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United Parcel Service of America Inc. v. Canada pp. 436-527
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FAQ section.
JurisdictionNAFTA, Article 1116Claim by an investor as a party on its own behalfNAFTA, Article 1117Claim by an investor on behalf of an enterpriseLimitation period for claimsEffect of continuing conduct on limitation periodEstablishment of damages not precursor to submitting a claim
JurisdictionNAFTA, Articles 1116 and Article 1117 as different grounds for claimsDifferent grounds for claim and implications for substance of claims or right of partiesWhether investor may claim for losses incurred by subsidiary
JurisdictionDamages, demonstration of at jurisdictional phaseWhether separation of causation and damages appropriateJurisdiction established where prima facie case of damages shown
State responsibilityAttributionNAFTA, Articles 1102 and 1105Parties to NAFTADistinction between the State and monopolies and enterprisesILC Articles on State ResponsibilityWhether Article 4 of ILC Articles applies to NAFTA obligationsNAFTA, Chapters 11 and 15ILC Articles on State Responsibility, Article 55
State responsibilityAttributionILC Articles on State ResponsibilityWhether Article 5 of ILC Articles applied to actions of State monopolyWhether NAFTA a special regime of international law“Residual character” of Article 5 of ILC Draft Articles
State responsibilityAttributionNAFTA, Articles 1102 and 1105Exercise of governmental authority by monopoly or enterpriseWhether commercial decisions have governmental character
NAFTANational treatmentNAFTA, Article 1102Meaning of “like circumstances”Postal services as distinct from courier servicesEffect of competitive relationship between investors on establishing “like circumstances”Effect of international regulations on establishing “like circumstances”Kyoto Convention to Standardize Customs Procedures and Policies
NAFTANAFTA obligationsNAFTA, Articles 1502(3)(a) and 1503(2)Party’s obligation to ensure that State enterprises not act inconsistently with its NAFTA obligationsScope of regulatory, administrative or other governmental authority by State enterprises and monopoliesWhether actions of State enterprise constitute commercial decisions or decisions with governmental character
NAFTANational treatment, exceptions toNAFTA, Article 1108(7)Procurement exceptionMeaning of “procurement”NAFTA, Article 2106 and Annex 2106Cultural heritage industries exceptionNAFTA, Article 1108“Subsidies” exceptionWhether payments to entity constitute subsidy
JurisdictionSpecificity of claimsFailure to provide sufficient specification
United Parcel Service of America Inc.v.Canadafootnote 1
Award.24 May 2007
(
Arbitration Tribunal:
Keith,
President;
Cass and
Fortier,
Members)
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