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At Global Affairs Canada in 2019

Published online by Cambridge University Press:  19 October 2020

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 57 , November 2020 , pp. 472 - 499
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© The Canadian Yearbook of International Law/Annuaire canadien de droit international 2020

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References

1 Editor’s note: for the final text of the revised general comment, see Committee on the Rights of the Child, General Comment no 24 (2019) on Children’s Rights in the Child Justice System, UN Doc CRC/C/GC/24 (18 September 2019).

1 Article 3.7 of the DSU, under the heading “General Provisions” begins: “Before bringing a case, a Member shall exercise its judgement as to whether action under these procedures would be fruitful.”

2 The ordinary meaning of “negligible” is “so small or unimportant as to be not worth considering.” Oxford English Dictionary (Oxford: Oxford University Press).

3 Canada’s first written submission, 208–15.

4 Panel Reports, Canada – Wheat Exports and Grain Imports, para. 6.190, fn. 281; China – Publications and Audiovisual Products, 7.1537; and India – Solar Cells, para. 7.97, fn. 262.

5 Panel Report, Canada – Wheat Exports and Grain Imports, para. 6.190, fn. 281.

6 Panel Report, China – Publications and Audiovisual Products, para. 7.1537.

7 Panel Report, India – Solar Cells, para. 7.97, fn 262.

8 Appellate Body Report, EC – Asbestos, para. 98.

9 Ibid, para. 99.

1 Brazil’s first written submission, para. 1075.

2 Panel Report, EC and certain member States – Large Civil Aircraft (Article 21.5 – US), para. 6.1443 (quoting Panel Report, US – Upland Cotton (Article 21.5 – Brazil), paras. 10.104 and 10.248). See also Appellate Body Report, EC and certain member States – Large Civil Aircraft, para. 712; Panel Reports, US – Upland Cotton (Article 21.5 – Brazil), 10.18; EC and Certain Member States – Large Civil Aircraft, paras. 7.1694 and 7.1714; US – Large Civil Aircraft (2nd complaint), para. 7.1679.

3 Panel Report, EC and Certain Member States – Large Civil Aircraft (Article 21.5 – United States), para. 6.1443. (emphasis original) (fns. omitted).

4 Panel Report, EC and Certain Member States – Large Civil Aircraft, fn. 5140 to para. 7.1694 (emphases in the original). See also Panel Report, US – Upland Cotton (Article 21.5 – Brazil), para. 10.18 (While the SCM Agreement does not contain a specific provision on the period to be considered … the use of the present tense logically implies the need to make a determination with respect to the present period).

5 Panel Report, US – Upland Cotton (Article 21.5 – Brazil), para. 10.18.

6 See Panel Report, EC and Certain Member States – Large Civil Aircraft (Article 21.5 – US), para. 6.1443 (quoting Panel Report, US – Upland Cotton (Article 21.5 – Brazil), paras. 10.104 and 10.248). See also Appellate Body Report, EC and Certain Member States – Large Civil Aircraft, para. 712; Panel Reports, US – Upland Cotton (Article 21.5 – Brazil), para. 10.18; EC and Certain Member States – Large Civil Aircraft, paras. 7.1694 and 7.1714; US – Large Civil Aircraft (2nd complaint), para. 7.1679.

7 Panel Report, US – Large Civil Aircraft (2nd complaint), para. 7.1679. In this regard, the Appellate Body has held that, “[i]n carrying out its mandate under Article 11, ‘a panel has the duty to examine and consider all the evidence before it, not just the evidence submitted by one or the other party, and to evaluate the relevance and probative force of each piece thereof’.” See Appellate Body Report, US – Continued Zeroing, para. 331 (quoting Appellate Body Report, Korea – Dairy, para. 137).

8 Brazil’s first written submission, para. 1075.

9 Brazil’s first written submission, paras. 1072, 1074.

10 Brazil’s first written submission, paras. 1072, 1074.

1 Panel Report, US – Anti-Dumping and Countervailing Duties (China), para. 11.59.

2 Panel Report, US – Anti-Dumping and Countervailing Duties (China), para. 11.53.

3 See e.g. United States’ opening statement at the second substantive meeting of the Panel, para. 42.

4 United States’ second written submission, para. 325.

5 Commerce, Second Remand Determination, Lumber IV Investigation, Exhibit CAN-299, pp. 10–15. See also NAFTA Panel, “Lumber IV Investigation, Decision on Remand Determination,” Exhibit CAN-300, pp. 17–19.

1 Canada’s third party submissions in United Arab Emirates – Goods, Services and IP Rights (DS526); Saudi Arabia – Measures Concerning the Protection of Intellectual Property Rights (DS567).

2 Canada’s third party submissions in United Arab Emirates – Goods, Services and IP Rights (DS526); Saudi Arabia – Measures Concerning the Protection of Intellectual Property Rights (DS567); Russia – Pigs (EU) (Article 21.5 – EU) (DS475).

1 NAFTA Article 1101(1) (Scope and Coverage) states: “This Chapter applies to measures adopted or maintained by a Party relating to (a) investors of another Party, (b) investments of investors of another party in the territory of the Party; and (c) with respect to Articles 1106 and 1114, all investments in the territory of the Party.”

