^* This text was reproduced and reformatted from the text available at the U.S. Department of State website: (visited October 1, 2009) <http://www.state.gov/s/l/c10986.htm=.

^† Due to the size of the original award, only the most relevant parts of the original document are reproduced in the ILM. The complete decision is available at <http://www.state.gov/s/l/c10986.htm=.

¹ For a list of cases, visit the U.S. Department of State website, at http://www.state.gov/s/l/c3741.htm. The cases are: Mondev Int’l Ltd. v. United States, Award, ICSID Case No. ARB(AF)/99/2 (NAFTA Ch. 11 Arb. Trib. Oct. 11, 2002); ADF Group Inc. v. United States, Award, ICSID Case No. ARB(AF)/00/1 (NAFTA Ch. 11 Arb. Trib. Jan. 9, 2003); The Loewen Group, Inc. & Raymond L. Loewen v. United States, Award, ICSID Case No. ARB(AF)/98/3 (NAFTA Ch. 11 Arb. Trib. June 26, 2003); Methanex Corp. v. United States, Award, ICSID (NAFTA Ch. 11 Arb. Trib. Aug. 3, 2005); and Cases Regarding the Border Closure due to BSE Concerns, Award on Jurisdiction (NAFTA Ch. 11 Arb. Trib. Jan. 28, 2008).

² See the Interpretation by the Free Trade Commission of Certain Chapter 11 Provisions (July 31, 2001), available at http://www.state.gov/documents/organization/38790.pdf.

³ See Jean Kalicki & Suzana Medeiros, Fair, Equitable and Ambiguous: What is Fair and Equitable Treatment in International Investment Law?, 24 ICSID Rev. Foreign Investment L.J. 41 (2007).

⁴ Neer v. Mexico, 4 R. Int’l Arb. Awards ¶ 4 (Oct. 15, 1926).

⁵ Glamis Gold Ltd. v. United States, ¶ 616, Award, ICSID (NAFTA Ch. 11 Arb. Trib. June 8, 2009).

⁶ See, e.g., Mondev Int’l Ltd. v. United States, ¶ 116, Award, ICSID Case No. ARB(AF)/99/2 (NAFTA Ch. 11 Arb. Trib. Oct. 11, 2002).

⁷ See Jan Paulsson & Georgios Petrochilos, Neer-ly Misled?, 242 ICSID Rev. Foreign Investment L.J. 245 (2007).

⁸ Id. at 257.

⁹ The amici were Friends of the Earth Canada and Friends of the Earth United States, the Quechan Indian Nation, and the National Mining Association. The complete list is available at http://www.state.gov/s/l/c10986.htm. See Eloïse Obadia, Extension of Proceedings Beyond the Original Parties: Non-Disputing Party Participation in Investment Arbitration, 22 ICSID Rev. Foreign Investment L.J. 349 (2007).

¹ NAFTA Article 1128: Participation by a Party (‘‘On written notice to the disputing parties, a Party may make submissions to a Tribunal on a question of interpretation of this Agreement.’’).

² NAFTA Article 1126: Consolidation.

³ Notes of Interpretation of Certain Chapter 11 Provisions, Free Trade Commission (Aug. 1, 2001), Section A, Access to Documents.

⁴ Statement of the Free Trade Commission on non-disputing party participation (Oct. 7, 2003).

⁵ The Tribunal is aware that awards have been criticized for being lengthy and that the present award is long by comparison to others. This criticism takes two forms. First, the criticism is usually that the awards are long yet nonetheless lack detailed reasons, particularly in the area of damages. As indicated in the text, it is the Tribunal’s view that detailed reasons should be provided. Second, the criticism is often directed at the lengthy recitation of the facts and contentions of the parties. This point we feel is misplaced for three reasons. First, NAFTA arbitrations are, in essence, trial level proceedings and detailed examinations of facts are to be expected. Second, the facts and contentions are recited in some detail because the parties often do not speak to one another in their filings. Third and most importantly, the facts and contentions portions of the award serve the additional function of providing a basis for discussion within the panel. The facts and contentions are often written quite early; substantial sections of the contentions are sometimes drafted by the time of the hearing. Given that the parties often do not respond to each other, that the members of a panel in all likelihood have not worked together before and that the facts and argumentation in a NAFTA investment proceeding can be quite detailed and complex, the organization and recitation of the facts and contentions play a very important part in structuring and disciplining the deliberative process of the panel. It is possible for the panel to simply not include the facts and contentions in its final award. But having prepared the document, and given that the Parties desire to know that their arguments were fully considered, the Tribunal chooses to include them as a part of the Award.

⁶ International Thunderbird Gaming Corp. v. United Mexican States (‘‘International Thunderbird’’), NAFTA/UNCITRAL, Separate Opinion, ¶ 129 (Jan. 26, 2006). Similar reasoning may be found in Duke Energy v. Ecuador, Award, ¶¶ 116-17 (Aug. 18, 2008) (Kaufmann-Kohler (Chair), Gómez Pinzón, and van den Berg); Saipem v. Bangladesh, Decision on Jurisdiction, ¶¶ 66-67 (Mar. 21, 2007) (Kaufmann-Kohler (Chair), Schreuer, and Otton); Noble Energy v. Ecuador, Decision on Jurisdiction, ¶¶ 49-50 (Mar. 5, 2008) (Kaufmann-Kohler (Chair), Cremades, and H. Alvarez).

⁷ Given that there is no precedent, a tribunal may depart from even major previous trends. Unlike institutions with a closed docket of cases where consistency between the various claimants is often of paramount importance, the NAFTA regime’s effort at consistency is one that both looks backward to major trends in past decided disputes and forward toward disputes that have not yet arisen. The appeal process (in the sense that it corrects a statement of the law) in arbitration runs forward in time over several cases rather than upwards in one particular case until a supreme judicial authority settles a question for a time. It is for these reasons that as a tribunal departs from past major trends, it should indicate the reasons for doing so.

⁸ See infra, ¶¶ 201-56 (referencing Procedural Orders 1, 3-8, and 13 and three Decisions).

⁹ See infra ¶¶ 231-32, 237-38, 241-42, 244-46.

¹⁰ Other procedural matters of note include: (1) articulation of a standard of review governing a motion for bifurcation, see infra ¶¶ 196-98; (2) significant involvement by non-disputing parties and civil society, in general, resulting in several nonparty submissions, public viewing of the hearing and the helpful involvement of the Quechan Nation in assisting both the Tribunal and the Parties in ensuring the confidentially of information concerning tribal lands. See infra ¶¶ 267-86, 290.

