In her presentation, Dr. Soloway focused on defending the Chapter 11 dispute settlement. She stated that the
basic purpose of the regime was to prevent discrimination and appropriation without compensation. The panel
involved can award monetary damages, but cannot force a government to remove a policy. Furthermore, if panel
rulings are looked at objectively, they cannot be said on balance to be overwhelmingly favourable to investors.
In some cases such as Metalclad and Meyers, public perception that the cases involved environmentalism v.
trade does not stand up to a closer look. In Metalclad the presence of the disputed plant was actually good for
the environment and in Meyers one was really dealing with a case of protectionism.
William Dymond spoke of some of the larger picture in terms of trade liberalisation. He stated that the work of
trade liberalisation is largely completed, although there is still obviously work to be done in terms of areas such
as the environment and labour standards. The liberals have been pushing a free trade policy and will continue to
do so. Dymond also suggested that the fact that 90% of the public will vote for pro-free trade parties in the
upcoming election demonstrates that there is broad support for the policy.
Dr. Howard Mann generally challenged Chapter 11 and Dr. Soloway’s understanding of it. Dr, Mann expressed
particular concern on the matter of the doctrine of expropriation, suggesting that it was overly favourable to
investors and that any environmental regulation could fall within its ambit. In general, he argued that investors
should not be allowed to expect a static regulatory environment, which Chapter 11 risks allowing them to do.
During the discussion which followed Andrey Anishchenko asked about the fact that the Chapter 11 regime
seemed set up in such a way that provided for reverse discrimination against domestic investors who did not
have the option of turning to Chapter 11 panels and about whether the consensus regarding free trade that
Professor Dymond suggested really did exist. Dr. Soloway stated that Anishchenko’s understanding of Chapter
11 was correct and that there were no current policy solutions that she could think of on the matter. Dr. Mann
stated that there was a democratic deficit that had to be addressed. Sanford Gaines pointed out that a
counter-argument was that domestic investors have political channels open to them at home that foreign
investors do not have. Chris Tollefson asked panelists about the doctrine of expropriation. Dr. Mann pointed out
that expropriation includes covert things such as depriving the owner of the value of property and that any
environmental law would have the effect of doing this. Sylvia Ostry pointed out some anecdotal evidence to the
panel from her experience which suggested that the real power in countries lay with ministries of finance and
that those responsible for the environment were not very high up on the totem poll. A representative of the
physicians for the Environment Association stated that we have a situation where the elite feels that it will
benefit from free trade and does not want to listen to protests against the policy