¹ … It should be noted that when it comes to the rights of the family members of victims, the IACtHR will often find both violations of the right to personal integrity under Article 5(1) [ACHR] and of the prohibition of cruel, inhuman, or degrading treatment or punishment under Article 5(2) [ACHR], using language from both provisions interchangeably. See, for example, IACtHR, Case of Bámaca Velásquez v Guatemala, Judgment of November 25, 2000, Series C No 70, paras 165-166; IACtHR, Case of the Mapiripán Massacre v Colombia, Judgment of September 15, 2005, Series C No 134, para 146; IACtHR, Case of Radilla-Pacheco v Mexico, Judgment of November 23, 2009, Series C No 209, para 172; and Case of Gudiel Álvarez et al (“Diario Militar”) v Guatemala, Judgment of November 20, 2012, Series C No 253, paras 290–291.

² The Inter-American Commission on Human Rights noted as much in an application it filed with the Inter-American Court of Human Rights in the case of Heliodoro Portugal in which it stated, “As regards the victim’s next-of-kin, the Inter-American Court has ruled that the persons closest to the victim can be considered, in turn, as victims in cases that violate such basic rights as the right to life and to human[e] treatment. See Application filed with the Inter-American Court of Human Rights in the case of Helidoro Portugal (Case 12.408) against the Republic of Panama, at para 155 (emphasis added), available at https://bit.ly/2XvZa2i. The IACtHR has occasionally relied on the ECHR Article 3 jurisprudence of the European Court of Human Rights and the views of the UN Human Rights Committee on communications involving violations of Article 7 of the International Covenant on Civil and Political Rights. See, for example, IACtHR, Case of Bámaca Velásquez v Guatemala, Judgment of November 25, 2000, Series C No 70, paras 162–164 and Mariam Sankara et al v Burkina Faso, Communication No 1159/2003, UN Doc CCPR/C/86/D/1159/2003 (2006), available at http://hrlibrary.umn.edu/undocs/1159-2003.html.

³ Case of the Mapiripán Massacre v Colombia. Merits, Reparations and Costs, Judgment of September 15, 2005, Series C No 134; Case of the Plan de Sánchez Massacre v Guatemala, Reparations, Judgment of November 19, 2004, Series C No 116.

⁴ Case of the “Street Children” (Villagrán Morales et al) v Guatemala, Merits, Judgment of November 19, 1999, Series C No 63.

⁵ Ibid [at] para 177.

⁶ Ibid [at] paras 173 and 174.

⁷ Case of Bámaca Velásquez v Guatemala, Merits, Judgment of November 25, 2000, Series C No 70 at paras 165–166.

⁸ Ibid at para 160.

⁹ Ibid at para 165.

¹⁰ Case of La Cantuta v Peru, Interpretation of the Judgment on Merits, Reparations and Costs, Judgment of November 30, 2007, Series C No 173 at para 125. See also Case of Goiburú et al [v Paraguay, Merits, Reparations and Costs, Judgment of September 22, 2006, Series C No 153], para. 101; Case of 19 Tradesmen, Judgment of July 5, 2004, Series C No 109, para 267; and Case of Trujillo-Oroza, Reparations (Art. 63(1) American Convention on Human Rights), Judgment of February 27, 2002, Series C No 92, para 114.

¹¹ Case of the Mapiripán Massacre v Colombia, Judgment of September 15, 2005, Series C No 134 at paras 145, 219, 221, 223.

¹² The IACtHR first recognized this connection in Bámaca-Velásquez v Guatemala, Judgment of November 25, 2000 (Merits), para 201. See also Inter-American Commission on Human Rights, The Right to Truth in the Americas, [OAS Doc] OEA/Ser.L/V/II.152, August 13, 2014, Chapter II(B).

¹³ For example, IACHR, Report No 25/98, Cases 11.505, 11.532, 11.541, 11.546, 11.549, 11.569, 11.572, 11.573, 11.583, 11.595, 11.657 and 11.705, Alfonso René Chanfeau Orayce et al, Chile, April 7, 1998, paras 85 to 89, available at http://hrlibrary.umn.edu/cases/1997/chile25-98.html.

