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Dissenter sees no ground to give a broad meaning to subsidies and grants under NAFTA
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Procurement carveout in NAFTA connotes formal government procedure
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Resolute’s refusal to bid for the PHP mill does not belie that claimant was in same circumstances as PWCC, according to dissenter
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Dissenter sees no need to evidence nationality-based discrimination under Article 1102(3) NAFTA
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Location of investment should not be dispositive in deciding if firms are in “like circumstances”, Mr. Cass says
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Conduct at issue qualifies as ‘treatment’ of claimant since consequences were reasonably foreseeable, dissenter holds
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Dissenter would have attributed LRR rates to Canada
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Arbitration costs mostly borne by Resolute, but legal fees are due where they fell
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Resolute’s refusal of assistance from Canada is irrelevant
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No proof of customary law obligation to let troubled enterprises fail
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Deference is due to regulatory choices
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Minimum standard of treatment in Article 1105 NAFTA is yoked to customary international law
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No evidence of laws and regulations being amended to favour local investor
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Arbitrators distinguish between legal burden of proof and evidential burden
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“Like circumstances” inquiry should take into account governing regulatory framework
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Exact “treatment” at stake in alleged discrimination is unclear
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Article 1102 of NAFTA is aimed at preventing nationality-based discrimination
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Most measures fall within the procurement and subsidies carve-out
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Whether or not duty of non-contradiction exists, Canada never fully denied that subsidies had been made
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Definition of term in other international agreements is not necessarily relevant to interpretation of NAFTA
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Procurement and subsidies exceptions are not mutually exclusive
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No specific rules of interpretation for NAFTA exceptions
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Details of commercial transaction between private parties are not attributable to Canada
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Each individual measure must be attributable to the state, even if the measures are interconnected
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