Canada

The panel in Cargill took a broader approach, determining that recoverable losses suffered by Cargill were not limited to those in Mexico, but included the upstream losses suffered in the United States.10 Mexico contested the jurisdiction of the panel to award up-stream losses to Cargill.11 Because...

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Bibliographic Details
Published in:The International lawyer 2012-04, Vol.46 (1), p.487
Main Authors: Sosnow, Cliff, Jeglic, Alexander A, Shah, Rina, Masse, Martin G, Slade, Thomas, Boscariol, John W, Katz, Mark, Douglas, Erika, Wagner, Wendy, Persaud, Justin, Karas, Sergio R
Format: Article
Language:English
Subjects:
Arbitration
Criminal pleas
Federal court decisions
Investments
Judicial reviews
Jurisdiction
Kyoto Protocol
North American Free Trade Agreement
State court decisions
Sugar industry
Wages & salaries
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Summary:The panel in Cargill took a broader approach, determining that recoverable losses suffered by Cargill were not limited to those in Mexico, but included the upstream losses suffered in the United States.10 Mexico contested the jurisdiction of the panel to award up-stream losses to Cargill.11 Because the parties designated Toronto, Ontario, as the place of arbitration, Mexico initially asked the Ontario Superior Court of Justice to review the award on the basis of the grounds of review in the UNCITRAL Model Law (Model Law),12 which applied to the arbitration.13 Mexico argued that the award of damages for up-stream losses to Cargill's U.S. operations was "beyond the scope of the submission to arbitration" under Article 34(2)(a)(iii) of the Model Law. 14 It relied on the fact that NAFTA Chapter 1 1 applies only to measures relating to investments that are in the territory of the party enacting those measures.15 The application judge for the Superior Court held that the standard of review to be applied on issues of jurisdiction was reasonableness, and applied that standard to uphold the panel's award.16 The Court of Appeal considered the appropriate standard of review applicable to the decision of a Chapter 1 1 NAFTA arbitral panel.17 It examined Article 34 of the Model Law and noted that an award may be set aside only when one of the listed deficiencies can be proven.18 The court then considered Canadian case law, which held that reviewing courts should only interfere sparingly or in extraordinary cases.19 Finally, it relied on a Canadian Supreme Court decision,20 which stated that a tribunal must be correct in its determination of a true question of jurisdiction.
ISSN:0020-7810
2169-6578