¹⁴ See, for example, the Case of Contreras et al v El Salvador, Merits, Reparations and Costs, Judgment of August 31, 2011, Series C No 232 at para 271: “[T]he right to know the truth is related to the Ordinary Action filed by the next of kin, which is linked to access to justice and to the right to seek and receive information enshrined in Article 13 of the American Convention.” See also the Case of Gelman v Uruguay, Merits and Reparations, Judgment of February 24, 2011, Series C No 221 at para 243: “All persons, including the next of kin of the victims of gross human rights violations, have, pursuant to Articles 1(1), 8(1), and 25, as well as in certain circumstances Article 13 of the Convention, the right to know the truth.”

¹ Agreement on Rules of Origin, Article 1.2.

¹ Appellate Body Reports, US – Shrimp, para. 159; US – Gasoline, p. 23; and Brazil – Retreaded Tyres, paras. 215, 224.

² Appellate Body Report, US – Gasoline, p. 18.

³ See p. 17, US – Gasoline, where the Appellate Body clearly sets out that as a matter of interpretation, “the words of a treaty, like the General Agreement, are to be given their ordinary meaning, in their context and in the light of the treaty’s object and purpose.” The Appellate Body concluded that the panel “failed to take adequate account of the words actually used by Article XX in its several paragraphs. In enumerating the various categories of governmental acts, laws or regulations which WTO Members may carry out or promulgate in pursuit of differing legitimate state policies or interests outside the realm of trade liberalization, Article XX uses different terms in respect of different categories” (emphasis added).

⁴ Appellate Body Report, US – Gasoline, p. 18.

⁵ Ibid., p. 16.

⁶ See FN 147 in Korea – Various Measures on Beef, where the Appellate Body made this comment: “We recall that we have twice interpreted Article XX(g), which requires a measure “relating to the conservation of exhaustible natural resources” (emphasis added). This requirement is more flexible textually than the “necessity” requirement found in Article XX(d). We note that, under the more flexible “relating to” standard of Article XX(g), we accepted in US – Gasoline a measure because it presented a “substantial relationship”, (emphasis added) i.e., a close and genuine relationship of ends and means, with the conservation of clean air. In US – Shrimp we accepted a measure because it was “reasonably related” to the protection and conservation of sea turtles (bolded emphasis added; original footnotes omitted).

¹ Modern Treaty Law and Practice, 3rd ed (Cambridge: Cambridge University Press, 2013) at 311–12.

² “Compromis” in Max Planck Encyclopedias of International Law (2006)….

³ Hisashi Owada, “Pactum de contrahendo, pactum de negotiando” in Max Planck Encyclopedias of International Law (2008). …

⁴ Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain), Jurisdiction and Admissibility Judgment of 1 July 1994, [1994] ICJ Rep 112 at para 41.

⁵ Aegean Sea Continental Shelf Case (Greece v Turkey), Judgment of 19 December 1978, [1978] ICJ Rep 3 at para 107.

⁶ Ibid at para 96.

⁷ Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali), Judgment of 22 December 1986, [1986] ICJ Rep 554 at para 38.

⁸ The communiqué’s relevance was as one of several pieces of evidence of supposed acquiescence by Mali to the alleged binding nature of a mediation commission’s decision, and the Court focused on other elements of Burkina Faso’s argument when concluding that no such acquiescence occurred.

⁹ The official title is not clear. The compromis could not be located in the UN Treaty Collection but may be found at https://jusmundi.com/fr/document/pdf/other/en-sovereignty-and-maritime-delimitation-in-the-red-sea-eritrea-yemen-the-arbitration-agreement-thursday-3rd-october-1996. The dispute did not relate to treaty law, as Eritrea was not a Party to the United Nations Convention on the Law of the Sea, done at Montego Bay on 10 December 1982. See Eritrea/Yemen – Sovereignty and Maritime Delimitation in the Red Sea (1999) (Permanent Court of Arbitration) (PCA).

¹⁰ This compromis is published in 2332 UNTS 481. It enabled the Iron Rhine Arbitration (Belgium/Netherlands) (2005) (PCA). In one of the underlying treaties in the dispute, the Treaty between Belgium and the Netherlands relative to the Separation of Their Respective Territories, done at London on 19 April 1839 (https://wetten.overheid.nl/BWBV0006129/1839-06-08#Verdrag_1_Verdragtekst), one does not find any dispute settlement provisions. The text of the other underlying treaty, the Convention between Belgium and the Netherlands relative to the Payment of the Belgian Debt, the Abolition of the Surtax on Netherlands Spirits, and the Passing of a Railway Line from Antwerp to Germany across Limburg, done at Brussels on 13 January 1873, could not be accessed and consulted for the purposes of this memorandum.

