Abstracts

Public Services and Procurement 

Title: Assessing the interests of business and industry in CETA
Author: Jefferson Huebner (Balsillie School of International Affairs, Waterloo)

Abstract:  CETA offers economic opportunity in the form of increased market access and diversification, particularly for industry in Canada wanting to move away from traditional reliance on the US market.  It is also seen as leading the way in establishing standards for “behind-the-border” elements of deeper integration, particularly by the European side as a precursor to negotiations with the US and other trade partners.  In some aspects business on both sides of the Atlantic have worked together to adopt common positions and shape the outcome of negotiations to align with their shared interests.  This presentation assesses the expectations of business and industry regarding implementation of CETA in various areas including procurement, services, labour mobility and investor protection.


Title: CETA’s potential impacts on public services
Author: Scott Sinclair (Canadian Centre for Policy Alternatives)

Abstract: Prior to the signing of CETA in October 2016, concerns about the treaty’s possible negative impacts on public services became a political flashpoint. To address these concerns, Canada and the European Union crafted a legally-binding, joint interpretive instrument that affirmed the rights of governments to provide, support, regulate, create and expand public services. This paper will explore the potential impacts of CETA’s investment and services provisions on public services in Canada and the European Union. It will assess whether there are discrepancies between the assurances in the joint interpretive instrument and CETA’s provisions and commitments, including rules on market access, investment protection, governmental authority and other key provisions recited by the instrument. The paper will also assess the efficacy of the reservations pertaining to public services taken by Canada, the EU, provincial and member state governments, including whether these might result in differing levels of protection for public services. Finally, it will explore whether any issues or uncertainties relating to the safeguarding of public services could be addressed during the implementation phase of CETA.


Title: Will CETA Reduce Home Bias in Local Government Procurement?
Author: Dmitry Lysenko (Government of Nova Scotia), Elizabeth Schwartz (Johnson-Shoyama School of public Policy, University of Saskatchewan), Saul Schwartz (School of public policy and Administration, Carleton University)

Abstract: Expanding access to Canadian local government procurement markets was an important goal of European negotiators of the Comprehensive Economic and Trade Agreement (CETA). The purchase of goods and services from the private sector by all levels of government represents 15 to 20 percent of GDP in developed countries and it is widely thought that there is a pervasive “home bias” in government procurement.  Will one of the most important potential effects of CETA be to reduce home bias in Canada?  This paper argues that home bias in local government procurement will not be eliminated by non-discrimination provisions in CETA (or any other trade agreement). We use multivariate analysis to test for a “preference” for local firms across three Canadian municipalities. Then, using qualitative methods, we combine analysis of CETA and internal trade agreements with data from interviews with municipal procurement officials and government documents to suggest that the dominance of local firms in procurement does not arise from the formal exclusion of foreign firms or from discriminatory policies or decision making. We argue instead that the relative absence of non-local contract winners in Canadian local procurement processes is related to difficulties faced by firms that will not be affected by CETA or other trade agreements, namely how business is conducted and regulated in particular provinces.


Labour Mobility and Labour Relations

Title: The Contribution of International Labour Mobility to Innovation and Inclusive Economic Growth in Nova Scotia

Author: Cara J Spittal (Review officer, Fair Registration Practices Act, Government of Nova Scotia)

Abstract: The Ivany Report (2014) describes, in painful detail, the new and growing challenge Nova Scotia faces in attracting and retaining skilled labour. It also presents us with a paradox: minority communities account for disproportionate shares of the unemployed or underemployed people in the province. We have jobs without people and people without jobs. One solution to this problem is to work collaboratively with minority communities, and across sectors, to recognize what people already know and can do and support targeted skills development that enables them to bridge to employment. Another is to recognize the credentials and work experience of internationally educated, skilled and underemployed immigrants who live in Nova Scotia or are seeking opportunities here, ensure fair procedure when they apply for license to practice and leverage the diversity of thought they bring to generate business growth and enable innovation.

