Mondev International Ltd v. United States of America

Abstract

Arbitration — Jurisdiction — NAFTA, Articles 1102, 1105 and 1110 — Application to acts done before NAFTA’s entry into force — National court decisions after entry into force — Retrospective effect — Proceedings brought under NAFTA Article 1116(1) — Whether brought “on behalf of an enterprise” — Failure to rely on Article 1117(1) — Admissibility — Claim brought more than three years after incidents causing damage — Three-year time-limit — Application — NAFTA, Article 1116(2)

Arbitration — Procedure — NAFTA, Chapter 11 — Claim pursuant to Additional Facility Rules — Place of arbitration — Relevant factors — Joinder of jurisdictional objections to merits — Extent of discovery — Confidentiality of proceedings — Application of national freedom of information legislation to pleadings, minutes of meetings and orders of Tribunal — Extent and duration of parties’ obligation of confidentiality absent statutory obligations of disclosure — NAFTA Article 1126, Annex 1137.4 — Arbitration (Additional Facility) Rules, Articles 14, 24, 38 and 44 — Award of costs and expenses — Extent of Tribunal’s discretion

State responsibility — Expropriation — Investments — Termination of an investment — Lapse of contractual option — Bank’s foreclosure on mortgage over investment property — Subsisting claims under national law — Whether an “investment” Relevance of ownership of national law proprietary rights — NAFTA, Article 1139

State responsibility — Treatment of aliens — NAFTA, Article 1105(1) — Denial of justice — Whether “new law” applied retrospectively — Procedural decisions — Scope and standard of NAFTA review — “Full protection and security” — Statutory immunity of State agency in respect of intentional torts — Tortious interference with contractual relations — Jury finding implying lack of legitimate regulatory purpose — Whether immunity in breach of Article 1105(1) — Non-application of trade practices law to regulatory authority

Treaties — Interpretation — Subsequent practice — NAFTA — Free Trade Commission interpretation — Whether binding on Chapter 11 Tribunal — Whether “interpretation” or “amendment” — Scope of FTC interpretation — Effect on pending proceedings