¹¹ See infra ¶¶ 345-50.

¹² See infra ¶¶ 328-42.

¹³ See infra ¶¶ 534-36.

¹⁴ See infra ¶¶ 370-411, 441-53. 461-72, 485-506, 520-26.

¹⁵ See infra ¶¶ 412-36, 454-59, 473-79, 507-14, 527-35.

¹⁶ See infra ¶¶ 534-36.

¹⁷ See infra ¶¶ 756-830.

¹⁸ See infra ¶¶ 559-62, 600.

¹⁹ See infra ¶¶ 598-627.

²⁰ See infra ¶¶ 607-11.

²¹ See infra ¶¶ 601-05.

²² See infra ¶ 612.

²³ See infra ¶¶ 601-05.

²⁴ See infra ¶¶ 616, 627. The Tribunal takes no position on the type or nature of repudiation measures that would be necessary to violate international obligations. As the Tribunal holds below, Claimant has not proved governmental actions that would have legitimately created such expectations; the Tribunal therefore need not and does not reach the latter half of the inquiry. See infra, ¶ 622.

²⁵ Id.

²⁶ Id.

²⁷ See infra ¶ 617.

²⁸ See infra ¶¶ 758-72.

²⁹ See infra ¶ 772.

³⁰ See infra ¶¶ 773-77.

³¹ See infra ¶¶ 778-88.

³² See infra ¶¶ 791-97.

³³ See infra ¶¶ 798-802.

³⁴ See infra ¶¶ 803-06.

³⁵ See infra ¶¶ 809-15.

³⁶ See infra ¶¶ 816-18.

³⁷ See infra ¶¶ 819-23.

³⁸ See infra ¶¶ 824-29.

[...]

¹⁰⁸⁵ Counsel for Claimant, Tr. 2078:22-2079:6.

¹⁰⁸⁶ Counsel for Claimant, Tr. 36:15-18; Counsel for Respondent, Tr. 1390:11-14.

¹⁰⁸⁷ See, e.g., Counsel for Claimant, Tr. 40:9-16. The Tribunal notes that, as exhibited under the NAFTA, there are two types of discrimination: nationality-based discrimination and discrimination that is founded on the targeting of a particular investor or investment. The former falls under the purview of Article 1102 and Claimant does not argue this. Inasmuch as Claimant argues that it was discriminated against, this argument appears primarily in the discussion of Article 1110, in which Claimant asserts that the discriminatory nature of the California measures provides additional proof that the measures were not a bona fide exercise of State police power and thus a non-compensable regulation. See, e.g., Claimant’s Memorial, ¶¶ 497-510; Claimant’s Reply Memorial, ¶¶ 170-75. Claimant does not argue the discriminatory nature of the California measures in its Article 1105 claim, explaining that Waste Management was criticized in obiter dictum by the Methanex tribunal to the extent that Waste Management implies a duty of non-discrimination in Article 1105(1). Claimant’s Memorial, at 291, footnote 1015, citing Methanex, Final Award, Part IV, Ch. C, ¶ 26 (Aug. 3, 2005). Claimant asserts that Waste Management does so, however, only in circumstances where the claimant’s allegations of discrimination were offered in regard to Article 1102 and only incidentally as regards a claim under Article 1105(1). Claimant continues to explain, however, that Loewen Group v. United States does state that discrimination can be unfair and inequitable in the context of Article 1105(1). Claimant’s Memorial, at 291, footnote 1015, citing Loewen, Award, ¶ 135 (June 26, 2003). The Tribunal therefore interprets Claimant’s arguments made in its Memorial, at paragraph 568, regarding ‘‘Respondent’s arbitrary and discriminatory treatment’’ as an assertion that, as part of the duty prescribed by Article 1105 to not act arbitrarily, there is a duty to not unfairly target a particular investor, whether based upon nationality or some other characteristic.

¹⁰⁸⁸ Respondent’s Counter-Memorial, at 218-19.

¹⁰⁸⁹ Counsel for Respondent, Tr. 105:10-13.

¹⁰⁹⁰ Counsel for Respondent, Tr. 105:17-19.

¹⁰⁹¹ Counsel for Claimant, Tr. 36:7-13.

¹⁰⁹² Counsel for Claimant, Tr. 39:22-40:6.

¹⁰⁹³ Counsel for Claimant, Tr. 40:6-8.

¹⁰⁹⁴ Claimant’s Reply Memorial, ¶ 206.

¹⁰⁹⁵ Id.

¹⁰⁹⁶ Id. ¶ 214.

¹⁰⁹⁷ Id. ¶ 215, citing Neer v. Mexico (‘‘Neer’’), 4 R. Int’l Arb. Awards, 60-62 (Oct. 15, 1926). Mr. Neer, a citizen of the United States employed as the superintendent of a mine near Guanaceví, Mexico, was riding home on horseback with his wife when they were stopped by a number of armed men who engaged Mr. Neer in conversation, and subsequently shot him dead. Mrs. Neer claimed that the Mexican authorities ‘‘showed an unwarrantable lack of diligence or an unwarrantable lack of intelligent investigation in prosecuting the culprits ....’’ Id. ¶ 1. ‘‘Without attempting to announce a precise formula’’ for determining an international delinquency, the commission held:

Id. ¶ 4. But see Mondev, Award, ¶ 116 (Oct. 11, 2002) (‘‘[B]oth the substantive and procedural rights of the individual in international law have undergone considerable development. In the light of these developments it is unconvincing to confine the meaning of ‘fair and equitable treatment’ and ‘full protection and security’ of foreign investments to what those terms – had they been current at the time – might have meant in the 1920s when applied to the physical security of an alien. To the modern eye, what is unfair or inequitable need not equate with the outrageous or the egregious. In particular, a State may treat foreign investment unfairly and inequitably without necessarily acting in bad faith.’’).

¹⁰⁹⁸ Claimant’s Memorial, ¶ 518, citing OECD, Fair and Equitable Treatment Standard in International Investment Law (OECD Working Papers on International Investment, 2004/3) (‘‘OECD Working Papers’’), at 11-12 (‘‘United States expressed the view that the customary international law referred to in NAFTA Article 1105(1) is not ‘frozen in time’ and that the minimum standard of treatment does evolve.’’ ‘‘Canada agreed with the US on the view that the minimum standard of treatment does evolve.’’ ‘‘Mexico also agrees that ‘the standard is relative and that the conduct which may not have violated international law [in] the 1920s might very well be seen to offend internationally accepted principles today.’’ (citations and emphasis omitted)) [Ex. 174].

