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Arbitrator resigns over speech discussing the measures at stake
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US nominee to Canfor tribunal resigned following realisation of potential conflict
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Questions of procedure, delay and estoppel were addressed
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Treaty context did not assist, but treaty objectives also suggested no jurisdiction
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Tembec withdrew from consolidated case
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Similar exclusions for tax and immigration further supported tribunal’s view; jurisdiction was declined over AD/CVD claims
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Washington DC was set as legal seat of Canfor arbitration, due to location of dispute subject-matter
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Tribunal bifurcated jurisdictional objections and ordered production of NAFTA negotiating history
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Canada and US reached inter-state settlement, leading to withdrawal of NAFTA claims; US sought recovery of costs from Tembec
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Inter-state agreement did not cover Tembec’s costs
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Tembec fought adverse costs order, but tribunal frowned upon its unilateral withdrawal
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Tembec bore all US costs for its share of the proceedings, while others split equally
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US failure to notify NAFTA partners of amendment disqualified it from relying on exception
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Textual analysis of exclusion for anti-dumping/countervailing duty law suggested no jurisdiction
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‘Byrd Amendment’ claims remained within jurisdiction
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Test for consolidation is objective, depending on factors of time, cost and conflicting decisions; tribunal downplayed confidentiality concerns
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Tribunal saw common questions of law and fact; good reasons to order consolidation, unlike in Corn Products case
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US requested consolidation of the three cases, while claimants resisted
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Consolidation tribunal began by dismissing concerns over consent and ethics
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Tribunal clarified meaning of NAFTA consolidation clause
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