This presentation explores how international labour mobility and diversity can contribute to innovation and inclusive economic growth through the experiences of Architects, Engineers and Chartered Professional Accountants in the negotiation and implementation of Mutual Recognition Agreements (MRAs).  Whether negotiated via Chapter 11 of the Canada-European Union Comprehensive Economic and Trade Agreement (CETA) or other initiatives, MRAs can deliver all the attendant benefits of international labour mobility—diversity, innovation, idea exchange and inclusive economic growth. While we weigh the pros and cons around implementation of Ch. 11 and MRAs more generally, as policy-makers we must also consider how labour mobility provisions in comprehensive trade agreements like the CETA can help realize key government policy priorities around innovation and inclusive economic growth in Nova Scotia.


Title: Innovation and Impact of CETA on Labour Mobility, Qualification Recognition and Professional Regulation

Author: André Gariépy (Commissioner for Admission to Professions, Government of Québec)

Abstract: The Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union includes provisions on labour mobility, qualification recognition and professional regulation. On these topics, CETA brings some innovative features and a comprehensive formal mechanism compared to traditional trade agreements. Nevertheless, some procedural and institutional elements of CETA are a source of concerns over the mobilization process on each side of the Atlantic and the facilitation objective of the agreement. Also, the connection between CETA and the Canadian and the European Union internal constitutional and legal frameworks presents some challenges to the expected mobility. This presentation will discuss the functional logic of CETA on labour mobility and related issues. It will bring an initial critical analysis of the policy ambition, the meaning of the CETA provisions and obligations, and the conditions for its success. The main focus of the discussion would be on the regulated professions and occupations.


Title: CETA implementation:  From innovation to uncertainties?
Author: Michèle Rioux and Sylvain Zini (Centre d’études sur l’intégration et la mondialisation, Université du Québec à Montréal)

Abstract: This communication will look at the innovation related to labour norms and cooperation integrated in CETA.  These innovations demonstrated that the North American and the EU models regarding labour chapters in trade agreements are being articulated in an attempts to map a transatlantic model.  Yet, and this is the second point, there are many uncertainties as to whether or not this transatlantic model means convergence or simply a mode of coordination of two different approaches.  Put simply, it is not clear if the EU and Canada knows exactly how CETA will translate in terms of relation, processes and public policies both sides of the Atlantic.


Lunchtime Presentation

Title: Promotion of CETA to Canadians
Presenter: Cindie-Eve Bourassa (Global Affairs Canada)

Abstract: Since the Provisional Application of the Canada-European Union Comprehensive Economic and Trade Agreement (CETA) on September 21st, 2017, the Free Trade Agreement Promotion Task Force has organized 57 events in Canada to promote CETA, reaching an audience of about 3,845 people across all 10 provinces. Over the course of the 2017-2018 fiscal year, BFMX brought 12 Senior Trade Commissioners and 5 Heads of Mission posted in the European Union to Canada to take part in the CETA: Expanding Your Business Horizons promotional roadshows. BFMX also conducted 14 CETA 201 Trainings at Regional Offices and EU Posts for over 300 staff from Global Affairs Canada and its partners.


Investment

Title: CETA Investor-State Dispute Settlement:  Will Reform Enhance Legitimacy?
Author: Elizabeth Whitsitt (University of Calgary)

Abstract: With ongoing negotiations for trade and investment treaties between and among Canada, the European Union (EU), the United States (US) and states in the Asia Pacific region, investor-state dispute settlement (ISDS) is under attack. Discontent with the international investment law regime has led to the perception that its dispute settlement mechanism needs reform. The EU has responded to calls for reform by proposing, among other things, the establishment of an investment court system (ICS). Thus far, Canada and Vietnam have accepted the creation of a permanent investment court in recent treaties concluded with the EU. For proponents of this institutional innovation ICS promises to solve the legitimacy problems that have plagued traditionally ad hoc investor-state arbitration. Advocates of ICS envisage, for example, that introduction of an appeal mechanism similar to the WTO’s Appellate Body will enhance predictability of treaty interpretation, improve consistency in decisions, and ultimately contribute to greater legitimacy of ISDS. In so doing, some suggest that ICS will do a better job of attaining the ever elusive “balance” between investor protection and sovereign interests. But will this actually happen? Can CETA’s ICS mechanism really address all of these issues? This paper looks to answer these questions by focusing on the role of adjudicators in the traditional ad hoc ISDS and ICS dispute settlement models. To begin, this paper highlights some of the commonly held beliefs about the differences between adjudicators in each of the dispute settlement models and argues that adjudicators operating in each of these dispute resolution models perform a similar law-making function within international investment law. This paper then considers the adjudicative process (i.e. treaty interpretation) and the factors that are most likely to influence that process in traditional ad hoc ISDS and newly proposed ICS dispute settlement models. Given the variety of factors that can influence this process and the adjudicators operating within in, this paper posits that reform of ISDS by way of ICS alone will not solve investment law’s perceived legitimacy crisis.


