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Award

TABLE OF DEFINED TERMS AND SELECTED ABBREVIATIONS

2001 Spectrum Auction Framework Framework for Spectrum Auctions in Canada (Issue 2) released by Industry Canada in October 2001 C-041
2008 AWS Auction Canada's auction of Advanced Wireless Services spectrum licenses in 2008
2008 AWS Consultation Consultation on a Framework to Auction Spectrum in the 2 GHz Range including Advanced Wireless Services released by Industry Canada on 16 February 2007 C-050
2008 AWS Auction Policy Framework Policy Framework for the Auction for Spectrum Licences for Advanced Wireless Services and other Spectrum in the 2 GHz Range released by Industry Canada in November 2007 C-004
2013 Spectrum Licensing Procedure Licensing Procedure for Spectrum Licences for Terrestrial Services (CPC-2-1-23, Issue 3) released by Industry Canada in August 2013 C-206
AAL AAL Holdings Corporation
[REDACTED] [REDACTED]
Arbitration Rules ICSID Rules of Procedure for Arbitration Proceedings 2006
AWS Advanced Wireless Services
Birch Hill Birch Hill Equity Partners
BIT Agreement between the Government of Canada and the Government of the Arab Republic of Egypt for the promotion and Protection of Investments, which entered into force on 11 March 1997 CL-001 (English), CL-002 (French) and CL-003 (Arabic)
C-[#] GTH's Exhibit
CER-[Name] Expert Report of [Name] submitted by GTH
CL-[#] GTH's Legal Authority
Claimant Global Telecom Holding S.A.E. (also "GTH")
Claimant's Closing Claimant's Closing Statement at the Hearing, 12 April 2019
Claimant's Opening Claimant's Opening Statement at the Hearing, 12 April 2019
COLs Conditions of licenses
Contracting Parties The Government of Canada and the Government of the Arab Republic of Egypt, Parties to the BIT
CPHS Claimant's Post-Hearing Submission
CRTC Canadian Radio-Television and Telecommunications Commission
CRTC Decision CRTC decision of 29 October 2009 finding that Wind Mobile did not satisfy the O&C Rules
CWS-[Name] Witness Statement of [Name] submitted by GTH
Egypt Arab Republic of Egypt
FET Fair and Equitable Treatment
GiC Governor in Council
GiC Decision GiC decision of 10 December 2009, which varied the CRTC Decision of 29 October 2009
GTH Global Telecom Holding S.A.E. (also "Claimant")
GTHCL Global Telecom Holding (Canada) Limited
Globalive Globalive Communications Corp.
Globalive Holdco Globalive Canada Holdings Corp.
Globalive Investment Globalive Investment Holdings Corp.
Hearing Hearing on Jurisdiction, the Merits and Liability, and Quantum held in Paris, France from 1 to 12 April 2019
ICA Investment Canada Act
ICJ International Court of Justice
ICSID Convention Convention on the Settlement of Investment Disputes between States and Nationals of Other States, which entered into force on 14 October 1966
ICSID International Centre for Settlement of Investment Disputes
ILC Articles INTERNATIONAL LAW COMMISSION, Responsibility of States for Internationally Wrongful Acts (2001) CL-028
Incumbent Rogers, Bell Communications and Telus, the three dominant wireless service providers in the Canadian market
IRD Investment Review Division of Industry Canada