¹⁰⁹⁹ Counsel for Claimant, Tr. 37:1-7, quoting Mondev, Award, ¶ 125 (Oct. 11, 2002) (emphasis added).

¹¹⁰⁰ Counsel for Claimant, Tr. 37:8-13, citing Mondev, Award (Oct. 11, 2002).

¹¹⁰¹ Claimant’s Memorial, ¶ 517.

¹¹⁰² Id.

¹¹⁰³ Counsel for Claimant, Tr. 1709:20-1710:3.

¹¹⁰⁴ Counsel for Claimant, Tr. 1710:3-19; see also Claimant’s Reply Memorial, ¶¶ 210-11.

¹¹⁰⁵ Counsel for Claimant, Tr. 1710:20-22.

¹¹⁰⁶ Counsel for Claimant, Tr. 1711:3-14.

¹¹⁰⁷ Counsel for Claimant, Tr. 1713:5-9, citing Occidental v. Ecuador, Final Award (July 1, 2004) and CMS v. Argentina, Award (May 12, 2005).

¹¹⁰⁸ Claimant’s Reply Memorial, ¶ 207.

¹¹⁰⁹ Id. ¶ 208, citing Mondev, Award, ¶¶ 110-125 (Oct. 11, 2002).

¹¹¹⁰ Id., quoting Mondev, Award, ¶ 117 (Oct. 11, 2002) (internal citation omitted).

¹¹¹¹ Counsel for Respondent, Tr. 1390:10-20.

¹¹¹² Respondent’s Counter-Memorial, at 219 (citation omitted).

¹¹¹³ Id. at 222.

¹¹¹⁴ Respondent’s Rejoinder, at 151, citing Mohamed Shahabuddeen, Precedent in the World Court 71 (1997).

¹¹¹⁵ Id. at 151-52, quoting U.S. v. Yousef, 327 F.3d 56, 93, 99 (2d Cir. 2003) (emphasis omitted).

¹¹¹⁶ Counsel for Respondent, Tr. 1931:19-1932:8.

¹¹¹⁷ Counsel for Respondent, Tr. 1932:8-15.

¹¹¹⁸ Respondent’s Counter-Memorial, at 218-19, citing ADF Group, Award, ¶ 178 (Jan. 9, 2003) (citation omitted).

¹¹¹⁹ Id., citing Mondev, Award, ¶ 121 (Oct. 11, 2002).

¹¹²⁰ Counsel for Respondent, Tr. 1934:9-20. Specifically, in response to Tribunal questions, Respondent stated that it does not believe that the standard articulated in the cases based on the U.S.-Argentine BIT is ‘‘reflective or has been shown to be reflective of the minimum standard of treatment under customary international law.’’ Counsel for Respondent, Tr. 2134:2-11.

¹¹²¹ Respondent’s Rejoinder, at 147 (citation omitted).

¹¹²² Id.

¹¹²³ Id. at 148, quoting UNCTAD, Fair and Equitable Treatment, Series on Issues in International Investment Agreements, UNCTAD/ITE/IIT/11 (Vol. III) (1999), at 40.

¹¹²⁴ Respondent’s Rejoinder, at 148, citing id. at 13.

¹¹²⁵ Id. at 142.

¹¹²⁶ Id.

¹¹²⁷ Id., quoting Mondev, Award, ¶ 113 (Oct. 11, 2002) (emphasis added).

¹¹²⁸ Waste Management, Award, ¶ 98 (Apr. 30, 2004). As noted above at footnote 1087, Claimant is not arguing a duty of non-discrimination as a duty separate from those included in the requirement of fair and equitable treatment under Article 1105.

¹¹²⁹ GAMI Investments, Final Award, ¶ 97 (Nov. 15, 2004).

¹¹³⁰ International Thunderbird, Award, ¶ 194 (Jan. 26, 2006).

¹¹³¹ See Loewen, Award, ¶ 132 (June 26, 2003); Mondev, Award, ¶ 115 (Oct. 11, 2002); Waste Management, Award, ¶ 93 (Apr. 30, 2004).

¹¹³² Claimant’s Reply Memorial, ¶¶ 224-34.

¹¹³³ Id. ¶¶ 235-41.

¹¹³⁴ Counsel for Claimant, Tr. 40:9-16.

¹¹³⁵ Counsel for Respondent, Tr. 1402:8-12.

¹¹³⁶ Claimant’s Memorial, ¶ 518, citing OECD Working Papers, at 40 [Ex. 174].

¹¹³⁷ Id., citing OECD Working Papers, at 11-12.

¹¹³⁸ Id., quoting Mondev, Award, ¶ 119.

¹¹³⁹ Id.

¹¹⁴⁰ Id. ¶ 519.

¹¹⁴¹ Id., citing Generation Ukraine, Award, ¶ 20.37 (Sept. 16, 2003).

¹¹⁴² Id.

¹¹⁴³ Claimant’s Reply Memorial, ¶¶ 219-20, quoting OECD Working Papers, at 2.

¹¹⁴⁴ Id. ¶ 220.

¹¹⁴⁵ Id. ¶ 218, quoting OECD Working Papers, at 2 (emphasis added) [Ex. 174].

¹¹⁴⁶ Respondent’s Counter-Memorial, at 220, footnote 964, quoting OECD Working Papers, at 2 and 8, footnote 32.

¹¹⁴⁷ Respondent’s Rejoinder, at 143.

¹¹⁴⁸ Id. at 144, quoting OECD Working Papers, at 8, footnote 32 (emphasis added) (additional citations omitted).

¹¹⁴⁹ Respondent’s Counter-Memorial, at 219, citing Claimant’s Memorial, ¶ 518 and Restatement (Third) of Foreign Relations Law of the United States § 102(2) (1987).

¹¹⁵⁰ Id., quoting Clive Parry, John P. Grant, Anthony Parry & Arthur D. Watts, Encyclopaedic Dictionary of International Law 82 (1986).

¹¹⁵¹ Counsel for Claimant, Tr. 44:2-5, 44:12-15.

¹¹⁵² Claimant’s Memorial, ¶ 532, quoting Tecmed, Award, ¶ 153 (May 29, 2003).

¹¹⁵³ Id. ¶ 533, quoting Tecmed, Award, ¶ 154 (May 29, 2003).

¹¹⁵⁴ Id. ¶ 534, quoting CMS v. Argentina, Award, ¶ 274 (May 12, 2005).

¹¹⁵⁵ Claimant’s Reply Memorial, ¶ 226, quoting CMS v. Argentina, Award, ¶ 276 (May 12, 2005).

