- social services (i.e.: public law enforcement; correctional services, income security or insurance; social security or insurance; social welfare; public education; public training; and health), where the measure does not conform with the obligations imposed by Article 4 (National Treatment) or Article 8 (Senior Management, Boards of Directors and Entry of Personnel) of this Agreement;
- the rights or preferences provided to socially or economically disadvantaged minorities, where the measure does not conform with the obligations imposed by Article 4 (National Treatment), Article 8 (Senior Management, Boards of Directors and Entry of Personnel) or Article 9 (Performance Requirements) of this Agreement;
- government securities (i.e. acquisition, sale or other disposition by nationals of the other Party of bonds, treasury bills or other kinds of debt securities issued by the Government of Burkina Faso or a territorial community), where the measure does not conform with the obligations imposed by Article 4 (National Treatment) of this Agreement;
- licensing agriculture-, forestry-, livestock- and fish-farm-related activities, where the measure does not conform with the obligations imposed by Article 4 (National Treatment), Article 8 (Senior Management, Boards of Directors and Entry of Personnel), or Article 9 (Performance Requirements) of this Agreement;
- licensing in the telecommunications services sector, if the measure does not conform with the obligations imposed by Article 4 (National Treatment) or Article 8 (Senior Management, Boards of Directors and Entry of Personnel) of this Agreement;
- the establishment or acquisition in Burkina of an investment in the services sector, if the measure does not conform with the obligations imposed by Article 4 (National Treatment), Article 8 (Senior Management, Boards of Directors and Entry of Personnel) or Article 9 (Performance Requirements) of this Agreement, provided that the measure is consistent with Burkina's obligations under Articles II, XVI, XVII and XVIII of the WTO General Agreement on Trade in Services;
- development aid organizations, if the measure does not conform with the obligations imposed by Article 4 (National Treatment), Article 8 (Senior Management, Boards of Directors and Entry of Personnel) or Article 9 (Performance Requirements) of this Agreement;
- the priority use of local products and services to the extent that those products and services are available at competitive terms of price, quality, warranty and delivery time, if the measure, otherwise consistent with Burkina Faso's obligations under the WTO Agreement on Trade-Related Investment Measures, does not conform with Article 9 (Performance Requirements).
Schedule of Canada
In accordance with Article 17(2) (Reservations and Exceptions) of this Agreement, Canada reserves the right to adopt or maintain any measure that does not conform to the obligations set out below with respect to the following sectors or matters:
- social services (i.e.: public law enforcement; correctional services, income security or insurance; social security or insurance; social welfare; public education; public training; health and child care), where the measure does not conform with the obligations imposed by Article 4 (National Treatment) or Article 8 (Senior Management, Boards of Directors and Entry of Personnel) of this Agreement;
- the rights or preferences provided to aboriginal peoples, where the measure does not conform with the obligations imposed by Article 4 (National Treatment), Article 5 (Most-Favoured-Nation Treatment), Article 8 (Senior Management, Boards of Directors and Entry of Personnel) or Article 9 (Performance Requirements) of this Agreement;
- the rights or preferences provided to socially or economically disadvantaged minorities, where the measure does not conform with the obligations imposed by Article 4 (National Treatment), Article 8 (Senior Management, Boards of Directors and Entry of Personnel) or Article 9 (Performance Requirements) of this Agreement;
- residency requirements for ownership of oceanfront land, where the measure does not conform with the obligations imposed by Article 4 (National Treatment) of this Agreement;
- government securities (i.e. acquisition, sale or other disposition by nationals of the other Party of bonds, treasury bills or other kinds of debt securities issued by the Government of Canada, a province or local government), where the measure does not conform with the obligations imposed by Article 4 (National Treatment) of this Agreement;
- maritime cabotage, where the measure does not conform with the obligations imposed by Article 4 (National Treatment), Article 5 (Most-Favoured-Nation Treatment), Article 8 (Senior Management, Boards of Directors and Entry of Personnel) or Article 9 (Performance Requirements) of this Agreement. "maritime cabotage" means (a) the transportation of either goods or passengers by ship between points in the territory of Canada or above the continental shelf of Canada, directly or by way of a place outside Canada; but with respect to waters above the continental shelf of Canada, the transportation of either goods or passengers only in relation to the exploration, exploitation or transportation of the mineral or non-living natural resources of the continental shelf of Canada; and (b) the engaging by ship in any other marine activity of a commercial nature in the territory of Canada and, with respect to waters above the continental shelf, in such other marine activities of a commercial nature that are in relation to the exploration, exploitation or transportation of the mineral or non-living natural resources of the continental shelf of Canada;
- licensing fishing or fishing related activities, including entry of foreign fishing vessels to Canada's exclusive economic zone, territorial sea, internal waters or ports and use of any services therein, where the measure does not conform with the obligations imposed by Article 4 (National Treatment) or Article 5 (Most-Favoured-Nation Treatment) of this Agreement;
- telecommunications services, where the measure does not conform with the obligations imposed by Article 4 (National Treatment) or Article 8 (Senior Management, Boards of Directors and Entry of Personnel) of this Agreement by limiting foreign investment in facilities-based telecommunications service suppliers, requiring that such service suppliers be controlled in fact by a Canadian, requiring that at least 80 percent of the members of the board of directors of such suppliers be Canadian, and imposing cumulative foreign investment level restrictions; and
- the establishment or acquisition in Canada of an investment in the services sector, where the measure does not conform with the obligations imposed by Article 4 (National Treatment), Article 8 (Senior Management, Boards of Directors and Entry of Personnel) or Article 9 (Performance Requirements) of this Agreement, on condition that the measure is consistent with Canada's obligations under Articles II, XVI, XVII and XVIII of the WTO General Agreement on Trade in Services.
