Arbitration — Admissibility of claims — Ancillary and additional claims — NAFTA Article 1102 — NAFTA Article 1120(2) — Article 48 of the Additional Facility Arbitration Rules — Omission to rely on claim in notice of arbitration — Claims pre-dating NAFTA’s entry into force — Course of action continuing after NAFTA’s entry into force — Interpretation and correction of award — Interpretation and supplementary decision

Claims — Nationality of claims — Standing — Nationality and permanent residence — Definition of nationals — NAFTA Article 201

Claims — Procedure — Time limits — Meaning of “making a claim” — NAFTA Article 1117 — Receipt of claim by ICSID Secretary-General — Suspension of period of limitation — “Discouraging” a claim not a factor in suspension of period of limitation — Extension of time limits by estoppel

Economics, trade and finance — Investment protection — Denial of justice — Access to domestic courts — NAFTA Article 1110 — National treatment — Non-discrimination — NAFTA Article 1102 — Like circumstances — Less favourable treatment of foreign investors

Expropriation — NAFTA Article 1110 — Expropriation through taxation — Tax rebates for export of cigarettes — “Creeping” expropriation — Governmental regulatory activities — Expropriation and regulation

Arbitration — North American Free Trade Agreement, Chapter 11 — UNCITRAL arbitration — Award on Merits of Phase 2 — Tribunal finding Canada in breach of Article 1105 — Canada liable to Investor for resultant damages — Effect of NAFTA Free Trade Commission’s interpretation of Article 1105

Treaties — Interpretation — North American Free Trade Agreement, Chapter 11 — Article 1105 — NAFTA Free Trade Commission issuing interpretation of Article 1105 — Commission’s interpretation issued subsequent to Award on Merits of Phase 2 — Whether Commission’s interpretation valid exercise of Commission’s power — Whether binding on arbitration tribunal — Whether operating retroactively — Validity of arbitration tribunal’s Award on Merits under Article 1105 — Whether tribunal’s interpretation of Article 1105 compatible with Commission’s interpretation — Nature and content of customary international law — Whether Canada violating Article 1105

Damages — Whether Investor entitled to damages under Article 1105 — Heads of damages — Whether recoverable — Final award on costs — Articles 38 and 40 of the UNCITRAL Arbitration Rules

Arbitration — North American Free Trade Agreement, Chapter 11 — UNCITRAL arbitration — Investor commencing arbitration proceedings under NAFTA, Chapter 11 — Whether Canada violating Articles 1102, 1105, 1106 and 1110 of NAFTA

Relationship of international law and municipal law — Canadian municipal law — Judicial review of NAFTA award in Canadian courts — Canada making application to Federal Court of Canada — Canada seeking to set aside First Partial Award

Damages — Appropriate primary measure of compensation — Scope of recovery — Review of principles concerning assessment of compensation — Appreciation of evidence — Interpretation of applicable law — Quantification of compensation — Value of lost and delayed net income streams — Methodology of quantification — Interest — Costs

International tribunals — Provisional measures of protection — International Tribunal for the Law of the Sea — Applicable law — United Nations Convention on the Law of the Sea, 1982 (“UNCLOS”) — Ireland and United Kingdom both States Parties to UNCLOS — Request by Ireland for the establishment of an Annex VII Arbitral Tribunal — Request by Ireland for the indication of provisional measures under UNCLOS Article 290(5) pending constitution of Annex VII Arbitral Tribunal

Sea — Marine environment — UNCLOS — Environmental effects of the MOX nuclear plant and of international movements of radioactive materials — Obligation to cooperate in taking measures to protect and preserve the Irish Sea — Precautionary principle

Treaties — Interpretation and application — UNCLOS — Compulsory procedures for settlement of disputes — UNCLOS Articles 281 and 282 — Whether applicable — Relationship between Article 282 and compulsory dispute settlement procedures under other treaties — Convention for the Protection of the Marine Environment of the North-East Atlantic, 1992 (“OSPAR Convention”) — Treaty Establishing the European Atomic Energy Community, 1957 (“Euratom Treaty”) — Treaty Establishing the European Community, 1957 (“EC Treaty”) — Commencement of dispute settlement procedures under the OSPAR Convention not precluding resort to compulsory dispute settlement under UNCLOS — Provisions of other treaties not relevant to dispute concerning the interpretation and application of UNCLOS — UNCLOS Article 282 not applicable

Sea — UNCLOS — Article 290(5) — Conditions to be satisfied for prescription of provisional measures under Article 290(5) — Whether prima facie basis for the jurisdiction of the Annex VII Arbitral Tribunal — Whether urgent necessity for prescription of provisional measures pending the constitution of Annex VII Arbitral Tribunal — Irreparable prejudice — Serious harm to the marine environment — Requirement of urgency not satisfied — Power of International Tribunal to prescribe provisional measures different in whole or in part to those requested