¹¹⁵⁶ Counsel for Claimant, Tr. 45:8-20, citing International Thunderbird, Award, ¶ 147 (Jan. 26, 2006).

¹¹⁵⁷ International Thunderbird, Award, ¶ 147 (Jan. 26, 2006) (internal citation omitted).

¹¹⁵⁸ Counsel for Claimant, Tr. 47:16-22, citing Saluka v. Czech Republic; Azurix v. Argentina; Occidental v. Ecuador; PSEG v. Turkey; CMS v. Argentina; and Enron v. Argentina.

¹¹⁵⁹ Counsel for Claimant, Tr. 1728:13-19, quoting Saluka v. Czech Republic, Partial Award, ¶ 337 (Mar. 17, 2006).

¹¹⁶⁰ Counsel for Claimant, Tr. 1729:1-6.

¹¹⁶¹ Claimant’s Reply Memorial, ¶ 222 (emphasis added).

¹¹⁶² See Claimant’s Memorial, ¶ 534, citing CMS v. Argentina, Award, ¶ 274 (May 12, 2005); Claimant’s Memorial, ¶ 535, citing Metalclad, Award, ¶ 76 (Sept. 2, 2000); Claimant’s Memorial, ¶ 537, citing Mazzeffini v. Kingdom of Spain (‘‘Mazzeffini’’), ICSID Case No. ARB/97/7, Award, ¶ 83 (Jan. 25, 2000).

¹¹⁶³ Claimant’s Memorial, ¶ 538.

¹¹⁶⁴ Id., quoting Waste Management, Award, ¶ 98 (Apr. 30, 2004) (emphasis added).

¹¹⁶⁵ Counsel for Claimant, Tr. 1724:8-16, citing Tecmed, Award, ¶ 154 (May 29, 2003).

¹¹⁶⁶ Id. Claimant argues that this decision is instructive, despite the fact that it is based on an autonomous fair and equitable treatment standard in the Spain-Mexico BIT, because the tribunal expressly interpreted the provision by giving effect to ‘‘the good faith principle and international law.’’ Counsel for Claimant, Tr. 1724:5-8; Tecmed, Award, ¶ 155 (May 29, 2003).

¹¹⁶⁷ Claimant’s Reply Memorial, ¶ 231, quoting ADC v. Hungary, Award, ¶ 424 (Oct. 2, 2006).

¹¹⁶⁸ Id. ¶ 229, quoting UNCTAD, Fair and Equitable Treatment 51 (UNCTAD Series on International Investment Agreements, 1999) (internal citations omitted).

¹¹⁶⁹ Respondent’s Counter-Memorial, at 230. As noted above, Claimant divided the asserted duties inherent in the fair and equitable treatment of Article 1105(1) into two obligations: (1) the duty to protect investor expectations through the maintenance of a predictable and transparent framework, and (2) the duty to protect investors from arbitrary acts. Claimant’s Reply Memorial, ¶¶ 224-41. Respondent, in countering these asserted duties, divided them instead into three obligations: (1) to act transparently, (2) to act in a manner that does not frustrate investors’ legitimate expectations, and (3) to refrain from arbitrary conduct. Counsel for Respondent, Tr. 1390:21-1391:8. As it is the burden of the Claimant to prove the content of the customary international law minimum standard of treatment that it asserts has been breached in this situation, it is its right to determine the methodology by which to argue its positions. The Tribunal therefore adopts Claimant’s methodology of analysis and combines the first two obligations. In addition, as explained below in its holding, the Tribunal takes this approach because it finds that Claimant has not in fact alleged a separate stand-alone claim for breach of transparency in the usual sense of insufficient notice and comment, and instead argues for a ‘‘transparent and predictable framework’’ which the Tribunal interprets to mean a knowable and consistent regime in which significant changes should be forewarned and not surprising. To the extent that Respondent argued its positions based upon three inherent State obligations, the Tribunal has combined its first two asserted duties into one and consolidated Respondent’s arguments with respect to these duties.

¹¹⁷⁰ Respondent’s Rejoinder, at 179.

¹¹⁷¹ Respondent’s Counter-Memorial, at 230-31.

¹¹⁷² Id. at 231, quoting Tecmed, Award, ¶¶ 155-56 (May 29, 2003). For further explanation of the ‘‘autonomous’’ standard, as opposed to that of customary international law or international law, see supra ¶¶ 541-43.

¹¹⁷³ Counsel for Respondent, Tr. 1980:12-19, citing Saluka v. Czech Republic, Award, ¶ 305 (Mar. 17, 2006). Respondent also notes that the Saluka tribunal nevertheless recognized that no investor may reasonably ‘‘expect that the circumstances prevailing at the time the investment is made remain totally unchanged.’’ Id.

¹¹⁷⁴ Respondent’s Counter-Memorial, at 232, citing CMS v. Argentina, Award, ¶ 284 (May 12, 2005).

¹¹⁷⁵ Counsel for Respondent, Tr. 1396:12-15; Respondent’s Counter-Memorial, at 233-34; Respondent’s Rejoinder, at 178-79.

¹¹⁷⁶ Respondent’s Counter-Memorial, at 233, citing Feldman, Award, ¶ 103 (Dec. 16, 2002) (noting, in the context of an indirect expropriation claim, that ‘‘[r]easonable governmental regulation of this type cannot be achieved if any business that is adversely affected may seek compensation, and it is safe to say the customary international law recognized this.’’).

¹¹⁷⁷ Counsel for Respondent, Tr. 1981:18-1982:11.

¹¹⁷⁸ Counsel for Respondent, Tr. 1982:12-16; see also CMS, Form 8-K at Ex. 99.1 (May 17, 2005).

¹¹⁷⁹ Counsel for Respondent, Tr. 1983:1-6.

¹¹⁸⁰ Counsel for Respondent, Tr. 1983:7-17.

¹¹⁸¹ Counsel for Respondent, Tr. 1396:18-1398:1; Respondent’s Rejoinder, at 179-80.

¹¹⁸² Respondent’s Rejoinder, at 179-80, citing Draft Articles on Responsibility of States for Internationally Wrongful Acts, art. 4, cmt. ¶ 6 (additional citations omitted).

¹¹⁸³ Counsel for Respondent, Tr. 1397:15-18; see also Respondent’s Rejoinder, at 180.

¹¹⁸⁴ Respondent’s Counter-Memorial, at 226-27.

¹¹⁸⁵ Respondent’s Rejoinder, at 154.

¹¹⁸⁶ Counsel for Respondent, Tr. 1444:10-18.

¹¹⁸⁷ Respondent’s Rejoinder, at 154; see also Counsel for Respondent, Tr. 1393:14-16.

