Awards and Decisions
Claim against Venezuela dismissed; State acted legitimately in response to contractual violations
Vannessa Ventures Ltd. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)04/6
Damon Vis-Dunbar
A claim by Vannessa Ventures against Venezuela has been rejected on its merits, with the tribunal concluding in January 16, 2013 decision that Venezuela had responded properly to contractual violations. The Canadian company had sought over $1 billion in damages, arguing that its newly acquired stake in a Venezuelan mining operation was expropriated.
Background
Vannessa acquired its share in the mining project from another Canadian firm, Placer Dome, for a nominal fee of $50. Earlier, Placer Dome had entered into a joint venture with Corporación Venezolana de Guayana (CVG), a state agency. Under a shareholders agreement, Placer Dome and CVG formed a company called MINCA for the exploration and extraction of gold from the Las Cristinas mine.
Shortly after the mine was inaugurated in 1999, Placer Dome sought to suspend the project on the basis that it was economically unfeasible at a time of low gold prices. CVG agreed to a temporary suspension while a search was conducted for a new investor. That search proved difficult, however, and the parties failed to secure a willing investor.
With time running out on the temporary suspension of the project, Placer Dome entered into negotiations with Vannessa Ventures, a Vancouver-based company. CVG was not consulted on those negotiations, and it was not until after a deal had been struck that CVG was informed.
The agreement with Vanessa granted Placer Dome a share of the revenues should Vannessa exploit Las Cristinas. Notably, it also promised Placer Dome a share of any damages that may be awarded should Vannessa sue Venezuela for breach of contract.
CVG viewed the deal as “unpleasant and insincere,” and citing a number of contractual violations, moved to rescind the work contract and concessions attached to the Cristinas mine. After a set of legal proceedings in Venezuelan courts, Vannessa lodged a claim at ICSID for breaches of the Canada-Venezuela BIT in 2004.
Jurisdiction
The majority of the tribunal accepted jurisdiction, while one unnamed member declined. In declining jurisdiction, the unnamed arbitrator concluded that Vannessa’s investment had not been made in “good faith,” as required by Venezuelan law. However, in the majority’s view the issue of good faith was better dealt with in the merits stage of the proceedings.
Despite the differences of opinion over jurisdiction, all three members of the tribunal signed on to the final award. The dissenting arbitrator explained that if jurisdiction existed, then the claim should fail for the reasons described by the tribunal in the merits stage.
Expropriation and FET
Turning to the merits, the tribunal considered Vannessa’s claim that Venezuela had breached the BIT’s provisions on expropriation and fair and equitable treatment.
Vannessa argued that contractual rights could be considered expropriated when “the State has gone beyond its role as a mere party to the contract and relied on its superior governmental power.” However, tribunal added that “in order to amount to an expropriation under international law, it is necessary that the conduct of the State should go beyond that which an ordinary contracting party could adopt.”
Turning to the facts of this case, the tribunal concluded that CVG has responded legitimately to contractual breaches. The tribunal emphasised that Placer Dome was required to cooperate with CVG in selecting a new investor, but instead the firm “engaged in secret negotiations and share transfers with Vannessa, only to ‘inform’ CVG after the fact …”
The tribunal emphasised that CVG had carefully selected Placer Dome for its expertise and resources. In contrast, Vannessa lacked experience, and failed to put in place a plan for developing the Las Cristinas mine.
The tribunal also had little difficulty in dismissing claims that Venezuela had breached the BITs provisions on ‘fair and equitable treatment’ and ‘full protection and security.’ These standards have been interpreted in different ways, noted the tribunal, but they have not been formulated in in terms that would support Vannessa’s claim.
Costs
The tribunal ruled that each party should bear its own legal costs, and share the arbitration fees, noting that Vannessa had succeeded on jurisdiction while failing on the merits.
The parties spent considerable, albeit considerably different, sums on their legal fees—more than $20 million for Venezuela, and less than half of that by Vannessa. The tribunal commented that the expense is “regrettable,” for what should have been “an efficient and reasonable expeditious procedure.”
The arbitrators in the case are Vaughan Lowe (president), Charles N. Bower (claimant’s nominee), and Brigitte Stern (respondent’s nominee).
