Summary

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Case Report (free download)

Case Report by Giacomo Gasparotti, Editor Ignacio Torterola

Summary

Resolute Forest Products Inc. ('Claimant' or 'Resolute') commenced arbitral proceedings against the Government of Canada ('Respondent') pursuant to Chapter Eleven of the North American Free Trade Agreement ('NAFTA') alleging the violation of NAFTA Articles 1110 (Expropriation and Compensation), 1105 (Minimum Standard of Treatment) and 1102 (National Treatment). The dispute arose over the closure of a paper mill operated by Claimant in Québec following certain measures adopted by the Governments of Nova Scotia and Canada. According to Claimant, such measures granted competitive advantages to another paper mill (located in Nova Scotia) and discriminated against Claimant. By decision of 30 January 2018, the Tribunal partially rejected the objections on jurisdiction and admissibility raised by Respondent.

Main issues

whether the burden of proof with respect to Articles 1116(2) and 1117(2) of NAFTA falls on claimant or respondent; conditions for triggering the time limits under Articles 1116(2) and 1117(2) of NAFTA (in particular, on the actual or constructive knowledge of the investor's loss or damage); interpretation of the 'relating to' requirement under Article 1101 of NAFTA; scope of the national treatment obligation under Article 1102(3) of NAFTA (in particular, whether it is applicable to out-of-province investors); jurisdiction under the Oil Platforms test in the context of NAFTA Chapter Eleven Proceedings; scope of the exception for taxation measures under Article 2103(1) of NAFTA.

Resolute Forest Products Inc. v the Government of Canada (PCA Case No. 2016-13) - Decision on Jurisdiction and Admissibility - 30 January 2018

Case report provided by International Arbitration Case Law (IACL)

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