Arbitration — North American Free Trade Agreement, Chapter 11 — UNCITRAL arbitration — Place of arbitration — Jurisdiction — Procedure — Investment disputes — Definition — Whether measure relating to trade in goods capable of being measure relating to an investment — Procedural requirements for bringing claim — Whether going to jurisdiction — Award of costs

Treaties — North American Free Trade Agreement — Aims and objectives — Interpretation — Requirement of national treatment — Minimum standard of treatment

Arbitration — Arbitration tribunal — UNCITRAL — North American Free Trade Agreement, Chapter 11 — Jurisdiction and powers — Procedure and evidence — Award of costs

Treaties — Interpretation — Principles of interpretation — Vienna Convention on the Law of Treaties, 1969, Articles 31 to 33 — Application to North American Free Trade Agreement

Arbitration — North American Free Trade Agreement, Chapter 11 — UNCITRAL arbitration — Investor commencing arbitration proceedings under NAFTA, Chapter 11 — Whether Canada violating Articles 1102, 1105, 1106 and 1110 of NAFTA

Arbitration — North American Free Trade Agreement, Chapter 11 — UNCITRAL arbitration — Jurisdiction — Investment disputes — Definition — Whether measure relating to trade in goods capable of being measure relating to an investment — Procedural requirements for bringing claim — Waiver of right to institute or continue national proceedings — Whether going to jurisdiction

Arbitration — North American Free Trade Agreement, Chapter 11 — UNCITRAL arbitration — Procedure and evidence — Claim of Crown privilege — Whether available before UNCITRAL arbitral tribunal — Whether State required to identify documents and produce reasoned submissions regarding their confidentiality — Whether UNCITRAL Tribunal empowered to compel production of documents — Scope of solicitor–client privilege — Claim — Amendment to claim

Treaties — Trade — Investment — North American Free Trade Agreement — Aims and objectives — Interpretation — Relationship with general international law — Requirement of national treatment — Minimum standard of treatment — Performance requirements

Expropriation — Definition — North American Free Trade Agreement, Article 1110– Measures tantamount to expropriation — Meaning — Whether extending beyond concept of expropriation in general international law — Creeping expropriation

Arbitration — Arbitration tribunal — UNCITRAL — North American Free Trade Agreement, Chapter 11 — Jurisdiction and powers — Procedure and evidence

State responsibility — Treatment of aliens — Investor protection — North American Free Trade Agreement, Chapter 11 — National treatment — Meaning of “like circumstances” — Minimum standard of treatment — Fair and equitable treatment — Full protection and security — Use of terms in bilateral investment treaties — Expropriation

Treaties — Interpretation — Principles of interpretation — Vienna Convention on the Law of Treaties, 1969, Articles 31 to 33 — Application to North American Free Trade Agreement

Treaties — Interpretation — North American Free Trade Agreement, Chapter 11 — Article 1105 — NAFTA Free Trade Commission interpreting Article 1105 — Effect — Whether valid exercise of power — Whether binding — Whether operating retroactively — Proper interpretation of Article 1105 — Canada failing to produce documents relevant to negotiating history when requested — Effect on Tribunal’s work and Chapter 11 process — Distinction between international law and customary international law — Nature and content of customary international law with respect to Article 1105 — Whether Investor entitled to damages under Article 1105

Damages — Heads of damages — Value of management time devoted to claim — Alleged losses flowing from shutdown of mills — Out of pocket expenses relating to Verification Review Episode — Out of pocket expenses directly incurred by Investor with respect to Interim Hearing — Whether recoverable

Costs — Final phase of arbitration — Circumstances of case — Whether reasonable to apportion costs — Necessity to consider variety of aspects to reach reasonable result — Canada failing on important legal aspects of case — Difficulties caused by Canada’s failure to produce documents — Articles 38 and 40of UNCITRAL Arbitration Rules