The award is available here: http://italaw.com/sites/default/files/case-documents/italaw1250.pdf
Tribunal accepts jurisdiction in claim by Spanish investors over investment in Argentine airlines
Teinver S.A., Transportes de Cercanías S.A. and Autobuses Urbanos del Sur S.A. v. The Argentine Republic, ICSID Case No. ARB/09/1, Decision on Jurisdiction
Larisa Babiy
In a decision rendered on December 21, 2012, an ICSID tribunal gave the green light to hear a case brought by Spanish claimants against Argentina. The tribunal’s decision, however, was not unanimous and Argentina’s nominee, Kamal Hossain, accompanied the award with his separate opinion.
The claimants, acting under the Spain-Argentina BIT, alleged that Argentina expropriated their investment in two local airlines. In particular, the investors denounced various disagreements with the Republic, starting in 2004 or earlier, including disputes on the imposition of airfare caps, which culminated in the 2008 nationalization of the airlines. According to the claimants, Argentina’s conduct amounted both to a “formal” and to a “creeping” expropriation.
Argentina objected to the tribunal’s jurisdiction on several grounds. First, it maintained that the claimants failed to meet the pre-arbitration requirements set forth in the BIT. Second, it objected that the claimants lacked legal standing in the dispute. Third, it claimed that the tribunal lacked jurisdiction over certain claimants’ allegations since the conduct invoked was not attributable to the Republic. Finally, Argentina stated that the investment at stake was not an investment protected under the BIT because it was tainted by illegality.
Parties clash over pre-arbitration requirements and MFN clause.
The first of Argentina’s objections regarded the claimants’ failure to fulfill the procedural requirements set forth in Article X of the BIT. In particular, Argentina asserted that the investors neglected the obligation to give a formal notice of the existence of a dispute under the BIT to the competent Argentine authorities. Moreover, Argentina submitted that none of the documents provided by the claimants proved that they undertook amicable negotiations for six months, as mandated by the BIT. Finally, Argentina argued that the investors disregarded the requirement to submit the dispute to local courts for 18-months before commencing the arbitration.
Conversely, the claimants maintained that they complied with all pre-arbitration requirements and that, in any event, any negotiation or local court litigation would have been futile at this stage of the proceedings. Moreover, the investors invoked the most favored nation (MFN) clause of the BIT to circumvent such procedural requirements.
The tribunal sided with the claimants. It first held that the ordinary meaning of Article X did not suggest any obligation upon the investor to formally notify the host state of the existence of a dispute under the BIT. The tribunal then looked into the jurisprudence of the International Court of Justice (ICJ) to determine when exactly the dispute had arisen between the parties and recalled that “for a dispute to exist, it must have crystallized in an actual disagreement”.
While it was clear that the dispute over the airfare caps arose at least 6 months before the filing of the arbitration, the same was less clear with regard to the disagreement on the expropriation of the claimants’ shares in the airlines. The tribunal, however, considered that the two disagreements were “sufficiently related” and thus, the consultations conducted with regard to the first disagreement were enough to satisfy the negotiation requirement under the BIT.
With regard to the local courts requirement, the claimants pointed at an expropriation lawsuit initiated by Argentina before national courts. The tribunal noted that the BIT allowed “either party” to initiate local court proceedings for the purpose of Article X. Looking again into the ICJ jurisprudence, it stated that it was enough for the local court proceedings to have centered on the “essence” of the BIT claim. Therefore, the tribunal concluded that the local courts requirement had been fulfilled.
Although the tribunal already found that all pre-arbitration requirements had been fulfilled, it decided to address the claimants’ controversial argument on the MFN clause. The investors claimed that this provision allowed them to rely on the Australia-Argentina BIT, which contained no pre-arbitration requirements. The tribunal found that the broad language of the MFN clause and the absence of any limitation as to its scope allowed the claimants to invoke the dispute resolution provision contained in the Australia-Argentina BIT.
BIT deemed to cover derivative and indirect claims.
Argentina argued that the claimants lacked legal standing because they only had indirect shareholdings in the airlines. In fact, they held their shares through a subsidiary, Air Comet S.A. The tribunal, however, dismissed Argentina’s argument, finding that the broad language of the BIT (which refers to investments as “any kind of asset”) “implicitly permits the kinds of claims that Claimants have advanced” and “suggests that shares held through subsidiaries” is not excluded from the coverage of the BIT.
Third-party funding and reorganization proceedings
Argentina further objected to the claimants’ legal standing, pointing to their recent reorganization proceedings in Spain and at the existence of a third-party funder. The tribunal, however, stressed that international case law consistently found that jurisdiction shall be assessed at the date the case is filed. Since all the events cited by Argentina post-dated the filing of the case, they were irrelevant for the tribunal’s jurisdiction.
