Elizabeth Whitsitt

A Modest Victory at the WTO for Ontario's FIT Program

In December 2012 a WTO Panel in Canada – Renewable Energy determined that the domestic content requirements in Ontario’s FIT Program violate the non-discrimination principles articulated in TRIMs Agreement Article II and GATT Article III. However, in a rare split decision the Panel and subsequent Appellant Body afforded Canada a modest victory by determining that Ontario’s FIT program was not a “subsidy” under the SCM Agreement. Nonetheless, the three decisions contain shortcomings that create uncertainty for renewable energy programs under the WTO’s subsidy regime. Specifically, the discordant approaches taken in each of these decisions in relation to the benefit analysis under SCM Agreement Article 1.1(b) raise questions about the role of public policy considerations in the WTO’s subsidy regime. Moreover, where renewable energy programs are challenged as prohibited subsidies, the dissent’s decision would inevitably create an international investment law conflict for the respondent state, a reality that would undoubtedly prove troublesome for states intent on pursuing environmental policies in their energy sectors. Lastly, all three decisions do not provide any guidance on the uncertain relationship between GATT Article XX and the SCM Agreement notwithstanding that Article XX could certainly allow for a broad consideration of environmental policy objectives.

Finding Refuge in the Exceptional: Using Public Morality as a Basis for Managing Natural Resources in the Arctic

Recent conversations about the WTO dispute between the Faroe Islands and the EU over shared stocks of mackerel and herring in the North Atlantic remind us that there is an undeniable relationship between international trade regulation and concerns about the environment, including the sustainable development of natural resources. This paper explores some of the ways in which the international trade regime attempts to balance both of these concerns. The most obvious example of such balancing is found in Article XX of the General Agreement on Tariffs and Trade (GATT). Historically environmental measures, including those put in place to ensure sustainable natural resource development, have been considered under either (or both) Articles XX(b) and XX(g). The WTO’s recent decision in EC-Seal Products dispute on the legality of a regime that bans seal products from the European Union (EU) market, however, raises interesting questions about whether the public morals exception articulated in GATT Article XX(a) could be used to justify otherwise GATT-illegal measures on grounds that environmental protection (including the sustainable development of natural resources such as Arctic fisheries) is a public moral concern within a state. This paper seeks to explore those questions and specifically the considerations that legislators and policy makers should have in mind when developing environmental regulations that may impact international trade.

Sovereign wealth funds and bilateral investment treaties’ new models: Issues, new trends and State practice

Sovereign wealth funds (SWFs) are not new players in financial markets. Recently, however, they have come under increased scrutiny because of their increasing number, their collective wealth, and the growth of their investment activities in developed-country economies. This chapter explores the application of the current regime of international investment law to SWFs, focusing on bilateral investment treaties (BITs) concluded by the States that represent the home jurisdiction for the world’s 15 largest SWFs. There are five sections to this chapter. Following the introduction, Section 2 provides a brief overview of the international investment law regime, including its core disciplines. Section 3 considers treaty practice with respect to the entrance provisions of a BIT that may be used by an SWF to gain access to its substantive protections. Section 4 considers treaty practice regarding the relevant exit provisions of a BIT that permit host States to derogate from their treaty obligations and Section 5 provides concluding remarks.

Application of Most-Favoured-Nation Clauses to Dispute Settlement Provisions of Bilateral Investment Treaties: An Assessment of the Jurisprudence

Bilateral investment treaties (BITs) provide investors in natural resource projects with stability. Specifically, dispute settlement provisions, a feature of most modern BITs, allow investors to make claims against the host state for alleged breaches of the BIT. However, some such provisions establish limits or preconditions with respect to the ability of investors to access international arbitration. Recently, investors have invoked the most-favoured-nation (MFN) clauses of BITs in an attempt to avoid those limits or preconditions. This issue has proven to be very contentious and arbitral tribunals have come to different conclusions with some tribunals willing to extend MFN protection to an investor’s procedural rights and others refusing to do so. This article examines the diverging lines of arbitral jurisprudence on this issue and highlights the opposing positions of a doctrinal divide regarding the scope and applicability of MFN protection.