67 Certain non-reciprocal aspects of Chinese FIPPA, cited above footnote 2, such as its provision in Annex C.21,1 requiring Canadian (but not Chinese) investors to submit a dispute to a domestic administrative procedure for four months before bringing an action in FIPPA, were not considered sufficiently important to be examined in detail. 10The principle that each Party accords to investors of the other Party or to its investments treatment no less favourable than that which it accords to its own investors or investments in the same circumstances. The Canadian model provides that BITs must be terminated with one year`s notice with no minimum term, plus a 15-year survival clause for investments existing at the time of termination (FRPA mode l, section 52(3)). On the other hand, the Canada-China BIT must be in force for at least 15 years, with one year`s notice and a 15-year survival clause (Canada-China BIT, Article 35), giving it a relatively long minimum lifespan of 31 years (Van Harten, 2014b: pp. 43-46). Of all Canadian BITs, only four have a minimum lifespan.26 The Council of Canadians has referred to the agreement as a Canada-China FIPA. [4] Hupacasath First Nation and other First Nations organizations have called it Canada China FIPPA. [4] However, the main deviation from Canada`s foreign investment policy is the absence of a right of establishment that reflects China`s usual PRACTICE with respect to BITs (Côté, 2013: p. 1). 371).29 The national treatment clause is limited to the post-investment phase, but such a restriction does not apply to the most-favoured-nation provision, which also includes the ”creation” and ”acquisition” of investments. This unique feature of the Canada-China BIT has led to disagreements between legal scholars and analysts about the magnitude of its impact. Unlike China, Canada has granted pre-incorporation rights to foreign investors under its BITs. For Van Harten (2014b: pp.

16-20), this means a market access right reserved for Chinese investors in Canada. On the other hand, Côté (2012: p. 300, 303) points out that Canada`s respected right to screen foreign investment, and in particular the exclusion of its investment screening decisions from dispute settlement provisions, significantly restricts this resulting right of establishment. When trying to impose their will, Chinese diplomats often invoke ”The Century of Humiliation” and ”unequal treaties,” which refer to defeats, occupations, and unilateral agreements imposed by foreign powers, beginning with the First Opium War of 1839-42. 97 See Canada`s FIRPA with Costa Rica (Annex I, Section VI, points 1 to 2); Croatia (Annex I, Section VI, points 1 to 2); Ecuador (Article II(4)(a) to (b)); Egypt (Article II(4)(a) to (b)); Latvia (Article II(4)(a) to (b)); Panama (Article II(4)(a) to (b)); Philippines (art. II 4-5); Romania (Article II(4)(a) to (b)); Trinidad and Tobago (Article II(4)(a) to (b)); Ukraine (Article II(4)(a) to (b)); Uruguay (Annex I, Section VI, points 1 to 2); and Venezuela (Annex II, items 3 (a) to (b)).) See Annex 2 to this Article; relevant contractual texts available online: DFATD . The BIT model and almost all Canadian IIAs (FIPA model, Articles 3 and 4) protect foreign investment in the pre-establishment phase. However, the national treatment provision of the Canada-China BIT applies only to the post-establishment phase of investments, i.e., after their implementation. Article 6 expressly excludes the terms ”incorporation” and ”acquisition” from its wording, so that investors and covered investments are treated only in relation to their ”expansion, management, conduct, operation and sale or other disposal” (Canada-China-BIT, Article 6). Therefore, there is no right of establishment and the parties retain their respective rights to block new investments in their territory (Walsh & Woods, 2012: p. 2; Côté, 2013: pp. 370-371; De Mestral, 2014: p.