¹¹⁸⁸ Counsel for Respondent, Tr. 1392:19-22.

¹¹⁸⁹ Counsel for Respondent, Tr. 1392:22-1393:5.

¹¹⁹⁰ Counsel for Respondent, Tr. 1393:5-9.

¹¹⁹¹ Counsel for Respondent, Tr. 1393:10-19.

¹¹⁹² Respondent’s Rejoinder, at 158, citing Methanex, Rejoinder Memorial of the United States on Jurisdiction, Admissibility and the Proposed Amendment, p. 33 (June 27, 2001); Metalclad, Amended Petition of Mexico to the Supreme Court of British Columbia (Sup. Ct. B.C.), ¶ 72 (Oct. 27, 2000); Metalclad, Outline of Argument of Intervenor Attorney General of Canada (Sup. Ct. B.C.), ¶¶ 31-33 (Feb. 16, 2001).

¹¹⁹³ Respondent’s Rejoinder, at 159, citing U.S. Statement of Administrative Action (hereinafter ‘‘U.S. SAA’’) at 193, and Canadian Statement of Implementation (hereinafter ‘‘Canadian SOI’’) at 196 (internal citation omitted).

¹¹⁹⁴ Id., quoting NAFTA, Implementation Act, Statement of Administrative Action, H.R. Doc. No. 103-159, 103d Cong., at 193 (1993).

¹¹⁹⁵ Id. at 131, citing NAFTA, arts. 1116 & 1117.

¹¹⁹⁶ Counsel for Respondent, Tr. 1394:18-1395:22.

¹¹⁹⁷ Counsel for Respondent, Tr. 1395:12-1396:1, quoting Feldman, Award, ¶ 133 (Dec. 16, 2002).

¹¹⁹⁸ Respondent’s Rejoinder, at 168, citing ADC v. Hungary, Award, ¶ 445 (Oct. 2, 2006).

¹¹⁹⁹ Id. at 156; see also Counsel for Respondent, Tr. 1394:10-17, quoting OECD Working Papers, at 37.

¹²⁰⁰ Id. at 169.

¹²⁰¹ Id. at 170, quoting Tecmed, Award, ¶ 154 (Award) (May 29, 2003).

¹²⁰² Claimant’s Reply Memorial, ¶ 239, quoting S.D. Myers, Partial Award, ¶ 263 (Nov. 13, 2000).

¹²⁰³ Id., quoting International Thunderbird, Award, ¶ 194 (Jan. 26, 2006).

¹²⁰⁴ Counsel for Claimant, Tr. 45:21-46:14, quoting Tecmed, Award, ¶ 154 (May 29, 2003).

¹²⁰⁵ Counsel for Claimant, Tr. 47:9-15, citing LG&E v. Argentina.

¹²⁰⁶ Counsel for Claimant, Tr. 1717:22-1718:5.

¹²⁰⁷ Claimant’s Reply Memorial, ¶ 235.

¹²⁰⁸ Claimant’s Memorial, ¶ 530.

¹²⁰⁹ Id. ¶ 523, quoting Restatement (Third) of Foreign Relations Law, § 712, footnote 11.

¹²¹⁰ Id., citing Lauder v. Czech Republic, Final Award, ¶ 232 (Sept. 3, 2002).

¹²¹¹ Counsel for Claimant, Tr. 1719:6-17, quoting Tecmed, Award, ¶ 154 (May 29, 2003).

¹²¹² Claimant’s Memorial, ¶ 525, quoting ELSI, Judgment, ¶ 128 (July 28, 1989) (internal citation omitted).

¹²¹³ Counsel for Claimant, Tr. 1719:1-5; see also Claimant’s Memorial, ¶ 526, quoting Pope & Talbot, Award on the Merits of Phase 2, ¶ 118 (Apr. 10, 2001).

¹²¹⁴ Claimant’s Memorial, ¶ 522, quoting Loewen, Award, ¶ 132 (June 26, 2003); Mondev, Award, ¶ 116 (Oct. 11, 2002); CMS v. Argentina, Award, ¶ 280 (May 12, 2005).

¹²¹⁵ Counsel for Claimant, Tr. 1714:13-1715:16.

¹²¹⁶ Counsel for Claimant, Tr. 1714:13-1715:16, quoting Occidental v. Ecuador, Final Award, ¶ 191 (July 1, 2004).

¹²¹⁷ Counsel for Claimant, Tr. 1715:10-16.

¹²¹⁸ Counsel for Claimant, Tr. 70:21-71:21, quoting Saluka v. Czech Republic, Partial Award, ¶ 308 (Mar. 17, 2006) and International Thunderbird, Award, ¶ 127 (Jan. 26, 2006).

¹²¹⁹ Counsel for Claimant, Tr. 1722:4-7.

¹²²⁰ Respondent’s Counter-Memorial, at 227.

¹²²¹ Id.

¹²²² Counsel for Respondent, Tr. 1399:3-7.

¹²²³ Counsel for Respondent, Tr. 1399:8-17.

¹²²⁴ Respondent’s Rejoinder, at 188.

¹²²⁵ Id., quoting International Thunderbird, Award, ¶ 127 (Jan. 26, 2006).

¹²²⁶ Id. at 189, citing Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 583, 487 (1955).

¹²²⁷ Counsel for Respondent, Tr. 104:15-18.

¹²²⁸ Respondent’s Counter-Memorial, at 230, quoting S.D. Myers, Partial Award, ¶ 263 (Nov. 13, 2000).

¹²²⁹ Counsel for Respondent, Tr. 1400:9-1401:3, quoting S.D. Myers, Partial Award, ¶ 261 (Nov. 13, 2000).

¹²³⁰ Respondent’s Rejoinder, at 207, quoting International Thunderbird, Award, ¶ 160 (Jan. 26, 2006).

¹²³¹ Counsel for Respondent, Tr. 2106:5-15, citing ADF Group, Second Article 1128 Submission of the United Mexican States, ¶ 190 (Jan. 9, 2003) (citing Mondev, Award, ¶ 136 (Oct. 11, 2002)).

¹²³² Respondent’s Rejoinder, at 207, quoting Saluka v. Czech Republic, Partial Award, ¶ 273 (Mar. 17, 2006).

¹²³³ Counsel for Respondent, Tr. 1457:11-20.

¹²³⁴ Counsel for Respondent, Tr. 1457:21-1458:11, quoting Expert Report of Professor Wälde, at IV-27, footnote 474; see also Respondent’s Rejoinder, at 210.

¹²³⁵ Respondent’s Rejoinder, at 208, quoting 5 U.S.C. § 706(2)(A) (1966).

