A losing proposition : Failure of Canadian ISDS policy at home and abroad

AbbreviAtions The opinions and recommendations in this report, and any errors, are those of the authors, and do BIT bilateral investment treaty not necessarily reflect the views of the funders CDIA Canadian direct investment abroad of this report. [...] Scott Sinclair, a senior trade researcher with the Canadian Centre for Policy Alternatives, concluded in a recent paper on ISDS in Canada that the “pervasive threat of investor–state challenge…has warped the relation- ship between multinational corporations and democratically elected gov- ernments to the detriment of other social groups and the broader public interest.”5 In this study, we reverse [...] This is because the mere presence of an ISDS mechanism may be a factor in so-called regulatory chill, or it may encourage a foreign corpora- tion to make a new investment (although there is little evidence to suggest that ISDS leads to greater FDI).19 However, for the purposes of the present statistical analysis, this sample of 55 cases comprises the total experience of Canadian investors under IS [...] In this section, each of the nine data points collected for the study is analyzed independently to identify patterns in the use of ISDS by Canadian investors. [...] If the government then violates the contract, the investor can bring an ISDS claim based on the terms of the contract even outside of any internation- al treaty.