Jurisdiction – Foreign investor – Investment – NAFTA, Article 1116 – Whether a foreign investor met the jurisdiction requirements set forth in NAFTA – Whether claims based on a causal link between the challenged measures and the investment were sufficient for a tribunal to have jurisdiction under NAFTA Article 1116

Jurisdiction – Consultation – NAFTA, Article 1118 – Whether a foreign investor could comply with NAFTA Article 1118’s consultation requirement without substantively engaging with the State – Whether the fact that a foreign investor sought consultations with a State was sufficient to meet NAFTA Article 1118’s consultation requirement

Jurisdiction – Cooling-off period – NAFTA, Article 1120 – Whether an investor was required to observe NAFTA Article 1120’s cooling-off period – Whether every event that gave rise to a claim must have occurred before the cooling-off period – Whether the investor must have suffered damage prior to the cooling-off period

Jurisdiction – Investment – Timing – NAFTA, Article 1101 – NAFTA, Article 1116 –– Whether a tribunal had jurisdiction over claims based on investments made after the relevant measure was implemented by the State – Whether the date of an investment’s incorporation was sufficient to determine when an investment was made

State responsibility – Attribution – State enterprise – NAFTA, Article 1503(2) – Interpretation – Whether an entity established by a State should be considered an organ of the State – Whether actions by a State enterprise could be attributed to a State

Most-favoured-nation treatment – National treatment – Interpretation – NAFTA, Article 1108 – Procurement – Whether a procurement process was exempt from a State’s most-favoured-nation treatment and national treatment obligations – Whether the procurement of energy constituted a procurement process

Minimum standard of treatment – NAFTA, Article 1105 – Interpretation – Policy – Transparency – Whether a State must afford investors the minimum standard of treatment pursuant to customary international law – Whether tribunals should examine the State’s underlying policy decision when examining a State’s compliance with the minimum standard of treatment – Whether transparency was part of the minimum standard of treatment

Costs – Legal costs – Whether a party should be held responsible for its opponent’s legal costs when their good faith claims were dismissed by the tribunal

Annulment – Applicable law – Whether a court considering the vacatur or confirmation of an award should apply the law of its jurisdiction or the law of the seat of the arbitration

Annulment – Municipal law – Misconduct affecting parties’ rights – Exceeded arbitral power – Manifest disregard of the law – Interpretation – Deference – Whether a tribunal’s allegedly erroneous factual findings or legal conclusions serve as grounds for vacating its award – Whether an award should be vacated on the ground that the tribunal misinterpreted the meaning of procurement – Whether an award should be vacated on the ground that the tribunal deferred to the State’s decision-making in its renewable energy policy

Procedure — Amicus curiae — ICSID Arbitration (Additional Facility) Rules, Article 41(3) — Whether the non-disputing party’s submission provided assistance to the tribunal — Whether the non-disputing party’s submission addressed matters within the scope of the dispute — Whether the non-disputing party had a significant interest in the arbitration — Whether there was public interest in the subject matter of the arbitration — Whether the non-disputing party’s submission created disruption, burden or prejudice affecting the disputing parties — Whether the non-disputing party complied with disclosure requirements

Procedure — Seat of arbitration — Lex loci arbitri — Whether the tribunal was bound to select a seat of arbitration in the State of either party — Whether the tribunal should consider laws of the proposed seat of arbitration regarding arbitrator immunity or quorum requirements — Whether municipal law regarding deference to executive interpretation of treaty law in the event of judicial review of an arbitral award weighed against a proposed seat of arbitration

Jurisdiction — Investment — Foreign investor — Meaning of “relating to” — NAFTA, Article 1101 — NAFTA, Article 1116 — NAFTA, Article 1117 — NAFTA, Article 1139 — Whether the challenged measure related to an investment or an investor — Whether “relating to” required a legally significant connection under municipal law or merely an effect in fact — Whether the claimants’ ability to sell other products was relevant to assessment of jurisdiction

Jurisdiction — Investment — Applicable law — Res judicata — NAFTA, Article 1139 — NAFTA, Article 1136(1) — Whether the concept of res judicata was applicable to NAFTA arbitrations — Whether the conditions were met for res judicata — Whether res judicata could create issue estoppel based on the reasoning of a prior award or only the operative parts of the prior award — Whether distinctions existed between the investment at issue in the prior award and the present arbitration

Jurisdiction — Investment — NAFTA, Article 1139 — Intangible property — Whether a marketing authorisation was an investment made in the territory of the host State

Evidence — Burden of proof — Most-favoured-nation treatment — National treatment — Document production — Whether the evidential burden of proof can shift from the claimant to the respondent due to limited document production

National treatment — NAFTA, Article 1102 — Whether the domestic comparators had been afforded more favourable treatment — Whether the domestic comparators were in like circumstances to the claimants

Most-favoured-nation treatment — NAFTA, Article 1103 — Whether foreign comparators had been afforded more favourable treatment — Whether foreign comparators were in like circumstances — Whether the claimants had been targeted by authorities for political reasons — Whether the conduct of the claimants distinguished their circumstances from foreign comparators

Minimum standard of treatment — NAFTA, Article 1105 — Customary international law — Public health — Due process — Whether the minimum standard of treatment under customary international law required regulatory due process — Whether there was evidence of State practice in favour of regulatory due process forming part of the minimum standard of treatment — Whether an international tribunal should defer to regulatory bodies responsible for protecting public health — Whether regulatory conduct met the required threshold of severity and gravity

Most-favoured-nation treatment — NAFTA, Article 1103 — Minimum standard of treatment — NAFTA, Article 1105 — Non-impairment — Effective means of protection — Whether importing standards of non-impairment and effective means of protection from a BIT would provide more favourable protection than the minimum standard of treatment — Whether a standard of non-impairment would have produced a different outcome for the claimants — Whether the standard of effective means of protection in judicial proceedings applied to a regulatory context

Costs — Loser pays — Whether the tribunal should apply the principle that the loser pays — Whether any party had increased costs by proposing or resisting bifurcation

Treaty obligations to afford foreign investors a minimum standard of treatment (MST) and/or fair and equitable treatment (FET) are hallmarks of international investment law. However, the relationship between such treaty-based obligations and customary international law has been the subject of considerable debate. In the North American Free Trade Agreement (NAFTA) context, the majority tribunal decision and dissenting opinion in Clayton and Bilcon of Delaware Inc. v Government of Canada (Bilcon) reflect ongoing disagreement regarding the threshold for breach of the MST under NAFTA Article 1105. This article charts NAFTA investment tribunals’ decisions regarding FET claims under Article 1105 and the development of the customary international MST on which that provision is based, in particular, the prohibition on arbitrary treatment. It argues that the majority in Bilcon applied an inappropriately low threshold in finding a breach of Article 1105, which could represent a new and unwelcome direction in NAFTA Chapter 11 jurisprudence.

One of the most common features of international investment treaties is the obligation of a state to grant ‘fair and equitable treatment’ to investors and investments. Treatment giving rise to allegations of breaches of this obligation has taken many forms, namely bad faith, discrimination, denial of justice, frustration of legitimate expectations, lack of transparency, coercion and harassment, and arbitrariness or arbitrary conduct. This latter form of treatment – arbitrariness – has rarely been the focus of scholarly works and, thus, its scope and meaning are difficult to ascertain. When examined in the context of international investment disputes, however, one may conclude that, while its scope and meaning may vary, arbitrariness is indeed a legitimate basis for claim under the fair and equitable treatment standard. The thresholds for demonstrating arbitrariness, however, are decidedly and consistently high.