¹²³⁶ Id. at 208-9, quoting Motor Vehicles Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (additional citations omitted).

¹²³⁷ Id. at 209, quoting Baker v. Minister of Citizenship and Immigration, [1999] S.C.R. 817, 853 (Can.).

¹²³⁸ Id. at 206, quoting ELSI, Judgment, p. 74 (July 28, 1989).

¹²³⁹ Respondent’s Counter-Memorial, at 227-28, quoting International Thunderbird, Award, ¶ 194 (Jan. 26, 2006).

¹²⁴⁰ Id. at 230, quoting S.D. Myers, Partial Award, ¶ 263 (Nov. 13, 2000).

¹²⁴¹ Id., quoting S.D. Myers, Partial Award, ¶ 263 (Nov. 13, 2000).

¹²⁴² Id., quoting S.D. Myers, Partial Award, ¶ 195 (Nov. 13, 2000).

¹²⁴³ Counsel for Claimant, Tr. 36:15-18; Counsel for Respondent, Tr. 1390:11-14; Free Trade Commission, Notes of Interpretation of Certain Chapter 11 Provisions, § B(2) (July 31, 2001) (‘‘FTC Notes’’).

¹²⁴⁴ FTC Notes, § B(1). For further discussion of the binding nature of the FTC Notes, see NAFTA Article 1131(2): ‘‘An interpretation by the Commission of a provision of this Agreement shall be binding on a Tribunal established under this Section.’’

¹²⁴⁵ Neer v. Mexico, 4 R. Int’l Arb. Awards, 60 (Oct. 15, 1926).

¹²⁴⁶ ADF Group, Second Article 1128 Submission of the United Mexican States, p. 15 (July 22, 2002), quoting Pope & Talbot, Post-Hearing Article 1128 Submission of the United Mexican States (Damages Phase), ¶ 8 (Dec. 3, 2001), quoting Pope & Talbot, Respondent Canada’s Counter-Memorial (Phase 2), ¶ 309 (Aug. 18, 2001) (Mexico’s Post-Hearing Article 1128 Submission in Pope & Talbot quotes with approval Canada’s submission as respondent in Pope & Talbot, which states in paragraph 8: ‘‘The conduct of government toward the investment must amount to gross misconduct, manifest injustice or, in the classic words of the Neer claim, an outrage, bad faith or the willful neglect of duty.’’).

¹²⁴⁷ Respondent’s Counter-Memorial, at 219 (citations omitted).

¹²⁴⁸ In the NAFTA context, there is the addition of Article 1128 submissions through which the State Parties can express directly their views on and interpretations of the provisions of the NAFTA.

¹²⁴⁹ Counsel for Claimant, Tr. 40:1-8.

¹²⁵⁰ Respondent’s Rejoinder, at 151, quoting Robert Cryer, Of Custom, Treaties, Scholars, and the Gavel: The Influence of the International Criminal Tribunals on the ICRC Customary Law Study, 11 J. Conflict & Security L. 239, 252 (2006) (additional citation omitted).

¹²⁵¹ Counsel for Respondent, Tr. 1934:9-20.

¹²⁵² Counsel for Claimant, Tr. 1710:20-22.

¹²⁵³ See Tecmed, Award, ¶ 4 (May 29, 2003), citing Agreement on the Reciprocal Promotion and Protection of Investments signed by the Kingdom of Spain and the United Mexican States, (Dec. 18, 1996).

¹²⁵⁴ Claimant’s Memorial, ¶ 533, footnote 1033, quoting Tecmed, Award, ¶ 154 (May 29, 2003).

¹²⁵⁵ Agreement on the Reciprocal Promotion and Protection of Investments signed by the Kingdom of Spain and the United Mexican States, Article 4(2) (Dec. 18, 1996).

¹²⁵⁶ Tecmed, Award, ¶ 155 (May 29, 2003) (emphasis added).

¹²⁵⁷ ADF Group, Second Article 1128 Submission of the United Mexican States, p. 15 (July 22, 2002), quoting Pope & Talbot, Post-Hearing Article 1128 Submission of the United Mexican States (Damages Phase), ¶ 8 (Dec. 3, 2001), quoting Pope & Talbot, Respondent Canada’s Counter-Memorial (Phase 2), ¶ 309 (Aug. 18, 2001).

¹²⁵⁸ Neer v. Mexico, 4 R. Int’l Arb. Awards, ¶ 4 (Oct. 15, 1926). The Neer tribunal continued to explain that its inquiry was limited to ‘‘whether there [was] convincing evidence either (1) that the authorities administering the Mexican law acted in an outrageous way, in bad faith, in wilful neglect of their duties, or in a pronounced degree of improper action, or (2) that Mexican law rendered it impossible for them properly to fulfil their task.’’ Id. ¶ 5.

¹²⁵⁹ Mondev, Award, ¶ 116 (Oct. 11, 2002).

¹²⁶⁰ International Thunderbird, Award, ¶ 194 (Jan. 26, 2006) (emphasis added).

¹²⁶¹ S.D. Myers, Partial Award, ¶ 263 (Nov. 13, 2000) (emphasis added).

¹²⁶² Mondev, Award, ¶ 127 (Oct. 11, 2002) (emphasis added).

¹²⁶³ ADF Group, Second Article 1128 Submission of the United Mexican States, p. 8 (July 22, 2002), quoting Pope & Talbot, Fourth Article 1128 Submission of the United States, ¶¶ 3, 8 (Nov. 1, 2000).

¹²⁶⁴ Counsel for Respondent, Tr. 1397:15-18; Respondent’s Rejoinder, at 180.

¹²⁶⁵ See Azinian v. United Mexican States (‘‘Azinian’’), NAFTA/ICSID Case No. ARB/(AF)/97/2, Award, ¶ 87 (Nov. 1, 1999) (holding, ‘‘NAFTA does not, however, allow investors to seek international arbitration for mere contractual breaches. Indeed, NAFTA cannot possibly be read to create such a regime, which would have elevated a multitude of ordinary transactions with public authorities into potential international disputes.’’).

¹²⁶⁶ Methanex, Final Award, Part IV, Ch. D, ¶ 7 (Aug. 3, 2005).

¹²⁶⁷ International Thunderbird, Award, ¶ 147 (Jan. 26, 2006) (internal citation omitted).

¹²⁶⁸ Claimant’s Reply Memorial, ¶ 239, quoting S.D. Myers, Partial Award, ¶ 263 (Nov. 13, 2000).

¹²⁶⁹ Id., citing International Thunderbird, Award, ¶ 194 (Jan. 26, 2006).