¹¹ Published in 30 UST 1960 (as TIAS 9274). The Parties appear to have entered into this compromis rather than simply following the dispute settlement provision of the underlying treaty, the Air Services Agreement between the United States of America and France, done at Paris on 27 March 1946, as amended. For example, the Parties named the three arbitrators in the compromis, but Article X of the air services agreement set out a procedure for each Party to name an arbitrator and the third one to be agreed by the two other arbitrators. The arbitration case is Case Concerning the Air Service Agreement of 27 March 1946 between the United States of America and France (1978) (Arbitrators: Willem Riphagen, Thomas Ehrlich, Paul Reuter).

¹² Can TS 1989 No 34. It appears that the Parties entered into this compromis rather than simply following the compromissory clause contained in the underlying treaty. Article 10 of the Agreement between Canada and France on Their Mutual Fishing Relations, done at Ottawa on 27 March 1972 (Can TS 1979 No 37), set out a process for establishing a Commission that would sit as an arbitral tribunal. The arbitration case was Delimitation of Maritime Areas between Canada and France (1992) (Arbitrators: Eduardo Jiménez de Aréchaga, Oscar Schachter, Gaetano Arangio-Ruiz, Prosper Weil, Allan E Gotlieb).

¹³ Rules of Procedure for the Arbitral Tribunal Constituted under the OSPAR Convention pursuant to the Request of Ireland Dated 15th June 2001 (https://pcacases.com/web/sendAttach/608).

¹⁴ Judgment of 20 July 2012, [2012] ICJ Rep 422 at para 61.

¹⁵ Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United States of America), Preliminary Objections Judgment of 27 February 1998, [1998] ICJ Rep 115 (“US Lockerbie Case”).

¹⁶ Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom), Preliminary Objections Judgment of 27 February 1998, [1998] ICJ Rep 9 (“UK Lockerbie Case”).

¹⁷ US Lockerbie Case [supra note 15] at para 20; UK Lockerbie Case [supra note 16] at para 21.

¹⁸ Preliminary Objections Judgment of 8 November 2019, [2019] ICJ Rep 558.

¹⁹ Ibid at para 76.

²⁰ Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda), Jurisdiction of the Court and Admissibility of the Application Judgment of 3 February 2006, [2006] ICJ Rep 6 at para 92.

²¹ For an argument that a State acquiesced to the binding nature of the arbitral tribunal’s decision, the MOU would probably need to be accompanied by additional evidence of acquiescence. See Burkina Faso/Republic of Mali, supra, for an example of a (failed) argument that a State acquiesced to the binding nature of a decision. See also Karin Oellers-Frahm, “Judicial and Arbitral Decisions, Validity and Nullity” in Max Planck Encyclopedia of International Law (2019) … at para 13: “Traditionally, the invalidity of the instrument conferring jurisdiction on the court or tribunal has been counted among the grounds for nullity. This seems no longer acceptable because if it is advanced by a party and accepted by the tribunal in due time, that is, before the beginning of the proceedings, there will be no award, and if it is advanced after the award has been rendered, this will be regarded as belated and cannot affect the binding character of the compromis. …” (emphasis added)

²² The tribunal in United States-United Kingdom Arbitration Concerning Heathrow Airport User Charges (United States-United Kingdom) (1992) (Arbitrators: Isi Foighel, Fred F Fielding, Jeremy Lever) held at para 6.7 that a particular MOU (which was not an MOU on dispute settlement) “constitutes consensual subsequent practice of the Parties and, certainly as such, is available to the Tribunal as an aid to the interpretation of Bermuda 2 and, in particular, to clarify the meaning to be attributed to expressions used in the Treaty and to resolve any ambiguities.”

