That's the problem with trade laws. No matter how nefarious they may be, all those clauses, numbers and government suits (not to mention the complete absence of any splashy 6 o'clock news villains) make us yearn for nap time. Or MTV.
But in the 11 years since NAFTA was signed, more and more of us have come to realize we have good reason to stay awake. Secret trials. Outlandish billion-dollar damage claims. And the freakiest lawsuits imaginable, like the one that forced us to drop our ban on toxic gasoline additive MMT, apologize to the poor company that wanted to keep selling it to us, then write it a cheque for $20 million. All thanks to one little NAFTA clause that grants foreign corporations the power to sue governments if investors don't like what they are doing - Chapter 11.
Now, over a decade after the trade deal between Canada, America and Mexico was put to work, three groups have banded together to launch the first case in history that actually questions Chapter 11's lawfulness.
Why now? It seems the camel's back has been broken. An American corporation is using Chapter 11 to go after one of our public service pillars, Canada Post. It's something activists take very seriously, warning that if the company in question, United Parcel Service (UPS), wins its case (the first-ever NAFTA suit against a public service in this country), the fallout could be devastating.
The details sound fairly run-of-the-mail: UPS sues the Canadian government because Canada Post has somehow taken advantage of its letter mail monopoly to fund its parcel and courier services.
The case is still pending. But if UPS wins, Deborah Bourque, national president of the Canadian Union of Postal Workers (CUPW), says the government will likely order Canada Post to get out of the parcel delivery biz, as the European Union's antitrust watchdog basically ordered Germany's national postal service to do after UPS successfully sued it back in 1994. "The problem," says Bourque, "is that Canada Post needs the profits it gets from the parcel business to ensure it can provide universal [letter] service in rural communities," something UPS obviously does not offer.
UPS spokesperson Cristina Torelli says the company isn't trying to interfere with the mail service monopoly. "[The suit] just requires that there be fair competition and that [Canada Post's] infrastructure be used for the purpose of mail [and not courier services]."
Ottawa-based trade lawyer Steven Shrybman says the argument sounds harmless enough: "'You can't compete with us [UPS] if you're providing a service in the public sector.' The problem for the public sector is that there are few, if any, pristine services where there isn't a competitive dimension."
Adds Shrybman, "This could spell disaster for public services and encourage a lot of litigation by private companies seeking to break into the health care or water service markets in Canada."
"This is not about abrogating NAFTA as a whole," says Jean-Yves Lefort of the Council of Canadians, which along with CUPW and the Charter Committee on Poverty Issues has launched the constitutional challenge. "We're saying that the chapter that allows foreign corporations to sue governments directly, giving them rights over the rest of society, is wrong and should be shut down."
Oh, but "wrong" is such a subjective word. How, you may be asking yourself, are they going to argue their case in court?
It turns out they've got a pretty solid argument, one that may, if they're lucky, have more resonance with the superior court judge than bemoaning corporate hegemony, the neo-liberal agenda and closed-door hearings.
It just so happens that Chapter 11 may violate the one bit of paper that holds our legal system together - the Constitution.
As Shrybman, who represents the Council and CUPW in the challenge, explains, "The role of Canadian courts under our constitution guarantees their independence from the executive. And one manifestation of that independence is that it's not open to governments to simply give away the court's judicial authority to international tribunals funded by the disputing parties."
Unless the constitution were amended. And if the judge at Monday's (January 24) hearing agrees with the organizations' argument, Canada could turn around and do just that in order to maintain the constitionality of Chapter 11, although it's unlikely. U of T prof and NAFTA expert Stephen Clarkson says passing such an amendment would be rather difficult. "It would have to get agreement from two-thirds of the provinces, [and] then there would be a big public debate." Of course, the alternative and the object of the suit - getting the United States and Mexico to give up investor-state lawsuit rights - will be an uphill fight, says Clarkson.
But André Lemay, deputy director of communications at Canada's Department of International Trade (recently hived off the Department of Foreign Affairs and Trade), says there's no reason to drop investor-state rights. "There was a reason to develop Chapter 11, and that was to protect (Canadian) investors in other countries, namely Mexico."
Despite his insistence that the clause protects us against Mexico's chaotic developing economy and legal system, Lemay admits that Canadian corporations have never actually used it to sue the Mexican government. In fact, of all three NAFTA countries, Canada has lost the most - doling out $27 million in damages. The U.S., on the other hand, has never actually lost a Chapter 11 case, a reality that has many critics crying foul.
Still, Lemay insists that trade officials have already improved on NAFTA in recent years through calls for greater transparency - calls that perhaps motivatedUPS to reveal to the public, if nothing else, why it was even suing Canada.
But the coalition isn't impressed. And if the court happens to side with them, we might all be saluting the men and women in blue who come to our doors every morning as our new national heroes.