¹ The full report is available online: <https://www.international.gc.ca/gac-amc/publications/flight-vol-ps752/>.

¹ See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] ICJ Rep 226 at para 29; Gabčikovo-Nagymoros Project (Hungary/Slovakia), Judgment, [1997] ICJ Rep 7 at para 53.

² Pulp Mills on the River Uruguay (Argentina v Uruguay), [2010] ICJ Rep 14 [Pulp Mills].

³ Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica), [2015] ICJ Rep 665 [Costa Rica v Nicaragua].

⁴ Ibid at 706, para 104.

⁵ Pulp Mills, supra note 2 at 83, para 205.

⁶ Costa Rica v Nicaragua, supra note 3 at 707, para 104.

⁷ Published in Report of the International Law Commission on the Work of its Fifty-third Session, UN Doc A/56/10 (2001) at ch 5, section E, paras 97–98.

⁸ Lake Lanoux Arbitration (France v Spain), (1957) 12 RIAA 281, 24 ILR 101.

¹ RSC 1985, c E-19.

² The full report is available online: <https://www.international.gc.ca/trade-commerce/controls-controles/memo/annex-a-ksa.aspx?lang=eng>.

¹ 15 April 1994, 1869 UNTS 14 (entered into force 1 January 1995) [SCM Agreement].

² The full submission is available upon request to [email protected].

³ “access, n.” OED [Oxford English Dictionary] Online. Oxford University Press, Exhibit USA-29. See European Union’s response to advance Panel question No. 2, para 4; United States’ response to advance Panel question No. 2, para. 5. See also Canada’s response to advance Panel question No. 2, para. 2.

⁴ United States’ response to advance Panel question No. 2, paras. 5-7; United States’ responses to further Panel questions, paras. 2 and 3.

⁵ See Canada’s response to Panel question No. 2, paras. 5-8.Google Scholar

⁶ Panel Report, EC and certain member States — Large Civil Aircraft, para. 7.919.

⁷ United States’ response to advance Panel question No. 2, para. 8; United States’ responses to further Panel questions, para. 2.

⁸ See Canada’s response to advance Panel question No. 2, para. 11.

¹ Full submission available online: <https://pcacases.com/web/sendAttach/12692>.

² Resolute Forest Products Inc., v. Government of Canada (UNCITRAL) Submission of the United States of America, 14 June 2017, ¶¶ 15–17 (“United States First Article 1128 Submission”); Resolute Forest Products Inc., v. Government of Canada (UNCITRAL) Submission of Mexico Pursuant NAFTA Article 1128, 14 June 2017 (“Mexico First Article 1128 Submission”), ¶¶ 12–13.

³ Resolute Forest Products Inc., v. Government of Canada (UNCITRAL) Second Submission of the United States of America, 20 April 2020 (“United States Second Article 1128 Submission”), ¶¶ 4-6; Resolute Forest Products Inc., v. Government of Canada (UNCITRAL) Second Submission of the United Mexican States, 23 April 2020 (“Mexico Second Article 1128 Submission”), ¶¶ 3–9. See Resolute Forest Products Inc., v. Government of Canada (UNCITRAL) Canada’s Counter-Memorial on Merits and Damages, 17 April 2019 (“Canada’s Counter-Memorial”), ¶¶ 250–253; Resolute Forest Products Inc., v. Government of Canada (UNCITRAL) Canada’s Rejoinder Memorial on Merits and Damages, 4 March 2020 (“Canada’s Rejoinder”), ¶¶ 90–102.

⁴ See Canada’s Counter-Memorial, ¶ 250 and references cited therein; United States Second Article 1128 Submission, ¶ 5 and references cited therein.

⁵ See Canada’s Counter-Memorial, ¶¶ 250–251 and references cited therein; Canada’s Rejoinder Memorial, ¶ 99 and references cited therein.

