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

Arbitration — NAFTA Chapter 11 — Procedure — UNCITRAL arbitration — Due process — Discovery — Claim of Crown privilege

Treaties — NAFTA — Investment protection — Discrimination — NAFTA Article 1102 — Fair and equitable treatment of investment — Article 1105 — Requirement of transparency — Performance requirements — Article 1106 — Environmental protection — Whether compatible with NAFTA principles

Environment — Hazardous waste — Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 1989 — NAFTA — Balance between environmental protection and free and open trade

Expropriation — Definition — NAFTA Article 1110 — Conduct tantamount to expropriation — Distinction between expropriation and regulation

State responsibility — Federal States — Responsibility for acts of State and local government — International Law Commission Draft Articles on State Responsibility

Municipal law — Judicial review of NAFTA award in Canadian courts — Canada making application to Federal Court of Canada — Canada seeking to set aside First Partial Award

Damages — Appropriate primary measure of compensation — Scope of recovery — Review of principles concerning assessment of compensation — Appreciation of evidence — Interpretation of applicable law — Quantification of compensation — Value of lost and delayed net income streams — Methodology of quantification — Interest

Costs — Arbitration costs — Costs of legal representation and assistance — Applicable rules — Article 38 of UNCITRAL Arbitration Rules — Article 40(1) and (2) of UNCITRAL Arbitration Rules — Success of parties in principal phases of arbitration — Apportionment — Circumstances of case — International practice — Interest

Interest — On Award on Damages — On Award on Costs — Rate of interest — Currency of account in which award of compensation made — Date from which interest payable

Arbitration — Arbitration tribunal — Tribunal constituted under North American Free Trade Agreement (NAFTA) Chapter 11 — UNCITRAL Arbitration Rules — Arbitral awards in S. D. Myers Inc. v. Government of Canada — First Partial Award on Liability — Second Partial Award on Damages — Final Award on Costs — Canada liable for breach of NAFTA obligations — Respondent awarded damages and costs — Canada applying to set aside NAFTA Chapter 11 arbitration awards

Municipal law — Application for judicial review of NAFTA Chapter 11 arbitration awards — Court’s jurisdiction for judicial review — Article 34 of Commercial Arbitration Code 1985 — Grounds for judicial review — Whether arbitral awards dealing with dispute not contemplated by NAFTA Chapter 11 — Whether arbitral awards exceeding scope of arbitration agreement in Part B of Chapter 11 — Whether arbitral awards contravening public policy of Canada — Principle of non-judicial intervention in an arbitral award within jurisdiction of Tribunal

Treaties — NAFTA — Chapter 11 — Interpretation and application — Objectives of NAFTA — Purposive interpretation — Article 2.01 of NAFTA — Vienna Convention on the Law of Treaties, 1969, Article 31 — Principles of international law — Application of NAFTA — NAFTA Chapter 11 and Chapter 12 rights and obligations — Whether mutually exclusive

Jurisdiction — ICSID Arbitration Rules, Rule 39 — UK Arbitration Act 1996, section 39 — Whether Tribunal has jurisdiction to award provisional measures

Provisional measures — Preservation of rights — “Conservatory measures” — Distinction between protection of rights and enforcement of rights — Balance of convenience — Urgent need for relief

Interpretation — Power Purchase Agreement — Conditions precedent — Government approval of the Agreement — Certification of compliance of Independent Engineer — Agreement on the Reference Tariff — Whether conditions precedent — Addendum No. 1 — Reference to “underlying assumptions” where assumptions not stated — Whether Addendum void for uncertainty

Interpretation — Implied terms — Business efficacy — Reasonableness and prudence in procurement of contracts — Termination — Breach of material obligations — Election, waiver and estoppel — Whether party estopped from relying on assertion of breach

Procedure — Ancillary claim — ICSID Arbitration Rules, Rule 40 — Allegations of bribery and conspiracy — Insufficient evidence to support

Municipal law — Incorporation of bilateral investment treaty and ICSID Convention into municipal law — Relationship between unincorporated international law rights and a valid and binding contractual choice of forum clause

Interpretation — ICSID Convention and bilateral investment treaty — Interpretation of “investment” — Strict construction — Whether contract constituted an investment — Money must be laid out and property acquired to constitute an investment

Jurisdiction — Waiver — Whether prior conduct by Claimant demonstrated waiver of any rights to initiate ICSID arbitration — Filing of substantive counter-claim in domestic arbitration

Jurisdiction — Estoppel by conduct — Issue estoppel — Whether prior conduct estopped Claimant from utilizing any rights to initiate ICSID arbitration — Whether foreign proceedings accepting binding validity of contractual forum selection clause gave rise to issue estoppel or res judicata

Jurisdiction — Equity — Whether Claimant approached ICSID with clean hands — Concealment of material facts

Procedure — Restraint of party to initiate or continue with ICSID arbitration

Procedure — Stay of arbitration proceedings pending determination of appeal

Arbitration — ICSID Convention, Article 41 — Duty of tribunal to judge its own competence

Provisional measures — ICSID Convention — Article 47– Right to access international adjudication — Whether right can be constrained by decision of national court

Procedure — Disqualification challenge to arbitration tribunal member — ICSID Convention, Article 57– ICSID Arbitration Rules, Rule 9(4)

Arbitrators — Composition of arbitration tribunal — Disqualification challenge to member — Impending publication by member on issues raised in claim — Continuing retainer of member’s law firm by United Mexican States — Appointment of member’s law firm in unrelated NAFTA case in which counsel for Respondent was appointed President of Tribunal — No facts to lead to reasonable inference that member will favour Respondent on basis of an understanding between member and counsel for Respondent — Challenge rejected

