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Parties did not agree to suspend NAFTA’s limitation period
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Defective waivers cannot be cured
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Waivers do not fulfill the conditions of NAFTA Article 1121
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Enforcement proceedings are inextricably linked to the set-aside decision and the liquidation of performance guarantees
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Waiver requirement should be interpreted in a broad fashion; “overly formalistic” approach is inappropriate
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US and Canada make submissions and attend hearings
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Parties agree to bifurcate waiver objection; disclosure by Mr. Rigo does not prompt challenge
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Background: KBR argues that set-aside of commercial award amounted to a treaty-breach, while enforcement proceedings remain ongoing
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