Canada has lost two Chapter 11 cases, and paid to settle another. Mexico has also lost two. But the U.S. thus far has emerged unscathed. When panels interpret the provisions of Chapter 11 broadly, they seem to do this only in cases brought against Canada and Mexico.
In one case directed at the U.S., a panel ruled against a challenge by the Canadian funeral company Loewen even though the panel agreed that Loewen had been treated with "manifest injustice" by U.S. courts. Just this month, a panel ruled against Canadian investor Methanex's challenge to California's ban on a gasoline additive. It even awarded costs to the U.S. government that were 30 per cent higher than what the U.S. had sought...
Legal scholars had predicted that, if Methanex had won its case, American politicians would not have stood for this intrusion into U.S. sovereignty and Chapter 11 would have been finished.
As perhaps it should be anyway. But that could be something to discuss in a new session of Parliament.
There's more to some of the cases than the writers indicate (e.g. to my recollection in the MMT case the ban was actually on transportation of the chemical rather than use of the chemical itself), but the central point is absolutely right: a dispute resolution mechanism that was supposed to give Canada some recourse against the U.S. has done nothing but give American corporations a hammer to use against Canada.
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