⁶ Resolute Forest Products Inc., v. Government of Canada (UNCITRAL) Decision on Jurisdiction and Admissibility, 30 January 2018 (“Decision on Jurisdiction and Admissibility”), ¶ 290; United States Second Article 1128 Submission, ¶¶ 10–12; Mexico Second Article 1128 Submission, ¶¶ 3-9. Canada has advocated precisely that position: “It is untenable to argue that the NAFTA Parties intended for the treatment by one state or province would become the national standard for the entire country.” (Resolute Forest Products Inc., v. Government of Canada (UNCITRAL) Canada’s Reply Memorial on Jurisdiction, 29 March 2017, ¶ 161). In its Decision on Jurisdiction and Admissibility, the Tribunal also agreed with the Merrill & Ring tribunal’s conclusion that Article 1102(3) only applies to the same regulatory measures under the same jurisdictional authority (Decision on Jurisdiction and Admissibility, ¶ 290). Canada has argued the same. See Resolute Forest Products Inc., v. Government of Canada (UNCITRAL) Canada’s Memorial on Jurisdiction, 22 December 2016, ¶¶ 120–121; Canada’s Counter-Memorial, ¶ 268.

⁷ United States Second Article 1128 Submission, ¶¶ 20–24; Canada’s Counter-Memorial, ¶ 288; Canada’s Rejoinder Memorial, ¶¶ 73–75, 134–138.

⁸ United States Second Article 1128 Submission, ¶¶ 21–22.

⁹ United States Second Article 1128 Submission, ¶¶ 29–33; Canada’s Counter-Memorial, ¶¶ 325–338 and references cited therein; Canada’s Rejoinder Memorial, ¶¶ 208–211 and references cited therein.

¹⁰ NAFTA Articles 1116 and 1117.

¹¹ Resolute Forest Products Inc., v Government of Canada (UNCITRAL) Reply of the Government of Canada to the NAFTA Article 1128 Submissions of the Government of the United States and the United Mexican States, 12 July 2017, ¶¶ 4–8.

¹ Full submission available online: <http://icsidfiles.worldbank.org/icsid/ICSIDBLOBS/OnlineAwards/C8473/DS15633_En.pdf>.

² Article 1116(1) provides in full: “An investor of a Party may submit to arbitration under this Section a claim that another Party has breached an obligation under: (a) Section A or Article 1503(2) (State Enterprises), or (b) Article 1502(3)(a) (Monopolies and State Enterprises) where the monopoly has acted in a manner inconsistent with the Party’s obligations under Section A, and that the investor has incurred loss or damage by reason of, or arising out of, that breach.

³ Article 1117(1) provides in full: “An investor of a Party, on behalf of an enterprise of another Party that is a juridical person that the investor owns or controls directly or indirectly, may submit to arbitration under this Section a claim that the other Party has breached an obligation under: (a) Section A or Article 1503(2) (State Enterprises), or (b) Article 1502(3)(a) (Monopolies and State Enterprises) where the monopoly has acted in a manner inconsistent with the Party’s obligations under Section A, and that the enterprise has incurred loss or damage by reason of, or arising out of, that breach.”

⁴ RLA-026, Methanex Corporation v. United States of America (UNCITRAL) Partial Award, 7 August 2002, ¶ 106(i). See also RLA-027, Grand River — Award, ¶¶ 76–80; RLA-028, The Canadian Cattlemen for Fair Trade v. United States of America (UNCITRAL) Award on Jurisdiction, 28 January 2008, ¶¶ 118–128; RLA-029, Bayview — Award on Jurisdiction, ¶ 85.

⁵ See e.g., RLA-046, Apotex Holdings Inc. and Apotex Inc. v. United States of America (ICSID Case No. ARB(AF)/12/1) Award, 25 August 2014, ¶ 6.3 (“It is necessary to address [Article 1101(1)] within the context of NAFTA’s Chapter Eleven and the Claimants’ substantive claims in this arbitration. … Accordingly, the [challenged measure] (as adopted and maintained by the Respondent) must relate to the Claimants as investors or to their investments in the territory of the USA within the meaning of NAFTA Article 1101(1)”) and ¶¶ 6.22–6.24; RLA-033, Resolute — Jurisdictional Decision, ¶¶ 222 and 244 (under Article 1101(1) a measure must “have some specific impact on the claimant” or “directly address, target, implicate, or affect the Claimant”). See also RLA-047, Cargill, Incorporated v. United Mexican States (ICSID Case No. ARB(AF)/05/2) Award, 18 September 2009, ¶ 175.

