ADF Group Inc. v. United States of America

Abstract

Arbitration — Arbitral procedure — Place of arbitration — icsid Additional Facility arbitration pursuant to Chapter 11 of nafta — Canada or United States — Standard of review of international arbitration in both countries similar — Convenience of parties and Tribunal — Arbitration conducted at icsid headquarters — Neutrality as between parties

Arbitration — Documents — Disclosure — Documents available to the public on reasonable inquiry — Whether requiring to be specifically disclosed — Test of necessity — Arbitration (Additional Facility) Rules, Article 41(2)

Jurisdiction — Alleged breach of nafta Article 1103 asserted in course of pleadings — Article 1103 not mentioned in Notice of Intention to arbitrate — Whether Tribunal deprived of jurisdiction over Article 1103 claim — nafta, Article 1119

Jurisdiction — Over “incidental or additional claims” — How related to primary claim — Requirement of close relationship or connection — Claimant failing to present evidence of such connection — Absence of jurisdiction — Arbitration (Additional Facility) Rules, Article 48(1)

Discrimination — Local manufacture requirement — Applicable equally to local as to foreign suppliers — No showing of discrimination in law or fact nafta, Article 1102

nafta — Domestic content requirement — Whether excluded from nafta Article 1106 as procurement by a Party — Whether federal funding programme involves procurement — Whether procurement by component State “procurement by a Party” — ilc Articles on Responsibility of States for Internationally Wrongful Acts, Article 4 — nafta, Article 1108, Annex 1001.1a-3

Foreign investment — Investment protection — “Full protection and security” — naftaftc Interpretation of 31 July 2001 — Whether binding on Chapter 11 Tribunals — Meaning of Interpretation — Requirement on Claimant to show that treatment violated a specific rule of customary international law relating to foreign investment — nafta, Articles 1105(1), 1132

nafta — Domestic content requirement — Whether violating contemporary standards of international law embodied in Article 1105(1) — Whether idiosyncratic, aberrant or arbitrary

nafta — Most-favoured-nation treatment — Onus of proof — mfn treatment not applicable to governmental procurement — nafta, Articles 1103, 1108(7)(a)

Costs — Costs against defeated Claimant — Nature and complexity of proceedings — Costs shared equally between parties