In addressing Argentina’s last objections, the tribunal decided that those relating to the attribution of certain acts to Argentina were too fact-intensive to be decided at the jurisdictional stage. Finally, the tribunal dismissed Argentina’s argument on the illegality of claimant’s investment, since none of Argentina’s allegations referred to illegalities in “entering” into the investment.
The separate opinion
Argentina’s nominee, Kamal Hossain, first criticized the majority decision to take a stand on the claimants’ invocation of the MFN clause. He stated that since the jurisdictional issues could have been resolved by simply relying on an express provision, Article X of the BIT, a further ruling on the MFN was unjustified. All the more so, since the interpretation and application of this clause is subject to ongoing controversy.
Dr. Hossain then expressed his reservation on the legal analysis of the MFN clause conducted by his co-arbitrators, quoting extensively from recent investment law publications and from Prof. Brigitte Stern’s dissenting opinion in the Impregilo v. Argentina case.
Dr. Hossain also disagreed with the majority finding that indirect shareholdings constituted a protected investment under the BIT. He considered that on a plain reading of the BIT “shares held in a company means shares directly held, unless indirectly held shares are expressly included.” To state otherwise would widen the scope of the BIT “without limit”.
The arbitrators in the case are Thomas Buergenthal (President), Henri Alvarez (claimants’ nominee) and Kamal Hossain (Argentina’s nominee).
The decision on jurisdiction is available here: http://www.italaw.com/sites/default/files/case-documents/italaw1090.pdf
Dr. Hossain’s separate opinion is available here: http://www.italaw.com/sites/default/files/case-documents/italaw1092_0.pdf
US investor wins ICSID claim against Ecuador on grounds of expropriation
Burlington Resource Inc. v. Republic of Ecuador, ICSID Case No. ARB/08/5
Yalan Liu
In a December 14, 2012, decision on liability, an ICSID tribunal ruled that Ecuador expropriated a US oil and gas company’s investment in violation of the US-Ecuador bilateral investment treaty (BIT). The quantum of damage was left for future decision.
Background
Burlington Oriente, a subsidiary of the claimant Burlington Resource Inc. (Burlington), entered into Production Sharing Contracts (PSCs) with Ecuador to explore and exploit oil reserves in several Blocks in Ecuador. Under these agreements, the contractor assumed the entire risk of exploitation in exchange for a share of the oil produced.
As international oil prices soared in 2002, Ecuador attempted to renegotiate the terms of PSCs with Burlington. When those renegotiations failed, Ecuador adopted a number of measures to “restore the economic equilibrium” of the PSCs. Ecuador first imposed a windfall tax on Burlington’s excess profits. When Burlington refused to pay the tax, Ecuador initiated proceedings to seize and auction Burlington’s share of oil production so as to collect the overdue payment.
Burlington subsequently suspended operations on the grounds that the investment had become unprofitable. In response, Ecuador took the possession of Burlington’s Blocks and eventually terminated the PSCs.
Jurisdiction declined over the umbrella clause claims
In an earlier decision on jurisdiction, the tribunal ruled that it had jurisdiction over the expropriation claim, but lacked jurisdiction over claims of fair and equitable treatment, full protection and security, and arbitrary impairment. However, the claimant’s claim related to the BIT’s umbrella clause—in which Burlington argued that Ecuador’s alleged breaches of the PSCs and the Ecuadorian law also amounted to a treaty violation—was left to be decided in the merits phase.
Due to the fact that Burlington’s subsidiary was the signatory to the PSCs rather than Burlington itself, Ecuador argued there was no privity of contract between itself and Burlington. As a result, Ecuador insisted that Burlington could not rely on the umbrella clause to enforce contractual rights that did not belong to it.
In deciding whose right was correlated to the obligation under the umbrella clause, the tribunal resorted to the law governing the PSCs (in this case Ecuadorian law) which stipulates that a non-signatory parent of a contracting party is not allowed to directly enforce its subsidiary’s rights. The majority also noted that the majority of ICSID case law requires privity between the investor and the host state. The majority therefore decided that Burlington could not rely on the umbrella clause to enforce its subsidiary’s rights under the PSCs, and as such jurisdiction over Burlington’s umbrella clause claim in relation to the PSCs was declined.
