1 North American Free Trade Agreement, Dec. 17,1992, Can.-Mex.-U.S., 32ILM 289 & 605 (1993) [hereinafter NAFTA].

2 15 ILM 701 (1976), available at http://www.uncitral.org.

3 Nearly four years (March 25, 1999 to November 26, 2002) from the notice of arbitration to the final decision on costs.

4 The principal Pope & Talbot awards are: Pope & Talbot v. Canada, Motion to Dismiss (Jan. 26, 2000) (scope and coverage) [hereinafter Pope & Talbot I]; Pope & Talbot v. Canada, Interim Award (June 26, 2000), 40 ILM 258 (2001) (expropriation issues, merits) [hereinafter Pope & Talbot II) ;Pope & Talbotv. Canada, Merits, Phase Two (Apr. 10,2001) (national treatment and fair and equitable treatment, merits) [hereinafter Pope & Talbot III]; Pope & Talbot v. Canada, Damages (May 31, 2002), 41 ILM 1347 (2002), hereinafter Pope & Talbot IV; and Pope & Talbot v. Canada, Costs (Nov. 26, 2002) (procedural aspects of fair and equitable treatment, costs) [hereinafter Pope & Talbot V]. All are available on the Website of the Canadian Department of Foreign Affairs and International Trade at http://wuw.dfait-maeci.gc.ca/tna-nac/gov-en.asp. The materials are also accessible—and especially well organized— at http://www.naftalaw.org. The members of the Tribunal were the Hon. Lord Dervaird (president), Hon. Benjamin J. Greenberg, Q.C., and MurrayJ. Belman, Esq.

5 At least a dozen procedural “orders,” “rulings,” and “decisions” were also issued by the Tribunal in the course of the lengthy proceedings. They primarily related to the confidentiality and disclosure of documents, and to the Canadian government's various efforts to resist disclosure on privilege or other grounds. These latter rulings are not discussed herein, but all can be found (and in chronological order) at http://www.naftalaw.org. Especially noteworthy are the disputes concerning the confidentiality of certain documents submitted to the Tribunal and improperly released by claimant's counsel; concerning the question of whether Canada was unjustifiably with holding documents needed by the Tribunal for proper consideration of the issues, including those relating to the negotiating history of key Chapter 11 articles; and concerning Canada's delays in providing information to the Tribunal. It appears that the Tribunal's unhappiness with Canada's less that forthcoming posture on document production was a factor in the Tribunal's determination not to award any portion of the total arbitration costs or attorneys’ fees to Canada. See Pope & Talbot V, supra note 4, paras. 13-14; infra note 94 and accompanying text.

6 Notice of Arbitration, Mar. 25, 1999, at 3.

7 Pope & Talbot V, supra note 4, paras. 6, 18.

8 May 29, 1996, 35 ILM 1195 (1996).

9 Pope & Talbot I, supra note 4, para. 8.

10 Pope & Talbot II, supra note 4, para. 38.

11 Id.

12 Pope & Talbot I, supra note 4, para. 8.

13 Id., para. 16.This point is important in that it has been raised in a number of other Chapter 11 actions. .See David A. Gantz, Reconciling Environmental Protection and Investor Rights Under Chapter 11 ofNAFl'A, 31 ENVTL.L. REP. 10646, 10656-58 (2001). The Tribunal also decided that NAFTA Articles 1139 (“For purposes of this Chapter[,]. .. investment means … (a) an enterprise …. “ ) and 201(1) (“For purposes of this Agreement… [,] enterprise means any entity constituted or organized under applicable law, whether or not for profit, and whether privately-owned or governmentally-owned, including any corporation, trust, partnership, sole proprietorship, joint venture or other association “) established that an “investor” was an “enterprise,” which term included “any corporation.” Pope & Talbot I, supra note 4, para. 18. The Tribunal further decided that Pope & Talbot was “an investor of a Party” and that Pope & Talbot, Ltd. (the Canadian subsidiary) was an investment of an investor (Pope & Talbot). Id.

14 Pope & Talbot I, supra note 4, para. 26. This holding essentially agrees with, albeit without citing, the approach taken by the panel in Ethyl Carp. v. Canada (NAFTA Ch. 11 Arb. Trib. Jun. 24, 1998), 38 ILM 708 (1999); see Man C. Swan, Case Report: Ethyl Corporation v. Canada: Award onjurisdiction (Under NAFTA/UNCITRAI.), 94 AJIL159 (2000).