Jur. Memorial Canada's Memorial on Jurisdiction and Admissibility and Request for Bifurcation, dated 15 November 2017
Jur. Rejoinder GTH's Rejoinder on Jurisdiction and Admissibility, dated 5 March 2019
Merits Counter-Memorial Canada's Counter-Memorial on Merits and Damages, dated 26 February 2018
Merits Memorial GTH's Memorial on the Merits and Damages, dated 29 September 2017
Merits Rejoinder and Jur. Reply Canada's Rejoinder on Merits and Damages and Reply on Jurisdiction and Admissibility, dated 3 February 2019
Merits Reply and Jur. CounterMemorial GTH's Reply on Merits and Damages & Counter- Memorial on Jurisdiction and Admissibility, dated 5 November 2018
Minister Minister of Industry and Industry Canada
NAFTA North American Free Trade Agreement
New Entrant New wireless operators who purchased spectrum licenses at the 2008 AWS Auction
O&C Rules Canada's ownership and control rules
PCO Privy Council Office, the department of the Government that supports the Prime Minister of Canada
PCS Personal Communications Services
PO1 Procedural Order No. 1, dated 13 June 2017
PO2 Procedural Order No. 2 – Decision on Respondent's Request for Bifurcation, dated 14 December 2017
PO3 Procedural Order No. 3 – Decision on the Parties' Requests for Document Production, dated 1 June 2018
PO4 Procedural Order No. 4 – Decision on the Claimant's Objections to the Respondent's Claims of Privilege, dated 3 November 2018
PO5 Procedural Order No. 5 – Decision on Outstanding Issues of Legal Privilege, dated 13 December 2018
PO6 Procedural Order No. 6 - Decision on Common Interest Privilege, Limited Waiver of Privilege and Subject Matter Waiver of Privilege, dated 18 January 2019
PO7 Procedural Order No. 7 – Hearing Organization, dated 14 March 2019
PO8 Procedural Order No. 8 – Independent Expert Assessment on Privilege, dated 14 March 2019
PO9 Procedural Order No. 9 – Decision on GTH's Request of 18 March 2019, dated 25 March 2019
PO10 Procedural Order No. 10 – Decision on GTH's Request of 21 November 2019, dated 8 December 2019
Public Safety Public Safety Canada
R-[#] Respondent's Exhibit
RER-[Name] Expert report of [Name] submitted by Canada
Respondent Canada
Respondent's Closing Closing Statement of Canada at the Hearing, 12 April 2019
Respondent's Opening Opening Statement of Canada at the Hearing, 12 April 2019
RL-[#] Respondent's Legal Authority
Rogers Rogers Communications Inc.
RPHS Respondent's Post-Hearing Submission
RWS-[Name] Witness statement of [Name] submitted by Canada
Shaw Shaw Communications Inc.
Spectrum Licensing Procedure Licensing Procedure for Spectrum Licences for Terrestrial Services (CPC-2-1-23, Issue 2) released by Industry Canada in September 2007
Telus TELUS Communications Company
Transfer Framework Framework Relating to Transfers, Divisions and Subordinate Licensing of Spectrum Licences for Commercial Mobile Spectrum (DGSO-003-13) released by Industry Canada in June 2013 C-031
VCLT Vienna Convention on the Law of Treaties, which entered into force on 27 January 1980
Voting Control Application Application submitted by GTHCL on 24 October 2012, seeking to acquire voting control of Wind Mobile and to purchase AAL's shares of Wind Mobile C-027

