Introduction

1. In Paragraph 1 of its Submission, Canada proclaims boldly that its request for bifurcation is premised entirely on the basis that “Canada has not consented to the arbitration of this claim”. However, that is the question. Canada’s consent is granted in NAFTA Article 1122, and is not a prerequisite to the Tribunals’s jurisdiction to determine the Investor’s claim. The question of bifurcation is a practical one, to be determined in respect of principles of arbitral efficiency and economy. Framing the question in the context of NAFTA Article 1120 is an illusion, and Canada’s request for bifurcation is nothing short of a request that the Investor prove its claim on the merits prior to a hearing.

2. If Article 1120 raises any question of law at all, it is certainly not one that can be determined in the abstract. Article 1120 states:

ARTICLE 1120: SUBMISSION OF A CLAIM TO ARBITRATION

… provided that six months have elapsed since the events giving rise to a claim, a disputing investor may submit the claim to arbitration

3. Its words are plain, and its meaning is clear. Canada, however, contends that the Tribunal should re-interpret Article 1120 to mean either:

a. “ six months have elapsed since the [“last”]1 event[s] giving rise to a claim”; or

b. “six months have elapsed since [“each and every event”2[s]]” giving rise to [all] claim[s]”.

In either event, a full examination of the entire factual matrix in which the claim actually arises is required.