15 Pope & Talbot I, supra note 4, para. 33.

16 See id., para. 19.

17 Pope & Talbot II, supra note 4, para. 81 (quoting claimant's memorial).

18 Id., para. 83 (quoting claimant's memorial).

19 Id., paras. 84, 86. Article 1110(1) provides (emphasis added):

No Party may directly or indirectly nationalize or expropriate an investment of an investor of another Party in its territory or take a measure tantamount to nationalization or expropriation of such an investment (“expropriation“), except: (a) for a public purpose; (b) on a non-discriminatory basis; (c) in accordance with due process of law and article 1105(1); and (d) on payment of compensation in accordance with paragraphs 2 through 6.

20 Pope & Talbot II, supra note 4, para. 84.

21 Id., paras. 87-88.

22 Id., para. 89.

23 Id., para. 96.

24 Id., para. 99.

25 Id., para. 96.

26 Id., para. 104.

27 Id., para. 100.

28 Id., para. 101.

29 Id., para. 102 (citing the Harvard Draft Convention on the International Responsibility of Stales for Injuries to Aliens, Art. 10(3), reprinted in R. R. Baxter & Louis B. Sohn, Responsibility of States for Injuries to the Economic Interests of Aliens, 55AJIL545, 553 (1961)).

30 Id., para. 104.

31 See NAFTA, Art. 1106. The article provides, in pertinent part, that” [n]o Party may impose or enforce any of the following requirements … in connection with the establishment, acquisition, expansion, management, conduct or operation of an investment.” It precludes a NAFTA party from requiring investors to, inter alia, “export a given level or percentage of goods or services;… to restrict sales of goods or services … by relating such sales in any way to the volume or value of its exports or foreign exchange earnings;… [or to] condition the receipt or continued receipt of an advantage” by restricting “sales of goods or services in its territory that such investment produces or provides by relating such sales in any way to the volume or value of its exports or foreign exchange earnings. “

32 Opened for signature May 23, 1969, 1155 UNTS 331.

33 Pope & Talbot II, supra note 4, paras. 73, 75.

34 Id., para. 76.

35 Article 1102 (2) provides: “Each Party shall accord to investments of investors of another Party treatment no less favorable than it accords, in like circumstances, to investments of its own investors with respect to the establishment, acquisition, management, conduct, operation, and sale or other disposition of investments. “

36 Pope & Talbot III, supra note 4, para. 31.

37 The Tribunal rejected Canadian contentions that the language “investments of investors” dictated that a single investment, rather than multiple investments, that had been discriminated against would not be covered, id., para. 38, and that discrimination was not actionable unless the challenged treatment was “disproportionately” in favor of the national investor, id., paras. 71-72.

38 Id., para. 37 (citing NORMANj. SINGER, STATUTES AND STATUTORY CONSTRUCTION §47.34 (6th ed. 2000) (spine title: SUTHERLAND STATUTORY CONSTRUCTION) ).

39 Id., para. 38.

40 Id., para. 42.

41 Id., para 43.

42 Id., paras. 46-55 (discussing Panel Report, European Communities—Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/R/USA (May 22, 1997)).

43 Id., paras. 58-60 (discussing Panel Report, European Communities—Measures Concerning Asbestos and Asbestos Containing Products, WT/DS135/R (Sept. 18, 2000)).

44 Id., paras. 61-63 (discussing United States—Measures Affecting Alcoholic and Malt Beverages, June 19,1992, GATT B.I.S.D. (39th Supp.) at 206 (1993)).

45 Partial Award (NAFTA Ch. 11 Arb. Trib. Nov. 12, 2000), 40 ILM 1408 (2001).

46 Pope & Talbot III, supra note 4, para. 66.

47 Id., para. 79.

48 Id., para. 78. The Tribunal earlier rejected Canada's contention that a higher standard of proof of discrimination should be required for de facto, as opposed to dejure, discrimination. Id., paras. 70-71.

49 Id., paras. 87-88.

50 Id., paras. 93, 102, 103.

51 Id., para. 75.

52 Id., para. 104.

53 Id., para 106.

54 Id., para. 108.

55 Id., para. 111.

56 Id., paras. 110-11 (quoting Art. II. 2 of the 1987 U.S. “model” BIT, reprinted in KENNETH J.VANDEVELDE, UNITED STATES INVESTMENT TREATIES: POLICY AND PRACTICE A-4 (1992). Canada quoted the U.S. model BIT in its phase 2 countermemorial (Oct. 10, 2000, para. 254).

