Author: Elizabeth Whitsitt

BSc, LLB (Calgary), LLM (New York). Member of the Alberta Bar. Professor Whitsitt is
a assistant professor at the University of Calgary, Faculty of Law. Her teaching and research fall in the areas of international law, international trade law and international investment law. Her PhD research focuses on the intersection of trade law and investment arbitration, specifically the application of MFN clauses to dispute settlement provisions in bilateral investment treaties. Liz has published and presented extensively in the areas of international trade and investment law, and is the recipient of a SSHRC
Doctoral Fellowship, Killam Memorial Scholarship and the Marc Lalonde Prize for
Excellence in International and Commercial Arbitration.

By: Elizabeth Whitsitt and Nigel Bankes

PDF Version: Sealing: It’s a Moral Not a Technical Issue and Animals Outweigh Indigenous Communities

Decision commented on: World Trade Organization, Appellate Body Report – European Communities – Measures Prohibiting the Importation and Marketing of Seal Products (22 May 2014)

Just a few short weeks ago the World Trade Organization (WTO) issued its final word on the legality of a regime that bans seal products from the European Union (EU) market. In a decision that has Canadian and EU officials claiming victory, the WTO Appellate Body (AB) determined that the EU’s ban on seal products is justified under the right to protect public morals, specifically on the grounds of protecting animal welfare. The AB also found, however, that the ban is discriminatory in the way it is applied, and should be modified in order to fully comply with international trade obligations.

Briefly summarized, the measure at issue in this case bans the sale of seal products in all EU member states, subject to certain implicit and explicit exceptions. Explicitly, the measure permits the sale of seal products in the EU market if those products are: (i) derived from hunts carried out by indigenous peoples (IC), (ii) derived from hunts that were conducted for the sustainable management of marine resources (MRM), (iii) or personally imported into the EU by travellers. Implicitly, the measure also permits the import of seal products into the EU for process and re-export, a convenient loophole that protects commercial interests within the EU.

The WTO Panel Decision on the EU’s Rules on the Marketing of Seal Products: Who Won and Who Lost?

By Elizabeth Whitsitt

On January 10, 2014

In International Law

By Elizabeth Whitsitt and Nigel Bankes

PDF Version: The WTO Panel Decision on the EU’s Rules on the Marketing of Seal Products: Who Won and Who Lost?

Decisions commented on: World Trade Organization (WTO) Panel Report, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, 25 November 2013, and Inuit Tapiriit Kanatami et al v European Commission, Case T-526/10, Judgement of the General Court (EU), (Seventh Chamber), 25 April 2013, available here (currently on appeal)

Regulations commented on: Regulation (EC) No 1007/2009 on trade in seal products, (Framework Regulation) and Commission Regulation (EU) No 737/2010 of 10 August 2010 laying down detailed rules for the implementation of Regulation (EC) No 1007/2009 of the European Parliament and of the Council on trade in seal products (Implementing Regulation) (collectively the Sealing Regulations) (both available here along with other background information and reports)

The WTO Panel handed down its decision in the complaints made by Canada and Norway in relation to the European Union’s ban on placing seal products on the market on November 25, 2013. The reaction in the media was immediate with most outlets indicating that the Panel had upheld the ban. The CBC, for example, reported that “[t]he WTO, while finding that the EU’s so-called Seal Regime had violated international trade agreements, also determined that the ban was valid because of a controversial public morals clause”. Gloria Galloway in the Globe and Mail reported that “[a] WTO ruling released on Monday says the ban the EU imposed in 2010 undermines the principles of fair trade, but is justified because it ‘fulfills the objective of addressing EU public moral concerns on seal welfare’”.

Canada Ratifies ICSID and Alberta Introduces the Necessary Implementing Legislation

By Elizabeth Whitsitt

On November 13, 2013

In International Investment

PDF Version: Canada Ratifies ICSID and Alberta Introduces the Necessary Implementing Legislation

Matters commented on: Canada’s ratification of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the Washington or ICSID Convention) and Bill 40: Settlement of International Investment Disputes Act

On November 1, 2013 Canada deposited its instrument of ratification of the Washington Convention with the secretariat for the International Centre for the Settlement of Investment Disputes (ICSID). The Convention will enter into force for Canada on December 1, 2013. The ICSID Convention, as its name implies, is designed to provide for dispute settlement (binding arbitration or conciliation) of investment disputes between states and investors from other states. The Centre may take jurisdiction over any such dispute by the written consent of both parties. That consent may be given in a specific case or it may be given generally. General consent is frequently given by the terms of a bilateral investment treaty such as the recent agreement that Canada has concluded with China. Article 22 of that agreement (which has yet to enter into force) provides as follows: