Mr. Alvarez finds that USMCA’s negotiation history supports claimants’ position

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Dissenter opines that USMCA’s ordinary meaning and context imply that the legacy investment clause applies to events occurring during the NAFTA/USMCA transition period

Claimants are directed to pay costs

Tribunal majority declines to find jurisdiction based on unclean hands or estoppel doctrines

Tribunal majority rejects claimants’ argument that NAFTA’s substantive provisions remained applicable due to a choice-of-law provision for legacy claims under USMCA

Negotiation history mostly indicates USA’s internal views rather than position of all USMCA parties, and in any event supports USA’s position

Restrictive Interpretation is consistent with USMCA’s object and purpose and other obligations under international law

Good faith cannot be used to contradict treaty’s ordinary meaning

Claimants’ reliance on footnotes and other provisions is unfounded, according to majority

Footnotes and general structure of USMCA confirms Restrictive Interpretation

Ordinary meaning indicates that USMCA parties only agreed to extend NAFTA’s arbitration provisions, and not its substantive provisions, during NAFTA-USMCA transition period

Tribunal sees no presumption either in favor or against jurisdiction

Background: Revocation of pipeline permit leads to NAFTA legacy claim under USMCA

Costs lie where they fall

Koch Industries does not qualify as protected investor

Jurisdiction cannot be created through estoppel

Claimants’ cross-border trading activities do not amount to an interest in economic activity in Ontario covered by NAFTA Article 1139(h)

Emissions allowances are not “property” within the meaning of NAFTA Article 1139(g)

Comparative law provides little guidance

Ontario law provides no general test to define property, but government’s discretionary powers may indicate an absence of property right, which requires “exclusive control”

Claimants bear burden of proving jurisdiction, while both parties bear burden of proving facts they assert

Background: Claimants purchase emissions allowances in Ontario shortly before the scheme is cancelled

Tribunal appoints Privilege Master to assess documents for which USA invoked attorney-client privilege

Deliberative process privilege is in principle available for USMCA disputes, but USA failed to demonstrate compelling public policy considerations justifying its application in this case

Mexico supports respondent’s view; USA invokes privilege with respect to most documents

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