¹²⁷⁰ Respondent’s Counter-Memorial, at 227.

¹²⁷¹ Mondev, Award, ¶ 127 (Oct. 11, 2002).

¹²⁷² Respondent’s Counter-Memorial, at 227.

¹²⁷³ Id. at 230, quoting S.D. Myers, Partial Award, ¶ 263 (Nov. 13, 2000).

¹²⁷⁴ Respondent’s Rejoinder, at 188.

¹²⁷⁵ ELSI, Judgment, ¶ 128 (July 28, 1989).

¹²⁷⁶ International Thunderbird, Award, ¶ 194 (Jan. 26, 2006).

¹²⁷⁷ Id.

¹²⁷⁸ The Tribunal takes no position on the type or nature of repudiation measures that would be necessary to violate international obligations. As the Tribunal held above, Claimant has not proved governmental actions that would have legitimately created such expectations; the Tribunal therefore need not and does not reach the latter half of the inquiry.

¹²⁷⁹ Claimant’s Memorial, ¶ 556.

¹²⁸⁰ Id., quoting GAMI Investments, Final Award, ¶ 97 (Nov. 15, 2004).

¹²⁸¹ See Claimant’s Memorial, ¶¶ 540-556; Claimant’s Reply Memorial, ¶¶ 242-285.

¹²⁸² See, e.g., Respondent’s Counter-Memorial, at 235-62; Respondent’s Rejoinder, at 171-77, 185-87, 194-243; Counsel for Respondent, Tr. 1460:6-1507:8.

[...]

¹⁶⁶⁴ Id.

¹⁶⁶⁵ Id., citing Kahn Affidavit, ¶ 2.

¹⁶⁶⁶ Claimant’s Letter to the Tribunal, p. 8 (Sept. 3, 2008).

¹⁶⁶⁷ Id. As noted above, at ¶ 713, Claimant refused this offer.

¹⁶⁶⁸ Claimant’s Memorial, ¶ 556, quoting GAMI, Final Award, ¶ 97 (Nov. 15, 2004).

¹⁶⁶⁹ See, e.g., Respondent’s Counter-Memorial, at 235-62; Respondent’s Rejoinder, at 171-77, 185-87, 194-243; Counsel for Respondent, Tr. 1460:6-1507:8.

¹⁶⁷⁰ Counsel for Claimant, Tr. 49:4-9.

¹⁶⁷¹ Counsel for Claimant, Tr. 49:9-17.

¹⁶⁷² Claimant’s Memorial, ¶ 547.

¹⁶⁷³ Counsel for Respondent, Tr. 1955:8-14, 1461:6-9; see also Respondent’s Rejoinder, at 235.

¹⁶⁷⁴ Respondent’s Counter-Memorial, at 249.

¹⁶⁷⁵ See supra ¶¶ 147-48. Claimant also implicitly recognized that domestic courts were the proper forum for a challenge of the substance of the M-Opinion in that it responded to the issuance of the M-Opinion by filing suit in federal court in Nevada challenging the M-Opinion on April 13, 2000. This suit was subsequently dismissed for lack of subject matter jurisdiction.

¹⁶⁷⁶ See Tribunal’s Holding, supra ¶ 616.

¹⁶⁷⁷ Solicitor’s Opinion, Regulation of Hardrock Mining (Dec. 27, 1999) [Ex. 205]. The M-Opinion focuses primarily on the statutory and regulatory issues, devoting only one and a half pages to the potential First Amendment issue.

¹⁶⁷⁸ Claimant’s Reply, ¶ 246.

¹⁶⁷⁹ Id. ¶ 245

¹⁶⁸⁰ Counsel for Respondent, Tr. 1492:16-21; Respondent’s Rejoinder, at 232.

¹⁶⁸¹ Respondent’s Rejoinder, at 175.

¹⁶⁸² ELSI, Judgment, ¶ 124 (July 20, 1989) (holding that, ‘‘it must be borne in mind that the fact that an act of a public authority may have been unlawful in municipal law does not necessarily mean that that act was unlawful in international law, as a breach of treaty or otherwise.’’).

¹⁶⁸³ Respondent’s Counter-Memorial, at 260, citing Letter from Timothy R. McCrum, Counsel for Glamis Gold, to Patricia Morrison, Deputy Assistant Secretary for Land and Minerals, DOI, at 1, 3 (July 21, 2003) [FA 7 tab 47].

¹⁶⁸⁴ See Counsel for Respondent, Tr. 1359:15-1364:8; Respondent’s Rejoinder, at 241-42.

¹⁶⁸⁵ Claimant’s Reply Memorial, ¶ 258, citing Leshendok Report, ¶ 95, Tbl. 1; see also Counsel for Claimant, Tr. 2022:20-2023:4;

¹⁶⁸⁶ Claimant’s Reply Memorial, ¶ 260 (footnote omitted).

¹⁶⁸⁷ Respondent’s Counter-Memorial, at 260, citing Letter from Timothy R. McCrum, Counsel for Glamis Gold, to Patricia Morrison, Deputy Assistant Secretary for Land and Minerals, DOI, at 1, 3 (July 21, 2003) [FA 7 tab 47]. For discussion of this letter, see supra ¶ 662.

¹⁶⁸⁸ Respondent’s Counter-Memorial, at 261-62, citing Letter from Earl E. Devaney, Inspector General, DOI, to Senator Barbara Boxer, at 1-3 (Mar. 11, 2003) [Ex. 277].

¹⁶⁸⁹ Counsel for Claimant, Tr. 76:5-9.

¹⁶⁹⁰ Counsel for Claimant, Tr. 2024:2-5.

¹⁶⁹¹ See supra ¶¶ 649, 667-68.

¹⁶⁹² See supra ¶¶ 650, 671-72.

¹⁶⁹³ Counsel for Respondent, Tr. 1479:3-6.

¹⁶⁹⁴ See supra ¶¶ 647-48.

¹⁶⁹⁵ See supra ¶¶ 663-65.

¹⁶⁹⁶ See supra ¶ 666.

¹⁶⁹⁷ See supra ¶¶ 673-75.

¹⁶⁹⁸ Counsel for Claimant, Tr. 82:12-19.

¹⁶⁹⁹ See supra ¶ 667.

¹⁷⁰⁰ Id.

¹⁷⁰¹ Counsel for Respondent, Tr. 1467:15-19.

¹⁷⁰² ACHP Hearing Transcript, p. 8 (Mar. 11, 1999) [Ex. 185]; accord Memorandum from Don Klima to Ray Soon; Richard Moe, National Trust for Historic Preservation; and Dick Sanderson (Environmental Protection Agency) re Imperial Mine Project, Imperial County, California (Nov. 18, 1998) [Ex. 157].

