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By a two-to-one vote, a Permanent Court of Arbitration tribunal ruled in 2015 that Canada's environmental assessment was unfair to Bilcon. IIA breaches alleged and found PCA). • Judicial review by national courts (set-aside proceedings); and What tax policymakers need to know about IIAs and their implications for tax measures. the date in which the request for arbitration containing this amount was submitted or the date of the final award). The ISDS Navigator contains information about known international arbitration cases initiated by investors against States pursuant to international investment agreements (IIAs). • PCA: Permanent Court of Arbitration Fair and equitable treatment/Minimum standard of treatment, including denial of justice claims, Updated as of 31 July 2020 (next update in progress), Clayton and Bilcon of Delaware Inc. v. Government of Canada, Arbitral rules and administering institution, Decided in favour of neither party (liability found but no damages awarded), ISDS data set in excel format (as of 31 July 2020), https://investmentpolicy.unctad.org/investment-dispute-settlement, Investment Dispute Settlement Navigator >, Award on Jurisdiction and Liability dated 17 March 2015, Dissenting opinion by Professor Donald McRae, Judgment of the Federal Court of Canada dated 2 May 2018, http://www.international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/disp-diff/clayton.aspx?lang=eng, http://www.iareporter.com/articles/20091008_14, http://globalarbitrationreview.com/news/article/14371/us-contractor-starts-nafta-claim/, http://globalarbitrationreview.com/news/article/33683/canada-held-liable-blocked-quarry-project/, http://www.italaw.com/sites/default/files/case-documents/italaw4362.pdf, https://www.iareporter.com/articles/canada-fails-in-bid-to-set-aside-unfavourable-nafta-award-from-bilcon-quarry-dispute-damages-ruling-looms-in-443-million-compensation-fight/, https://www.iareporter.com/articles/in-quantum-decision-bilcon-tribunal-awards-investors-little-more-than-their-sunk-costs-after-finding-no-certain-causation-between-canadas-breach-and-alleged-lost-profits/. Close, But No Cigar: Bilcon Tribunal Rejects Claim on Grounds of Failure to Establish Causation. If there are more than five claimants in the case, the names of all claimants can be replaced by the name of the first three claimants followed by the words “and others”. CLAYTON, DANIEL CLAYTON AND BILCON OF DELAWARE INC. (the “Investors” or “Bilcon”) -and- GOVERNMENT OF CANADA (the “Respondent” or “Canada” and, together with the Investors, the “Disputing Parties”) PROCEDURAL ORDER NO. In some cases, the approximate amount may be recorded to give a broad indication of the dispute’s magnitude. • Research and policy analysis: monitoring trends, identifying key emerging issues and providing cutting-edge knowledge on IIAs from a sustainable development perspective, Please cite as: UNCTAD, Investment Dispute Settlement Navigator, available at https://investmentpolicy.unctad.org/investment-dispute-settlement. Once again Canada has lost an important investor/state arbitration under Chapter 11 of NAFTA (for a post on Canada’s last reversal (Mobil and Murphy), also characterized by a strong dissent, see Regulatory Concussion ). Award Commented On: The Claytons and Bilcon v Canada, NAFTA, UNCITRAL Rules, 17 March 2015. Applicable IIA In ad hoc arbitrations or those that are subject to non-institutional arbitral rules (e.g. In Bilcon et al.v. William Ralph Clayton, William Richard Clayton, Douglas Clayton, Daniel Clayton and Bilcon of Delaware Inc. v. Government of Canada, UNCITRAL , Permanent Court of Arbitration ( PCA) Case No. In treaty-based cases that are simultaneously contract-based or based on national investment law ("mixed" disputes), a case is deemed concluded (for purposes of the Navigator) if the tribunal dismissed the case on jurisdiction or finds no breach of the IIA, even if it proceeds to adjudicate the contract- or statutory-based claims. (Published in 2018 in International Investment Law and Sustainable Development: Key cases from the 2010s and on this website on October 18, 2018. A link to the relevant case page at http://italaw.com is provided where such page is available, so that users could browse all documents relating to the case at hand. 2008. Investment Policy Monitor No. Arbitral decisions rendered claimant or