Interpretation — ICSID Convention, Article 25(1) — Interpretation of “investment” — Distinguishable from an ordinary commercial transaction

Treaties — Bilateral investment treaty — Investment broadly defined under treaty — Whether contract involved a “claim for money” — Whether contract in the nature of a public law concession

Jurisdiction — Characterization of claims — Degree of scrutiny in jurisdictional phase of Claimant’s claims — Claims relating to breach of contract and breach of treaty

Jurisdiction — Forum selection clause — Contractual arbitration clause covering all disputes arising from the contract — Relation to bilateral investment treaty and ICSID arbitration — Whether claims relating to breach of contract and breach of treaty are distinct — Whether contractual arbitration clause includes jurisdiction over treaty claims — Whether ICSID has exclusive jurisdiction over breach of treaty claims — Whether ICSID has concurrent jurisdiction over breach of contract claims

Treaties — Bilateral investment treaty — Interpretation of Article 11 of Pakistan — Switzerland BIT — Whether elevating alleged contractual breaches into treaty violations — Consequences of such an interpretation — Whether clear evidence existed of an intention to produce such consequences

Jurisdiction — Estoppel — Absence of a “fork-in-the-road” provision — Whether the Claimant had made similar claims in another forum — Whether the Claimant had held out that it would not make similar claims

Jurisdiction — Waiver — Submission of claims to another forum — Whether submission was reserved — Delay in raising possibility of ICSID arbitration

Jurisdiction — Lis pendens — Whether causes of action identical

Jurisdiction — Requirement to consult under bilateral investment treaty — Whether a condition precedent to jurisdiction

Jurisdiction — Terms of contract — Whether tribunal can decide factual issues with respect to the contract which is subject to another body’s jurisdiction — Relationship between contractual claims and treaty claims — Distinct nature of international law standards

Provisional measures — Standard of jurisdiction required — Prima facie standard

Provisional measures — Application for discovery of evidence — Requirement of specificity

Provisional measures — Purpose to safeguard the interests of the parties — Whether provisional measures are appropriate where loss could be compensated by monetary damages

Jurisdiction — Privity — Whether mutuality of consent existed — Whether treaty in force at time of claim

Jurisdiction — Exhaustion of local and contractual remedies — Differences between international commercial arbitration under treaty and local actions under municipal law — Whether any treaty requirement to exhaust other remedies existed

Interpretation — ASEAN Investment Agreement, 1987 — Interpretation of “investment” — Whether there was a direct inward investment from another Member State — Whether the investing company was effectively managed from the State of incorporation — Presumption against loss of treaty protection — Whether investment was approved in writing and registered

Interpretation — ASEAN Framework Agreement, 1998 — Interpretation of “ASEAN investment” — Relation to the 1987 Agreement — Whether intended to amend the earlier treaty or operate cumulatively — Whether concepts of investment were distinct — Relevance of State practice in ASEAN — Object and purpose of treaty

Procedure — Supplementation and rectification — ICSID Convention, Article 49(2) — ICSID Arbitration Rules, Rule 49

Procedure — Rectification — Clerical, arithmetical or similar error accessory to the merits

Annulment — Grounds for annulment of award by national court — Article 34 of UNCITRAL Model Law

Jurisdiction — Review of award — Jurisdiction to apply provisions not raised during arbitral proceedings — NAFTA Article 2105

Procedure — Disclosure of confidential information — Adverse inference from failure to provide information — Article 34 of UNCITRAL Model Law — NAFTA Article 2105

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

Arbitration — Review of award — Scope of review — Deference to arbitral award — International commercial arbitrators — Findings of fact — Review of findings of fact — Article 34(2) and (3) of UNCITRAL Model Law — ICSID Article 53

Arbitration — Review of award — Scope of review — Breach of public policy — Article 34(2)(b)(ii) of UNCITRAL Model Law

Interpretation — Agreement of 1997 between the Swiss Confederation and the Republic of the Philippines on the Promotion and Reciprocal Protection of Investments (BIT) — Article II — Investment “in the territory” of a Contracting Party — Whether a contract for the provision of services performed mostly outside the territory of the host State constitutes an investment in its territory — SGS made an investment “in the territory” of the Philippines by providing, through an office in the Philippines, a reliable inspection certificate for customs purposes

Interpretation — BIT — Article X(2) — Obligation imposed by “umbrella clause” in respect of contractual obligations — Obligation on Philippines to pay monies owing pursuant to contract with SGS once amounts are determined

Jurisdiction — BIT — Article VIII(2) — Settlement of disputes — Whether ICSID Tribunal has jurisdiction with respect to contractual claims which do not involve a breach of substantive provisions of the BIT — Jurisdiction upheld

Jurisdiction — Exclusive jurisdiction clause — CISS Agreement, Article 12 — Whether exclusive jurisdiction clause overridden by BIT or ICSID Convention — Exclusive jurisdiction clause binding on parties — Essentially contractual claim — Proceedings stayed pending determination of amount payable under terms of CISS Agreement

Expropriation — BIT — Article VI — Whether refusal to pay monies owing amounts to expropriation of property — Mere non-payment of invoices where amount owing is in dispute does not amount to expropriation under terms of BIT

Procedure — ICSID Arbitration Rules, Article 19 — Stay of proceedings — Exclusive jurisdiction clause binding on parties and applicable to claim — Proceedings stayed pending determination of amount payable