Resolute Forest Products Inc v Canada, Decision on jurisdiction and admissibility, PCA Case No 2016-13, IIC 1319 (2018), 30th January 2018
Whether the limitation period under the North American Free Trade Agreement (‘NAFTA’) commenced upon promulgation of the legislation giving rise to the substantive claims.
Whether the words ‘relating to’ in the scope and coverage provisions of Article 1101(1) of NAFTA require a legally significant or merely causal connection between impugned measures and an investor or its investment.
Whether the scope of the national treatment obligation in Article 1102(3) of NAFTA, insofar as it concerns measures taken by a state or province of a Contracting Party, is confined to treatment afforded to investors within the jurisdiction of that state or province.
Whether on the facts as pleaded Canada’s impugned conduct was incapable of constituting a breach of NAFTA‘s expropriation provisions, and the Claimant’s expropriation claims were thus inadmissible.
Whether the Tribunal lacked jurisdiction insofar as the Claimant‘s expropriation claim encompassed ‘taxation measures‘, and such measures were required under NAFTA to be referred to the appropriate tax authorities prior to submitting its claims to NAFTA arbitration.