In January 10, 2022, Taiwan and Canada announced the initiation of exploratory discussions on a possible Foreign Investment Promotion and Protection Arrangement (FIPA). In the present study, a number of international arbitration cases with Canada as a respondent were analyzed to inform Taiwan’s negotiation strategy and facilitate bilateral talks.

In the study, a general analysis of 31 arbitration cases where Canada was the respondent was conducted, and the results indicate the following: 1) the majority of cases were filed by American investors against Canada; 2) major sectors involved in these cases include manufacturing, mining and quarrying, power and gas supply, as well as agriculture, forestry, fishing, and animal husbandry; 3) common claims by foreign investors centered around Canada’s obligation-violating conduct in resource management, environmental protection, and industrial policy enforcement, and 4) most claims by foreign investors were related to Canada’s breach of national treatment, most-favored-nation (MFN) treatment, minimum standard of treatment, expropriation, and performance requirements, with the highest number of allegations associated with the minimum standard of treatment.

The study also selected recent cases involving Canada for further analysis, and the findings are similar to the aforementioned general analysis, which are summarized as follows: 1) most foreign investor claimants challenged Canada’s practices in energy management, environmental protection, and industrial policies; 2) arbitral tribunals have previously dismissed claims due to reasons such as lack of standing, Canada’s prior exclusion of specific sectors from the national treatment provisions in the agreement’s annex, and the claimant’s failure to waive other remedies. 3) most claims by foreign investors were related to Canada’s violation of provisions on national treatment, MFN treatment, minimum standard of treatment, expropriation and compensation, with the highest number of allegations involving the minimum standard of treatment. Based on the above findings, the present study proposes the following policy recommendations: 1) Canadian investors are active users of the Investor-State Dispute Settlement (ISDS) mechanism; Taiwan and Canada may consider incorporating more alternatives for the FIPA; 2) Canada sticks to using ISDS but keeps a flexible approach, and does not exclude the possibility of adopting the international investment court system proposed by the EU, and 3) monitor Canada’s adjustments and stance towards the ISDS mechanism under the 2021 FIPA.

Chinese：https://web.wtocenter.org.tw/Page/91/388805