cently in the Shrimp Turtle case. Moreover there is also now a considerable body of legal literature on this subject. However, a review of these cases or of the commentary is clearly beyond the ambit of this opinion. Suffice it to say that expert opinion is divided upon whether it is possible, or how to craft export controls which would satisfy the requirements of Article XX(g). Furthermore whatever the differences in legal opinions expressed about these cases, certain facts undeniably emerge.First, every challenge to a resource conservation measure that has been mounted under NAFTA and WTO has succeeded. Second, in no case has a trade panel or Appellate Body been willing to uphold a conservation measure on the grounds that it fell within the ambit of Article XX. Moreover, in every case, trade panels and the Appellate Body have found several reasons for dismissing the applicability of Article XX exceptions. In fact, in the Shrimp-Turtle case, which is taken by many as the high water mark for trade jurisprudence concerning conservation measures, the AB found no less than seven distinct grounds upon which to impugn US marine mammal conservation measures. To further complicate matters, panels and the AB has often taken inconsistent and contradictory approaches to addressing these issues, a problem that has even drawn stern comment from the AB itself. For these reasons we believe that the challenge of crafting water export controls to satisfy Article XX requirements would be daunting. It would not therefore be reasonable in our view to build Canada’s strategy for protecting water resources from export demands upon the premise that it will by dint of its own ingenuity, be able to succeed where all others have failed. Perhaps more to the point however, in our opinion the entire exercise is moot for three reasons. The first is that, as noted, the provisions of Article XX are specifically excluded from application to the Investment and Se...
