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Costs are split

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Claimant made no prima facie case that it suffered a loss as a result of the contested measures

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Claimant cannot claim as the successor of the initial investor

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Assignment of NAFTA claim is not possible

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NAFTA claimants must have owned or controlled the investment at the time of the alleged breach

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Tribunal notes that this appears to be a case of first impression, and sets out relevant legal principles

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Burden of proof is only relevant with respect to factual matters – and few factual issues arise here

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Tribunal considers that the three temporal objections raise similar legal issues

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Bankruptcy of initial investor gives rise to procedural quagmire

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Background: Dispute arises out of Alberta’s decision to phase out coal-generated power

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Mexico argues that claims can only be brought on behalf of entities that the claimant owned or controlled at the time of the breach

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According to Mexico, only investors that have themselves suffered a loss may bring a claim

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Mexico says that NAFTA Article 1101(1) is a gateway to dispute resolution provisions

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According to WMH, Canada’s interpretation goes against NAFTA’s object and purpose

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Case law does not support Canada’s position, so says the claimant

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According to WHM, NAFTA does not prohibit assignment of claims

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Claimant deems Canada’s stance overly formalistic, arguing continuous foreign ownership of the investment

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NAFTA text imposes no requirement for claimant being an investor at the time of alleged breach, WMH says

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Claimant says that Canada’s breach continues, while damages remain pending

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