1. The Tribunal has had little difficulty in reaching a clear consensus that the 2004 Guidelines and their application to the Hibernia and Terra Nova (“the Projects”) do not violate Article 1105 of the NAFTA, but that they are caught by the Article 1106 rules relating to performance requirements. The outstanding issue is whether the 2004 Guidelines – and their application to the Projects – may benefit from Canada’s reservation under Article 1108(1). In particular, do the 2004 Guidelines as applied to the Projects constitute a “subordinate measure” that has been adopted “consistent with” the “non-conforming measure” maintained by Canada as set out in its Schedule to Annex I?
2. The Majority of the Tribunal concludes that, in order to be covered by Canada’s reservation, the subsidiary measure that is reflected in the 2004 Guidelines must be adopted under the authority of and be consistent with both the Federal Accord Act and the earlier Benefits Plans adopted in relation to the Projects. The Majority has not found any inconsistency between the 2004 Guidelines and Federal Accord Act taken on its own, a conclusion with which I agree.1 They have further concluded, however, that insofar as the 2004 Guidelines are applied to the Projects, they are not covered by Canada’s reservation, because (1) they are to be “evaluated with respect to the reserved measure and the existing subordinate measures that meet the criteria of Article 2 (f),”2 and (2) the existing subordinate measures include the earlier Benefits Plans adopted in respect of those projects (by Decision 86.01 for Hibernia and Decision 97.02 for Terra Nova), and (3) as applied to the Projects, the 2004 Guidelines are not consistent with Decisions 86.01 and 97.02.