In accordance with paragraph 13(j) of the Procedural Order of May 14, 2013, claimants Apotex Holdings Inc. (“Apotex Holdings”) and Apotex Inc. (“Apotex-Canada”) (collectively, “Apotex”) respectfully submit this rejoinder on jurisdiction in support of their claims against respondent United States of America.

INTRODUCTION

1. The US Rejoinder, in addressing jurisdiction as well as the merits, repeatedly declines to join issue with the case that Apotex presents. It leaves arguments fully developed in the Reply without answer. It mischaracterizes many arguments that the Reply did advance. It repeatedly favors techniques of rhetoric over substance, reimagining the record, the authorities and Apotex’s contentions rather than addressing the arguments Apotex put forward. 

“Relating to”

2. On “relating to,” the US Rejoinder frustratingly continues the US’s previous silence on the content of the “legally significant connection” that it relies upon for its jurisdictional objection. The US rejects Apotex’s view that the connection between measure and investment established by the substantive provisions of NAFTA’s investment chapter is necessarily “legally significant.” It does so without contesting or even addressing the analysis supporting the Reply’s opposite conclusion based on a detailed review of the relevant text, context and object and purpose as concerns “relating to.” The US rejects the “legal impediment,” “directly applied to” and “addressed to” approaches that the Reply inferred from the US Counter-Memorial. The US offers no standard of its own and no principled basis for its jurisdictional objection, only a disparate array of factual arguments.