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At Global Affairs Canada in 2017

Published online by Cambridge University Press:  25 June 2018

ALAN H. KESSEL
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Canadian Practice in International Law / Pratique canadienne en matière de droit international
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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 55 , October 2018 , pp. 451 - 499
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Copyright © The Canadian Yearbook of International Law/Annuaire canadien de droit international 2018 

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References

1 UN Doc FCCC/APA/2016/L.4, para 18.

2 Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, GA Res 69/292, UN Doc A/RES/69/292 (2015).

3 [Draft Prepared by the Committee, UN Doc CAT/C/60/R.2 (2 February 2017)].

4 See below at paragraphs 26–27, for additional discussion of the “suspensive effect” of domestic remedies.

5 Aung v Canada, CAT Communication No 273/2005 (2006) at para 6.3; L.Z.B. v Canada, CAT Communication No 304/2006 (2007) at para 6.6.

6 Joint Observations of Canada, Denmark, the United Kingdom, and the United States of America of 31 March 2017 in relation to paragraph 19 and 20 of the draft General Comment.

7 See e.g. Nowak, Manfred & McArthur, Elizabeth, The United Nations Convention against Torture: A Commentary (Oxford: Oxford University Press, 2008)CrossRefGoogle Scholar at 200 (as illustrated by views of the Committee against Torture [that] “threats of torture by non-State actors without the consent or acquiescence of the government fall outside the scope of Article 3”).

8 [Draft General Comment No. 36: Article 6 Right to Life, draft prepared by Yuval Shany & Nigel Rodley, Rapporteurs, UN Doc CCPR/C/GC/R.36/Rev.2 (2 September 2015); revised by the Committee on First Reading, July 2017].

9 RA-118, Gaukrodger, D, Investment treaties as corporate law: Shareholder claims and issues of consistency. A preliminary framework for policy analysis, OECD Working Papers on International Investment, No 2013/3, OECD Investment Division (Gaukrodger 2013), 53.Google Scholar

10 R-584, Meditrust HealthCare Inc v Shoppers Drug Mart, 61 OR (3d) 786 (Ont Ct App 2002), para 12–14.

11 RA-110, Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (ICJ Reports 1970) Second Phase, Judgment, 5 February 1970 (“Barcelona Traction 1970”), para 38.

12 RA-110, Barcelona Traction 1970, para 46.

13 CA-282, Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) Judgment on Preliminary Objections, 24 May 2007, paras 61–64 (distinguishing between admissible claims based on direct rights as shareholder and inadmissible claims based on reflective loss); RA-114, Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (ICJ Reports 2010) Judgment, 30 November 2010 (“Diallo 2010”), para 105 (reaffirming the distinction).

14 RA-75, Loewen Group Inc. v. United States (ICSID Case No ARB(AF)/98/3) Award, 26 June 2003 (“Loewen — Award), para 160 (citing CA-105, Case Concerning Elettronica Sicula SpA (ELSI) (United States of America v. Italy) (ICJ Reports 1989), p. 42). See also RA-75, Loewen — Award, 26 June 2003, para 162: (“It would be strange indeed if sub silentio the international rule were to be swept away.”)

15 RA-125, Kinnear, M, Bjorklund, A and Hannaford, J, Investment Disputes under NAFTA: An Annotated Guide to NAFTA Chapter 11 (Kluwer, 2006), 1116-4–;1116–5.Google Scholar

16 RA-119, Gaukrodger, D, Investment Treaties and Shareholder Claims for Reflective Loss: Insights from Advanced Systems of Corporate Law, OECD Working Papers on International Investment, No. 2014/2, OECD Publishing (Gaukrodger, 2014), 23.Google Scholar

17 RA-47, NAFTA Article 1135(2) states in part: “where a claim is made under Article 1117(1): … an award of monetary damages and any applicable interest shall provide that the sum be paid to the enterprise.”

18 CA-125, World Trade Organization, United States – Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, 29 April 1996, 23.

19 RA-27, GAMI Investments Inc v United Mexican States (UNCITRAL) Final Award, 15 November 2004 (GAMI — Final Award), para 119.

