Mesa Power Group, LLC v. Government of Canada

Abstract

Jurisdiction – Foreign investor – Investment – NAFTA, Article 1116 – Whether a foreign investor met the jurisdiction requirements set forth in NAFTA – Whether claims based on a causal link between the challenged measures and the investment were sufficient for a tribunal to have jurisdiction under NAFTA Article 1116

Jurisdiction – Consultation – NAFTA, Article 1118 – Whether a foreign investor could comply with NAFTA Article 1118’s consultation requirement without substantively engaging with the State – Whether the fact that a foreign investor sought consultations with a State was sufficient to meet NAFTA Article 1118’s consultation requirement

Jurisdiction – Cooling-off period – NAFTA, Article 1120 – Whether an investor was required to observe NAFTA Article 1120’s cooling-off period – Whether every event that gave rise to a claim must have occurred before the cooling-off period – Whether the investor must have suffered damage prior to the cooling-off period

Jurisdiction – Investment – Timing – NAFTA, Article 1101 – NAFTA, Article 1116 –– Whether a tribunal had jurisdiction over claims based on investments made after the relevant measure was implemented by the State – Whether the date of an investment’s incorporation was sufficient to determine when an investment was made

State responsibility – Attribution – State enterprise – NAFTA, Article 1503(2) – Interpretation – Whether an entity established by a State should be considered an organ of the State – Whether actions by a State enterprise could be attributed to a State

Most-favoured-nation treatment – National treatment – Interpretation – NAFTA, Article 1108 – Procurement – Whether a procurement process was exempt from a State’s most-favoured-nation treatment and national treatment obligations – Whether the procurement of energy constituted a procurement process

Minimum standard of treatment – NAFTA, Article 1105 – Interpretation – Policy – Transparency – Whether a State must afford investors the minimum standard of treatment pursuant to customary international law – Whether tribunals should examine the State’s underlying policy decision when examining a State’s compliance with the minimum standard of treatment – Whether transparency was part of the minimum standard of treatment

Costs – Legal costs – Whether a party should be held responsible for its opponent’s legal costs when their good faith claims were dismissed by the tribunal

Annulment – Applicable law – Whether a court considering the vacatur or confirmation of an award should apply the law of its jurisdiction or the law of the seat of the arbitration

Annulment – Municipal law – Misconduct affecting parties’ rights – Exceeded arbitral power – Manifest disregard of the law – Interpretation – Deference – Whether a tribunal’s allegedly erroneous factual findings or legal conclusions serve as grounds for vacating its award – Whether an award should be vacated on the ground that the tribunal misinterpreted the meaning of procurement – Whether an award should be vacated on the ground that the tribunal deferred to the State’s decision-making in its renewable energy policy