Title: CETA and the Investment Court System: Challenging times ahead
Author: Wolfgang Alschner (Common Law Section, University of Ottawa)

Abstracts: One of the most innovative aspects of CETA has been the commitment to create a permanent international court system to replace the increasingly controversial ad hoc arbitration procedure for the resolution of disputes between foreign investors and host states. The court system will have a first instance tribunal and an appellate stage. While it will initially work on the bilateral level, international negotiations are underway to replace it with multilateral counterpart. This paper will review three major challenges that stand in the way of this plan coming to fruition. First, CETA itself faces an uncertain future. While parts of it are applied provisionally, the investment chapter is not. Given that all EU member states have to ratify the agreement before it can come into force entirely, it is still possible that a member state’s veto will prevent CETA and with it the bilateral court system. Second, both Canada and the EU face complex balancing considerations in their international investment protection policy. Canada has recently contributed to the revival of the Transpacific Partnership Agreement, which enshrines old-fashioned investor-state arbitration, and is engaged in NAFTA renegotiations, in which the enforcement of investment protection obligations is a sticking point. Canada thus risks creating incompatible standards through varying agreements with different partners. The EU, on the other hand, is likely to split investment protection from trade agreements in future negotiations to benefit from an accelerated ratification procedure for the latter putting the future of EU investment protection into jeopardy. Finally, both Canada and the EU have been working together under the auspices of UNCITRAL to build an international consensus around the idea of a multilateral investment court system. Yet, early UNCITRAL meetings have indicated that many states remain opposed to the idea of a permanent court or of strong enforcement rules for investment protection. In short, CETA and the investment court system have challenging times ahead.


Title: The CETA’s Investment Court System Post-Achmea: Death Sentence or New Beginnings?Author: Lukas Vanhonnaeker (McGill University)

Abstract: In its short and stringent judgement of 6 March 2018 in Achmea, the Court of Justice of the European Union (CJEU), by declaring investor-state arbitration in intra-EU investment treaties to be inconsistent with EU law, delivered a heavy blow to those hoping to see the legitimacy of investor-state arbitration (ISA) affirmed and to those still hoping to see the CETA’s investment court system (ICS) come to fruition. The CJEU’s decision has been described by some as the “death sentence” of ISA by effectively neutralizing such dispute resolution provisions in the more than 200 intra-European Union countries bilateral investment treaties (BITs). The key consideration that justified the Court’s decision is that ISA tribunals adjudicating disputes arising under intra-EU BITs are called to interpret and apply EU law, thus exercising a prerogative of EU Member States courts and, ultimately, encroaching on the CJEU’s interpretative monopoly of EU law. The CETA is not an intra-EU agreement, but arguing that the ICS could not eventually be called to interpret and apply EU law is futile. Proceedings initiated by Canadian investors under the CETA’s investment chapter would necessarily involve a EU Member State, or the EU itself, as Respondent and thus potentially raise questions of EU law. It would thus seem sound to apply by analogy the CJEU’s findings and conclusions in Achmea to the CETA’s ICS. A more optimistic approach would be, however, to argue for the recognition of a place for the ICS in the EU legal framework. This is easier said than done, especially in light of CJEU’s reluctance, justified by the necessity to protect the autonomy of EU law, to share its competence with quasi-judicial competitors. The time has come, however, for the CJEU to showcase more openness and the CETA and its ICS is the ideal opportunity to do so. Contrarily to ISA mechanisms provided in intra-EU BITs, the ICS has been developed by the European Union itself3 and answers many – albeit not all – of the conditions laid out by the CJEU for an adjudication mechanism to be considered as a “court or tribunal of a Member State”. In addition, it answers many of the concerns that have been expressed by civil society organizations and states alike with respect to ISA and that led to initiatives such as the question that was asked to the CJEU in Achmea. ISA is not perfect, nor is the ICS, but it is an important step forward compared to “traditional” ISA. Furthermore, it would also be beneficial for the EU legal order if the ICS were accorded the right to ask preliminary questions to the CJEU when adjudicating questions of EU law. In particular, it would ensure the creation of a coherent and uniform interpretation of EU law, including international investment law, a competence of the EU since 2007.4 Embracing the ICS’ role in the EU legal framework and allowing it to ask preliminary questions to the CJEU is not only desirable but, in the aftermath of Achmea, it also appears to be a necessity in order for the ICS to ever come to life.


