April 22, 2009

Wait Can You Hear That Nothing About Two-tier Medicine In Canada


Shh be quiet I see dead Canadian trade barriers!

By Melvin J. Howard

The issue of health care delivery in Canada hasn't been in the news much lately, hmm I wonder why? Could it be because I am putting a magnifying glass to the Canadian health care system for breaches of trade rules? For the last 12 to 13 years that I have been trying to enter the Canadian health care market. From Federal to Provincial elections that’s all that was talked about now nothing. The last Federal election lacked the heated debate of two-tier medicine that raged on for years. It was a major factor in deciding which party to support in the federal election back then.

Spending for Canada's publicly-funded health care system approached $160-billion in 2007, representing more than 10% of the GDP. Seventy per cent of funding came from the federal government and the provinces. The mix of public and private financing and delivery of health services was always hotly debated.

The Canadian Medical Association last president Dr. Robert Ouellet urged Canadians to dispense with the dogma of universal health care and embrace a "mixed" system of public and private health care. 

This is what he said mixed public and private practice can be a positive if it contributes to improved access to health care," he said."Does it make sense, in the face of a shortage of operating rooms, to ban surgeons who provide 90% of their services in a hospital from performing five to 10% of their surgeries in a private clinic? "I am talking about improving it by allowing the private sector to intervene in a complementary way, where possible, in areas where the public sector is unable to provide services."Instead of trying to ban the private sector, we need to provide a framework, with conditions, that will enable it to intervene in an orderly fashion."

Canada's prime ministers in waiting in the past were going over the same issues electoral year after year, bed shortages etc. Let’s not forget THE AMERCANIZATION OF CANIDIAN HEALTH CARE OR CODE WORD THE TWO -TEIR MEDICINE  MONSTER. That all the candidates drag out every election year. Protect our universal, single-payer public health care system from the Americans yada yada yada. The Bloc Quebecois  on the other hand wanted their own separate, universal health-care system in Quebec which included private delivery.

There is an upcoming election in British Columbia and what no talk of the American bogeyman two-tier health care creeping in. Ah those were the days getting calls from my US bankers and shareholders after some political hopeful would stand on their soapbox and preach if we are elected we are going to ban this and that. No private this and that we will not let the Americans come in and mess with our health care system. Then after the elections they would put the old AMERIANIZATION OF CANIDIAN HEALTH CARE OR CODE WORD TWO-TEIR MEDICINE. Back in its box for another election year, the slogan did its job it got someone elected. But guess what nothing ever happened no ban, no restrictions on private Canadian health clinics business as usual. We were left starting all over again more money more time more effort. Canada is famous for its royal studies on health like the famous Roy Romanow The Future Of Health Care In Canada 400 pages that went nowhere. If I hear of another royal study about the Canadian Health Care system I will puke. Here is some inside info that comes from a politician friend of mind. When you don’t want to act on controversial issue commission a study then it seems like you are doing something but your really not. Every time one of these studies was announced we were put on hold. Luckily this time an International Tribunal will finally get to hear the study of Melvin J. Howard from the United States of America on Canadian Health Care.     

Now for good PR measure the Canadian Medical Association has elected a new president Dr. Jeffery Turnbull that is an opponent of two-tier medicine what I have come to know as code word for American medicine. I am not buying any of it for one-second Canada had its chance to rectify this trade issue it continued year after year of doing nothing but gives us grief and lip service. Roadblock after roadblock costless delay after delay it never ended. I will call upon the Tribunal not only to award us our costs but hefty damages as well. 

April 15, 2009

We Have Heard Back From The World Bank Group

I have heard back from the acting Secretary-General from the World Bank Group that they will take all necessary measures to avoid any potential conflicts of interest. I know some of you were wondering on how we stood with this issue. We will keep you posted on any new developments as we move forward with NAFTA proceedings against the Goverment of Cananda.

April 11, 2009

NAFTA And The Canadian Health Care System


Why doesn’t Canada have any US surgical health care facilities?

By Melvin J. Howard 

By the communication I have been receiving seeking additional information on this trade dispute. I have decided to devote most of the entries to our dispute with Canada. Example I get a lot of e-mails stating we had no idea of what a mandatory universal health care system looked liked until we came across your NAFTA dispute with Canada. I also get a lot of why are there not more US health care companies in Canada? So this post will serve as a peek behind closed doors of Canada’s health system. What’s important to understand is this is not a question about which health care system is better? Indeed the US is at the cross roads of reforming its own health care system, which I for one am in an agreement. But this cannot lead to protectionism, trade barriers and the status quo, which is rampant in the Canadian health care system, as I will expose. This dispute is about trade pure and simple as a matter of fact international trade and NAFTA specifically, is a mystery to many. So I will try to write in layman’s terms without all the legal jargon that can become confusing. In fact, Canadian health care policies are, at root, incompatible with the full application of free trade treaties. By establishing a public sector health insurance monopoly, and by regulating who can provide health care services and on what terms, the medicare system goes against the meaning of trade and investment agreements.

