Friday, January 17, 2014

Pope & Talbot v. The Government of Canada case brief

    1. Pope & Talbot v. The Government of Canada case brief summary, 2000, NAFTA case, (U1 300)
      1. Facts: Canadian government charges low fees for Canadian companies cutting down trees from government land. American companies have to pay more for such cutting b/c they must purchase the right to do so on the private market. Canada also limits lumber exports to the US (under Softwood Lumber Agreement), with limitations varying by province. Americans claim NAFTA 1105, 1110, and 1102 violations.
      2. Tribunal found
        1. Breach of Art. 1105
          • Rejected contention of Canadian Government (supported by US & Mexico) that would have made only “egregious” misconduct a violation of Art. 1105.
          • Chooses the Mann interpretation (see above).
            • The Tribunal interprets [§ 1105] as expressly adopting the additive character of the fairness elements. Investors are entitled to those elements, no matter what else their entitlement under international law. A logical corollary to this language is that compliance with the elements must be ascertained free of any threshold that might by applicable to the evaluation of measures under the minimum standard of international law.” (U1 305).
            • Relies on the interpretation of BITs – they are additive and have very similar language.
          • Finds that there is no violation, except for the manner in which the government acted in conducting a “Verification Review.”
        2. NO breach of Art. 1102
          • Court states that “a violation of national treatment obligations can only be found if the measure in question disproportionately disadvantages the foreign owned investments or investors,” and rejects Canada’s proposed “disproportionate disadvantage” test, but concludes that there is no national treatment violation.
      3. Damages:
        1. Court grants Π the cost of the verification review (excluding executive time; they would have been working anyways).    

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