Canada failed to establish that decision of majority contained decisions on matters beyond scope of submission to arbitration

Federal court | Environmental Law | Statutory protection of environment | Environmental assessment

Majority of North American Free Trade Agreement (“NAFTA”) tribunal concluded that Canada had violated certain of NAFTA obligations when federal-provincial environmental assessment panel recommended that respondents U.S. Corp.’s proposed quarry and marine terminal project in Nova Scotia should not go forward. Based upon findings of assessment, federal and Nova Scotia governments subsequently refused to approve project. Government of Canada sought order setting aside arbitral award in favour of U.S. Corp. made by majority of tribunal constituted under Chapter Eleven of NAFTA. Application dismissed. Findings were either factual in nature, or involved application of law to facts as they were found by majority. Most importantly, they were within four corners of submission to arbitration. They did not, however, pertain to jurisdictional issues. Canada had thus not established that decision of majority dealt with dispute not contemplated by or not falling within terms of submission to arbitration, or contained decisions on matters beyond scope of submission to arbitration, as contemplated by article 34(2)(a)(iii) of Commercial Arbitration Code.

Canada (Attorney General) v. Clayton (2018), 2018 CarswellNat 2065, 2018 CarswellNat 2066, 2018 FC 436, 2018 CF 436, Anne L. Mactavish J. (F.C.).

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