Pope and Talbot Inc. v. Government of Canada

Abstract

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