I. The Bilcon Tribunal’s Conclusions With Respect to the Attribution to Canada of the Acts of the Joint Review Panel Are Both Wrong and Irrelevant in this Arbitration

 2. The Claimant has argued in this arbitration that certain acts of the Ontario Power Authority (OPA) in implementing and administering Ontario’s Feed-in Tariff (FIT) Program are attributable to Canada. As Canada has explained in its submissions, the OPA is a state enterprise, and as such, under the lex specialis in Article 1503(2) of NAFTA, its conduct is only attributable to Canada if it is exercising delegated governmental authority.Footnote1 The conduct of a state enterprise was not the issue in theBilcon arbitration. In Bilcon, the Claimants alleged that certain acts of the Joint Review Panel (the “JRP”) set up to provide recommendations to government in the course of the environmental assessment of Bilcon’s proposed project violated Canada’s Chapter 11 obligations. The JRP was not a state enterprise, and as a result, most of the analysis of the Bilcon Tribunal on the issue of state responsibility is not directly applicable here.Footnote2 However, to the extent that this Tribunal does consider these same principles, the conclusions reached by the Bilcon Tribunal with respect to whether the acts of the JRP could be attributed to Canada as a matter of international law are in error and should not be followed.

 3. In assessing the responsibility of Canada for actions of the JRP, the Bilcon Tribunal appears to base its analysis on Article 4, dealing with conduct of organs of a State, and Article 5, dealing with conduct of persons or entities exercising elements of governmental authority, of the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts.Footnote3 Yet, in its reasons, the Tribunal is entirely unclear as to which legal standard it is applying. Indeed, theBilcon Tribunal’s reasoning moves from alluding that the JRP is a de facto organ of the Government of Canada,Footnote4 to indicating the JRP is a de jure organ of the Government of Canada,Footnote5 to landing on a finding that the JRP is part of the “apparatus of Canada”.Footnote6 This last finding uses a term put forward by the Claimants in Bilcon that has no basis in customary international law. It is not found in the ILC’s Articles themselves, their commentaries, any jurisprudence of the International Court of Justice or any other legal authority.