⁶ Under Article 1139, “enterprise of a Party means an enterprise constituted or organized under the law of a Party, and a branch located in the territory of a Party and carrying out business activities there”, and “enterprise means an ‘enterprise’ as defined in Article 201 (Definitions of General Application), and a branch of an enterprise”.

⁷ RLA-020, Mesa — Award, ¶ 333 (“TTD and Arran were incorporated on 17 November 2009. North Bruce and Summerhill were incorporated on 6 April 2010. Hence, for the reasons set forth above, the Tribunal concludes that its jurisdiction is limited to claims based on measures which occurred after 17 November 2009 for TTD and Arran and after 6 April 2010 for North Bruce and Summerhill.” (footnotes omitted))

⁸ RLA-020, Mesa — Award, ¶ 330 (“It is obviously implied in the definition [of “investor of a Party” and “investment of an investor of a Party] quoted above that there must be a link between the investor that seeks to make an investment, and the investment that the investor seeks to make”).

⁹ RLA-020, Mesa — Award, ¶ 327.

¹⁰ RLA-020, Mesa — Award, ¶ 326.

¹¹ RLA-021, Gallo — Award, ¶ 325 (“… ownership or control must exist at the time the measure which allegedly violates the Treaty is adopted or maintained.”).

¹² RLA-021, Gallo — Award, ¶ 328.

¹³ RLA-022, B-Mex, LLC and Others v. United Mexican States (ICSID Case No. ARB(AF)/16/3) Partial Award, 19 July 2019, ¶ 145. The disputing parties also agreed that the claimants needed to establish ownership or control of the relevant enterprises at the time of the alleged breaches. Mexico further argued that ownership or control must also be shown at the time of the submission of the claim to arbitration, in addition to at the time of the alleged treaty breach. The tribunal agreed. RLA-022, B-Mex — Partial Award, ¶ 147.

¹⁴ RLA-048, Renée Rose Levy and Gremcitel S.A. v. Republic of Peru (ICSID Case No. ARB/11/7) Award, 9 January 2015 (“Renée Rose Levy — Award”), ¶ 146 (emphasis added).

¹⁵ RLA-048, Renée Rose Levy — Award, ¶ 147.

¹⁶ RLA-023, GEA Group Aktiengesellschaft v. Ukraine (ICSID Case No. ARB/08/16) Award, 31 March 2011 (“GEA Group — Award”), ¶¶ 33-40, 150, 172.

¹⁷ RLA-023, GEA Group — Award, ¶ 166.

¹⁸ RLA-023, GEA Group — Award, ¶ 170. In applying the governing principle quoted, the GEA Group tribunal found that it had jurisdiction over certain alleged breaches because they occurred after the claimant had made its investment in Ukraine. See e.g., ¶¶ 192-193, and 198.

¹⁹ RLA-023, GEA Group — Award, ¶ 170.

²⁰ RLA-049, Cementownia “Nowa Huta” S.A. v. Republic of Turkey (ICSID Case No. ARB(AF)/706/2) Award, 17 September 2009, ¶ 112.

²¹ RLA-050, Libananco Holdings Co. Limited v. Republic of Turkey (ICSID Case No. ARB/06/8) Award, 2 September 2011, ¶ 127 (“It is common ground between the Parties that the Tribunal’s jurisdiction over the merits depends on whether Libananco owned ÇEAŞ and Kepez shares at the time of the alleged expropriation (i.e. 12 June 2003).”)

¹ Full submission available online: <https://pcacases.com/web/sendAttach/22330>.

² Similarly, Article 1117(1) (Claim by an Investor of a Party on Behalf of an Enterprise) sets out the circumstances under which an investor of a Party may bring a claim on behalf of an enterprise of another Party that is a juridical person that the investor owns or controls directly or indirectly, alleging that another Party breached an obligation under Section A of NAFTA Chapter Eleven and that the enterprise has incurred loss or damage by reason of, or arising out of, that breach. …

³ RLA-001, Mesa — Award, ¶ 252.