57 Pope & Talbot III, supra note 4, para. 111.

58 Id., para. 110.

59 Id., paras. 110-11.

60 Under NAFTA Article 1128, any NAFTA government may “make submissions to a Tribunal on a question of interpretation of this Agreement,” and the United States did so on several occasions in the course of the proceeding.

61 Pope & Talbot III, supra note 4, para. 114.

62 Id., para. 115.

63 Id., paras. 121, 123, 124, 128, 155.

64 Id., paras. 156-72. Canada's Softwood Lumber Division (SLD) undertook a review of the firm's questionnaire responses submitted as part of the requirements for quota allocations, which was followed by a series of questions and a scheduled verification, including a demand that the relevant documents—several truckloads located in Portland, Oregon, at the firm's corporate headquarters—be transported to Canada so that SLD officials could inspect them. Despite the firm's cooperation, the SLD effectively threatened Pope & Talbot with denial of its export quota under the SLA if it did not comply with the SLD's demands. The SLD also refused to provide the firm with any information on the alleged errors in the data that the company had submitted. Id., paras. 163-67. There is no evidence in the decision, however, that Pope & Talbot was actually denied any benefits under die quota system, or that it was otherwise penalized (ignoring the inconvenience and the costs associated with complying with the SLD's requirements), as a result of the audit.

65 Id., paras. 169-70.

66 Id., paras. 173-75.

67 Id., paras. 177-79.

68 Id., para. 181.

69 The Commission comprises cabinet-level representatives of the parties, as specified in Article 2001 (1).

70 NAFTA Article 1131(2) states that “[a]n interpretation by the Commission ofa provision of this Agreement shall be binding on a Tribunal established under this Section.” This provision affords the NAFTA parties, if they can agree that issuing an interpretation to a Chapter 11 tribunal is advisable, and if they can agree on a text, the opportunity to direct a tribunal to interpret a treaty provision in a certain manner, subject to the constraints discussed below, see infra text accompanying notes 102-103. ‘

71 NAFTA Free Trade Commission, Notes of Interpretation of Certain Chapter 11 Provisions, Part B (July 31, 2001), at http://www.dfait-maeci.gc.ca/tna-nac/gov-en.asp (emphasisadded).Thisstatementwassentwithout comment by Canada to the Tribunal ten days after it was issued. Pope & Talbot TV, supra note 4, para. 11. It left several questions unanswered, including: (1) whether such clarification was applicable to a case in which an opinion on the merits had already been issued, and (2) the scope of the customary international law minimum standard of treatment of treatment, assuming that the reference in NAFTA Article 1131 (“Governing Law“) to “this Agreement and applicable rules of international law” means, in the latter instance, as the Parties insisted in the Interpretation, “customary international law. “

72 See Pope & Talbot IV, supra note 4, paras. 17-21.

73 Id., para. 23.

74 Id., paras. 25-42.

75 Id., para. 39.

76 Id., para. 46.

77 Id., para. 46; see United States (L.F. Neer) v. United Mexican States (U.S.-Mex. General Claims Comm'n Oct. 15, 1926), 4 R.I.A.A. 60, 3 ILR 213 (1927).

78 Pope & Talbot IV, supra note 4, para. 47.

79 Id., para. 49.

80 mId., para. 51.

81 Id., para. 54.

82 Id., para. 56.

83 Canada relied on United States (L.F. Neer) v. United Mexican States, which was quoted as stating that a breach of international law required treatment amounting “to an outrage, to bad faith, to wilful neglect of duty, or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would readily recognize its insufficiency.” Pope & Talbot IV, supra note 4, para. 57 n.42.

84 Pope & Talbot IV, supra note 4, para. 59. This question of evolution of the customary international law standard is discussed in detail in Mondev Int'l Ltd. v. United States (NAFTA Ch. 11 Arb. Trib. Oct. 11, 2002), 42 ILM 85 (2003).

85 Pope & Talbot IV, supra note 4, paras. 60-62.

86 Id., paras. 65-67.

87 Id., paras. 75-78 (citing Barcelona Traction, Light & Power Co. (Belg. v. Spain), Second Phase, 1970ICJ REP. 3 (Feb. 5)).

88 Id., para. 80.

89 Management time, according to the Tribunal, was a fixed cost, so no additional costs were incurred by claimant as a result of the episode. Id., paras. 81-82. The allegations of lost profits as a result of the shutdown were not persuasive because Pope & Talbot's British Columbia subsidiary “at all relevant times had inventory sufficient to meet all its sales requirements“; therefore, there were no lost profits. Id., para. 84.

