A. The Factual Context

1. Article 1120 of the NAFTA sets out the process for the submission of a claim to arbitration:

ARTICLE 1120: SUBMISSION OF A CLAIM TO ARBITRATION

1. Except as provided in Annex 1120.1, and provided that six months have elapsed since the events giving rise to a claim, a disputing investor may submit the claim to arbitration: …1 The only preliminary factual question, therefore, is whether “the events giving rise to a claim” in this arbitration arose at least “six months” prior to the filing of the Notice of Arbitration.

2. In this arbitration, the Notice of Arbitration was filed on October 4, 2011. The events giving rise to a claim by the Investor began on November 17, 2009, when the Investor incorporated its first two wind projects, and thereby became subject to the domestic content requirements of the FIT Program.2

3. Unlike some investment treaties, like the US-Ecuador BIT for example, the requirement to provide “notice of a dispute” under the NAFTA is expressly contained in NAFTA Article 1119. The notice requirement of Article 1119 is an entirely separate provision from the requirement to provide a Notice of Arbitration under NAFTA Article 1120. Similarly, the requirement to attempt resolution of a dispute through negotiation or consultation is also expressly contained in a separate provision in NAFTA Article 1118.

4. In the actual circumstances of this arbitration, there can be no doubt that the Investor has completely satisfied each of the prerequisites of NAFTA Articles 1118, 1119 and 1120: