Argument that Mr. Chertoff’s acquiescence to past practices contrary to international law warrants disqualification is unpersuasive and has become moot; ICSID Chair is not competent to rule on request to strike this argument from the record

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Allegations that Mr. Chertoff had access to confidential information about the claimants when working for the US are mere speculation

Past views on international law expressed by Mr. Chertoff in an academic context and when acting as counsel for a client are insufficient to warrant his disqualification

Mr. Chertoff’s promise to withdraw from his advisory role is deemed insufficient, as conflicts cannot be cured; no need to decide on consequences of failure to disclose

Mr. Chertoff’s ongoing advisory work for the US creates obvious appearance of lack of independence and impartiality, according to ICSID Chair

Prior government service is in itself insufficient to warrant an arbitrator’s disqualification

Legal standard under ICSID Convention requires obvious appearance of lack of independence or impartiality; IBA Guidelines are not binding, but may provide “useful reference”

Disqualification proposal was submitted in a timely fashion

Claimants challenge Mr. Chertoff, pointing to his former and current work for the US, as well as to his legal writings on the interaction between domestic and international law

For the dissenting arbitrator, jurisdictional waiver requirements were met

Case centered on the effectiveness of the claimant’s waiver of domestic litigation

Majority found that measures at stake in on-going domestic litigation were the same as those at stake in this arbitration

The proceeding did not fall under the Article 1121 exception for purely injunctive or declaratory proceedings

In the alternative, the majority found that it lacked jurisdiction because the proceeding was brought before US (not Canadian) courts

Waivers can’t be used to cure tribunal’s lack of jurisdiction – and subsequent waivers failed for procedural, as well as substantive reasons

Arbitrators saw no need to address Canada’s statute of limitations claim

Tribunal agrees with Canada and asks claimant to justify its extensive proposed redactions, thus leading to claimant retreating from its position

Canada urged release of full transcript, and complained that claimant’s proposed redactions extended far beyond definition of confidential information

Latest procedural order says that rights of USA and Mexico are not abridged by their being excluded from hearings in DIBC v. Canada case

U.S. asked arbitrators to reconsider decision, and elaborated on view that attendance is permitted under NAFTA

U.S. complains that its right to shape interpretation of treaty is prejudiced by exclusion from hearings

Tribunal reaffirmed its position in post-hearing procedural order

Tribunal hints that USA could ask for transcripts of recently-concluded hearing

Documents to be public, but hearings will be closed

Canada argues for Canadian seat

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