respondent) that appointed a particular arbitrator is also recorded insofar as information is available. Clayton/Bilcon v. Government of Canada Government of Canada In the Matter of an Arbitration Under Chapter Eleven of the North American Free … These are decisions rendered by an arbitral tribunal. • SCC: Stockholm Chamber of Commerce (Arbitration Institute) not as “Pending”). Instances where the respondent failed to appoint an arbitrator, and the latter was appointed by an “appointing authority”, are not recorded separately (i.e. (i[r].q=i[r].q||[]).push(arguments)},i[r].l=1*new Date();a=s.createElement(o), In particular, these include decisions (awards) on jurisdictional issues, liability (merits) and damages, including arbitrators’ individual opinions where these were issued. The disputing party (i.e. • fully or partially based on an IIA, such as a bilateral investment treaty or the investment chapter of a free trade agreement (not included are investor-State disputes that are solely based on contracts or on domestic investment legislation); Secondary sources, such as specialized reporting services and other sources deemed reliable, are used to supplement primary sources and/or obtain case information otherwise unavailable. • Discontinued: the arbitration was discontinued for any reason other than due to a (known) settlement. Share. By Judith Lavoie, October 2015 . Claims arising out of the Government's rejection of the investors' project to operate a quarry and marine terminal in the Canadian province of Nova Scotia, following a negative environmental assessment process. The Claytons and Bilcon of Delaware Inc., (Bilcon) are U.S. investors who UNCTAD assumes no responsibility for eventual errors or omissions in these data. Whenever possible, information about amounts claimed and awarded is obtained from primary sources such as the arbitration documents. Canada shall pay interest on the amount awarded at a rate of the average one-year U.S. Treasury bill yield for the corresponding calendar year, accruing annually on a compounded basis, starting on 22 October 2007 and until full payment of the sum awarded. We welcome any additional information or clarifications on specific cases as well as suggestions to improve the Navigator. Murray Rankin v. Canada. For arbitrations brought under the ICSID Convention Arbitration Rules or ICSID Additional Facilities (AF) Rules, the year in which the claim was registered by ICSID is used. not as “Pending”). 19 (Regarding the Respondent’s Application to Stay the Proceedings) August 10, 2015 : ARBITRAL TRIBUNAL : Judge Bruno Simma (President) Professor … It makes available not only the main arbitral decisions, but also procedural orders, parties’ submissions, expert opinions and other types of documents. Typically it is the first word of a corporate claimant’s name, an abbreviation of the corporate claimant’s name, or the last name of a natural-person claimant “v.” the short version of the respondent State’s name. The summary of the dispute describes in very general terms the conduct allegedly in breach of IIA obligations as argued by the claimant (non-exhaustive). ISDS Navigator Rankin acted on behalf of an American mining corporation in its successful bid to sue Canada using NAFTA. SCC or ICC), the relevant institution administers that case. Administering institution UNCTAD's Work Programme on International Investment Agreements (IIAs) actively assists policymakers, government officials and other IIA stakeholders to reform IIAs with a view to making them more conducive to sustainable development and inclusive growth. Details of investment and summary of the dispute BILCON OF DELAWARE V. CANADA: NAFTA's IMPACT ON ENVIRONMENTAL ASSESSMENTS Elise LeGros* I. This article is reprinted from Volume 35, Issue 3, of the Ohio State Journal on Dispute Resolution. U.S. investors, members of the Clayton family and a corporation they control, Bilcon, filed a claim against the Government of Canada alleging that the type of environmental assessment undertaken with respect to the White Point Quarry and/or Marine Terminal Project, as well as the administration and conduct of the environmental assessment, violate NAFTA Article 1102 (national treatment), Article 1103 (most … Concluded original arbitration proceedings: Open this in NEW TAB • ICC: International Chamber of Commerce (International Court of Arbitration) //-->. D. McRae – Canada’s appointed