USA’s lack of consideration for indigenous’ rights affected decision on costs

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Tribunal saw no evidence of denial of justice or lack of due process

Lack of consideration for First Nations’ interests was regrettable, but did not amount to breach of MST

Potential breach of obligation assumed under separate international agreement does not establish breach of MST

Claim that alleged investment should not have been subjected to challenged measure did not fall within scope of NT or MFN standards

Partial expropriation does not generally qualify as breach of Article 1110 of NAFTA

Ambiguous legislation cannot ground legitimate expectations for the purpose of expropriation claim

Additional elements provided by claimants, even if considered in aggregate, were insufficient to meet restrictive definition of investment under NAFTA

Escrow payments linked to cigarette sales were not a protected investment under Article 1139 of NAFTA

Inventory loan did not constitute an investment

Arbitrators found no evidence of indigenous customary practice proving collective transboundary enterprise

Tribunal found no jurisdiction under NAFTA in relation to measures that allegedly affected Canadian plant

Tribunal relied on VCLT rules of interpretation, but stressed limited role of extra-NAFTA rules of international law

Tribunal avoided formalistic approach to admissibility of amended claims, privileging judicial economy

Only events that form subject matter of the claims are relevant to assessing compliance with limitations period

Tribunal clarified definition of “loss or damage” under NAFTA Articles 1116(2) and 1117(2)

Claimants had “constructive knowledge” of potential regulatory measures regarding their off-reservation sales

Decision on jurisdiction focused on NAFTA limitations period

Canada and representative of First Nations people file non-disputing party submissions dealing with customary international law nature of indigenous rights

James Anaya stepped down from role as counsel on human rights proceedings to avoid incompatibilities

Background: Settlement agreement with major tobacco producers prompts arbitration against the USA

Tribunal in Grand River v. U.S.A. arbitration declines to import non-investment law obligations into NAFTA

Canada weighs in on customary international law issues

Human Rights law arguments figure prominently in NAFTA dispute over indigenous tobacco enterprise

Parties spar over alleged obligation to consult indigenous groups

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