However, Prof. Orrego Vicuña (claimant’s nominee) dissented in this regard. He agreed that privity was widely accepted in domestic contract law; however, here he viewed the decisive issue as whose rights were protected under treaty. He emphasised that the US-Ecuador BIT expressly protected both direct and indirect investments, and therefore the “obligations” referred to by the umbrella clause also covered indirect investments.
With respect to Burlington’s allegation that Ecuador’s failure to observe its obligation under Ecuadorian law amounted to a treaty violation via the umbrella clause, the majority found that Ecuadorian law merely reiterated Ecuador’s contractual obligations under the PSCs rather than providing independent obligations.
In his dissenting opinion, Prof. Orrego Vicuña asserted that Ecuador’s obligation under the Ecuadorian law was specific enough to be regarded as separate from Ecuador’s obligation under the PSCs.
The object of expropriation
Burlington alleged the expropriated investment was the contract rights under the PSCs, as it possessed these rights “through its ownership of Burlington Oriente.” Ecuador did not disagree that this was the object of expropriation under dispute, and also noted that “the investment Burlington alleges is precisely the value of those contract rights.”
In the tribunal’s view, however, the claimant could not claim expropriation of “discrete parts of the investment,” but rather the analysis must focus on “the investment as a whole.”
The tribunal explained that the “whole investment” consisted of the rights of its subsidiary under the PSCs, the shares in its subsidiary, the production facilities, other tangible property, the monetary and asset contributions made to carry out operations, and the physical possession of the Blocks.
The majority decides the windfall tax did not amount to expropriation
Burlington argued that several measures, both individually and in the aggregate, amounted to expropriation. This included Ecuador’s imposition of the windfall profits tax without, as it argued was contractually required, “absorbing” the impact of the tax increase so as to stabilise the economic equilibrium of the project; the proceedings to seize and auction Burlington’s share of oil production; the takeover of its Blocks; and eventually the termination of the PSCs.
The tribunal decided to deal with the claims by first analyzing each of the challenged measures separately, and in the event of no expropriation being found, it would go on to examine the cumulative effect of those measures.
To ascertain expropriation, the tribunal applied both the ‘effect test’ and the police powers doctrine. In terms of the effect test, the tribunal required permanent and substantial deprivation of the investment in order to amount to an expropriation. The tribunal also considered if the measures could be justified under the police power doctrine (i.e. as a legitimate use of governmental authority to restrict private rights for the public good).
The tribunal first considered if the windfall tax amounted to an expropriation. Here it found that the participation formulas in the PSCs to allocate the oil production were not linked to oil price, and as such the increase in oil prices could not be considered as a disturbance to the “economy” of the PSCs. The tribunal also noted that the PSCs contained mandatory tax absorption clauses; this required that, in the event of tax modification, Ecuador was obliged to take measures to compensate Burlington for the resulting impact on the “economy” of its investment. Due to the fact that Ecuador failed to do so, the tribunal decided that the imposition of the windfall profits tax in conjunction with Ecuador’s failure to absorb the effect thereafter breached the PSCs.
Nevertheless, the majority considered that the windfall tax, while breaching the PSCs, did not amount to an expropriation because it did not make Burlington’s investment “unprofitable and worthless.”
The proceedings to seize and auction Burlington’s share of oil production shared the same fate, in that the ‘effect’ of these measures was not deemed grave enough to amount to expropriation.
However, the tribunal viewed Ecuador’s move to take possession of Burlington’s Blocks differently. Ecuador contended that this measure was a legitimate response to avoid the significant economic risk arising from the envisaged suspension of operations by Burlington. However, the tribunal dismissed this argument on the grounds that the takeover did not comply with Ecuadorian law and the risk was not significant enough. Turning to the effect test, the tribunal considered that the takeover resulted in Burlington losing “effective use and control” over its investment without compensation. Therefore, the tribunal concluded the takeover of Burlington’s Blocks constituted an unlawful expropriation.
In light of this conclusion, the majority considered it irrelevant to consider the termination of the PSCs within its expropriation analysis, because it merely formalized a prevailing state of affairs, i.e. the takeover of Burlington’s Blocks.
Owing to one of the measures being confirmed as expropriation, the tribunal also found it unnecessary to examine the cumulative effect of all measures complained of by Burlington.
In his dissenting opinion, Prof. Orrego Vicuña argued that the other measures—not only the takeover of Burlington’s Blocks—also constituted expropriation. He held that substantial deprivation was a matter of reasonableness rather than a mathematical exercise. He asserted that the windfall tax was beyond any standard of reasonableness and therefore reached the level of substantial deprivation.
