profit and loss

[Judy]

> From:           kevin at limits.org

 > > Another problem is when, as in NAFTA, the regulatory oversight of
> > abuses is performed not in a nation's courts, but in arbitration.

calbert at tiac.net responded:

> But why does this HAVE to be "bad"? This means that any conflict is
> judged under the agreement negotiated by all involved parties
> (leaving aside the democratic participation of the consumer for the
> time being).....I'm not sure that in cases where an outcome may
> conflict with the domestic laws of an affected state, the arbitration
> decision is binding - it would seem that such conflicts would be
> addressed in the sessions to negotiate the structure of the treaty
> obligations.....again, such mechanisms would be binding on ALL
> parties.

The current suing of Canada Post by UPS is occurring under NAFTA. Obviously
the negotiation of the structure of the treaty obligations left a lot to be
desired and I have little confidence that such negotiations would occur in
FTAA. The following are arguments that are being put forward by the Council
of Canadians and CUPW regarding the current suing of Canada Post by UPS:

"The independence of our courts as public and accountable bodies is
preserved by key provisions of our constitution. Of these, the most
important is Section 96, which provides for the appointment by the Governor
General of judges to Canada's superior courts. This explains why our courts
have carefully guarded the integrity of this provision by striking down both
federal and provincial statutes that would undermine the integrity of our
judicial system by improperly delegating its powers to inferior courts or
administrative tribunals.

The investor-state dispute procedures of NAFTA establish a system of
international commercial arbitration with sweeping powers, which the Council
and CUPW will argue, supplant the core functions of our superior courts.
They believe that when taken together, the breadth of the jurisdiction
conferred on these tribunals, the secrecy that envelopes their proceedings,
and the very limited scope for judicial oversight, represent a direct
assault on the bedrock principles upon which the public administration of
justice depends."

"These disputes are resolved by private arbitrators, not judges; under
international, not Canadian law; and, pursuant to rules that allow these
Tribunals to ignore the judgement of our courts even on matters concerning
the interpretation and application of NAFTA rules.

Moreover, the extent to which judicial review of final awards may be
possible depends upon the place of arbitration, which the investor and the
country being sued are free to determine. Any one of more than 100 countries
that have adopted the New York Convention (which provides for the
recognition and enforcement of foreign arbitral awards) may be chosen.

For the purposes of judicial review then, it will be the law of that
jurisdiction that matters, and the courts of that place that will provide
judicial oversight of the proceedings. In this way the supervisory role of
Canadian courts may be entirely displaced even when Canadian law and policy
is on trial."

I think the above may address a similar type of comment that jbor made to me
earlier in the week.

- Judy