Environment

Title: CETA’s implications for sustainable development and environmental protection in Canada
Author: Kerrie Blaise (Canadian Environmental Law Association)

Abstract:  In response to the CETA Implementation and Implications Project’s (CIIP) call for proposals, CELA would be pleased to participate in a workshop to discuss our position on CETA’s implications for sustainable development and environmental protection in Canada. We are also excited for the opportunity to engage in dialogue with other leaders in the field and expand our network of partners working on trade and environment issues. As a workshop participant, CELA will discuss how provisions within CETA may impede Canada’s ability to regulate domestically, with a focus on human health and the environment. We will also share our insights on how provisions within the text could be improved, in order to create binding obligations or impose sanctions on parties, should environment and sustainable development provisions not be met. CELA has undertaken extensive research1 analyzing the effects of a negative listing approach used in CETA – whereby certain services are exempted from its scope – and the impact of the agreement’s “legitimate expectation” and “right to regulate” clauses on regulating with regards to the environment.


Title: The early effects of CETA on energy and waste issues: socio-spatial insights across Canada.
Author: Emmanuelle Santoire (Visiting Student at Queen’s University) and Dr. Myra Hird, (School of Environmental Studies, Queen’s University)

Abstract:  In Canada, the federal, provincial including Nunavut and municipal governments are involved in the implementation of CETA (Comprehensive Economic and Trade Agreement) which directly addresses local economic development under the market access and procurement provisions. This project examines the potential effects of CETA on environmental matters, with a special focus on waste and energy services. These are considered key targets in a complex and growing environment-trade nexus. Drawing on an original geographical approach, the study explores the effects of CETA on the definition of energy and waste as services and trade commodities. It questions the early spatial effects of the agreement at sub-central government scales and aims at understanding the potential formation of conflictual arenas around land-based resources sovereignty and governance, environmental justice and responsibility, especially when involving indigenous communities. A mixed quantitative and qualitative approach is currently used to assess the research objectives: text analysis on the CETA document and interviews with main stakeholders involved in the construction, study and implementation of CETA across Canada as well as local communities. The research objectives are twofold: to map out the visibility, awareness and perception of CETA across society in Canada regarding energy and waste issues, as well as evaluating the potential effects of CETA on energy and waste services. Our results will help us in constructing an analytical model to understand how trade and legal agreements affect strategic energy and waste flows between developed countries. This project is a Franco-Canadian research study lead by the Ecole Normale Supérieure of Lyon (France) and the School of Environmental Studies of Queen’s University (Ontario). Started in 2018, it aims to inform decision-making leaders and main community stakeholders of the tensions raised by the intertwinement of environmental concerns, legislations and policies and the economic goals described in the CETA.


Title: Implementing CETA’s Environmental Provisions: Lessons from other experiences
Author: Jean-Frédéric Morin (Centre for International Governance Innovation and Université Laval)

Abstract: CETA, like most recent preferential trade agreements (PTAs), includes an full fledge chapter devoted to environmental protection. However, it remains unclear whether and how this chapter will be implemented. This paper investigates the relationship between the conclusion of PTAs and the adoption of domestic environmental legislations. Thanks to datasets that are significantly more comprehensive and fine-grained than those previously used, we can focus on the direct link to environmental legislations rather than the more indirect link to environmental outcomes. As expected, we find a significant and positive relationship between PTAs and domestic legislation. Moreover, the link between PTAs and domestic legislation is more pronounced in developing countries and, in these countries, more pronounced before rather than after entry into force. This relationship can be observed for many specific environmental issue areas, but not all of them. We conclude with some remarks on the features on CETA that are the most likely to be impactful for environmental protection. These findings contribute to the debate as to whether CETA’s environmental provisions are expected to promote more stringent environmental regulations rather than merely protect existing domestic standards, and as to whether a strong enforcement mechanism is necessary for trade agreements’ environmental provisions to have domestic impacts. 