International tribunals — Jurisdiction — Admissibility — United Nations Convention on the Law of the Sea, 1982 (“UNCLOS”) — Annex VII tribunal — Scope of jurisdiction — Whether restricted to alleged violation of UNCLOS — Other international court seised of case — Whether tribunal should defer to other court — Suspension of proceedings — Whether precluding exercise of provisional measures jurisdiction

International tribunals — Provisional measures of protection — Criteria — Urgency — Need for measures to preserve rights of either party — Equality between parties — Prevention of serious harm to the marine environment

Sea — Marine environment — UNCLOS — Protection of marine environment — Use of provisional measures jurisdiction

International tribunals — Applicable law — Permanent Court of Arbitration — Arbitration under Convention for the Protection of the Marine Environment of the North-East Atlantic, 1992 (“OSPAR Convention”) — Tribunal applying OSPAR Convention — Duty to apply other principles of international law but claim had to be based upon OSPAR

Sea — Marine environment — OSPAR Convention — Obligations regarding exchange of information — Scope of obligation — Confidential information

International tribunals — International Tribunal for the Law of the Sea — Applicable law — United Nations Convention on the Law of the Sea, 1982 (“UNCLOS”) — Relationship between International Tribunal and domestic courts and administration — Decision of the International Tribunal under Article 292

Sea — Exclusive economic zone (“EEZ”) — Arrest of vessel — UNCLOS Articles 73 and 292 — Procedure for ensuring prompt release of vessels and crew — International concern over illegal fishing in the Southern Oceans — Patagonian toothfish — Conservation of Antarctic Marine Living Resources — Coastal State jurisdiction — Exercise of sovereign rights of coastal State — Volga flying flag of Russian Federation — Illegal fishing in EEZ of Australian Territory of Heard and McDonald Islands — Arrest of Volga outside EEZ — Seizure of vessel, equipment and fish

Treaties — Interpretation and application — Object and purpose of treaty — Context of provision — UNCLOS — Article 73(2) — Meaning of the expression “reasonable bond or other financial security” — Examination by the International Tribunal of level and elements of the bond set by Australia — Whether circumstances of seizure of vessel relevant to assessment of bond — Whether a “good behaviour bond” requiring use of vessel monitoring system (“VMS”) reasonable — Whether additional non-financial conditions of bond reasonable — Assessment of gravity of alleged offences — Whether international concern over illegal fishing relevant to assessment of gravity and to level of bond

International tribunals — Provisional measures of protection — International Tribunal for the Law of the Sea — United Nations Convention on the Law of the Sea, 1982 (“UNCLOS”), Article 290 — Requirements for order of provisional measures — Jurisdiction — UNCLOS Articles 283 and 288 — Obligation to exchange views regarding settlement of dispute by negotiation or other peaceful means — No precondition of exhaustion of diplomatic negotiations before dispute referred to Tribunal

Sea — Territorial sea — Provisional measures — Claim to territorial sea as basis for prescription of provisional measures — Insufficient basis for ordering provisional measures — Interests — Right to natural resources within territorial sea — Estuary — Semi-enclosed sea — Right to integrity of marine environment — Right to be consulted with respect to major land reclamation works — Possible impact on maritime transit rights

Environment — Marine environment — Preservation of marine and coastal environment — Maritime access to coastline — Effect of land reclamation works on marine environment

Comity — International cooperation — Duty to cooperate to prevent pollution of marine environment — UNCLOS Part XII

Arbitration — Challenge — Arbitration tribunal constituted under North American Free Trade Agreement (“NAFTA”), Chapter 11 — Arbitral award — Mexico applying to set aside arbitral award — Proceedings in Canadian courts

Arbitration — Disclosure of confidential information — Adverse inference from failure to provide information — Article 34 of UNCITRAL Model Law — NAFTA Article 2105

Relationship of international law and municipal law — Application for judicial review of arbitral award — Annulment of award by national court — Article 34 of UNCITRAL Model Law — Jurisdiction to apply provisions not raised during arbitral proceedings — NAFTA Article 210 — Deference to arbitral award — International commercial arbitrators — Review of findings of fact — Article 34(2) and 34(3) of UNCITRAL Model Law — ICSID Article 53 — Breach of public policy — Article 34(2) (b)(ii) of UNCITRAL Model Law

Economics, trade and finance — Investment protection — NAFTA — Chapter 11 — National treatment — Nondiscrimination — NAFTA Article 1102 — Less favourable treatment of foreign investors — The law of Canada

