The Loewen Group Inc. and Raymond L. Loewen v. United States of America

Abstract

Interpretation — NAFTA Article 1101 — Measures adopted or maintained by a Party — Whether judicial acts included

Nationality — Whether continuous nationality of claimant required — Language of NAFTA not dispositive — Issue to be decided in accordance with applicable rules of international law — Continuous nationality to date of award required

Interpretation — NAFTA Article 1101 — Measures adopted or maintained by a Party — Whether State conduct inducing private settlement agreement included

Interpretation — NAFTA Article 1105 — Meaning of obligations to provide “fair and equitable treatment” and “full protection and security” — Whether free-standing obligations or obligations under customary international law — Whether bad faith and malicious intention required — Whether conduct of trial was so flawed that it constituted a manifest injustice and breach of minimum standards prescribed in NAFTA and international law — Gross failure of trial judge to afford due process breached minimum standards

Jurisdiction — Failure to exhaust domestic remedies — Distinguished from waiver of domestic proceedings — Requirement to exhaust local remedies applicable to NAFTA — Remedies available to Claimants not exhausted

Expropriation — NAFTA Article 1110 — Claimant must establish denial of justice under NAFTA Article 1105 — Claimant unable to establish breach of Article 1105

Interpretation — NAFTA Article 1102 — Discrimination against foreign investors — Example of “most favourable treatment accorded in like circumstances” required — No example available to Tribunal — Breach not demonstrated