DRAMATIS PERSONAE

AAL Holdings Corporation An Ontario corporation, wholly owned subsidiary of AAL Telecom Holdings Incorporated ("AAL Telecom"), an Ontario corporation. Ninety-five percent (95%) of AAL Telecom's shares are owned by Anthony Lacavera, a Canadian citizen ordinarily resident in Ontario. Brice Scheschuk and Simon Lockie, two other Canadian citizens ordinarily resident in Ontario, each own 2.5% of AAL Telecom's shares
[REDACTED] [REDACTED]
Andrew, John External counsel for GTH
Bailey, Jim Canadian financial consultant
Campbell, Ken CEO of Wind Mobile
Conolly, Michael Director General, SMO, Industry Canada
Cordoba, Pietro VimpelCom officer and project leader for the divestment of Wind Mobile. Appointed as COO of Wind Mobile
Dobbie, David GTH General Counsel
Dry, Andy VimpelCom Director of Corporate Finance
Global Telecom Holding S.A.E. or GTH The Claimant, formerly known as Orascom Telecom Holding, an Egyptian joint stock company listed in the Egyptian stock exchange.
Globalive Communications Corp. (Globalive) A Canadian telecommunications provider led by Anthony Lacavera (see below in this table), and GTH's partner in the incorporation of Wind Mobile (initially called Globalive Wireless LP) to participate in the 2008 AWS Auction
Globalive Wireless LP See Wind Mobile
GTHCL Global Telecom Holding (Canada) Limited, an indirectly controlled and wholly-owned subsidiary of GTH, formerly Orascom Telecom Holding (Canada) Limited
Lacavera, Anthony Principal of Globalive and CEO and Chairman of Wind Mobile
Lockie, Simon Chief Legal Officer of Globalive, and Chef Regulatory Officer of Wind Mobile
Lunder, Jo CEO of VimpelCom
Mobilicity One of the New Entrants
Mojo Investments Corp An Ontario corporation, wholly owned by Michael J. O'Connor, a Canadian citizen ordinarily resident in Ontario
O'Connor, Michael GTH Head of Business Development and Investments
Orascom Canada A wholly-owned subsidiary of Orascom Telecom Canada (Malta) Limited, a Maltese corporation, which is, in turn, a wholly owned subsidiary of Orascom Telecom Holding S.A.E., a public company incorporated under the laws of Egypt with Ordinary Shares traded on the Cairo and Alexandria Stock Exchange and Global Depository Receipts traded on the London Stock Exchange
Shaw One of the New Entrants
Telenor A Norwegian company and shareholder of GTH
VimpelCom A Bermudan company based in the Netherlands and minority shareholder of GTH. Has provided shareholder loans to GTH for on-lending to Wind Mobile.
Weather Investments Shareholder of Wind Mobile
Wind Mobile Brand name for Globalive Wireless Management Corp., a joint venture between GTH and Globalive, incorporated as a Canadian company

 

I. INTRODUCTION

1.
The present dispute has been submitted to the International Centre for Settlement of Investment Disputes ("ICSID") on the basis of the Agreement between the Government of Canada and the Government of the Arab Republic of Egypt for the promotion and Protection of Investments, which entered into force on 11 March 1997 (the "BIT")1 and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, which entered into force on 14 October 1966 (the "ICSID Convention").
2.
In this Award, the Tribunal first introduces the Parties (Section II) and provides an overview of the factual background to the dispute (Section III). Section IV sets out the procedural history leading up to this Award, and Section V recalls the Parties' requests for relief. The Tribunal then addresses the objections to jurisdiction and admissibility (Section VI), before turning to the claims on the merits (Section VII). The Parties' requests for costs are considered in Section VIII.
3.
Ultimately, the Tribunal holds that it has jurisdiction over all claims except the national treatment claim. On the merits, the Tribunal dismisses the remaining claims. The Tribunal's Award is set forth in Section X.
4.
In reaching the decisions contained in this Award, the Tribunal has carefully reviewed and considered all the arguments presented by the Parties in both their written and oral submissions. The fact that a specific argument is not expressly referenced in this Award does not mean that it has not been considered, as the Tribunal includes only those points which it considers most relevant for its decisions.

II. THE PARTIES

5.
The claimant is Global Telecom Holding S.A.E. ("GTH" or "Claimant"), a joint stock company incorporated under the laws of the Arab Republic of Egypt ("Egypt") and listed on the Egyptian Stock Exchange.2 GTH, which was formerly known as Orascom Telecom Holding S.A.E., operates mobile telecommunications networks in several markets around the world. Its registered office is 2005 Nile City Towers, North Tower, Cornish El Nile, Ramlet Beaulac, 11221 Cairo, Egypt.3
6.
The respondent is Canada (also referred to as the "Respondent"), a sovereign State. Canada has been an ICSID Contracting State since 1 December 2013.

III. FACTUAL BACKGROUND

7.
The following summary is intended to provide a general overview of the factual background to the dispute between the Parties. It is not intended to be an exhaustive description of all facts considered relevant by the Tribunal. Further factual material will be addressed in the context of the Tribunal's analysis of the issues in dispute below.