Agriculture and Geographic Indicators

Title: Geographical indications and sustainable development
Author: David A. Wirth (Boston College)

Abstract: The EU has aggressively promoted the recognition of geographical indication (GIs) in preferential trade agreements as a form of intellectual property on a par with patents, trademarks, and copyrights.  CETA is no exception, with the Agreement identifying more than 170 EU-based GIs for cheeses, oils, cured meats, and other products as entitled to protection beyond that for wines and spirits already specified in the WTO.  Meanwhile, the utility and appropriateness of protection for GIs continues to be hotly debated, with counter-assertions that GIs inappropriately create barriers to trade instead of reducing them.  This paper argues that the concept of sustainability, as set out in an operative sense in the language of CETA, provides an opportunity to rethink the utility of GIs from the point of view of social policy.

Chapters 22 (Trade and Sustainable Development) and 24 (Trade and Environment) provide for an ongoing dialogue between the two Parties in the implementation of the Agreement.  More specifically, given the text of Agreement, the Government of Canada is well-positioned to encourage the inclusion of such factors as food safety and fair trade, along with assurances of broadly-distributed societal benefits, through the protection of GIs in the implementation of CETA.  If appropriately structured and implemented, such innovations could transform GIs based strictly on terroir into public policy and regulatory vehicles for the delivery of sustainability goals.  In turn, CETA could become a crucible demonstrating the desirability of broader protection for GIs in other fora, such as the WTO.


Title: Agri-Food in CETA: Understanding the Elements of Policy and Implementation
Author: Al Mussell and Douglas Hedley (Agri-Food Economic Systems)

Abstract: The purpose of this paper is to discuss the Canada-US Comprehensive Agreement on CETA from the perspective of Canadian agri-food.  The paper begins with an overview of CETA in agri-food, with an identification and discussion of issues using the framework of domestic support-market access-export promotion.  CETA focuses on market access, but with important elements relating to domestic support and subsidized exports, particularly in dairy products.  The paper then discusses technical elements and implementation issues.  Particular focus is given to the allocation of cheese import quotas in Canada, wine and spirits, antimicrobial treatments and access levels in meats, and contaminants/low-level presence standards in grains/oilseeds.  The paper concludes with an overview of what changed in CETA, what the anticipated response will be in terms of changes in trade flows, and where attention will need to focus to address irritants and technical issues in order to maximize the value of CETA in agri-food.


Title: The geographical indications in the CETA treaty: a new perspective about foodstuffs
Author: Francesco Maria Froldi (Centre de Recherche de Droit Public presso, Université de Montréal)

Abstract: This research analyzes the contents, criteria and modalities with which the recent international agreement concluded between the EU and Canada intends to recognize the products marked as European Geographical Indications (GIs). It will first try to give a definition of GIs according to the WTO and then move on to redefine the framework in which they are included in CETA, trying to deepen the role that Article 20 has taken in the international negotiation. This research focuses on the differences between protection of the GIs, which is the sui generis system in Europe and the trademark system in North America. We briefly discuss the regulation in Quebec regarding the protection of appellations of origin (law on valorizing terms). Once this general overview is given, we will focus on Chapter 20 – Subsection C of CETA, briefly highlighting the protection currently applied to GIs following the provisional implementation of the international treaty. Finally, we will try to bring out some important issues that cause the GIs to still have a non-homogeneous protection at the international level, alluding to the possible problem for the Canadian position in ALENA deriving from the MFS clause insert in the GATT. This paper will aim to give the basic notions about GIs and in the same time to arouse reflections for future studies on second and third generation treaties in the field of foodstuffs.