90 Id., para. 85.

91 Id., para. 88. Since NAFTA Article 1135(1) (a) specifies that a NAFTA tribunal “may award … only … money damages and any applicable interest,” and the UNCITRAL Rules are silent on the issue of interest, the Tribunal decided to award Pope & Talbot simple interest at a rate of 5 percent (the rate suggested by Canada), for a total award of $461,566. Interest on that aggregate amount was to accrue until the date of payment, at5 percent per annum, compounded quarterly. Id., paras. 89-90.

92 The Tribunal noted in Pope & Talbot V, supra note 4, para. 4, that under Article 40 of the UNCITRAI, Rules: (1) Except as provided in paragraph 2, the costs of arbitration shall in principle be borne by the unsuccessful party. However, the arbitral Tribunal may apportion each of such costs between the parties if it determines that apportionment is reasonable, taking into account the circumstances of the case. (2) With respect to the costs of legal representation and assistance referred to in Article 38, paragraph (e), the arbitral Tribunal, taking into account the circumstances of the case, shall be free to determine which party shall bear such costs, or may apportion such costs between the parties if it determines that apportionment is reasonable.

93 Pope & Talbot V, supra note 4, para. 7.

94 Id., para. 8.

95 Id., para. 9.

96 Canada failed on many procedural issues raised and on many of its documentary requests, and caused “particular difficulties” with regard to allegations of the confidentiality of documents and its “reluctance” to produce documents; “Canada simply chose not to comply with the directions of the Tribunal in either respect.” Id., para. 11. Canada also waited until the last moment to produce the travaux preparatories, after having asserted that they did not exist. The claimant raised “important and difficult” issues at a late stage of the proceedings, such as an application to change the place of arbitration, and presented correspondence objected to by Canada—material that the Tribunal did not find to be “particularly helpful.” Id., paras. 15-16.

97 Id., para. 17.

98 Id., para. 18. Since Pope & Talbot had already paid in its half of the total arbitration costs, Canada was directed to pay that portion— $120,000—back to the claimant, with interest at 5 percent from the date of the award, compounded quarterly, and pro rata within a quarter.

99 See William S. Dodge, Case Report: Metalclad Corp. v. Mexico, 95 AJIL 910 (2001). More recently, damages have been awarded in two other cases, S.D. Myers v. Canada, Second Partial Award (NAFTA Ch. 11 Arb. Trib. Oct. 21, 2002) and Feldman Karpa v. United Mexican States (NAFTA Ch. 11 Arb. Trib. Dec. 16, 2002). All of these cases are available online at http://www.naftalaw.org.

100 The most egregious example of this broad-brush tendency is the Tribunal's opining that the governments’ Interpretation of Article 1105 was in fact an (illegal) attempt to amend NAFTA. Pope & Talbot rV, supra note 4, para. 47.

101 For example, the Pope & Talbot Tribunal, in interpreting NAFTA Article 1102, discussed in detail not only the S.D. Myers NAFTA decision, but a series of WTO Appellate Body decisions. See Pope & Talbot III, supra note 4, paras. 46-67.

102 SeeDodge, supra note 99, at 918-19. The recendy concluded United States—Chile Free Trade Agreement states in Annex 10-H that” [w] ithin three years after the date of entry into force of this Agreement, the Parties shall consider whether to establish a bilateral appellate body or similar mechanism to review awards rendered under Article 10.25 in arbitrations commenced after they establish the appellate body or similar mechanism.” See http://www.ustr.gov/new/fta/Chile/final/10. investment.PDF.

103 The issue was raised before at least one other tribunal, in Mondev Int'l Ltd. v. United States, para. 106 (NAFTA Ch. 11 Arb. Trib. Oct. 11,2002), 42ILM 85 (2003), but that tribunal avoided the interpretation/amendment issue, determining that the Free Trade Commission's “interpretation was supported by well-settled principles of treaty interpretation.” Even if most NAFTA tribunals in the future follow Mondev and accept Commission interpretations as binding, there is no guarantee that all will do so.

104 See Mondev Int'l Ltd. v. United States, para. 114.

105 Id., para. 119.

106 Id., para. 123. Arguably, the Mondev decision will be given particular weight by future NAFTA tribunals because Stephen Schwebel, former president and judge of the International Court of Justice, was a member of the tribunal.