Summary

SEPARATE STATEMENT OF DEAN RONALD A. CASS

I. INTRODUCTION

1. I join the Award of the Tribunal ("Award") in all respects except as indicated in this statement. I do not recount matters of fact or arguments of the Parties addressed in the Award except as essential to points of disagreement with the Award.

2. I generally concur with the Tribunal's conclusions on attribution and State responsibility, with one exception discussed below.

3. I also concur in the Tribunal's conclusion that Canada has not violated its obligation under NAFTA Article 1105 to provide a minimum standard of treatment to investors of other NAFTA Parties and investments of other NAFTA Parties in Canada.

4. I dissent, however, from parts of the Tribunal's conclusions respecting Articles 1108(7) and 1102 and from parts of the Tribunal's discussion of the standards used to address potential violations of these Articles and evaluation of some of the evidence presented in respect of these Articles during the course of this arbitration.

5. Although I would have reached different results on aspects of the merits indicated above-- and therefore different outcomes on the award of damages and allocation of costs between the Parties--I concur in the allocation of costs based on the conclusions reached by the Tribunal.

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V. CONCLUSION

310. Because I conclude that the Respondent cannot avail itself of exceptions for much of the set of impugned measures that otherwise might be excepted as subsidies or grants, I reaffirm my conclusion that the Respondent did violate its obligations under NAFTA Article 1102(3) and, in my judgment, should be required to compensate the Claimant for that violation. Given the opposite conclusion in the Tribunal's Award, however, I will not address issues of causation and damages.

311. Apart from the matters addressed above, I join the Tribunal's Award.