⁴ Zachary Douglas states: “the timing of the investor’s acquisition of its investment determines the commencement of the substantive protection afforded by the investment treaty and hence the temporal scope for the tribunal’s adjudicative power over claims based upon an investment treaty obligation.” RLA-117, Zachary Douglas, The International Law of Investment Claims (New York: Cambridge University Press, 2009), ¶ 303; ¶ 631; and Rule 32. See also, RLA-137, Hanno Wehland, “The Transfer of Investments and Rights of Investors under International Investment Agreements — Some Unresolved Issues”, in Arbitration International, Volume 30, Issue 3, 1 September 2014, p. 568: (“Investors can only claim protection with regard to breaches taking place after they become protected …”); and RLA-138, Nelson Goh, “The Assignment of Investment Treaty Claims: Mapping the Principles”, in Thomas Schultz (ed), Journal of International Dispute Settlement, 2019, Volume 10, Issue 1, p. 35.

⁵ RLA-005, Phoenix Action — Award, ¶ 68 (emphasis added).

⁶ RLA-139, Cementownia “Nowa Huta” S.A. v. Republic of Turkey (ICSID Case No. ARB(AF)/06/2) Award, 17 September 2009, ¶ 112.

⁷ RLA-140, Renée Rose Levy and Gremcitel S.A. v. Republic of Peru (ICSID Case No. ARB/11/17) Award, 9 January 2015, ¶¶ 146-147 (emphasis added). See also, RLA-141, Philip Morris Asia Limited v. Commonwealth of Australia (UNCITRAL) Award on Jurisdiction and Admissibility, 17 December 2015, ¶ 529: (“whenever the cause of action is based on a treaty breach, the test for a ratione temporis objection is whether a claimant made a protected investment before the moment when the alleged breach occurred.”); RLA-142, Indian Metals & Ferro Alloys Ltd v. Republic of Indonesia (UNCITRAL) Award, 29 March 2019, ¶ 107; RLA-143, Libananco Holdings Co. Limited v. Republic of Turkey (ICSID Case No. ARB/06/8) Award, 2 September 2011, ¶¶ 121-128: (“In order to establish jurisdiction, the Claimant must prove that it owned ÇEAŞ and Kepez shares during the time at which it claims the acts constituting a violation of the ECT were committed by the Respondent”); RLA-144, Société Générale In respect of DR Energy Holdings Limited and Empresa Distribuidora de Electricidad del Este, S. A.v. The Dominican Republic (UNCITRAL) Award on Preliminary Objections to Jurisdiction, 19 September 2008, ¶¶ 106-107: (“the Tribunal lacks jurisdiction over acts and events that took place before the Claimant acquired the investment”); RLA-145, ST-AD GmbH v. Republic of Bulgaria (UNCITRAL) Award on Jurisdiction, 18 July 2013, ¶ 300: (“a tribunal has no jurisdiction ratione temporis to consider claims arising prior to the date of the alleged investment, since a BIT cannot be applied to acts committed by a State before the claimant invested in the host country. … According to the well-known principle of non-retroactivity of treaties in international law, a BIT cannot apply to the protection of an investor before the latter indeed became an investor under said BIT”).

⁸ RLA-001, Mesa — Award, ¶ 333: (“TTD and Arran were incorporated on 17 November 2009. North Bruce and Summerhill were incorporated on 6 April 2010. Hence, for the reasons set forth above, the Tribunal concludes that its jurisdiction is limited to claims based on measures which occurred after 17 November 2009 for TTD and Arran and after 6 April 2010 for North Bruce and Summerhill.”)

⁹ RLA-001, Mesa — Award, ¶¶ 325–327 (emphasis added).

¹⁰ RLA-001, Mesa — Award, ¶ 325 (emphasis added).

¹¹ Under international law, treaties do not apply retroactively unless stated otherwise. The ILC Articles on State Responsibility, Article 13 states: “[a]n act of a State does not constitute a breach of an international obligation unless the State is bound by the obligation in question at the time the act occurs.” (CLA-185, International Law Commission, Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001, Article 13). Similarly, the Vienna Convention on the Law of Treaties, Article 28 states: “[u]nless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party. (RLA-031, Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, 23 May 1969, Article 28).

