From Sea to Sea: Regulatory Space of Federal and Provincial Governments in Canada Under CETA and TPP Investment Chapters

Abstract

The aim of this paper is to assess the impact of TPP and CETA investment chapters on the regulatory space of government in Canada. Past treaty practice of Canada will be the yardstick for this assessment, most notably the investment chapter in the North American Free Trade Agreement between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America (NAFTA) and the model Foreign Investment Promotion and Protection Agreement (FIPA) of Canada. Overall neither TPP nor CETA stands out as better protecting or reducing more the regulatory space of government. It depends of the policy area considered. CETA appears to be more innovative, representing a synthesis of the preoccupations of Canada and the EU towards international investment law and ISA. TPP is a blueprint for US foreign legal policy in the Pacific space and elsewhere, representing an orthodox view of international investment law. The systemic issue of legal articulation between CETA, TPP and past Canadian treaties adds an unprecedented layer of complexity to the matter at hand. It is argued that contradictions in the international obligations of Canada is likely to create confusion both for regulators and arbitrators, while investors might simply make the best of it.