Doing business across the globe involves interaction with foreign legal regimes. Ensuring protection of our clients’ investments abroad requires a dedicated and experienced team deeply knowledgeable about the workings of investment treaties, the treaty law that governs them, and the dispute resolution mechanisms they provide. Bennett Jones is home to recognized leaders in investment treaty law and arbitration.
What is Investment Treaty Arbitration?
Historically, when an investor from one country (a foreign investor) made an investment in another (a host state), and the host state undertook measures harmful to the foreign investor's investment, the only remedies typically available to the foreign investor were to sue the host state in its domestic courts or to seek diplomatic protection from its home state. This presented risks for foreign investment in many parts of the world.
As a result, many countries began entering into what are called "investment treaties" with one another to provide certain protections, such as against discrimination and unlawful expropriation, and to require that minimum standards of treatment be provided to foreign investors. When a member country fails to provide those protections or violates the minimum standards of treatment it has promised to provide, investment treaties provide foreign investors with a right of action against the host state before an independent international arbitration tribunal.
There are now well over 2,500 investment treaties around the world. Canada has bilateral investment treaties with close to 40 countries across the globe. In addition, it has included foreign investment protection in the Canada-European Union Comprehensive Economic and Trade Agreement (CETA) and the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).
How can Bennett Jones help?
Bennett Jones’ lawyers have substantial experience in investment treaty arbitration and have represented sovereign states and foreign investors all over the world. Our deep expertise in investment law and treaty interpretation, as well as our hands-on experience negotiating investment treaties on behalf of sovereign states, give us a leading edge in supporting clients on investment matters. Our lawyers teach investment treaty arbitration at Canada’s top law schools and have published extensively on the subject.
Bennett Jones’ international investment arbitration lawyers are routinely recognized as some of the best in the field by, among others, Chambers Global, Chambers Canada, The Legal 500 Canada, Best Lawyer in Canada, the Canadian Legal Lexpert Directory, Lexpert's Guide to the Leading US/Canada Cross-Border Lawyers and Canada's Leading Litigation Lawyers, Who's Who Legal, the Lexpert/American Lawyer Guide to the Leading 500 Lawyers in Canada, and LexisNexis Martindale-Hubbell.
In addition to leading lawyers with decades of investment treaty arbitration and negotiation experience, our team also includes a former Minister of Foreign Affairs, a former Deputy Prime Minister, and a former Premier of British Columbia, all of whom have been involved in foreign trade and policy.
In recognition of our leadership in the area of investment treaty arbitration, recently our team was appointed to the UK Government's new Trade Law Panel together with Linklaters LLP, following an open and competitive international procurement process involving many of the world's leading law firms. The Trade Law Panel was established to assist the UK government in international trade disputes at the WTO and in connection with disputes brought under the UK’s trade and investment treaties.
Our experienced investment treaty lawyers assist clients with:
- resolving disputes under bilateral and multilateral investment treaties, including the North American Free Trade Agreement (NAFTA), the Energy Charter Treaty, the Comprehensive and Progressive Agreement for the Trans-Pacific Partnership (CPTPP), and others;
- undertaking investment treaty arbitrations under various arbitration mechanisms, including those administered by the International Centre for the Settlement of Investment Disputes (ICSID), the Permanent Court of Arbitration (PCA), and under the UNCITRAL Arbitration Rules;
- set-aside and enforcement litigation associated with awards rendered in investment treaty arbitrations; and
- advice about how to advantageously structure cross-border investments to ensure such investments are protected by investment treaties, including in light of overlapping and/or divergent treaty protections in agreements such as the Canada-United States-Mexico Agreement (CUSMA or USMCA), the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), the Canada-European Union Comprehensive Economic and Trade Agreement (CETA), and various other bilateral and multilateral agreements.