S. D. Myers Inc. v. Government of Canada

Abstract

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