was lawyers who work in investor-state arbitration 11 $1.10

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The key claim in Barutciski and Kronby’s Globe and Mail article was that the FIPA would benefit Canada. When they made this claim, I suggest that Barutciski and Kronby should have … 7 $0.70

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My point is that the federal government should have put the competing claims about the FIPA to the test, in public, by organizing a thorough and independent review. It should have brought in … 6 $0.60

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Analyzes Lawrence Herman’s opinions on the FIPA 15 $1.50

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I highlight in this short chapter some perspectives on investor-state arbitration that are critical and decidedly not left-wing. 5 $0.50

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How did the Harper Government spin the FIPA? It would take another book to count all the ways. I discuss four examples in the next few chapters. The first example is the prime minister’s … 11 $1.10

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Despite the Conservatives’ efforts to limit debate, other politicians were able to use the process at the House of Commons trade committee, and elsewhere in Parliament, to put important … 9 $0.90

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My last example of the government’s misleading responses to concerns about the FIPA comes from the legal challenge brought by the Hupacasath First Nation. 11 $1.10

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Analyzes an interview with Laura Dawson about her opinion on the FIPA. He concludes the interview worked as a sort of damage control on the part of the governement 14 $1.40

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Analyzes an article written in Maclean’s Magazine by Stephen Gordan which presents a poorly informed spin on the FIPA 9 $0.90

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Analyzes reports about why the Harper Government would support this plan tieing their support to the oil sands and finds the government seemed anxious for China to support Canada’s resource … 12 $1.20

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analyzes other opinions about why the government would accept such a lopsided arrangement with China 9 $0.90

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If one accepts climate change as a pressing concern, it is hard to imagine a more epic fail than the FIPA. For years, the Harper Government told Canadians it would not act on climate change until … 9 $0.90

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In this final chapter, I offer a few hopeful and specific ideas about what governments could be pushed to do to protect Canadians in the era of the FIPA and investor-state arbitration. 8 $0.80