NAFTA reservation shields Canada only to the extent that they are related to health as a “social service for a public purpose. But since 1994 Canada has created greater commercialization and competitive elements in the financing and delivery of its health care services. Canada had to be aware that trade litigation to barriers to trade would soon appear. But I am sure they did not think it would come in this form of me. The "barriers" to international trade in services, which GATS seeks to remove, consist of local, state, and national regulations.

Both private and public services are subject to GATS. There is exclusion in GATS for public services "provided in the exercise of government authority" if they are "supplied neither on a commercial basis nor in competition with one or more service suppliers." This is not the case with Canada’s health care system any longer. Since 1994 some health services have been also provided in the private sector, or at least have commercial relationships with private suppliers.

Market access: A country cannot legislate or regulate the amount of services or how they are supplied, either by domestic or foreign-owned companies, and cannot limit the percent of foreign ownership. The market access rule of GATS provides foreign direct investment in health care that are currently public operated, because it prohibits regulations of the percent of foreign private ownership of services or how these services are supplied.

The World Trade Organization (WTO) is arbiter of trade rules. Countries that believe their companies are being barred from trade by another country for reasons that violate WTO rules can file a dispute with the WTO. Disputes among nations are currently resolved by panels appointed by the WTO, which are unaccountable to governments or courts. The panels can impose substantial financial penalties for noncompliance, as well as authorize countries to take trade sanctions against other countries that do not comply, including financial penalties and the boycott of products. 

The General Agreement on Trade in Services (“GATS”) of the World Trade Organization (“WTO”), the North American Free Trade Agreement (“NAFTA”), and other bilateral trade and investment agreements are all considered here. Of greatest relevance are Canada’s GATS commitments with respect to financial services, and the foreign investment obligations contained in Chapter 11 of NAFTA. 

What are the relevant obligations under each of these agreements?

Where a WTO Member has made market access commitments in its GATS Schedules of Specific Commitments, as has Canada in relation to financial services, and specifically health insurance and insurance-related services, measures limiting market access in these sectors are prohibited under GATS unless otherwise specified in its Schedule.  These prohibited measures include limitations on the number of service suppliers, whether in the form of numerical quotas, monopolies, or exclusive service suppliers.  Although Canada has claimed some reservations from its market access. Under NAFTA investment obligations, Canada would be required to pay compensation to U.S. and Mexican investors if Canada were to directly or indirectly nationalize or expropriate their investments or take measures that are tantamount to expropriation of their investments. 

Do these obligations apply to provincial regulations or programs?

Yes.  The GATS and NAFTA obligations discussed above apply to measures taken by federal, provincial and local governments.  Under GATS, the federal government is obligated to take reasonable measures as may be available to it to ensure that regional and local governments and authorities observe Canada’s GATS commitments.  Under NAFTA, Canada must ensure that all necessary measures are taken to give effect to the provisions of NAFTA, including their observance by provincial and local governments.  In the event of any alleged breach of Canada’s obligations under GATS or NAFTA, the federal government is responsible for responding to the allegations and when necessary, for providing compensation in the manner required under Canada’s treaty obligations.

Do NAFTA’s provisions allowing for the designation of monopolies and state enterprises, such as a public health system relieve Canada from its obligation to compensate investors?

No.  NAFTA does provide that nothing in the agreement shall be construed to prevent Canada from designating a monopoly or from maintaining or establishing a state enterprise.  However, this does not, avoid the requirement to provide compensation to investors where the establishment of a monopoly or state enterprise is determined to be an expropriation or a measure tantamount to expropriation of the investments of NAFTA investors.

What are the consequences for failing to comply with the obligations arising under these agreements?


In the case of an alleged violation of GATS, any WTO Member, including the European Union and the United States, could file a complaint with the WTO’s Dispute Settlement Body requesting that a Panel be established to review the consistency of any Canadian measures with the obligations and specific commitments under GATS.  The resolution of disputes under GATS and other WTO agreements is carried out on a government-to-government basis. The WTO Panel hearing the case would receive written submissions, conduct oral hearings, and in some cases receive expert testimony and reports.  After hearing the case, the Panel issues a report setting out its findings as to whether the measures in question offend GATS, and if so, its recommendations concerning compliance with GATS obligations.  Panel decisions are appealable on points of law to the WTO’s Appellate Body, which can uphold, modify or reverse the Panel’s legal findings.  WTO Members are expected to comply with Panel and Appellate Body reports.  Failure to comply with a report can result in the suspension of concessions extended to Canada by other WTO Members under GATS or other WTO agreements.