1). The Canada-China BIT further restricts national treatment by limiting the application of the concept of ”expansion” to ”sectors that are not subject to a prior approval process under the relevant sectoral guidelines and the laws, regulations and rules in force at the time of expansion” (Canada-China-BIT, Article 6.3). This preserves the right of the parties to impose certain mandatory formalities and other disclosure requirements for the ”expansion” of investments in certain sectors (Walsh & Woods, 2012: p. 2). 23For more information on Canada`s economic relationship with China, see: Tiagi and Zhou (2009); Cao & Poy (2011). On China`s investment policy, see: Nicolas (2012); Berger (2015); Copper (2016). With more than 100 BITs obtained with a variety of countries since the early 1980s, China is among the countries with the highest number of such agreements. In addition, in addition to the two special administrative regions (Hong Kong and Macao) and Taiwan, China has signed 13 free trade agreements with various countries and groups such as the Association of Southeast Asian Nations, Australia, Pakistan, Peru, Singapore, South Korea and Switzerland (see UNCTAD (a)). On paper, the new foreign investment law is expected to expand foreign investors` access to the Chinese market (Articles 4, 16 and 17) and improve the protection of their intellectual property (Articles 22, 23, 26 and 39). Each state must allow all transfers related to the investments covered by the agreement. These transfers include profits, capital gains, dividends, interest, royalties and other investment income. These transfers also include capital contributions.

With respect to applicable law, while the Canadian model BIT provides that arbitral tribunals shall rule on disputes in accordance with the Agreement and the applicable rules of international law (FIPA Model, Article 40), the Canada-China BIT also stipulates that, where applicable, the law of the host State (Canada-China-BIT, Article 30). It is not clear that at the country`s request, this innovation was introduced28, which was included in two successive Canadian free trade agreements with Colombia and the EU. 6There is extensive literature on the history and development of BITs and other foreign investment protection treaties, as well as on related provisions, jurisprudence and issues. See in particular: Newcombe & Paradell (2009); Dolzer & Schreuer (2012); Salacuse (2015); Collins (2016); Sornarajah (2017); Bonnitcha, Poulsen and Waibel (2017); Schill, Tams and Hofmann (2018). For investor-state arbitration in detail, see: Dugan, Rubins, Wallace Jr. & Sabahi (2008); Waibel, Kaushal, Chung and Balchin (2010); McLachlan, Shore and Weiniger (2017); Lim, Ho and Paparinskis (2018). The Canada-China Foreign Investment Promotion and Protection Agreement (PDAC), which entered into force in 2014, sets out the rights and obligations of governments and investors and stipulates that Canada and China are required to treat their respective investors at least as favourably as their own investors and those of other countries. However, the new Foreign Investment Law does not clarify China`s obligations under agreements such as FIPA and further transfers the resolution of complaints and disputes to regulators, leaving Canadian investors vulnerable to policy decisions.

The 9. In September 2012, Canada signed a Foreign Investment Promotion and Protection Agreement (FIPA) with China. FIPAs are Canada`s name for bilateral investment treaties used by companies around the world to challenge public policies or community decisions that affect their profits. Canada`s first FIPA took the form of a single chapter (Chapter 11) of the North American Free Trade Agreement. Because of the extreme protection of investments in NAFTA, Canada has paid $160 million to U.S. companies that have challenged public decisions, including environmental policies. Canadian mining companies use APIs with developing countries to claim damages due to community opposition to unwanted megaprojects. Tens of thousands of people sent letters to the government demanding that the investment deal be torn apart, and hundreds of letters were written in newspapers across the country. Public opposition to the Pact for Corporate Rights resonates with MPs, who are calling for a public debate that the government does not want to conduct.

Opposition to China`s FIPA also affects Canada`s other investment protection agreements with countries in Latin America, Africa and Asia. Today, British Columbia`s Hupacasath First Nation sued FIPA and directly opposed the Harper government`s anti-democratic agreements on corporate rights. The fight against FIPA is far from over. And we still have a role to play in deciding the fate of the agreement. The Harper government has been reluctant to finalize the text and ratify the agreement due to diplomatic differences and concerns about human rights violations in China. [13] The main means by which Western countries have attempted to protect their foreign investments has been through the conclusion of bilateral investment treaties (BITs), particularly with developing countries. After almost all developed countries that are members of the Organisation for Economic Co-operation and Development (OECD),1 Canada entered into a BIT with China in 2012. The Bit between Canada and China is discussed in this article based on the model used by the Canadian government to negotiate the BIT with different countries around the world. Article 1) discusses some important investment protection provisions in the Canada-China BIT and (2) discusses how the BIT marks a break with Canadian foreign investment policy. .