¹² CLA-135, GAMI Investments, Inc. v. The Government of the United Mexican States (UNCITRAL) Final Award, 15 November 2004, ¶ 93.

¹³ RLA-121, B-Mex — Partial Award, ¶ 145.

¹⁴ RLA-146, GEA Group Aktiengesellschaft v. Ukraine (ICSID Case No. ARB/08/16) Award, 31 March 2011 (“GEA Group — Award”).

¹⁵ RLA-146, GEA Group — Award, ¶¶ 36–40, 150, 172.

¹⁶ RLA-146, GEA Group — Award”, ¶ 166.

¹⁷ RLA-146, GEA Group — Award”, ¶¶ 168–170 (emphasis added). In applying the governing principle quoted, the GEA Group tribunal found that it had jurisdiction over certain alleged breaches because they occurred after the claimant had made its investment in Ukraine. (See e.g., ¶¶ 192 to 193, 198). …

¹⁸ RLA-146, GEA Group — Award, ¶ 170, citing: RLA-147, Limited Liability Company Amto v. Ukraine (SCC Arbitration No. 080/2005) Final Award, 26 March 2008, ¶ 48(c); CLA-115, Saluka Investments BV (The Netherlands) v. The Czech Republic (UNCITRAL) Partial Award, 17 March 2006, ¶ 244; RLA-005, Phoenix Action — Award, ¶ 67.

¹⁹ It is well recognized that “[a]n important principle of customary international law should [not] be held to have been tacitly dispensed with [by international agreement], in the absence of words making clear an intention to do so.” (RLA-148, Case Concerning Elettronica Sicula S.p.A. (ELSI) (United States of America v. Italy), I.C.J. Reports 1989, Judgment, 20 July 1989, p. 42); CLA-138, The Loewen Group, Inc. and Raymond L. Loewen v. United States of America (ICSID Case No. ARB(AF)/98/3) Award, 26 June 2003, ¶ 162: (“It would be strange indeed if sub silentio the international rule were to be swept away.”)

¹ Full submission available online: <https://pcacases.com/web/sendAttach/10513>.

² RL-032, ILC Articles, Article 2.

³ See CL-210, Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, I.C.J. Reports 1980, 24 May 1980 (“Diplomatic and Consular Staff in Tehran Case”), ¶ 56: (“[f]irst, it must determine how far, legally, the acts in question may be regarded as imputable to the Iranian State. Secondly, it must consider their compatibility or incompatibility with the obligations of Iran under treaties in force or under any other rules of international law that may be applicable.”); RL-194, Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) Judgment, I.C.J. Reports 2005, 19 December 2005, ¶ 215: (“[t]he Court, having established that the conduct of the UPDF and of the officers and soldiers of the UPDF is attributable to Uganda, must now examine whether this conduct constitutes a breach of Uganda’s international obligations.”); RL-115, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 27, 26 February 2007 (“Genocide Convention Case”), ¶ 379.

⁴ RL-114, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) Judgment, I.C.J. Reports 1986, 27 June 1986 (“Military and Paramilitary Activities Case”), ¶ 115. As Judge Ago noted in his separate opinion, “[o]nly in cases where certain members of those forces happened to have been specifically charged by the United States authorities to commit a particular act, or carry out a particular task of some kind on behalf of the United States, would it be possible so to regard them” as attributable to the United States. (RL-195, Military and Paramilitary Activities Case, Separate Opinion of Judge Roberto Ago, 27 June 1986, ¶ 16.) The ICJ held the United States responsible for its own acts of support for the contras, but a “general situation of dependence and support would be insufficient to justify attribution of the conduct to the State.” See RL-032, ILC Articles, pp. 47–48.

⁵ RL-115, Genocide Convention Case, ¶ 400.

