John Judge has successfully represented the US Investor, Bilcon of Delaware Inc. (Bilcon) and its shareholders, in the Federal Court of Canada to successfully resist an application by Canada to set aside a NAFTA Award in favour of Bilcon on the issues of jurisdiction and liability. In the lengthy 2015 Award, the Tribunal, chaired by Judge Bruno Simma, found Canada liable for breach of its obligations under Articles 1102 and 1105 NAFTA to provide a national standard of treatment and also to accord a minimum standard of treatment, including fair and equitable treatment in respect of Bilcon’s investment for a proposed quarry in Nova Scotia. Canada sought to set aside the Award on the ground that the Tribunal had acted beyond its jurisdiction by improperly relied solely on a breach of domestic environment laws as the basis for liability. In adopting John’s submissions, the Court found that Canada was simply trying to re-argue the merits of the case and that there was no true issue of jurisdiction raised by the Canada. As a result, the Court accepted that it did not the power to interfere with the merits of the decision and therefore dismissed the application with costs.
Bilcon’s damage claim for US $430 million has proceeded to the damage hearing in February 2018 and the Tribunal’s damage award is now under reserve.
A copy of the Federal Court decision can be accessed here.