A. OVERVIEW OF CANADA'S WIRELESS TELECOMMUNICATIONS MARKET

8.
Oversight of the Canadian wireless telecommunications industry is exercised primarily by two Canadian government authorities. Industry Canada, headed by the Minister of Industry (the "Minister"), manages the radio frequency spectrum in Canada pursuant to the Radiocommunication Act.4 The Canadian Radio-Television and Telecommunications Commission (the "CRTC") regulates telecommunications carriers pursuant to the Telecommunications Act.5
9.
In addition, telecommunications providers are subject to generally applicable legislation such as the Canadian Competition Act, pursuant to which the Competition Bureau reviews mergers and acquisitions and investigates anti-competitive practices.6
10.
The Canadian telecommunications market has expanded significantly since the late 1990s. However, by 2007, the market was highly concentrated, with 94% of market share held by three dominant carriers: Rogers Communications Inc. ("Rogers"), Bell Canada ("Bell"), and TELUS Communications Company ("Telus") (together, the "Incumbents").7 Mobile wireless spectrum was also concentrated in the hands of the Incumbents.8 Canadian consumers were paying high prices and service penetration was low, relative to other markets.9

B. THE 2008 AWS AUCTION

11.
In 2007, Industry Canada identified new Advanced Wireless Services ("AWS") spectrum for release by auction.10 In light of the market and spectrum concentration prevailing at the time, Industry Canada viewed the auction as an opportunity to open the market to new wireless operators ("New Entrants").11
12.
On 16 February 2007, Industry Canada initiated the consultation phase for the auction of AWS spectrum licenses to be held in 2008 (the "2008 AWS Auction") with the publication of the Consultation on a Framework to Auction Spectrum in the 2 GHz Range including Advanced Wireless Services (the "2008 AWS Auction Consultation").12 In this document, Industry Canada noted its overall objective of fostering a competitive wireless telecommunications market and identified certain barriers to market entry, including the "unavailability of spectrum" and the "high fixed cost of building a wireless network" to replicate the networks controlled by Incumbents.13 The document also stated that "[f]oreign investment restrictions have the effect of limiting potential entry in the telecommunications market thereby reducing the competitive discipline that the threat of entry can provide."14
13.
Industry Canada sought input on, inter alia : (a) whether it was necessary to adopt measures in the 2008 AWS Auction to enable market entry; (b) if so, whether setting aside spectrum for New Entrants or introducing spectrum caps would be most effective in fostering competition; (c) the possibility of mandating that Incumbents offer roaming services to New Entrants; and (d) the proposed conditions of license.15

(1) The Spectrum Policy Framework and Licensing Procedure

14.
On 13 June 2007, Industry Canada published a revised Spectrum Policy Framework for Canada, which provides the general "policy foundation" for the spectrum management in Canada.16 It stated that Canada's objective was to "maximize the economic and social benefits that Canadians derive from the use of the radio frequency spectrum resource."17 It stressed the importance of relying on market forces "to the maximum extent feasible" and stated that "[r]egulatory measures, where required, should be minimally intrusive, efficient and effective."18
15.
Then, in September 2007, Industry Canada released the Licensing Procedure for Spectrum Licences for Terrestrial Services, providing the general policies and procedures applicable to the issuance and transfer of spectrum licenses.19 With regard to the transfer of licenses, this document states that spectrum licenses obtained through an auction process enjoy "enhanced transferability and divisibility rights" and that such "licences may be transferred in whole or in part (either in geographic area or in bandwidth) to a third party subject to the conditions stated on the licence and other applicable regulatory requirements."20 It also specified the "conditions and guidelines" applicable to the transfer of spectrum.21

(2) The 2008 AWS Auction Policy Framework and Licensing Framework

16.
On 28 November 2007, Canada published its Policy Framework for the Auction for Spectrum Licences for Advanced Wireless Services and other Spectrum in the 2 GHz Range (the "2008 AWS Auction Policy Framework").22 Further to the 2008 AWS Auction Consultation, Industry Canada had decided to set aside spectrum for New Entrants in the 2008 AWS Auction and to provide for mandatory roaming and tower/site sharing.
17.
Both Parties have highlighted the following general statement set out in the 2008 AWS Auction Policy Framework:

