I. PRELIMINARY STATEMENT

1. Pursuant to the Tribunal’s Procedural Order No. 4, Canada respectfully submits this Memorial on Jurisdiction and Admissibility and, attached as Annex A, Canada’s document requests.

2. The Claimant, Detroit International Bridge Company (“DIBC” or “Claimant”), on its own behalf and on behalf of its enterprise, the Canadian Transit Company (“CTC”), has filed two Notices of Arbitration1 and a Statement of Claim2 in this arbitration against Canada under NAFTA Chapter Eleven. DIBC alleges that Canada has violated its obligations under NAFTA Articles 1102 (National Treatment), 1103 (Most-Favoured-Nation Treatment) and 1105 (Minimum Standard of Treatment).

3. At its core, this dispute can be described in a single sentence: DIBC, the owner of the Ambassador Bridge, wants to prevent a new toll bridge from being built in Windsor-Detroit, while the governments of Canada, Ontario, Michigan and the United States support its construction. Under the layers of interrelated events and baseless allegations levelled against Canada in this NAFTA arbitration and in domestic court proceedings lies DIBC’s singular goal of stopping – or delaying for as long as possible – the cooperative efforts of Canadian and American public officials and business leaders to promote longterm economic prosperity and security for the citizens of both countries by building the Detroit River International Crossing (“DRIC Bridge”), customs plazas and highway connections.

4. As a means of achieving this goal, DIBC has initiated not only this NAFTA Chapter Eleven arbitration against Canada but has also initiated, and continues today, three different sets of domestic proceedings before the United States District Court for the District of Columbia and the Ontario Superior Court of Justice against Canada with respect to the same measures, as well as involving the payment of damages. This is impermissible under NAFTA Article 1121 and renders Canada’s consent to arbitration under Article 1122(1) without effect. While several of DIBC’s NAFTA claims would fail anyway because they are untimely (Articles 1116 and 1117) or otherwise fall outside of this Tribunal’s jurisdiction, DIBC’s failure to comply with NAFTA Article 1121 fully deprives this Tribunal of jurisdiction to determine the entirety of DIBC’s NAFTA claims.