Under NAFTA, the compensation paid to U.S. and Mexican investors must be equivalent to the fair market value of the expropriated investment immediately before the expropriation took place.  NAFTA also provides for the use of certain valuation criteria, such as going concern value, asset value including declared tax value of tangible property, and "other criteria, as appropriate, to determine fair market value".  The compensation must be paid to affected U.S. and Mexican investors without delay and must be fully realizable.  The compensation must include interest at a commercially reasonable rate from the date of expropriation until the date of actual payment.  Furthermore, the compensation paid to U.S. and Mexican investors must be freely transferable without delay in accordance with NAFTA's obligations pertaining to transfers of profits, proceeds, and other payments.

The NAFTA dispute settlement provisions apply to the Canadian government, and not the provincial governments.  Accordingly, if any required compensation under NAFTA is not provided to investors, the federal government will be responsible for the payment of any award arising out of an investor-state dispute. In closing I leave a cautionary tale that the US should be very careful on reforming health care where we end up rationing every part of the health care system. The Canadian system is built on rationing even down to much needed medical technology. There has been a lot of publicity surrounding actress Natasha Richardson’s care after her ski accident in Canada. Could she have had a better chance of survival if she were in the US? Well you be the judge and ask yourself what would you pick?


Richardson: Stood far better chance in US.


COULD actress Natasha Richardson s tragic death have been prevented if her skiing accident had occurred in America rather than Canada?

Canadian health care de-emphasizes widespread dissemination of technology like CT scanners and quick access to specialists like neurosurgeons. While all the facts of Richardson's medical care haven't been released, enough is known to pose questions with profound implications.

Richardson died of an epidural hematoma -- a bleeding artery between the skull and brain that compresses and ultimately causes fatal brain damage via pressure buildup. With prompt diagnosis by CT scan, and surgery to drain the blood, most patients survive.Could Richardson have received this care? Where it happened in Canada, no. In many US resorts, yes.

Between noon and 1 p.m., Richardson sustained what appeared to be a trivial head injury while skiing at Mt. Tremblant in Quebec. Within minutes, she was offered medical assistance but declined to be seen by paramedics.

But this delay is common in the early stages of epidural hematoma when patients have few symptoms -- and there is reason to believe her case wasn't beyond hope at that point.

About three hours after the accident, the actress was taken to Centre Hospitalier Laurentien, in Sainte-Agathe-des-Monts, 25 miles from the resort. Hospital spokesman Alain Paquette said she was conscious upon reaching the hospital about 4 p.m.

The initial paramedic assessment, travel time to the hospital and time she spent there was nearly two hours -- the crucial interval in this case. Survival rates for patients with epidural hematomas, conscious on arrival to a hospital, are good.

Richardson's evaluation required an immediate CT scan for diagnosis -- followed by either a complete removal of accumulated blood by a neurosurgeon or a procedure by a trauma surgeon or emergency physician to relieve the pressure and allow her to be transported.

But Sainte-Agathe-des-Monts is a town of 9,000 people. Its hospital doesn't have specialized neurology or trauma services. It hasn't been reported whether the hospital has a CT scanner, but CT scanners are less common in Canada.

Compounding the problem, Quebec has no helicopter services to trauma centers in Montreal. Richardson was transferred by ambulance to Hospital du Sacre-Coeur, a trauma center 50 miles away in Montreal -- a further delay of over an hour.

Because she didn't arrive at a facility capable of treatment (with the diagnosis perhaps still unknown) until six hours after the injury, in all likelihood by that time the pressure buildup was fatal. The Montreal hospital could not have saved her life.

Her initial refusal of medical care accounted for only part of the delay. She was still conscious when seen at a hospital and her death might have been prevented if the hospital either had the resources to diagnose and institute temporizing therapy, or air transport had taken her quickly to Montreal.

What would have happened at a US ski resort? It obviously depends on the location and facts, but according to a colleague who has worked at two major Colorado ski resorts, the same distance from Denver as Mt. Tremblant is from Montreal, things would likely have proceeded differently.

Assuming Richardson initially declined medical care here as well, once she did present to caregivers that she was suffering from a possible head trauma, she would've been immediately transported by air, weather permitting, and arrived in Denver in less than an hour.