¹ Ampal-American Israel Corporation and Others v Arab Republic of Egypt (ICSID Case No ARB/12/11) Decision on Jurisdiction, 1 February 2016 (“Ampal – Decision on Jurisdiction”), ¶ 219. See also Frederic Sourgens, Kabir Duggal, Ian A Laird, “Evidence in International Investment Arbitration”, (2018) [Excerpt] (“Sourgens et al.”), ¶ 4.04. Julien Fouret, Gloria Alvarez, Remy Gerbay, “The ICSID Convention, Regulations and Rules — A Practical Commentary” (Edward Elgar Publishing, 2019) [Excerpt], fn. 444. The standard of proof is distinct from the burden of proof, which denotes the obligation on a party to prove (or disprove) a fact in issue to the requisite standard of proof. See Canada’s Counter-Memorial on Jurisdiction, ¶ 75.

² The most common standard of proof in investment arbitration is the “balance of probabilities” or a “preponderance of evidence”. See Sourgens et al., ¶¶ 5.09–5.16.

³ Bin Cheng, “General Principles of Law as Applied by International Courts and Tribunals”, (1953) [Excerpt], p. 329.

⁴ For example, in assessing a claim for legitimate expectations, the Metalpar tribunal looked for concrete evidence to substantiate the claim. The tribunal ultimately rejected the claim because there was no bid, license, permit or contract of any kind arising at the material time between the State and the claimant. See Metalpar S.A. and Buen Aire S.A. v Argentine Republic (ICSID Case No ARB/03/5) Award, 6 June 2008 (“Metalpar – Award”), ¶ 186.

⁵ Metalpar – Award, ¶ 186; Mesa – Award, ¶ 329; fn. 76.

⁶ On Mesa’s assertions that it was seeking to make its investments before the alleged breach occurred, the tribunal stated that: “[n]o cogent evidence has been submitted by the Claimant for the North Bruce and Summerhill projects”. See Mesa – Award, ¶ 329. […]

⁷ Gallo – Award, ¶¶ 216, 292-296; Ampal – Decision on Jurisdiction, ¶¶ 223–226. Depending on the circumstances, evidence of ownership could be established through one or several documents such as a trust deed, trust reporting materials, tax filings, corporate records, financial statements, shareholder ledgers or resolutions, contracts, share certificates, cheques, dividend statements, or bank records. See e.g. Europe Cement Investment & Trade SA v Republic of Turkey (ICSID Case No ARB(AF)/07/2) Award, 13 August 2009 (“Europe Cement – Award”), ¶¶ 156–157; Invesmart B.V. v Czech Republic (UNCITRAL), Award, 26 June 2009, ¶ 251.

⁸ Gallo – Award, ¶¶ 174, 216–219, 286–290. See also Europe Cement – Award, ¶ 153: “the share transfer agreements were in fact executed in 2005 and back-dated to 20 May 2003 in order to meet the jurisdictional requirements of Europe Cement’s claim.”

⁹ Gallo – Award, ¶¶ 289, 290, 297, 312, 325–326. The tribunal found: “there is a total absence of written circumstantial evidence. The record lacks any document of any type proving that Mr. Gallo became the shareholder of the Enterprise before the enactment of the AMLA”. See ¶ 218. Not only did the claimant fail to provide contemporaneous documents in Gallo, but the tribunal found that the documents provided were also backdated and signed after the alleged breach in an attempt to establish jurisdiction after the fact. See Gallo – Award, ¶¶ 218–219, 297.

¹⁰ Ampal – Decision on Jurisdiction, ¶¶ 223–226.

¹¹ Europe Cement – Award, ¶ 158 (emphasis added). The tribunal held: “[t]hat the directors of Europe Cement simply overlooked this when signing the financial statements seems highly implausible.” See ¶ 157.

¹² Europe Cement – Award, ¶¶ 140–143, 156, 163–167, 170.

¹³ See e.g., Canada’s Counter-Memorial on Jurisdiction, ¶ 76; citing Gallo – Award, ¶ 289, citing: Hussein Nuaman Soufraki v United Arab Emirates (ICSID Case No ARB/02/7) Award, 7 July 2004, ¶ 78.

¹⁴ Procedural Order No 1, ¶ 8.1; 1976 UNCITRAL Arbitration Rules, Article 26.6; IBA Rules, Article 9.1.

¹⁵ EDF (Services) Limited v Romania (ICSID Case No ARB/05/13) Award, 8 October 2009, ¶ 224; Helnan International Hotels A/S v Arab Republic of Egypt (ICSID Case No ARB/05/19) Award, 3 July 2008, ¶ 157; Canada’s Counter-Memorial on Jurisdiction, ¶ 79. See e.g., Canada’s Counter-Memorial on Jurisdiction, ¶¶ 78–79.

