D.卡尔顿 罗西
D. Carlton Rossi

FIPA

 

                            Canada-China FIPPA

 

Most Canadians do not know of or have forgotten about Canada-China FIPPA. It is an infamous, calamitous and egregious folly of a bilateral treaty between Canada and China known as the Foreign Investment Promotion and Protection Agreement or FIPPA. Some opposition within the Cabinet of the Conservative Party and the opposition outside of the Conservative Party did what they could to thwart the threat, but to no avail. It appears Canada’s laws may be circumvented and its sovereignty compromised.

For former Prime Minister Harper, Canada’s laws and sovereignty were merely symbolic. In terms of law, it meant an anti-communist monument across from the Supreme Court of Canada. What kind of ambivalent message does that send about the Supreme Court of Canada which Harper was at loggerheads? Sovereignty meant two, sunken, British ships of the Franklin Expedition and not a powerful, world-class navy defending its sovereignty. 

Canadian resources may be lost because of the expediency of a photo op in Beijing by the then Prime Minister Harper. It was thoroughly though more than that. It was a sop to the Alberta oil industry and an invitation to pollute sanctioned by a Conservative Party whose political base was Alberta.

There was no parliamentary debate over FIPA. Members of Parliament were not able to discuss or debate its merits or demerits. FIPA not only went under the radar but under the table.

Any Chinese foreign company or investor will be able to sue for decisions which were made by any level of government in Canada. The initial consultation would be in the capital city of the disputing Chinese Contractual Party or CCP. In effect, foreign entities have the right to sue the host country through an arbitration tribunal. This means that a case is not decided in a Canadian court or even at the Supreme Court of Canada, but by a panel outside of its jurisdiction.

Arbitration of disputes is handled behind closed doors. According to Gus Van Harten (who is an associate professor of law) this may call into question the unconstitutionality or not of the process. A government can hide documents in the arbitration process that it regards as confidential. “Unlike other FIPAs, documents and hearings, in the arbitrations, can be kept confidential at the option of the government that is sued (Article 28(1) and (2)). This means that Canada could be sued by a Chinese company, and pay out money, without public knowledge.” (Gus Van Harten: Debunking the spin around Harper's FIPPA with China, Nov. 7, 2012).

Most FIPA agreements that Canada has entered into are quite different than with China. The agreements are generally with countries which accept rule of law and where laws are transparent and equally applied. Most FIPA agreements are between countries where there is a rough balance of trade.

In China’s case, the balance of trade greatly favours China. If one were to paraphrase Noel Coward with respect to trade, very big China, very small Canada. Also, China’s assets in Canada are considerable while Canada’s assets in China are small in proportion. This means that most lawsuits will be launched by Chinese entities against the Government of Canada.

On the other hand, Canada has successfully negotiated a FIPA agreement with Hong Kong in a short period of time with no controversy. Negotiations began about the time a decision to ratify the Canada-China FIPPA agreement was made. It is unclear why Canada did not begin negotiations with Hong Kong before it began negotiations with the People’s Republic of China. Canada and Hong Kong share similar values in terms of individual freedom and rule of law.

 

D. Carlton Rossi     July 17, 2016










                                          


                                                    
General and Specific


It may be that only one or two persons might be interested in this short essay. On most occasions, the author writes for the many or any. However, at specific times, he writes only to the one on a one to one basis or to two, too. He writes obliquely or cryptically for those who are keen to ken. It may provide utilitarian value to the one or two who wish to serve the many. He writes of the pair of opposites which are general and specific in terms of essay writing and contractual agreements. 

It is necessary to provide a definition of a topic or pair of key words in either the first or second paragraph. Therefore, a simple definition of general and specific is used in order to provide a common reference. The word "general" is used to mean vague while "specific" is used to mean precise. If they were exact opposites then the words indefinite and definite would have been used, but this tends to define something by what it isn't.