20 RA-27, GAMI — Final Award, paras 116–21.

21 RA-118, Gaukrodger, 2013, 9: (“national courts have frequently underlined that the no reflective loss principle serves the societal interest in “judicial economy” by reducing the number of cases needed to address the harm.”)

22 RA-120 D. Gaukrodger, Chapter 8, The impact of investment treaties on companies, shareholders and creditors (OECD Business and Finance Outlook, 2016) p 235.

23 See, e.g., RA-117, GAMI Investments Inc v United Mexican States (UNCITRAL) Submission of the United States, 30 June 2003 (GAMI — Submission of the United States), para 17; RA-28, GAMI Investments Inc v United Mexican States (UNCITRAL) Mexico’s Statement of Defence, 24 November 2003 (GAMI — Statement of Defence), paras 166–67 (agreeing with and quoting US submission); R-585, Alford v Frontier Enterprises, Inc, 599 F 2d 483 (1st Cir 1979), 2: (“[the shareholder] is attempting to use the corporate form both as shield and sword at his will […T]he corporate form … effectively shielded [him] from liability”, but the shareholder contended that he “can disregard the corporate entity and recover damages for himself. Of course, this is impermissible.”)

24 RA-46, Mondev International Ltd v United States of America (ICSID Case No ARB(AF)/99/2) Award, 11 October 2002 (Mondev — Award), paras 84, 86.

25 RA-109, A Aust, Modern Treaty Law and Practice (Cambridge University Press, 2004), 191, 195.

26 RA-140, The North American Free Trade Agreement Implementation Act, United States Statement of Administrative Action, Chapter Eleven, November 1993, 146.

27 RA-46, Mondev — Award, para 86 (emphasis added).

28 Paragraph 15(a), including the chapeau, states: “Article VI of the GATT 1994, the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (“Anti-Dumping Agreement”) and the SCM Agreement shall apply in proceedings involving imports of Chinese origin into a WTO Member consistent with the following:

  1. (a)

    (a) In determining price comparability under Article VI of the GATT 1994 and the Anti-Dumping Agreement, the importing WTO Member shall use either Chinese prices or costs for the industry under investigation or a methodology that is not based on a strict comparison with domestic prices or costs in China based on the following rules:

    1. (i)

      (i) If the producers under investigation can clearly show that market economy conditions prevail in the industry producing the like product with regard to the manufacture, production and sale of that product, the importing WTO Member shall use Chinese prices or costs for the industry under investigation in determining price comparability;

    2. (ii)

      (ii) The importing WTO Member may use a methodology that is not based on a strict comparison with domestic prices or costs in China if the producers under investigation cannot clearly show that market economy conditions prevail in the industry producing the like product with regard to manufacture, production and sale of that product.”

29 Appellate Body Report, US — Anti-Dumping and Countervailing Duties (China), para. 344.

30 Convention on International Liability for Damage Caused by Space Objects, 29 March 1972, 961 UNTS 187 (entered into force 1 September 1972).

31 Application of the concept of the “launching State”, GA Res 59/115, UN Doc A/RES/59/115 (2005).

32 Recommendations on enhancing the practice of States and international intergovernmental organizations in registering space objects, GA Res 62/101, UN Doc A/RES/62/101 (2007).

33 Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, GA Res 1962/XVIII, UN Doc A/RES/18/1962 (1963).

34 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 27 January 1967, 610 UNTS 205 (entered into force 10 October 1967).

35 See Report of the International Law Commission, Sixty-ninth session (1 May-2 June and 3 July-4 August 2017), UN Doc A/72/10 (2017), ch VII at para 68–141.

36 Ibid at 180.

37 Ibid at 181.

38 State Immunity Act, RSC 1985, c S-18, s 3; Bouzari v Islamic Republic of Iran [2004] 71 OR (3d) 675 (CA) at para 42 [Bouzari].

39 SIA (ibid), s 5.

40 Ibid, s 6(a)–(b).

41 Ibid, s 6.1.

42 Ibid, s 18.

43 Kazemi Estate v Islamic Republic of Iran, 2014 SCC 62, [2014] 3 SCR 176 at para 93 [Kazemi].

44 Ibid.

45 Ibid at para 109.

46 R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3), [2000] 1 AC 147.

47 Bouzari, supra note 38 at para. 91.