⁶ CL-105, Jan de Nul N.V. and Dredging International N.V. v. Egypt (ICSID Case No. ARB/04/13) Award, 6 November 2008 (“Jan de Nul — Award”), ¶ 173, cited with approval in RL-116, White Industries Australia Limited v. The Republic of India (UNCITRAL) Final Award, 30 November 2011 (“White Industries — Award”), ¶¶ 8.1.16–8.1.18. See also RL-069, Gustav F Hamester GmbH and Co KG v. Ghana (ICSID Case No. ARB/07/24) Award, 18 June 2010, ¶ 179 (describing the effective control test in terms identical to the Jan de Nul tribunal); RL-120, Almas v. Poland (UNCITRAL) Award, 27 June 2016, ¶¶ 268–269; RL-118, Tulip Real Estate and Development Netherlands B.V. v. Republic of Turkey (ICSID Case No. ARB/11/28) Award, 10 March 2014, ¶¶ 304–305; RL-119, Teinver v. Argentina (ICSID Case No. ARB/09/01) Award, 21 July 2017, ¶ 722–724; RL-117, Gavrilovic v. Croatia (ICSID Case No. ARB/12/39) Award, 26 July 2018, ¶¶ 828–829.

⁷ RL-032, ILC Articles, Article 4. ILC Article 4 is considered to be reflective of customary international law. See RL-115, Genocide Convention Case, ¶ 385.

⁸ RL-032, ILC Articles, Article 8, Commentary (7).

⁹ See e.g., RL-114, Military and Paramilitary Activities Case, ¶¶ 93–112, 115: (“For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed. … It takes the view that the contras remain responsible for their acts, and that the United States is not responsible for the acts of the contras, but for its own conduct vis-à-vis Nicaragua, including conduct related to the acts of the contras.”); CL-105, Jan de Nul — Award, ¶¶ 172–175 (distinguishing between the conduct of the Suez Canal Authority and other State organs); RL-116, White Industries — Award, ¶¶ 8.1.18-8.1.21, 10.2.3, 10.4.2 (distinguishing the conduct of the Indian Government and courts from the conduct of Coal India).

¹⁰ RL-032, ILC Articles, Article 11, Commentaries (6) and (8). See also, RL-196, James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge University Press, 2002) (“Crawford, ILC Commentary”), Article 11(6)(8) at p. 123. See also, CL-210, Diplomatic and Consular Staff in Tehran Case, ¶¶ 73, 91; RL-197, Affaire relative à la concession des phares de l’Empire ottoman, UNRIAA, vol. XII, 24/27 July 1956, at p. 198; RL-198, James Crawford, State Responsibility: The General Part (Cambridge University Press, 2013), p. 187 (stating that the act of adoption may be express, as in Diplomatic and Consular Staff in Tehran or implied, as in the Affaire relative à la concession des phares de l’Empire ottoman (Lighthouses) arbitration).

¹¹ CL-210, Diplomatic and Consular Staff in Tehran Case, ¶ 74.

¹² See e.g., Article 26 (“Pacta sunt servanda”) of the Vienna Convention on the Law of Treaties (“VCLT”) provides that “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith.” (RL-086, Vienna Convention on the Law of Treaties, May 23, 1969, 1115 U.N.T.S. 31, 27 January 1980, Article 26).

¹³ RL-202, Case Concerning Border and Transborder Armed Actions (Nicaragua v. Honduras) Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 69, 20 December 1988, ¶ 94, quoting CL-209, Nuclear Tests Case (Australia v. France) Judgment, I.C.J. Reports 1974, p. 268 (“Nuclear Tests Case”), ¶ 46.

¹⁴ RL-134, Case Concerning the Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria) Preliminary Objections, Judgment, I.C.J. Reports 1998, 11 June 1998 (“Land and Maritime Boundary Case”).

¹⁵ RL-134, Land and Maritime Boundary Case, ¶ 36.

¹⁶ RL-134, Land and Maritime Boundary Case, p. 296.

¹⁷ RL-134, Land and Maritime Boundary Case, p. 297.

