In the comments of this post, we talked about the scope of the "targeted discrimination" aspects of the fair and equitable treatment obligation in the leaked CETA investment chapter. The relevant language is as follows:
Article X.9: Treatment of Investors and of Covered Investments
...
2. A Party breaches the obligation of fair and equitable treatment referenced in paragraph 1 where a measure or series of measures constitutes:
...
(d) Targeted discrimination on manifestly wrongful grounds, such as gender, race or religious belief;
In the discussion there, I suggested that this obligation was vague and unclear. Let me offer a possible real world example, to test the boundaries of how this provision might apply.
There has been controversy in recent years over the French ban on face covering, which has a particular impact on the wearing of burqas. A few weeks ago, the French law was found not to violate certain human rights obligations:
Judges at the European court of human rights (ECHR) have upheld France's burqa ban, accepting Paris's argument that it encouraged citizens to "live together".
The law, introduced in 2010, makes it illegal for anyone to cover their face in a public place. While it also covers balaclavas and hoods, the ban has been criticised as targeting Muslim women.
So let's say that after CETA comes into force, a Canadian muslim woman who wears a burqa invests in a business in France. Does she have a good CETA investment claim against the French law, based on a view that she has been targeted under this law for her religious beliefs?
(There's also the exciting -- for international lawyers -- prospect of one international court having to take into account the decision of another international court).
Finally, in the comments on the earlier post, it was suggested that discrimination is covered even in the absence of this provision. If the provision is deleted, can the same claim be brought on the more general basis that the law is not "fair and equitable"?