arbitrator – dissented from both findings. Canada hopes that Federal Court will overturn NAFTA tribunal’s controversial decision in Nova Scotia quarry case (Bilcon v. Canada) Jun 17, 2015 Arbitrators in Clayton/Bilcon case align on jurisdictional questions, but fall out over Canada’s liability for NAFTA breach in $300 million quarry fight Mar 21, 2015 Please contact us using the online contact form. concerning provisional measures or decisions regarding requests for disqualification of arbitrators. Included are those decisions that concern the substance of the case and affect the final outcome. • MCCI: Moscow Chamber of Commerce and Industry Year of initiation On 10 January 2019, the Tribunal of Bilcon v. Canada rendered its Award on Damages, following its Award on Jurisdiction and Liability rendered in 2015. This refers to the economic sector to which the investment at issue allegedly belongs. 6 Bilcon v. Canada,, UNCITRAL, Procedural Order No. When the relevant case documentation is not publicly available, information about breaches alleged may be obtained from other public sources that are deemed reliable. The three pillars of activities Amount awarded refers to the amount of monetary compensation awarded by the arbitral tribunal to the claimant, not including interest, legal costs or costs of arbitration. 2 (Confidentiality Order), Rejoinder Expert Report of Lawrence E. Smith, PCA Press Release: Live Streaming of Hearing on Jurisdiction and Liability, Dissenting Opinion of Professor Donald McRae, Application to the Federal Court of Canada for Set Aside of the Award, Appleton & Associates International Lawyers, Order of the Federal Court of Canada Dismissing Investors' Motion to Stay Canada’s Set Aside Application, United States' Damages Article 1128 Submission, Investors' Response to United States Damages Article 1128 Submission, PCA Press Release re Public Hearing on Damages (English), PCA Press Release re Public Hearing on Damages (French), Concurring Opinion of Professor Bryan Schwartz, Procedural Order No. This refers to the current status of the original arbitration proceedings. ICSID annulment proceedings or domestic judicial review), are marked according to the outcome of the original arbitral proceeding (i.e. Claims arising out of the Government's rejection of the investors' project to operate a quarry and marine terminal in the Canadian province of Nova Scotia, following a negative environmental assessment process. Proceedings that are not subject to any existing set of arbitral rules, i.e. To access a full list of documentation available with respect to a case, users are invited to use (i) the link to the case page on http://italaw.com, and/or (ii) links to the websites of governments and/or arbitral institutions provided in the “Additional information” section. The Navigator is updated on a regular, typically biannual, basis. • ICSID: International Centre for Settlement of Investment Disputes • Intergovernmental consensus-building: exchanging and sharing best practices and experience with the view to fostering global investment governance. © Copyright - UNCTAD Division on Investment and Enterprise. Bilcon v. Canada (or “Bilcon”) William Ralph Clayton, William Richard Clayton, Douglas Clayton, Daniel Clayton and Bilcon of Delaware Inc. v. Government of Canada, UNCITRAL (NAFTA), PCA Case No. Whenever a claimant or the tribunal refer to “expropriation”, without distinguishing between “direct” or “indirect”, such distinction is made on the basis of the factual background of the case and the context of the claimant’s claims and tribunal’s findings. This includes discontinuance as a result of non-payment of arbitration fees, in order to pursue litigation in another forum, or for any other reason (including for unknown reasons). Pr. • Decided in favour of neither party (liability found but no damages awarded): the arbitral tribunal found that the respondent State committed one or more breaches of the applicable IIA but did not award monetary compensation or non-pecuniary relief to the claimant investor. })(window,document,'script','//www.google-analytics.com/analytics.js','ga'); • Provide comprehensive analysis on key issues arising from the complexity of the international investment regime, Follow-on (post-award) proceedings Primary sources (i.e. Clayton/Bilcon v. Canada William Ralph Clayton, William Douglas Clayton, Daniel Clayton and Bilcon of Delaware, Inc. v. Government of Canada, PCA Case No. This section provides links to sources of information used for gathering data for the case at hand or otherwise relevant to that case. The attorneys for the claimants in Bilcon are also the claimant’s attorneys in Mesa. The entry point for all country specific investment policy data. Otherwise, it is derived from other publicly available sources that are deemed reliable. Explore the world's most comprehensive free database of investment treaties and model agreements. 