Via a Luke Peterson tweet, I see that the Mobil v. Canada ICSID hearing will be going on this week, starting tomorrow (Tuesday), and is open to the public. No webcasting as far as I can tell, unfortunately. You have to make your way down there.
One issue that is of interest to me is the appropriate standard for "fair and equitable treatment," about which the parties have a pretty significant disagreement. From the last sentence of para. 194 of the claimants' memorial:
Canada breached [the NAFTA Article 1105(1) guarantee of fair and equitable treatment] by failing to provide a stable regulatory framework for the conduct of petroleum development projects in the Newfoundland offshore area and by frustrating Claimants' legitimate expectations with regard to that regulatory framework.
And from para. 242(a) of Canada's counter memorial:
Article 1105 prescribes that the NAFTA Parties must accord the customary international law minimum standard of treatment of aliens and the Claimants have failed to prove that this standard includes protection of a foreign investor's legitimate expectations or the obligation to maintain a stable legal and business environment for investments. These are not obligations that form part of customary international law and accordingly are not part of Canada's obligations under Article 1105;
More from para. 255:
The Claimants have merely cited various investment treaty arbitral awards, some NAFTA, others under unrelated BITs, in support of the above proposition. This falls far short of what is required to fulfil the Claimants' burden of proving a rule of custom. Arbitral awards cannot create customary international law only states can create custom. ... While arbitral awards may contain valuable analysis of State practice and opinio juris in relation to a particular rule of custom, they cannot by themselves substitute for actual evidence of state practice and opinio juris.
So the question is: Does "fair and equitable treatment" cover "protection of a foreign investor's legitimate expectations or the obligation to maintain a stable legal and business environment for investments"? Presumably this issue will be discussed in some detail at the hearing.
