Mr. Reuben East:

I will respond quickly on a few points. I thank the Senator for the questions, especially the one on fair and equitable treatment. I do not often get to talk about fair and equitable treatment in detail as a technical person, but I enjoy the opportunity to do so. I will say something about this standard and the way it was drafted under CETA, which is quite different from the old ISDS model. I believe it is important. Usually the fair and equitable treatment provision has a very opaque reference, because it is a customary international law standard. If one looks at the oil treaties, there is mention of customary international minimum standard of treatment or fair and equitable treatment, but no description of what the content is. The EU and Canada were very deliberate in setting out exactly what the customary international law standard is and listed the aspects. These are things such as complete denial of justice, for example, no ability to have any recourse before a domestic tribunal, or manifest arbitrariness. Things such as this are listed under article 8.10.2. The parties were quite deliberate in setting these out.

As to the question relating to paragraph 3 of that provision, as it is a customary international law standard it will evolve from time to time. The parties have an ability through the specialised committees to meet and, as needed, to basically acknowledge this. However, even without that, a tribunal could take notice of a customary international law standard and how it evolves. What is innovative here is that the parties are in control of this. The parties set the standard and they can then indicate if it is evolved or not. That is quite different and I argue that it provides a narrower ability to use this provision.

On the Senator's point about concerns, I cannot speak on specific cases.

Some of the concerns she has raised in respect of specific cases relate to the old ISDS model. CETA does something quite different by, for example, giving a specific direction in the text to tribunal members and by having a frivolous claims provision that can lead to the early dismissal of claims, which vastly reduces costs to the state in defending these claims. There are joint interpretations to clarify the meaning of certain provisions, including in respect of the environment, labour and so on. These are binding on tribunals and there is an appellate system that does not usually exist under these old ISDS claims. These are reforms that respond somewhat to these concerns. They were acknowledged and addressed by the parties in my submission.