Interest — On Award on Damages — On Award on Costs — Rate of interest — Date from which interest payable

Jurisdiction – Bilateral investment treaty — Exchange of notes does not constitute the submission of a dispute to arbitration

Admissibility — Additional claims — ICSID Arbitration Rule 40 — Additional claims admissible in reply when no limitation as to reply’s contents

Foreign investment — Investment disputes — Egypt–Greece Bilateral Investment Treaty, Article 10.2 — Submission of dispute to either the competent national court or an international arbitration tribunal

Applicable law — Egypt–Greece Bilateral Investment Treaty, Article 11 — What constitutes agreement as to the rules of law within the meaning of ICSID Convention, Article 42(1) — Application of national law provisions limiting claims existing under a bilateral investment treaty

Foreign investment — Definition of investment — Egypt–Greece Bilateral Investment Treaty, Article 1 — Licence for importation and storage of goods — Lease of vessel by investor constitutes “investment”

Expropriation — Egypt–Greece Bilateral Investment Treaty, Article 4– Prohibition of imports — Seizure of ship without appropriate notification

Interpretation — Fair and equitable treatment — Egypt–Greece Bilateral Investment Treaty, Article 2.2 — Failure to apply appropriate notification procedures

Expropriation — Compensation for — Egypt–Greece Bilateral Investment Treaty, Article 4– Compensation shall amount to market value of investment

Damages — Egypt–Greece Bilateral Investment Treaty, Article 4– Claim for damages must relate to expropriation measure — Article 4does not cover losses due to commercial risk or State procedures not covered by Article 4

Damages — Mitigation of — Duty to mitigate as part of general principles of international law — ICSID Convention, Article 42

Compensation — Compound interest — Integral part of compensation due for expropriation — Standard of international law in expropriation cases

Procedure — Place of arbitration — UNCITRAL Notes on Organizing Arbitral Proceedings — Suitability of law on arbitral procedure and enforcement — Availability and cost of support services — Location of subject-matter of dispute — Neutrality

Procedure — Amicus curiae petitions — UNCITRAL Arbitration Rules, Article 15(1) — Tribunal’s power to accept — UNCITRAL Arbitration Rules, Article 25(6) — Tribunal’s discretion to deal with submissions — UNCITRAL Arbitration Rules, Article 25(4) — Requirement for oral hearings to be held in camera — Confidentiality — Amicus curiae submissions permitted but petitioners not to be present at in camera oral hearings — Disclosure of arbitration materials to petitioners a matter for disputing parties not Tribunal

Interpretation — North American Free Trade Agreement, Chapter 11 — Vienna Convention on the Law of Treaties, 1969, Article 31(1) — No rule of restrictive interpretation

Procedure — Distinction between challenges to jurisdiction and challenges to admissibility — UNCITRAL Arbitration Rules, Article 21(1) — Tribunal’s power to rule on objections to jurisdiction and admissibility — No power to rule on admissibility of claim

Procedure — Challenges to jurisdiction — Standard of proof required of Claimant on allegations of fact and law at preliminary stage — Credible allegations of factual and legal basis of claim sufficient

Interpretation — NAFTA, Article 1101(1) — “Relating to” — Legally significant connection between disputed measure and investor required to establish claim

Jurisdiction — Claims brought by investor — NAFTA Article 1116(1)(b) — Limitations on investor—State disputes — NAFTA Article 1502(3)(a) — Relationship between NAFTA Chapter 11 and Chapter 15 — Section A of NAFTA Chapter 11 — Claims concerning actions of monopolies

Jurisdiction — Minimum standard of treatment — NAFTA Article 1105 — Obligation to accord fair and equitable treatment — Customary international law — No rule of customary international law prohibiting anticompetitive behaviour — Uncompetitive and unfair conduct of monopoly — Government’s failure to supervise or exercise control over monopoly — Interpretation of NAFTA Free Trade Commission