If this weren't possible, in both resorts she would've been seen within 15 minutes at a local facility with CT scanning and someone who could perform temporary drainage until transfer to a neurosurgeon was possible.

If she were conscious at 4 p.m., she'd most likely have been diagnosed and treated about that time, receiving care unavailable in the local Canadian hospital. She might've still died or suffered brain damage but her chances of surviving would have been much greater in the United States.

American medicine is often criticized for being too specialty-oriented, with hospitals "duplicating" too many services like CT scanners. This argument has merit, but those criticisms ignore cases where it is better to have resources and not need them than to need resources and not have them.

Cory Franklin is a physician who lives outside of Chicago. 2009 Chicago Tribune; distributed by Tribune Media Services.


April 06, 2009

NAFTA Investors Beware

Especially health care in Canada


By Melvin J. Howad


The Government of Canada and I have an agreed on a proposal for moving forward to arbitration. But not after I had made an enquiry to the World Bank, which oversees the ICSID about a potential conflict.

What is ICSID?

ICSID oversees arbitrations arising under the 1965 “Convention on the Settlement of Investment Disputes Between States and Nationals of other States” (usually referred to as the “Washington Convention”) from investment disputes between states who are parties to that convention and foreign investors investing on their territory. The Centre applies, in particular, its “Rules of Procedure for Arbitration Proceedings.”

  • ICSID is based in the World Bank's Washington DC headquarters
  • The ICSID Secretary General is the World Bank's Senior Legal Counsel Ms. Meg Kinnear 
  • The World Bank President is chairman of the ICSID Administrative Council
  • Country Governors for the World Bank sit on ICSID's Administrative Council
  • All ICSID member countries are also members of the Bank
  • The ICSID Secretariat is financed from the World Bank's budget

As of 2007, the ICSID has been signed by 155 countries, of which 143 have proceeded to ratification. An investor can bring arbitration before ICSID only if the respondent state has also separately agreed to such arbitration. Such an agreement can be contained either in the contract between the investor and the state or, and this is most often the case, in a bilateral investment treaty between the respondent state and the investor’s home state. ICSID awards cannot be set aside before national courts and have to be treated by each member state as if they were a final judgment of its courts. Awards can, however, be set aside by so-called ICSID ad hoc committees. The number of ICSID arbitrations has increased exponentially in the last few years. In July 2007, ICSID had concluded a total of 125 cases, and had 111 pending cases.

However, Canada has not ratified it yet and until ratification, recourse must be made to either the Additional Facility Rules of ICSID or the ad hoc United Nations Commission on International Trade Law (UNCITRAL) Rules which awards can, however, be set aside under these instruments. It can but so far national courts have upheld the majority of cases. Only the United States has ratified the ICSID Convention out of the NAFTA states. Meaning that until Canada’s ultimate ratification, NAFTA Chapter 11 arbitration under the ICSID Convention remains unavailable to both Canadian investors in the United States and American investors in Canada.

I have a number of issues with Canada in these proceedings not withstanding the obvious one. In the letter from Government of Canada, which I received today the lawyer acting on behalf of the Government of Canada Ms. Sylvie Tabet Deputy Director Trade Law Bureau which took the place of Ms. Kinner stated “ Second Canada rejects the implication in your letter that MS. Kinnear and the staff at ICSID would act inappropriately if an appointment request were to be made by a party in this arbitration”. This is not what I said and if I did I would not back down from it so let’s keep this real. This was my response back “As far as your interpretation that I implied that MS. Kinner and the ICSID as well as the staff there would act inappropriately in these proceedings is way off base I said no such thing. But a perception of conflict is always easier to address before then after the fact. That being said after years of getting the run around in trying to get this resolved even up until the meeting, which you were absent from. In addition to the damages involved you can forgive me of how overly diligent that I have become and will continue to be in these proceedings. I now will proceed with the selection process of the arbitrator”.

Here is another thing, which rubs me the wrong way in a letter from the Government of Canada to me dated January 22, 2009. There was a specific item addressing NAFTA Article 1118. Ms. Tabet states further, while Canada acknowledges receipt of your correspondence of December 8, 2008 declining to participate in consultations pursuant to NAFTA Article 1118, it reiterates its position that such consultations are an important an useful part of the NAFTA dispute resolution process. Accordingly, Canada again offers to meet with you, and any legal counsel you may retain in this matter, in Qttawa, at a mutually convenient time. Well guess what Ms. Tabet was a no show at the meeting. She did not have the common courtesy to show up at a meeting. She scheduled and I knew was going to be a waste of time in the first place. You know I can put up with a lot of things but not hypocrisy. Let me give you an example this is a post by a Canadian doctor name Randall F. White. He is so mad he forgot his Hippocratic oath he had to resort to my bi-polar. Yet Dr. White is card-carrying capitalist ask him what company shares he owns. Dr. White does no represent the majority of doctors and maybe he had a bad day so lets forgive him.     