In respect of the termination of the PSCs, he considered that it constituted an aggravating factor to the unlawfulness of expropriation. Overall, he was of the opinion that all the challenged measures were interlinked and amounted to expropriation as a whole. He argued that it was a shortcoming that the majority isolated these measures and therefore narrowed down the expropriatory effects by finding only one measure amounted to expropriation.
The tribunal comprised Prof. Gabrielle Kaufmann-Kohler (president), Prof. Francisco Orrego Vicuña (claimant’s nominee), and Prof. Brigitte Stern (respondent’s nominee).
The award was available here: http://italaw.com/sites/default/files/casedocuments/italaw1094_0.pdf
Prof. Orrego Vicuña’s dissenting opinion is available here: http://www.italaw.com/sites/default/files/case-documents/italaw1095_0.pdf
Canada loses NAFTA arbitration over R&D performance requirements
Mobil Investments Canada Inc. and Murphy Oil Corporation v. Canada, ICSID Case No. ARB(AF)/07/4
Damon Vis-Dunbar
In a decision signed in May 2012, and published six months later, the majority of a 3-person ICSID tribunal has found Canada in breach of the North American Free Trade Agreement (NAFTA) for imposing prohibited performance requirements on two U.S. oil companies.
The claim by Mobile Investments Canada and Murphy Oil Corporation against the government Canada stems from requirements on research and development expenditure (R&D) in the province of Newfoundland and Labrador.
Background
The claimants have stakes in two oil fields in the North Atlantic. For both projects, the oil companies have been obligated to submit “benefits plans,” which include planned expenditure on R&D and education and training. A board is responsible with approving those plans.
The dispute hinges on a new set of guidelines introduced in 2004. In contrast to earlier guidelines, the 2004 rules required a fixed amount of expenditure on R&D, using average expenditures by industry as a benchmark. The 2004 guidelines were introduced in response to declining expenditure in R&D, and were recommended by a public commissioner.
The 2004 guidelines were challenged in Canadian courts, but the court found them to be consistent with the board’s responsibility to monitor R&D expenditures. The claimants sent a request to ICSID to arbitrate the dispute in late 2007.
Minimum standard of treatment
The claimants asserted breaches of two NAFTA articles: Article 1105, which accords investors the minimum standard of treatment under customary international law; and Article 1106, which deals with prohibited performance requirements.
With respect to Article 1105, the claimants argued that Canada had frustrated their “legitimate expectations” by changing the regulatory framework governing R&D expenditures.
Canada countered that it had not failed to provide a stable legal environment, and even if it had, the minimum standard of treatment under customary international law does not obligate governments to ensure such stability.
After reviewing NAFTA case-law, the tribunal concluded that NAFTA governments could change the rules governing an investment “to a high or modest extent.” To breach to Article 1105, changes to the regulatory environment would need to be “arbitrary or grossly unfair or discriminatory.”
Turning to this case, a central question for the tribunal was whether federal or provincial governments “made a series of express promises—in the form of representations—which they then broke.” On the facts, the tribunal failed to see any evidence of a promise that regulations governing R&D would not change. The tribunal therefore, found no breach of Article 1105.
Performance requirements
The claimants also argued that Canada had breached Article 1106, which restricts governments from imposing various performance requirements. This includes a prohibition on requirements “to purchase, use or accord a preference to goods produced or services provided in its territory, or to purchase goods or services from persons in its territory.”
In the claimants view, the 2004 guidelines required them to purchase goods and services in the Province of Newfoundland, and thus violated the restrictions set out in Article 1106.
Canada responded that R&D was “outside the scope” of Article 1106. Canada later added that even if R&D was considered a “service” under Article 1106, the guidelines did not require those services to be local.
The tribunal rejected Canada’s arguments. It decided the research, development and education could rightly be considered a “service” for the purposes of Article 1106. The tribunal also considered that those services would largely need to be purchased in the province—despite Canada’s efforts to highlight potential exceptions.
Next, the tribunal considered whether the 2004 guidelines should be considered exempt from Canada’s obligations under Article 1106, due to the country’s list of reservations under Article 1108.
Canada’s exceptions to Article 1108
NAFTA’s Article 1108 allows the NAFTA parties to maintain, and in certain circumstances amend, measures that do not conform to their NAFTA obligations. Therefore, if a NAFTA government imposed performance requirements on investors prior to NAFTA, these could be maintained post-NAFTA if listed as a reservation. In addition to the non-conforming measure, an annex to NAFTA states that “any subordinate measure” is also considered exempt.
