Gus Van Harten
Professor, Osgoode Hall Law School
The last clause of article 1.9 in the CETA is very clear that the Agreement applies to water where put into commercial use. In turn, the investment chapter and ISDS (investor-state dispute settlement, renamed ICS in the final version of CETA) would apply to such situations.
In this framework, one can speculate reasonably about areas of regulation involving water that would by implication subject to the public financial risks and regulatory chill pressures created by the availability of ISDS to foreign owners of water-related assets.
However, it would also be possible to identify existing ISDS cases that related to water such as (a) the regulation, ownership, or operation of public water supplies, especially in circumstances of privatized ownership or operation, and (b) the regulation of water subject to a commercial agreement with a foreign investor. I can think of various cases involving (a) and one involving (b).