 And then there is the Unions you pretty much expect this from the unions so I am not surprised. http://www.newswire.ca/en/releases/archive/September2008/18/c5796.htmlhttp://cupe.ca/privwatchsep08/Protection-of-Canada

Then you have special interest groups that have their agenda


These are only a couple of the responses from Canada believe me there is more even some more colourful but this is a family web site. So I have a general question why should America be the symbol of free markets and trade. When countries like Canada can put up certain barriers to trade. Canadian health care and surgical companies can set up shop in the US with ease. But let an American come to Canada and say I want to build the largest surgical center in Canada guess what happens. We are not even debating health care systems were just talking about facilities. Let’s turn this around if the US put up barriers to entry they would be called to the WTO in a heartbeat. I am calling on my Government to address this issue. Canada cried protectionism earlier this year well what do you call this?  

April 01, 2009

US To Get Tough On Trade Barriers

WASHINGTON (Reuters) - The U.S. Senate voted overwhelmingly on Wednesday to approve former Dallas Mayor Ron Kirk to be U.S. trade representative, three months after President Barack Obama tapped him for the job.

Former Dallas Mayor Ron Kirk has been officially confirmed as President Barack Obama's United States Trade Representative. The confirmation came after Senate testimony in which U.S. Sen. Kay Bailey Hutchison, R-Texas, told the Senate she supported Kirk's nomination to the post. "I know that Mayor Kirk's leadership and experience will make him a strong ambassador for U.S. trade policy," Hutchison said. "Last week in his testimony before the Senate Finance Committee, Mayor Kirk pledged that as U.S. Trade Representative, he 'will work to increase opportunities for American entrepreneurs in the global marketplace.

During a short confirmation hearing on March 9 before the Senate Finance Committee, Kirk said that he will look at the trade agreements of the Bush administration and decide whether to continue those policies or make changes. 

Kirk said he and President Obama believe trade agreements should have high environmental standards and protect labor union rights for workers in trading partner nations. While Kirk has supported the North American Free Trade Agreement, he said agrees with Obama that it deserves another look in the face of the global recession.  

These economic opportunities are critical to America's prosperity.[5] "We agreed on the importance of achieving an ambitious and balanced outcome to the WTO Doha Development Agenda as soon as possible," said newly confirmed U.S. Trade Representative Ron Kirk and E.U. Trade Commissioner Catherine Ashton in a joint statement. Noting that the global economic crisis is "testing the resilience of the rules-based multilateral trading system," the two trade chiefs said they would intensify their efforts to cooperate on bilateral and multilateral trade issues. In briefing reporters at the start of their two-hour meeting, Kirk said both officials are aware that governments "are necessarily going to do what they have to do to restore and grow their economies" during the crisis, but that it has to be done without damaging the ability to trade in the future. Ashton, on a five-day trip to cement trade relations with the new administration, lawmakers and business groups, had dinner with Kirk on Wednesday - just hours after he was approved by Senate.

She told reporters after Thursday's meeting that the former Dallas mayor "understands trade issues" and seems ready to "take things forward." She said it is too early to tell where the Obama administration plans to go on Doha and other trade issues, but that she urged Kirk to keep an open mind on the seven-year-old trade talks that she considers 80% done. "We hope that he will look carefully at the advantages to the United States," said Ashton.

The U. S. government will develop a list of the most significant barriers to U. S. exports and then prosecute those cases through the World Trade Organization or the appropriate bilateral forum, the U. S. trade representative's office said yesterday. Mr. Kirk said he also will review agreements with such U. S. free-trade partners as Canada, Mexico, Chile, Australia, Peru, Bahrain, Morocco, Oman, Guatemala, Honduras, Nicaragua, El Salvador and Costa Rica for possible violations, particularly of labour and environmental provisions.

In a letter to Mr. Obama released on Monday, top Democrats on the House of Representatives ways-and-means committee outlined more than two dozen foreign trade barriers or foreign violations of trade rules they said were either ripe for litigation at the WTO or in need of more intensive U. S. pressure to resolve the problem. This is welcomed news from Centurion stand point as we move forward with our trade dispute with Canada.