Free to View: NAFTA/USMCA tribunal invites amicus curiae applications in emissions trading arbitration

An ICSID tribunal in Koch Industries and Koch Supply & Trading v. Canada has invited potential amici curiae to file for permission to intervene in the arbitration by March 17, 2022.

As we reported, the two US-based claimants filed for arbitration in late 2020, arguing that Canada had breached the United States-Mexico-Canada agreement (USMCA) – which allows for NAFTA legacy claims for a period of three years – when the Canadian province of Ontario revoked a previous emissions trading program. The October 31, 2018 Act, which put an end to the cap-and-trade system, provided that no compensation was owed to market participants, such as the claimants.

Notably, this appears to be the first case in which the USMCA’s NAFTA legacy provision has been invoked. (Several subsequent arbitration claims have invoked the legacy wording, such as in Finley Resources v. Mexico, L1bre Holding v. Mexico, and TC Energy & Transcanada v. USA.)

The Koch tribunal was constituted in April of 2021, and the claimants filed their memorial on jurisdiction and the merits in October of the same year.

In a February 1, 2022 news release, the tribunal has now invited non-disputing parties to file for leave to make amicus curiae submissions by March 17, 2022. The tribunal states that it will be guided by the NAFTA Free Trade Commission’s Statement on non-disputing party participation,  inviting potential amici to file applications for permission that do not exceed 5 pages, together with the proposed submission (which should not exceed 20 pages). The relevant documents should be sent to:

The tribunal is composed of Eduardo Zuleta (chair), Henri C. Alvarez (claimants’ appointee) and Andrea K. Bjorklund (respondent’s appointee).

The claimants are represented by Steptoe & Johnson in London, while Canada relies on its Trade Law Bureau in Ottawa.