Mobil Investments Canada Inc. and Murphy Oil Corporation v. Government of Canada

Abstract

Fair and equitable treatment — Minimum standard of treatment — NAFTA, Article 1105 — Customary international law — Legitimate expectation — Legal stability — Whether the minimum standard protected an investor’s legitimate expectations — Whether the minimum standard protects an investor from changes in the legal and business framework — Whether the State made any promise or representation of a contractual nature — Whether the measures constituted egregious behaviour

Performance requirements — NAFTA, Article 1106 — Interpretation — Meaning of “services” — Whether research and development qualified as services — Whether the measure required the investor to prefer local goods and services

Defence — Exclusions and reservations — NAFTA, Article 1108 — Subordinate measures — Whether a subordinate measure was adopted under the authority of and consistent with the reserved measure — Whether new subordinate measures should be assessed for consistency with existing subordinate measures

Remedies — Future damages — NAFTA, Article 1116 — Whether a tribunal may award compensation for future damages

Remedies — Standard of proof — Customary international law — Whether compensation could be made for obligations incurred but not yet paid — Whether uncertainty was to be construed against the wrongdoer

Remedies — Quantum — Customary international law — Whether a tribunal may increase compensation to offset an investor’s future tax liability

Remedies — Quantum — Whether losses represented expenditure undertaken pursuant to the measure or would have been made in the ordinary course of business — Whether compensation should be decreased to reflect tax benefits and royalty payment deductions enjoyed by an investor