Annex III. Exceptions from Most-Favoured-Nation Treatment
1. Article 5 (Most-Favoured-Nation Treatment) does not apply to treatment accorded by a Party under a bilateral or multilateral international agreement in force on or signed prior to the date on which this Agreement came into effect.
2. Article 5 (Most-Favoured-Nation Treatment) does not apply to treatment accorded by a Party under an existing or future bilateral or multilateral agreement:
(a) establishing, strengthening or expanding a free trade area or customs union; or
(b) relating to:
(i) aviation,
(ii) fisheries, or
(iii) maritime matters, including salvage.
3. For greater certainty, treatment "with respect to the establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of an investment" referred to in paragraphs 1 and 2 of Article 5 (Most-Favoured-Nation Treatment) does not include dispute settlement mechanisms, such as those provided for in Section C (Settlement of Disputes between an Investor and the Host Party), that are provided for in international treaties or trade agreements.
Annex IV. Rules of Procedure for Amicus curiae Submissions
1. The person or entity seeking amicus curiae status must serve the Tribunal and all the disputing parties with an application for leave to file an amicus curiae submission and the proposed oral representations.
2. An application for leave to file an amicus curiae submission must:
(a) be made in writing, and be dated and signed by the person or entity that files the application, and include the address and other contact details of the applicant. The person or entity may be represented by counsel for this purpose;
(b) not exceed seven typed pages;
(c) describe the applicant, which include, if relevant, its membership and legal status (for example, company, trade association or other non-governmental organization), its general objectives, the nature of its activities, and any parent organization (including any organization that directly or indirectly controls the applicant);
(d) disclose whether or not the applicant has an affiliation, direct or indirect, with a disputing party;
(e) identify any government, person or entity that has provided financial or other assistance to prepare the submission;
(f) specify the nature of the applicant's interest in the arbitration;
(g) identify the specific issues of fact or law in the arbitration that the applicant plans to address in its written submissions;
(h) explain, by referring to the factors specified in paragraph 5, why the Tribunal should allow the submission; and
(i) be made in a language of the arbitration or in one of the official languages of the disputing Party.
3. The submission filed by an amicus curiae must:
(a) be dated and signed by the person who files the submission;
(b) be concise, and not exceed 30 typed pages, which includes any appendices;
(c) set out a precise statement supporting the amicus curiae's position on the issues; and
(d) address only matters within the scope of the dispute.
4. The Tribunal will set an appropriate date for the disputing parties to comment on the application for leave to file an amicus curiae submission.
5. In determining whether to grant leave to file an amicus curiae submission, the Tribunal must consider, among other things, the extent to which:
(a) the amicus curiae submission would assist the Tribunal to dispose of a question of fact or question of law related to the dispute;
(b) the amicus curiae submission would address a matter within the scope of the dispute;
(c) the amicus curiae has a significant interest in the arbitration; and
(d) the subject of the arbitration is a matter of public interest.
6. The Tribunal must ensure that:
(a) any amicus curiae submissions does not disrupt the proceedings; and
(b) any amicus curiae submissions do not unfairly prejudice either disputing party.
7. The Tribunal decides whether to grant leave to file an amicus curiae submission. If leave to file an amicus curiae submission is granted, the Tribunal sets an appropriate date for the disputing parties and the other Party to respond in writing to the amicus curiae submission.
8. A Tribunal that grants leave to file an amicus curiae submission is not required to address all aspects of the submission in the arbitration. The Tribunal may ask any person or entity to make oral representations before the Tribunal before it answers specific questions or questions regarding the amicus curiae submission.
9. Access to hearings and documents by persons or entities who apply for leave to file an amicus curiae submission in accordance with the procedures set out in this Annex is governed by the provisions pertaining to public access to hearings and documents under this Agreement.
Annex V. Exclusions from Dispute Settlement
A decision by Canada following a review under the Investment Canada Act, with respect to whether or not to permit an investment that is subject to review, is not subject to the dispute settlement provisions under Section C (Settlement of Disputes between an Investor and the Host Party) or D (State-to-State Dispute Settlement Procedures) of this Agreement.