¹ Case Concerning Elettronica Sicula SpA (ELSI) (United States of America v Italy), I.C.J. Reports 1989, Judgement, 20 July 1989, p. 42, ¶ 50 (“Yet the Chamber finds itself unable to accept that an important principle of customary international law should be held to have been tacitly dispensed with, in the absence of any words making clear an intention to do so”); Loewen – Final Award, ¶¶ 160, 162 (“It would be strange indeed if sub silentio the international rule were to be swept away”).

² This provision may be used for “gap-filling” where the treaty might not specifically address an issue or where the treaty is otherwise silent, including on the issue of dual nationality. See Methanex Corporation v United States of America (UNCITRAL) Final Award, 3 August 2005, Part IV, Chapter B, ¶ 29; Corn Products International, Inc v United Mexican States (ICSID Case No ARB (AF)/04/1) Decision on Responsibility, 15 January 2008, ¶ 76; Archer Daniels Midland Company et al v United Mexican States (ICSID Case No ARB(AF)/04/5) Award, 21 November 2007 (“Archer Daniels – Award”), ¶ 195.

³ Legal commentators have noted that a “general rule” has emerged in investor-state dispute settlement, whereby tribunals apply the dominant and effective nationality rule when the treaty is silent on the issue standing of dual national claimants. See Campbell McLachlan, Laurence Shore and Matthew Weiniger, “International Investment Arbitration: Substantive Principles (2nd ed)” (Kluwer Law International, May 2017) (“McLachlan, Shore & Weiniger”) §§ 5.92, 5.89–5.96. See also Noah D. Rubins et al, “Investor-State Arbitration” (OUP: 2008), p. 304. See also Zachary Douglas, “The International Law of Investment Claims” (Cambridge University Press, January 2010), p. 321. Recent cases that have strayed from this general rule, cited by the Claimant as “governing international law” have both been overturned in appeal and are nevertheless interpreting specific language to a text that is not relevant to the NAFTA. Claimant’s Reply Memorial, ⁋ 599. Serafin Garcia Armas et al v Republic of Venezuela (UNCITRAL) Decision on Jurisdiction, 15 December 2014; Serafin Garcia Armas et al v Republic of Venezuela, Cour d’appel de Paris, Decision, 3 June 2020.

⁴ Nottebohm Case (second phase), I.C.J. Reports 1955, Judgement of 6 April 1955 (“Nottebohm Case”), pp 23–24. Mergé Case – Decision No. 55, UN Italian-United States Conciliation Commission, Decision, 10 June 1955, ¶¶ 243–246. Iran-United States Claims Tribunal, Case No A/18-FT, 5 Iran-U.S. CL. Tribunal Rep. 251 (1984-1), ¶ 510. Canada’s position is that the dominant and effective nationality rule is only with respect to determining an individual’s citizenship and does not apply in respect of any other immigration status. See Marvin Roy Feldman Karpa v United Mexican State (ICSID Case No ARB(AF)/99/1) Interim Decision on Preliminary Jurisdictional Issues, 6 December 2000, ¶¶ 30, 31–32] Manuel Garcia Armas et al v Republic of Venezuela (UNCITRAL) Award, 13 December 2019, ¶ 741; Enrique Heemsen and Jorge Heemsen v Venezuela (PCA Case No 2017) Decision on Jurisdiction, 29 October 2019, ¶¶ 439–440.

⁵ Marvin Roy Feldman Karpa v United Mexican States (ICSID Case No ARB(AF)/99/1), United States 1128 Submission, 6 October 2000, ¶ 8; Cited with approval by Mexico in Sastre et al, Memorial on Jurisdiction, ¶ 76.

⁶ See Nottebohm Case, p. 24. The International Court of Justice ultimately determined that there was an absence of bond of attachment between Liechtenstein and Nottebohm. See Nottebohm Case, p. 25. As noted by the International Court of Justice in the Nottehohm decision, the purpose of the inquiry is to determine whether the home state is sufficiently close, so that the nationality conferred upon him, compared to any other nationality, was real and effective, at p. 24.