Arbitration — Challenge to award — Arbitration tribunal constituted under North American Free Trade Agreement (“NAFTA”), Chapter 11 — UNCITRAL Arbitration Rules — Arbitral awards in S. D. Myers Inc. v. Government of Canada — First Partial Award on Liability — Second Partial Award on Damages — Final Award on Costs — Canada liable for breach of NAFTA obligations — Respondent awarded damages and costs — Canada applying to set aside NAFTA Chapter 11 arbitration awards

Relationship of international law and municipal law — Application for judicial review of NAFTA Chapter 11 arbitration awards — Court’s jurisdiction for judicial review — Article 34 of Commercial Arbitration Code 1985 — Grounds for judicial review — Whether arbitral awards dealing with dispute not contemplated by NAFTA Chapter 11 — Whether arbitral awards exceeding scope of arbitration agreement in Part B of Chapter 11 — Whether arbitral awards contravening public policy of Canada — Principle of non-intervention in an arbitral award within jurisdiction of Tribunal

Treaties — Interpretation and application — NAFTA — Chapter 11 — Objectives of NAFTA — Purposive interpretation — Article 2.01 of NAFTA — Vienna Convention on the Law of Treaties, 1969, Article 31 — Principles of international law — Application of NAFTA — NAFTA Chapter 11 and Chapter 12 rights and obligations — Whether mutually exclusive — The law of Canada

Aliens — Immigration and deportation — Alien suspected of terrorist activity — Whether subject to deportation — Whether liable to detention if deportation not practicable — Discrimination — Objective differences between aliens and nationals — Whether justifying differences in treatment — Customary international law regarding detention of aliens in time of war and national emergency

Human rights — Right to liberty — Discrimination — Detention of aliens suspected of involvement in terrorism — Detention limited to persons who cannot be deported — Whether discriminatory — European Convention on Human Rights, 1950, Article 15(1) — Extent of right to derogate from Convention — Notice of derogation — Nature of public emergency threatening the life of the nation — Whether measures taken strictly required by the exigencies of the situation — Other human rights treaties

Relationship of international law and municipal law — Treaties — European Convention on Human Rights, 1950 — Human Rights Act 1998 — Whether right to derogate more limited under Act than under Convention — Customary law — Application by national courts

Terrorism — Definition — Anti-terrorism, Crime and Security Act 2001 — Terrorism as threat to international peace and security — Role of the courts in controlling executive and legislative action in the field of terrorism — The law of England

Relationship of international law and municipal law — In general — Whether rights arising between States on plane of international law enforceable in municipal courts — Treaties — Whether forming part of United Kingdom law — Geneva Convention relative to the Treatment of Prisoners of War, 1949 — European Convention on Human Rights, 1950 — Consular conventions — Justiciability — Whether courts of one State entitled to determine rights and obligations of another State under international agreements — Whether decisions regarding foreign policy subject to judicial review

Consular relations — Protection of nationals — Applicable law — Vienna Convention on Consular Relations, 1963 — Whether superseding bilateral convention between United Kingdom and United States of America — Right of consular access — Whether United Kingdom entitled to consular access to British citizen detained by United States authorities at Guantanamo Bay — Right to legal representation.

Human rights — Scope of application of human rights treaties — Whether obligations of State under human rights treaty confined to legal space of that State — Whether extending to detainees held by another State — Detainees' rights — Legal representation — Questioning of suspects — Whether a human right to diplomatic protection by State of nationality

War and armed conflict — Prisoners of war — Terrorism — Geneva Convention relative to the Treatment of Prisoners of War, 1949 — Whether applicable to terrorist suspects detained by United States of America after capture in Afghanistan — The law of England

Relationship of international law and municipal law — In general — Whether rights arising between States on plane of international law enforceable in municipal courts — Treaties — Charter of the United Nations — Resolutions of United Nations Security Council — Whether forming part of United Kingdom law — Justiciability — Whether courts of one State entitled to determine rights and obligations of another State under international agreements — Whether decisions regarding foreign policy subject to judicial review

War and armed conflict — Resort to force — Enforcement action — United Nations Security Council resolutions on Iraq — Resolutions 678 (1990), 687 (1991) and 1441 (2002) — Whether authorizing resort to force without a further decision of the Security Council — Whether question justiciable in a United Kingdom court — The law of England

State immunity — Jurisdictional immunity — Separate entity — State-owned airline — When entitled to immunity — Acts performed in response to governmental instruction — Whether commercial acts — Procedure — Issue of immunity tried as preliminary issue — Fraud — Perjured evidence tendered to Court at hearing on immunity — Decision on immunity based on incorrect findings of fact — Action to set aside — The law of England