Intellectual Property, Science and Regulatory Cooperation

 Title: Predicting the Effects of CETA on Canada’s Pharmaceutical Patent Regime: An Early Assessment
Author: Adam Falconi (Magyar, Bogle & O’Hara LLP)

Abstract: This research will focus on the ramifications of the amendments to Canada’s Patented Medicines (Notice of Compliance) Regulations enacted as part of the Comprehensive Economic and Trade Agreement (“CETA”). The research will evaluate these impacts on two fronts: (1) through an examination of the early impacts of the amendments on Canada’s pharmaceutical patent litigation landscape, and (2) through a comparative analysis of Canada’s new pharmaceutical patent regime with other international systems, particularly those with a “pharmaceutical patent linkage” structure such as the United States. The research will take a stakeholder approach in its evaluation of the effect of CETA’s implementation and will focus on the real-world results of the amendments on Canada’s patent litigation landscape from the perspective of practitioners in the field. The comparative analysis with other pharmaceutical patent systems across the world will be conducted with a view to predicting CETA’s effects on Canada’s pharmaceutical patent system as it is fully implemented. The research will conclude with proposed legislative modifications that can be enacted to ensure that the goals of the CETA agreement are maintained within a sustainable pharmaceutical patent system that is prosperous for Canadians, a result which is crucial for the continued success of the agreement for decades to come.


Title: CETA Building-Blocks for Canadian-EU Open Science Partnerships
Author: Richard Gold (McGill University)

Abstract: As with most of agreement, the intellectual property (IP) provisions of the Comprehensive Economic and Trade Agreement (CETA) is static in nature, taking the world as it is today and building rules that allocate benefits between existing players in an existing environment. Given the dynamic nature of innovation – in which practices, firms, and industries are destroyed while being replaced by others – CETA’s IP provisions will have little positive effect on building innovation economies. Instead, one needs to examine forward-looking provisions of CETA to find a basis to build a better innovation economy in Europe and Canada. While vague, chapter 25 on bilateral dialogues and cooperation, particularly article 25.2 (on biotechnology) and 25.5 (on science, technology, research and innovation), provides the jurisdictions with an opportunity to build new innovation and regulatory models that enhance the capacities of their firms to flourish. One particularly intriguing model of innovation – open science partnerships – has gained significant interest on both sides of the Atlantic among governments, firms, researchers and patient/consumer organizations. This new model provides a significant rival to US innovation models and may better position Europe and Canada to compete.


Title: Regulatory co-op in CETA: Exporting the NAFTA model or something more?
Author: Stuart Trew (Canadian Centre for Policy Alternatives, Ottawa) and Max Bank (LobbyControl, Germany)

Abstract: Globally, tariffs and other traditional barriers to international trade, where they have not been eliminated completely, are at record lows. Gains from further trade liberalization are therefore being sought in the lowering of so-called behind-the-border barriers, including public protections such as regulations. In fact, the Canadian Chamber of Commerce refers to regulatory differences between trading partners as “Canada’s Next Top Trade Barrier,” and Canadian and European business groups were strong supporters of the establishment in the Comprehensive Economic and Trade Agreement of a regulatory co-operation chapter. While CETA is the first free trade deal to include such a chapter in the body of the agreement, the type of co-operation envisioned, and the structures to be put in place to guide it, are largely based on the work of the Canada-U.S. Regulatory Co-operation Council established by the Harper government and Obama administration in 2011 in response to cross-border industry complaints about the effects of regulatory differences on supply chains and costs. Many Canadian and European civil society organizations, in particular environmental groups, worry that the advent of regulatory co-operation within CETA may create new avenues for corporate lobbying against public interest regulations simply on the grounds that they could affect international trade. This workshop and paper will expand upon previous reports assessing the effect of the North American RCC on regulations and the regulatory process in Canada by comparing what we can gather about expectations for the co-operation council in CETA among Canadian and European officials and business groups, and elaborating on the proposed functioning of the CETA Regulatory Co-operation Forum. It will also examine Canada-U.S. regulatory co-operation in the Trump era compared to under the Obama administration, and consider the differences, however subtle, between Canada’s and the EU’s international agenda for regulatory co-operation within other trade venues, including the WTO and EU bilaterals.