Jurisdiction — National treatment — “Cultural industries” exemption — “Subsidies” exemption — Insufficient evidence to decide on jurisdiction

Jurisdiction — Minimum requirements of pleading — Essential elements of claim — Whether Amended Statement of Claim adequately giving notice to Canada of essential elements of claim — Whether enabling Canada to formulate statement of defence

Nationality — Standing — Nationality and permanent residence — Definition of nationals — NAFTA Article 201

Admissibility — Of claims — Time limitation for making claims — Meaning of “making a claim” — NAFTA Article 1117 — Receipt of claim by ICSID Secretary-General — Suspension of period of limitation — “Discouraging” a claim not a factor in suspension of period of limitation

Admissibility — Of claims — Ancillary and additional claims — NAFTA Article 1102 — NAFTA Article 1120(2) — Article 48 of the Additional Facility Arbitration Rules — Omission to rely on claim in notice of arbitration

Admissibility — Of claims — Claims pre-dating NAFTA’s entry into force — Course of action continuing after NAFTA’s entry into force

Expropriation — NAFTA Article 1110 — Expropriation through taxation — Tax rebates for export of cigarettes — “Creeping” expropriation — Governmental regulatory activities — Expropriation and regulation

Municipal law — Denial of justice — Access to domestic courts — NAFTA Article 1110

Nationality — National treatment — Non-discrimination — NAFTA Article 1102 — Like circumstances — Less favourable treatment of foreign investors

Interpretation — Interpretation and correction of award — Interpretation and supplementary decision

Interpretation — NAFTA Article 1101 — Measures adopted or maintained by a Party — Whether judicial acts included

Nationality — Whether continuous nationality of claimant required — Language of NAFTA not dispositive — Issue to be decided in accordance with applicable rules of international law — Continuous nationality to date of award required

Interpretation — NAFTA Article 1101 — Measures adopted or maintained by a Party — Whether State conduct inducing private settlement agreement included

Interpretation — NAFTA Article 1105 — Meaning of obligations to provide “fair and equitable treatment” and “full protection and security” — Whether free-standing obligations or obligations under customary international law — Whether bad faith and malicious intention required — Whether conduct of trial was so flawed that it constituted a manifest injustice and breach of minimum standards prescribed in NAFTA and international law — Gross failure of trial judge to afford due process breached minimum standards

Jurisdiction — Failure to exhaust domestic remedies — Distinguished from waiver of domestic proceedings — Requirement to exhaust local remedies applicable to NAFTA — Remedies available to Claimants not exhausted

Expropriation — NAFTA Article 1110 — Claimant must establish denial of justice under NAFTA Article 1105 — Claimant unable to establish breach of Article 1105

Interpretation — NAFTA Article 1102 — Discrimination against foreign investors — Example of “most favourable treatment accorded in like circumstances” required — No example available to Tribunal — Breach not demonstrated

Interpretation — Article 25(1) of the ICSID Convention — Interpretation of “investment” — Shares as an investment — Whether minority shareholders have a different standing and an independent claim from the corporation — Whether an investment must involve control or majority ownership

Jurisdiction — Legal dispute arising directly out of an investment — Whether claims relating to general emergency economic policies directly affect the investment

Jurisdiction — Domestic dispute settlement provisions in contract — Relation between contractual claims and treaty claims — Functions of different instruments — “Fork-in-the-road” provision — Whether domestic litigation involved the same dispute and the same parties

Jurisdiction — Sources of applicable law — Whether national law or international law applies — Parties’ choice of law — Article 42 of the ICSID Convention

State responsibility — Organ of State — Type of organ immaterial for attribution — Article 4 of International Law Commission’s Articles on State Responsibility, 2002

Admissibility — Nature and subject-matter of dispute — Separate disputes or single continuous dispute — Events occurring before and after Request for Arbitration not a determinant factor — Incidental or additional claims under Article 46 of the ICSID Convention