SEPARATE OPINION OF J. CHRISTOPHER THOMAS KC
1. I concur generally with the Award, but on the key jurisdictional question of whether the Respondent adopted or maintained measures "relating to" the Claimant's covered investment, I found this to be a difficult question that did not yield an easy answer and I have reservations about the approach taken in the Award. In the end, I arrived at the same result, but for different reasons. I also wish to comment on the Minimum Standard of Treatment. Accordingly, I append this separate opinion.
2. It would be remiss of me not to record at the outset that my colleagues have been unfailingly courteous and willing to engage in extensive discussion of the issues raised in this important case. I wish to express my gratitude to the President for his admirably clear drafting and his management of the arbitration and the deliberations, as well as my regard for Mr. Garibaldi's constructive efforts in bringing this case to a conclusion.
3. Article 1101 of the Treaty is entitled "Scope and Coverage." It specifies that measures "adopted and maintained" by a Party "relating to" certain subjects, are governed by the substantive obligations set forth in the Chapter's Section A, "Investment," and can give rise to an investor-State claim under the Chapter's Section B, "Investor-State Dispute Settlement."
4. This type of provision was first employed by the North American Free Trade Agreement ("NAFTA") and it has been replicated in many subsequent treaties. NAFTA tribunals have described it as the "gateway" through which a claimant must pass in order to seize a tribunal with jurisdiction to hear a claimed breach of the protections specified in the investment chapter.1 The meaning of the phrase "relating to" is thus central to a tribunal's determination of its jurisdiction.
5. The Treaty contains eight Scope and Coverage provisions, worded in different ways. A review of those provisions reveals that the intention of the Treaty's drafters was to specify different forms of connection between measures and the subjects addressed in the various chapters. Reference to the Scope and Coverage clauses used in other chapters thus assists in ascertaining the meaning of the clause used in Chapter Eleven.
6. It is important to the proper operation of Chapter Eleven that its Scope and Coverage provision not be interpreted in a way that relaxes the "relating to" requirement, because that would result in an unjustified broadening of the jurisdictional gateway. This is not the Tribunal's intention, but I think it right to comment on this issue.
The gravamen of the case
The key jurisdictional objection
The Governing Law
The Scope and Coverage issue
The meaning of "relating to"
The basis for passing though the jurisdictional gateway in the present case
The Minimum Standard of Treatment
74. Finally, I wish to comment on the Minimum Standard of Treatment ("MST"). I agree with the Tribunal's description of the approach required by the Treaty when it comes to establishing a rule of customary international law. I note that the disputing parties agreed that the Waste Management II award authoritatively described the MST.64 It should be noted however that being a NAFTA tribunal, the Waste Management II tribunal was not expressly bound to apply the kind of mandatory methodology set forth in Annex 11-A of the Treaty and was in fact seeking to express an "emerging"
general "standard of review" based upon its review of certain prior NAFTA cases.65 Prior judicial and arbitral decisions can assist in discerning the existence of a customary international law rule, but caution should be exercised to ensure that the court or tribunal, as the case may be, sought to ascertain State practice and opinio juris prior to declaring itself on the existence of an alleged rule.
75. I note in addition that the United States asserted in its Submission before this Tribunal that currently "customary international law has crystallized to establish a minimum standard of treatment in only a few areas."66 (Emphasis added.) Examples of such rules are then set out at paragraph 19 of the U.S.
provide `fair and equitable treatment,' which includes `the obligation not to deny justice in criminal, civil, or administrative adjudicatory proceedings in accordance with the principle of due process embodied in the principal legal systems of the world.'" To this the United States adds a handful of other crystallized customary international rules in para. 19: "To the extent that the customary international law minimum standard of treatment incorporated in Article 11.5 prohibits discrimination, it does so only in the context of other established customary international law rules, such as prohibitions against discriminatory takings, access to judicial remedies or treatment by the courts, or the obligation of States to provide full protection and security and to compensate aliens and nationals on an equal basis in times of violence, insurrection, conflict or strife."
(Footnote references omitted.)