Koch Industries, Inc. and Koch Supply & Trading, LP v Canada - ICSID Case No. ARB/20/52 - Award of the Tribunal - 13 March 2024
Country
Year
2023
Summary
Source: icsid.worldbank.org (Document, does not apply to summary and/or TDM IACL Case Report below).
Case Report (free download)
Case Report by Dr. Anqi Wang, Editor Ignacio Torterola
Summary
US conglomerate Koch industry and its Delaware-based energy trading subsidiary Koch Supply & Trading (KS&T) filed ICSID arbitration against Canadian government, invoking Chapter 11 of the North American Free Trade Agreement (NAFTA). The dispute arose from the latter's decision to cancel without compensation the "Cap and Trade Program" for greenhouse emissions in Ontario. ICSID tribunal decided that KS&T's emission allowance in the emission trading program does not constitute protected investment under NAFTA chapter 11. It also found that Koch industry does not have a qualifying investment under NAFTA. The tribunal rejected jurisdiction ratione materiae and dismissed the claimants' request for relief of over USD 30 million without considering the merits.
Main issues
Whether Koch industry and KS&T have qualifying investment in the sense of NAFTA Chapter 11. In particular: (1) whether the emission allowance held by KS&T in Ontario constitutes "property" under NAFTA article 1139(g), and (2) whether such emission allowance qualifies as "interest" under NAFTA article 1139(h).
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