2009-04 Type d'affaire : Investisseur-État. RESOL. These are individuals who serve as members of the arbitral tribunal adjudicating the dispute (arbitrators). V. Canada | In Bilcon et al. The arbitration, Bilcon v. Canada, arose after a proposed quarry in Nova Scotia was rejected by Ministers on the basis of a recommendation by a joint federal-provincial environmental assessment panel. The UNCTAD Investment Dispute Settlement Navigator – the ISDS Navigator – is maintained by UNCTAD’s IIA Section. (forthcoming 2020). Canada, a NAFTA Chapter 11 dispute, the tribunal's majority held Canada liable for breaches of NAFTA Articles 1102 (National Treatment) and 1105 (Minimum Standard of … INTRODUCTION HE Permanent Court of Arbitration (Tribunal) ruled on March 17, 2015, that the manner in which Canada conducted an environ-mental assessment of … official documents relating to the case and information provided by the administering institutions) are the main and preferred source of information. On 10 January 2019, the Tribunal of Bilcon v.Canada rendered its Award on Damages, following its Award on Jurisdiction and Liability rendered in 2015. Share this page on: Close. CLAYTON, DANIEL CLAYTON AND BILCON OF DELAWARE, INC. (the “Investors”) - and - GOVERNMENT OF CANADA (the “Respondent” and, together with the … • Technical assistance: delivering trainings, seminars and workshops; conducting IIA and model BIT reviews; offering ad-hoc advice to strengthen the capacity of beneficiaries in handling the complexities of the IIA regime, as a result of resignation, disqualification or passing away), the names of both the previous and subsequent arbitrator are recorded. * The claimants turned to NAFTA arbitration in 2008 seeking compensation for the decision of Canadian and Nova Scotia authorities to deny approval of the claimant’s proposed basalt quarry and marine terminal on the Bay of Fundy. For further information, please contact us via the online contact form. Bilcon of Delaware et al v. Government of Canada Government of Canada The PCA is providing administrative support in this arbitration, which is being conducted under Chapter Eleven of the North American Free Trade Agreement (NAFTA). Amounts are recorded in the currency used by the claimant/tribunal. Common abbreviations for administering institutions: The ISDS Navigator includes information about publicly known IIA-based international investor-State arbitration proceedings. For the purposes of such conversion, the OANDA Historical Currency Converter is being used; the date of conversion is the date of the document or other source from which the information was obtained (e.g. It requires policymakers, negotiators, civil society and other stakeholders to be well informed about foreign direct investment, international investment agreements (IIAs) and their impact on sustainable development. Arbitral rules As a general rule, a rounded figure (to the nearest hundred thousand) of the amount claimed or awarded is provided. v. Canada, a NAFTA Chapter 11 dispute, the tribunal’s majority held Canada liable for breaches of NAFTA Articles 1102 (National Treatment) and 1105 (Minimum Standard of Treatment). (function(i,s,o,g,r,a,m){i['GoogleAnalyticsObject']=r;i[r]=i[r]||function(){ When the relevant decision is not publicly available, information about breaches found may be obtained from other public sources that are deemed reliable. both types of appointment are recorded under “Appointed by / designated to Respondent” without further distinction). • Pending: the arbitration proceedings are pending. The case remains pending, for instance, if a State is found to have breached one or more IIA obligations (liability) but no award on damages has been issued yet. Find details on all publicly known treaty-based investor-State dispute settlement cases. To enable comparisons between cases, all amounts are also converted to US dollars.