Gallo v Canada, Award, PCA Case No 55798
IV . Introduction
119 . In its decision A 30, the Arbitral Tribunal decided to bifurcate the proceedings and to open a Separate Procedure to address all jurisdictional objections raised by the Respondent, including the Claimant’s legal standing.This Award adjudicates these jurisdictional objections, and concludes that the Claimant lacks legal standing, and the Tribunal lacks jurisdiction to decide the claims submitted by Mr. Vito G. Gallo.
120 . The issue before the Tribunal can be described, in a nutshell, as follows:
121 . On September 6, 2002 a Canadian company called 1532382 Ontario Inc. [the “Enterprise”] signed a purchase agreement for an abandoned mine in Ontario known as the “Adams Mine”, which already had certain administrative approvals required for its use as a waste disposal site. Two years later, on April 5, 2004 the Ontario legislature passed the so called Adams Mine Lake Act [“AMLA”], prohibiting the disposal of waste at the Adams Mine, revoking the existing approvals and providing for limited compensation in favour of the Enterprise. The Claimant, Mr. Vito G. Gallo, an American citizen, avers that, at the time when the AMLA was promulgated, he owned and controlled the Enterprise, which suffered significant damages as a result of this legislation, which he estimates at Canadian Dollar [“C$”] 105 million. He seeks compensation for that damage, reasoning that by enacting the AMLA Canada violated NAFTA Arts. 11054 and 11105 and customary international law6.
122 . Canada denies that prior to the introduction of the AMLA Mr. Gallo was the owner of the Enterprise and an investor under the NAFTA, because there is no reliable contemporaneous evidence proving these allegations: the Claimant did not act as the owner of the Enterprise, took no interest in the risks and rewards of ownership, and it was in fact a wealthy Canadian real estate developer, Mr. Mario Cortellucci, rather than the Claimant, who organised, negotiated and assumed all the risks of purchasing the Adams Mine and was its real owner7.
123 . The Respondent’s defence is, thus, essentially fact driven; the Tribunal’s first task is to analyse the facts, and to weigh the extensive evidence submitted by both parties.