The general and specific theme is often used in essay writing. For example, it may be prominent in the opening paragraph. A writer will move gradually from general to the specific in that paragraph. The focus statement which is  at the end of the paragraph should be very specific or precise. It should also indicate to the reader (usually through parallel phrases) what is anticipated and the order in which it is expected.

On the other hand, a contractual agreement is written by lawyers. It must use exact words and specific terms throughout the agreement. There is little room for interpretation as the meaning of words are specialized and  relate to a particular subject.  

Let us say, though, hypothetically that one party defines itself in a very specific manner while the other party defines itself in a very general manner. The specific definition is limited while a  general definition is unlimited. The former is restricted while the latter is unrestricted and open to interpretation.
 
A general definition may have attributes which differ markedly from those of the specific definition. Those attributes may change over time--especially over a long period of time. Potentially, they might be found to impinge, intrude or infringe upon the nature of the specific definition; particularly, if an indefinite word such as "beyond" or other vague words are used. 

One might even conclude that because both parties cannot  agree on similar, specific terms in how they define themselves then they may have little in common. Since they have next to nothing in common then logically speaking there should be no agreement. Of course, an alternative arrangement may be drawn up where all terms are general. Generally speaking, this kind of agreement provides only guidelines.
 


August 04, 2016





                                   The FIPA Agreement


一般和具体

General and Specific

D.卡尔顿 罗西  D. Kǎ'ěrdùn Luōxī

D. Carlton Rossi

October 25, 2016


It is sometimes easy to miss the obvious because it is so small or inconsequential. For example, the theme of general and specific as it applies to writing an English essay. Personally speaking, the rules of writing were not taught to the poet in Canada, but rather the poet had to teach himself the rules before he could teach others who wished to learn a second language.This essay will discuss the theme of general and specific as it applies to law in regards to the FIPA agreement and a prospective China-Canada Extradition Treaty.

In western law, it is necessary to be specific. One must dot one's "i's" and cross ones "t's' as the saying goes. The general is generally eschewed. It is confined perhaps to preambles which are intended to show the spirit of the document which is often ignored.

It appears that the topic of general and specific must be repeated by the poet. The reason is that the hydra of a China-Canada Extradition Treaty rears its ugly head. Why is it needed if existing arrangements can facilitate matters? Isn't it one-sided when alleged criminals are sent from Canada to China, but not from China to Canada. Pardon me, but I know of no Canadian criminal who sought refuge in an authoritarian China. I know of only one Canadian who was arrested in China, tried and convicted in one day on trumped up charges which were probably related to incidents at Northern Telecom and the NRC and who was non-extradited to Canada because one Party wanted an extradition treaty.

Why does the other Party want an extradition treaty if not solely to please and ingratiate itself to the first Party of the contract? To be general, why does the Liberal Party go out of its way to please the Communist Party? To be specific, why does the Liberal leader go out of his way to please a Communist leader?  Is this a mutual admiration society? I''ll take a smiley selfie with you if you take a smiley selfie with me.
 
It was the police outside of the courthouse at the trial of Pu Zhiqiang (one of China's premier human rights lawyers) who wore smiley face badges as they acted as thugs clearing away supporters and reporters from the scene. It is only a matter of time before a request is made by China under a China-Canada Extradition Treaty to extradite a human rights activist for who has gained Canadian citizenship or seeks asylum as a refugee in Canada on the charge of subversion. It is only a matter of time before a prison for human rights activists or lawyers is established on a machine-made island in the South China Sea. Political prisoners lose political rights on Chinese territory. Political rights are not constitutional rights.

Both parties have already come to an informal agreement as to how ill-gotten gains will be pro-rationed between them. However, it must not be overlooked that these are not strictly economic crimes. There is a political element to them. They were in most cases committed by Party members or sons (Princelings) of Party members.

In Ching's case or should one say Cheng's case, he was the son of Cheng Weigao "who in 2003 became one of the most senior Communist Party officials to be booted from the party because of corruption allegations". Was the son, Ching or Cheng by surname, a Party member, too?  Wasn't the confusion involving his name encouraged by vested interests in Canada to help him remain here? Maybe the surname should be--Cha-Ching. Couldn't the contributions to the Liberal Party of Canada (including $1200 to Trudeau's successful campaign to win the party's leadership in 2013) be regarded as political in nature?

The poet who is a non-lawyer contends there was a fatal flaw inherent in the China-Canada FIPA agreement (Foreign Investment Promotion and Protection Agreement). The Chinese name order of the agreement is herein used rather than the Canada-China arrangement because it is clearly most beneficial to China. It is also recalled that it was ratified in China on National Day.

The FIPA agreement was signed by representatives of the Government of Canada and the Government of the People's Republic of China. However, while the agreement was filled with specific terms and clauses, it did not begin that way.Canada and China defined themselves in almost diametrically opposite ways in terms of territory. One might say it was the difference between apples and oranges or Canadian McIntosh and Mandarin Oranges. In other words, Canada defined its territory in terms of the specific while the People's Republic of China defined itself in terms of the general in Article 1, Clause 22.  Notice that the Chinese definition does not include the specific sections of  (a), (b) and (c).

22. “territory” means:

    In respect of Canada:

    (a) the land territory, air space, internal waters and territorial sea over which Canada exercises sovereignty;
    (b) the exclusive economic zone of Canada, as determined by its domestic law pursuant to Part V of the United Nations Convention on the Law of the Sea (UNCLOS); and
    (c) the continental shelf of Canada as determined by its domestic law pursuant to Part VI UNCLOS.

    In respect of China:

    the territory of China, including land territory, internal waters, territorial sea, territorial air space, and any maritime areas beyond the territorial sea over which, in accordance with international law and its domestic law, China exercises sovereign rights or jurisdiction with respect to the waters, seabed and subsoil and natural resources thereof.

The poet contends that the Government of Canada should not have allowed a treaty of specifics to be signed by a signatory who defined territory in general terms. It seems that either the whole treaty must involve generalities and the parties define their territories in a general way or that the whole treaty involves specificities and the parties define their territories in a specific way. However, it is a logical inconsistency for one party to define its territory in a specific way and the other party to define itself in a general way.

The preamble to the treaty speaks of the desire "to intensify the economic cooperation of both States, based on equality and mutual benefit". A treaty which allows States to define their territories in different ways regarding the general and specific is not based on equality and mutual benefit. This allowance does not place Canada on an equal footing with China and is not to Canada's benefit. Both States may be equivalent to each other in terms of fruit, but the loophole of one State defining itself in specific terms and the other State defining itself in general terms within a treaty of specifics is nothing but fruit loops.
 
There may be a consistency between how Canada defines its territory in terms of international law and domestic law. However, there is little consistency in how China defines its territory in accordance with international law and domestic law. What is China's territorial sea and territorial air space? Their definition has changed already since the FIPA was signed. Therefore, how can the Government of Canada sign a treaty by assuming there is a consistency in terms of how the other contracting party regards territory in terms of international and domestic law?

Finally, there is the most general and broad word within China's definition of territory. It is the word "beyond". That word can practically involve any territory anywhere. For example, it could apply to the Northwest Passage. Remember what China said about the islands and shoals in the South China Sea. To paraphrase the Chinese, use them or lose them. No wonder Canadians are now anxious to talk with the Russians about the Arctic.

In conclusion, Canada must not sign any treaty with the People's Republic of China until the definition of territory is resolved for the purpose of a treaty. As a middle power, Canada does not have an obsession with the concept of big. Its territories and itself have been internationally recognized as the second biggest in the world. Its territorial ambitions are non-existent. It seeks to expand trade and not territory.

On the other hand, China is a Middle Kingdom obsessed with bigness. Its primary concern is to become bigger through territorial acquisition. That acquisition will leave smaller the countries outside of the  jurisdiction it claims. Trade is one means of achieving bigness. Of course, it might be easier simply to leave out of any treaty the definition of territories. 



Extradition Treaty