2 RL-032, International Law Commission, Draft Articles on the Responsibility of States for Internationally Wrongful Act, with Commentaries (2001), pp. 34–35; RL-069, Gustav F.W. Hamester GmbH & Co KG v Republic of Ghana (ICSID Case No. ARB/07/24), Award, 18 June 2010 (“Hamester – Award”), ¶¶ 143, 147, 173; RL-112, CC/Devas (Mauritius) Ltd., Devas Employees Mauritius Private Limited and Telecom Devas Mauritius Limited v India (PCA Case No. 2013-09) Award on Jurisdiction and Merits, 25 July 2016 (“CC/Devas – Award”), ¶ 283; RL113, Electrabel S.A. v Republic of Hungary (ICSID Case No. ARB/07/19) Decision on Jurisdiction, Applicable Law and Liability, 30 November 2012 (“Electrabel – Decision”), 7.58, 7.61.

3 RL-032, International Law Commission, Draft Articles on the Responsibility of States for Internationally Wrongful Act, with Commentaries (2001), pp. 34–35; RL-069, Hamester – Award, ¶¶ 143, 147, 173; RL-112, CC/Devas – Award, ¶ 283; RL-113, Electrabel – Decision, ¶¶ 7.58, 7.61.

4 RL-032, International Law Commission, Draft Articles on the Responsibility of States for Internationally Wrongful Act, with Commentaries (2001), pp. 47–49.

5 CL-111, James Crawford, State Responsibility: The General Part (Cambridge University Press 2013), p. 141.

6 CL-111, James Crawford, State Responsibility: The General Part (Cambridge University Press 2013), p. 144 (emphasis added).

7 RL-032, International Law Commission, Draft Articles on the Responsibility of States for Internationally Wrongful Act, with Commentaries (2001), p. 48 (emphasis added).

8 RL-114, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Judgment, 27 June 1986, (“Nicaragua v United States – Judgment”), ¶ 115.

9 RL-115, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007, ¶ 400.

10 CL-105, Jan de Nul N.V. and Dredging International N.V. v Arab Republic of Egypt (ICSID Case No. ARB/04/13), Award (“Jan de Nul – Award”), ¶ 173; RL-069, Hamester – Award, ¶ 179; RL-116, White Industries Australia Limited v Republic of India (UNCITRAL), Final Award, 30 November 2011 (“White – Final Award”), ¶ 8.1.18; RL-113, Electrabel – Decision, ¶ 7.69; RL-117, Gavrilovic v. Croatia (ICSID Case No. ARB/12/39), Award, 25 July 2018 (“Gavrilovic – Award”), ¶ 828.

11 CL-105, Jan de Nul – Award, ¶ 157; RL-069, Hamester – Award, ¶ 172.

12 RL-069, Hamester – Award, ¶ 172; RL-118, Tulip Real Estate and Development Netherlands B.V. v. Republic of Turkey (ICSID Case No. ARB/11/28) Award, 10 March 2014, (“Tulip – Award”), ¶¶ 304–305; RL-120, Almas v. Poland, (UNCITRAL) Award, 27 June 2016, ¶ 269; RL-119, Teinver v. Argentina (ICSID Case No. ARB/09/01) Award, 21 July 2017, ¶¶ 722–724; RL-117, Gavrilovic – Award, ¶¶ 828–829.

13 RL-069, Hamester – Award, ¶¶ 198, 200, 203.

14 RL-121, Bernhard von Pezold and Others v Republic of Zimbabwe (ICSID Case No. ARB/10/15), Award, 28 July 2015 (“Pezold – Award”), ¶ 448.

15 CL-105, Jan de Nul – Award, ¶ 157.

16 Claimant’s Memorial, ¶¶ 177–178.

17 CL-112, Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. v Islamic Republic of Pakistan (ICSID Case No. ARB/03/29), Award, 27 August 2009, (“Bayindir – Award”), ¶ 130.

18 CL-112, Bayindir – Award, ¶ 9 (The NHA is a “public corporation” established by a statute and “controlled by the Government of Pakistan”).

19 CL-112, Bayindir – Award, ¶¶ 9 and 125.

20 Claimant’s Memorial, ¶¶ 34, 128, 206, 217, 236. See R-404, Dawn, “Islamabad: Progress on M-1, M-3 reviewed” (29 October 2011); R-405, Los Angeles Times, “Military Inc. Dominates Life in Pakistan” (7 October 2002).

21 CL-105, Jan de Nul – Award, ¶ 173. See also RL-120, Almas v Poland, (UNCITRAL), Award, 27 June 2016, ¶¶ 268–269. Similarly, the White Industries v India tribunal held that the claimant had to prove India had both “general control” over the State-entity “as well as specific control over the particular acts in question” in order for ILA Article 8 to apply. The Tribunal in Almås v Poland endorsed the same. Similarly, the White Industries v. India tribunal held that the claimant had to prove India had both “general control” over the State-entity “as well as specific control over the particular acts in question” in order for ILC Article 8 to apply (RL-116, White – Final Award, ¶ 8.1.18). The Tribunal in Almås v Poland endorsed the same.

22 RL-121, Pezold – Award, ¶ 448.

23 RL-121, Pezold – Award, ¶ 448 (emphasis added).

24 RL-113, Electrabel – Decision, ¶ 7.95.

25 RL-113, Electrabel – Decision, ¶ 7.107.

26 RL-113, Electrabel – Decision, ¶ 7.111.

27 RL-113, Electrabel – Decision, ¶ 7.113.

1 Professor of Law at Temple University School of Law and a Non-Resident Scholar at the Carnegie Endowment for International Peace.

2 University Lecturer in International Law and a Fellow and Director of Studies in Law at King’s College, University of Cambridge.

3 Associate Professor of International Law at the Graduate Institute of International and Development Studies in Geneva.