¹⁸ RL-214, Liman Caspian Oil BV and NCL Dutch Investment BV v. Republic of Kazakhstan (ICSID Case No. ARB/07/14) Excerpts of Award, 22 June 2010 (“Liman — Excerpts of Award”), ¶ 263: (“[T]he Tribunal considers that the purpose of ECT Article 10(1), second sentence, is to provide a protection which goes beyond the minimum standard of treatment under international law. The ECT was intended to go further than simply reiterating the protection offered by the latter. In this respect, ECT Article 10(1), second sentence, differs from NAFTA Article 1105 (in its interpretation given by the Free Trade Commission on 31 July 2001) which contains an express reference to international law. Therefore, when assessing Respondent’s actions, a specific standard of fairness and equitableness above the minimum standard must be identified and applied for the application of the ECT.”); CL-141, Dumberry, pp. 262-263: (NAFTA tribunals “are required, under Article 1105, to apply the minimum standard. This standard involves a higher threshold of liability than an unqualified FET clause.”)

¹⁹ CL-230, Electrabel — Award, ¶ 165. The Electrabel tribunal was applying Article 10(1) of the Energy Charter Treaty, which is an autonomous “fair and equitable treatment” clause and not the same as the minimum standard of treatment in customary international law.

²⁰ RL-215, BayWa R.E. Renewable Energy GmbH and BayWa R.E. Asset Holding GmBH v. Kingdom of Spain (ICSID Case No. ARB/15/16) Decision on Jurisdiction, Liability and Directions on Quantum, 2 December 2019 (“BayWa — Decision”), ¶ 459 (emphasis added), citing RL-216, Antaris GMBH (Germany) and Dr. Michael Göde (Germany) v. The Czech Republic (UNCITRAL) Award, 2 May 2018 (“Antaris - Award”), ¶ 360(9).

²¹ BayWa — Decision, ¶ 459. In addition to the statement by the BayWa tribunal, see RL-059, S.D. Myers — First Partial Award, ¶¶ 261–263 (explaining that a “high measure of deference generally extends to the right of domestic authorities to regulate matters within their own borders”); CL-025, Glamis — Award, ¶ 762 (holding that “it is not for an international tribunal to delve into the details of and justifications for domestic law.”); CL-026, Chemtura — Award, ¶ 123 (taking into account that “the fact that certain agencies manage highly specialized domains involving scientific and public policy determinations.”); RL-173, Gemplus, S.A., et al. v. Mexico (ICSID Case No. ARB(AF)/04/3 and ARB(AF)/04/4) Award, 16 June 2010 (“Gemplus — Award”), ¶ 6–26: (“Fourth, as to ‘deference’, the Tribunal accepts the Respondent’s submissions to the effect that this Tribunal should not exercise ‘an open-ended mandate to second-guess government decision-making’, in the words of the arbitration tribunal in S.D. Myers.”); CL-230, Electrabel — Award, ¶ 181: (“It is all too easy, many years later with hindsight, to second-guess a State’s decision and its effect on one economic actor, when the State was required at the time to consider much wider interests in awkward circumstances, balancing different and competing factors.”); RL-122, Mercer — Award, ¶ 7.42: (“as a general legal principle, in the absence of bad faith, a measure of deference is owed to a State’s regulatory policies.”); RL-174, Philip Morris — Award, ¶ 418: (“[t]he fair and equitable treatment standard is not a justiciable standard of good government, and the tribunal is not a court of appeal.”); RL-052, Mesa — Award, ¶ 553: (“the deference which NAFTA Chapter 11 tribunals owe a state when it comes to assessing how to regulate and manage its affairs.”)

²² RL-029, Mondev — Award, ¶ 119.

²³ RL-021, Feldman — Award, ¶ 103 (emphasis added).

²⁴ CL-141, Dumberry, p. 264 (emphasis added).

²⁵ Claimant’s Reply, ¶ 205 fn. 302.

²⁶ RL-092, ADM — Award, ¶¶ 124–126, 133. Proportionality is a customary international law principle applicable in the context of countermeasures and self-defence. See RL-032, ILC Articles, Article 51 and commentary thereto at pp. 294–296; RL-114, Military and Paramilitary Activities Case, ¶ 176 (affirming that it is well established in customary international law that “self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it.”).