This paper considers the role of State intention in the conclusion and interpretation of international investment agreements (“IIAs”) from the perspective of Canadian government officials experienced in developing IIA policy, negotiating IIAs, and representing Canada in investor-State disputes.
The question of how State policy impacts the negotiation of IIAs and State responses to investment claims is opportune. IIAs are ultimately instruments of State policy. As such, Canada intends each of its IIAs to reflect a particular economy of rights and obligations in light of particular expected benefits. This perspective and approach feeds into and is ultimately reflected within the boundaries of the IIA system of treaties and agreements, giving shape to a complex and dynamic IIA regime.
This paper will highlight how Canadian policy intentions determine the content and scope of its IIAs, and also the position Canada adopts when responding to investment claims brought pursuant to these agreements. Canada’s IIA program seeks to both attract foreign investment (“FDI”) to Canada and to reduce risks for Canadian investors seeking opportunities abroad. The economy of rights and obligations under each IIA reflects a deliberate balance of risks and rewards that Canada expects to take and receive when contracting with other States. Canada seeks to remain true to its policy intentions in the context of investor-State disputes, both in the way it responds to novel issues and with regard to its interpretation of the content of specific provisions included in an applicable IIA.