¹⁷⁰³ See supra ¶ 670.

¹⁷⁰⁴ The Tribunal notes that there was an additional fourth argument presented by Claimant of the retroactive application of the California measures. See Claimant’s Reply Memorial, ¶ 262 (‘‘The California measures at issue here had the effect of applying retroactively to Glamis in that they completely changed the legal and business framework governing the Imperial Project, after Glamis had invested over $15 million to ensure profitable operation under the law as it existed prior to December 2002.’’) Respondent counters, ‘‘Neither of the California measures applies retroactively. Both the SMGB regulation and Senate Bill 22 apply only to mines that do not have an approved Reclamation Plan with a financial assurance in place as of the date of their enactment.’’ Counsel for Respondent, Tr. 1433:15-20. The Tribunal finds this argument not properly developed and therefore Claimant’s burden of proof unmet, and, in any event, disputed by the application of the SMGB Regulations to the Golden Queen mine, whose reclamation plan and mining permit at the time of passage had been approved, though its financial assurances were not, thus confirming Respondent’s assertions. See supra footnote 539.

¹⁷⁰⁵ The Tribunal notes that, in response to the Tribunal’s Questions to the Parties for the Second Session of the Hearing on the Merits (Sept. 6, 2007), Respondent used this argument with respect to the expropriation analysis under Article 1110. See Respondent, Tr. 1828:3-16:

The Tribunal, however, finds it equally applicable to this analysis under the fair and equitable treatment standard.

¹⁷⁰⁶ California Senators Sher and Burton, Senate Bill 22 (introduced Dec. 2, 2002) [Ex. 263].

¹⁷⁰⁷ Id.

¹⁷⁰⁸ Memorandum to File from Dana Williamson RE: Environmental Group call, p. 2, attached to Email Correspondence from Dana Williamson to Darryl Young Re: Take a look at this (Apr. 4, 2003) [Respondent Doc. 162].

¹⁷⁰⁹ See supra ¶ 685, quoting Counsel for Claimant, Tr. 1563:16-21.

¹⁷¹⁰ Claimant’s Reply, ¶ 264.

¹⁷¹¹ Id. ¶ 261.

¹⁷¹² See Tribunal’s Holding, supra ¶ 627.

¹⁷¹³ Respondent’s Counter-Memorial, at 193-94, citing Behre Dolbear Expert Report (Apr. 2006), at A6-6 (explaining that it had to use a higher risk increment in its analysis because of its location in California, whereas it would have used a zero risk increment for Nevada).

¹⁷¹⁴ Respondent’s Counter-Memorial, at 192, citing Cal. Pub. Res. Code §§ 2712(a), (c) (2001); see also Cal. Pub. Res. Code § 2733 (‘‘‘Reclamation’ means the combined process of land treatment that minimizes water degradation, air pollution, damage to aquatic or wildlife habitat, flooding, erosion, and other adverse effects from surface mining operations, including adverse surface effects incidental to underground mines, so that mined lands are reclaimed to a usable condition which is readily adaptable for alternate land uses and create[s] no danger to public health or safety. The process may extend to affected lands surrounding mined lands, and may require backfilling, grading, resoiling, revegetation, soil compaction, stabilization, or other measures.’’).

¹⁷¹⁵ Respondent’s Counter-Memorial, at 185.

¹⁷¹⁶ Claimant’s Memorial, ¶ 326 (citation omitted); see also Claimant’s Reply, ¶ 145.

¹⁷¹⁷ Id. ¶ 114, quoting California Desert Protection Act of 1994, Pub. L. 103-433, § 103(d), 108 Stat. 4471, 4481 (1994).

¹⁷¹⁸ Feldman, Award, ¶ 148 (Dec. 16, 2002) [Ex. 12], citing United Mexican States v. Metalclad, Reasons for Judgment of the Honorable Mr. Justice Tysoe, ¶¶ 28-29 (S.C. B.C. May 2, 2001) (‘‘The Tribunal found that Metalclad had been led to believe by federal authorities that the federal and state permits issued to COTERIN allowed for the construction and operation of the landfill, and it made reference to Metalclad’s position (which the Tribunal appeared to have implicitly accepted) that it was also told by federal officials that if it submitted an application for a municipal construction permit, the Municipality would have no legal basis for denying the permit.’’)

¹⁷¹⁹ Id. ¶ 111.

¹⁷²⁰ See supra ¶ 625.

¹⁷²¹ See supra ¶ 627.

¹⁷²² See supra ¶¶ 742-43.

¹⁷²³ See supra ¶ 687.

¹⁷²⁴ Claimant’s Reply, ¶¶ 261-62.

¹⁷²⁵ See supra ¶ 690.

¹⁷²⁶ See supra ¶ 691.

¹⁷²⁷ See supra ¶¶ 801-02.

¹⁷²⁸ Counsel for Claimant, Tr. 1783:2-1784:17; 1793:20-1794:5.

¹⁷²⁹ The Tribunal notes testimony of Dr. Parrish that, although ‘‘the reason for the emergency regulation was that there may be other unknown mines that are in the permitting stage that are at that time unknown to the Board,’’ he acknowledged that the Imperial Project was the only project specifically named as a basis for the emergency. Parrish, Tr. 506:14-507:12, citing State Mining and Geology Board, Executive Officer’s Report re Emergency Backfilling Regulation, p. 4 (Dec. 12, 2002) [Ex. 267].

¹⁷³⁰ Parrish, Tr. 594:12-595:6.

¹⁷³¹ See supra ¶ 744.

¹⁷³² See supra ¶ 745.

¹⁷³³ See supra ¶ 747.

¹⁷³⁴ Claimant’s Letter to the Tribunal, pp. 7-8 (Sept. 3, 2008).

¹⁷³⁵ Norwest Rejoinder Report (Mar. 2007), ¶ 14.

¹⁷³⁶ Leshendok, Mining Operations Expert for Claimant, Tr. 477:11-478:19.

¹⁷³⁷ See supra ¶ 790.

¹⁷³⁸ Claimant’s Letter to the Tribunal, p. 7 (Sept. 3, 2008).

¹⁷³⁹ Tribunal Letter to the Parties (Oct. 9, 2008).

¹⁷⁴⁰ Claimant’s Letter to the Tribunal (Oct. 15, 2008).

¹⁷⁴¹ Claimant’s Memorial, ¶ 570; Respondent’s Counter-Memorial, at 263.