In this case, Canada listed the federal statute (the Federal Accord Act) in its reservations, and explained that the accord requires benefit plans to ensure that expenditures on research, development and training are provided in the province.
A key point of contention, however, was whether the 2004 guidelines could be considered a “subordinate measure” that was covered by Canada’s reservation.
In coming to a decision on that question, the tribunal considered several questions: whether subordinate measures must be introduced prior to the commencement of NAFTA, whether they were “under the authority” of the reserved measure (i.e. the Federal Accord Act), and whether they were “consistent” with the reserved measure.
On the first question, the tribunal concluded that subordinate measures introduced after the commencement of NAFTA formed part of the reserved measure. This view was supported by submissions from Canada, the United States and Mexico.
On the second question, the tribunal determined that whether a subordinate measure is “under the authority” of the reserved measure is a matter of national law. Here the majority found little difficulty in concluding that the 2004 guidelines were under the authority of the Federal Accord Act.
On the third question, the tribunal decided that the issue of “consistency” needs to be viewed through both national and international law. It noted that a measure could provide different and additional burdens on an investor, and still be considered consistent. However, it concluded that the 2004 guidelines passed an appropriate threshold.
Key to that conclusion was the fact that the majority required consistency with both the principal reserved measure—the Federal Accords Act—and other subordinate measures, such as earlier benefit plans and board decisions. The principal reserved measure, together with its subordinate measures formed the “legal framework” against which consistency was to be judged. On this point, Philiippe Sands issued a dissenting opinion.
Judged from that perspective, the majority found that the 2004 guidelines inconsistent with other subordinate measures. The majority noted that the board had earlier recognized that it was difficult to provide fixed plans for expenditure on R&D over the life of a project, and therefore the earlier benefits plans had not been so stringent. By later introducing mandatory spending at prescribed levels, the 2004 guidelines introduced a “fundamentally different approach to compliance,” stated the majority.
In the majority’s view “the effect of the 2004 Guidelines bespeaks a set of requirements to purchase, use or accord a preference to local goods and services that have undergone a substantial expansion as compared with the earlier legal framework.” The 2004 guidelines could therefore not be considered “consistent” with Canada’s NAFTA reservations.
Philippe Sands’ dissent
In a dissenting opinion, Professor Sands rejected the majority’s decision that the 2004 guidelines must be consistent with the Federal Accord Act and subordinate measures. He countered that a new subordinate measure – such as the 2004 guidelines – must be consistent and under the authority of the measure excluded in NAFTA – in this case the Federal Accord Act.
In Professor Sands’ opinion, the majority’s decision to include subsequent subordinate measures was inconsistent with the ordinary meaning of Article 1108. It also led to practical problems by creating “a continually evolving standard, as new subsidiary measures are adopted.”
Professor Sands stated that over time this will make it difficult for investors to determine the benchmark for ‘authority’ and ‘consistency,’ with implications for transparency given that new subordinate are not added to a country’s NAFTA list of non-conforming measures.
Damages
Having diverged with Professor Sands in finding that Canada had breached its obligations under NAFTA, the majority went on to consider damages.
The parties disagreed on whether damages could be awarded for future losses. Canada argued that only actual losses could be compensated, while the claimants argued that their obligation to make future R&D payments is a “loss incurred.”
The majority concluded that it had jurisdiction to decide on future damages. The next question, therefore, was how to assess damages for future losses. Here the majority noted that Canada had not yet demanded payment under the 2004 guidelines, and as such the claimants had not yet incurred actual losses. As such, the claimants were given 60 days to provide further evidence of actual damages.
With respect to the future payments under the 2004 guidelines, the majority found those were too uncertain. The claimants would need to need to initiate a new NAFTA claim to seek compensation for those losses, ruled the majority.
The tribunal decided that the allocation of costs of the arbitration and legal fees would be determined in the final award, to be issued after the claimants have been given 60 days to submit further evidence on damages.
Arbitrators in the case are Hans van Houtte (president), Merit Janow (claimants’ nominee) and Philippe Sands (Canada’s nominee).
The decision on liability and on principles of quantum is available here: http://italaw.com/sites/default/files/case-documents/italaw1145.pdf
The partial dissenting opinion by Professor Sands is available here: http://italaw.com/sites/default/files/case-documents/italaw1146_0.pdf