onal share of Canadian water resources in perpetuity, once exports get underway. These provisions once again represent a fundamental departure from WTO rules that impose substantial additional constraints on Canadian policy and regulatory options. 1.2.3 NAFTA Chapter 11: Investment Chapter 11 of NAFTA establishes an extensive array of investor rights including the right to National Treatment (Article 1102), and a Minimum Standard of Treatment (Article 1105). By way of further protecting the interests of foreign investors and their investments, the Chapter also proscribes certain government measures such as Performance Requirements (Article 1106) and Expropriation [without] Compensation (Article 1110). Chapter 11, Section B also establishes its own enforcement regime that involves recourse to binding international dispute resolution at the instance of any foreign investor. These provisions raise issues that are unique to NAFTA and with respect to which there is no parallel in the WTO. As we know, there are now several instances of these provisions being invoked by US investors to challenge Canadian regulatory initiatives. Among these is the case of Sun Belt Water Inc., which late last year filed notice of intent to submit a claim to arbitration concerning certain actions by the BC government which it asserts unfairly deprived it of the opportunity to export bulk water from British Columbia. As of our most recent inquiry, the company has yet to submit a formal claim for compensation under Article 1120. It is also significant to the task of assessing the potential for successful challenges under Chapter 11, that GATT Article XX exceptions do not apply to these provisions. In other words, investor rights apply notwithstanding the fact that an impugned measure interfering with them, would be justified as a measure "relating to the conservation of living and non-living natural resources," or as "necessary to protect human, animal or plant li...