The department is committed to government policies which seek to rely on market forces to the maximum extent feasible for the provision of telecommunications services to Canadians. This policy approach can only be pursued in an environment where market forces can be expected to deliver, now and in the future, a level of competition sufficient to protect the interests of users. Accordingly, in making this resource available, a critical consideration has been to implement an auction framework that will help ensure that market forces support a telecommunications infrastructure that delivers innovation and consumer choice at competitive prices.23

18.
Various measures and terms set forth in the Policy Framework are relevant to the current dispute, including the following:

a. Set-Aside Spectrum : Canada reserved 40 MHz (approximately 40%) of the spectrum that was to be auctioned for bidding exclusively by New Entrants.24 This is referred to as the 'set-aside' spectrum.

b. Mandatory Roaming : Canada mandated that Incumbents provide roaming to AWS licensees outside of the licensees' territory for ten years (the term of the AWS license) and roaming within the licensees' territory for five years while the licensees built out their network, with a possible five-year extension for New Entrants that met specified rollout targets.25 Incumbents were required to make roaming "available at commercial rates," described as rates "that are reasonably comparable to rates that are currently charged to others for similar services."26 Further, arrangements were to be offered "wherever technically feasible" and negotiated in good faith within certain time frames.27 In the event that "the parties [were] unable to come to an agreement within the established time frame, the parties [would] be required to undertake binding arbitration."28

c. Mandatory Tower/site Sharing : Canada mandated tower/site sharing wherever technically feasible in order to prohibit exclusive site arrangements. Sharing agreements were to be negotiated in good faith within prescribed time frames. Licensees would "be directed to binding arbitration to resolve disputes where they cannot finalize an agreement to share within certain time frames."29

d. Rollout Targets : The 2008 AWS Auction Policy Framework set forth roll-out targets to be achieved within five years, which would be taken into account by Industry Canada in deciding whether to renew the AWS licences after the ten-year licence term and in considering applications from New Entrants for an extension of mandated in-territory roaming beyond the initial five-year period.30

e. Five-Year Transfer Restriction : The 2008 AWS Auction Policy Framework stated that "[w]hile all licence transfers must be approved by the Minister, licences obtained through the set-aside may not be transferred to companies that do not meet the criteria of a new entrant for a period of 5 years from the date of issuance."31

19.
One month after releasing the 2008 AWS Auction Policy Framework, on 22 December 2007, Industry Canada released the Licensing Framework for the Auction for Spectrum Licences for Advanced Wireless Services and other Spectrum in the 2 GHz Range (the "2008 AWS Auction Licensing Framework"), which described the rules and requirements for bidding in the 2008 AWS Auction and called for applications.32 Potential investors that wished to participate in the 2008 AWS Auction were required to submit an application by 10 March 2008, together with a letter of credit to serve as a deposit in the auction.33
20.
In the lead up to the application deadline, Industry Canada took questions regarding the 2008 AWS Policy and Licensing Frameworks and released its answers on 27 February 2008.34

(3) Mandatory Roaming & Tower/Site Sharing Policies

21.
The 2008 AWS Policy and Licensing Frameworks left the specific procedures, policies and time frames related to mandatory roaming and tower/site sharing to be set forth in the final conditions of license ("COLs"), which would be released later. In November 2007, in parallel with its release of the 2008 AWS Auction Policy Framework, Canada had initiated a consultation on the proposed COLs relating to conditions of license to mandatory roaming and tower/site sharing.35
22.
On 29 February 2008, Industry Canada released the results of this consultation in a notice of the final Conditions of Licence for Mandatory Roaming and Antenna Tower and Site Sharing and to Prohibit Exclusive Site Arrangements.36
23.
In May 2008, Industry Canada initiated consultations on the arbitration rules and procedures that would apply to roaming and tower/site sharing disputes, the results of which were released on 29 November 2008 in a circular titled Industry Canada's Arbitration Rules and Procedures.37

(4) The Ownership & Control Rules

24.
The 2008 AWS Auction was also subject to Canada's ownership and control rules ("O&C Rules"). At the time, under the Telecommunications Act and the Radiocommunications Regulations, any radiocommunications common carrier was required to be "Canadian-owned and controlled." With respect to a corporation, this meant that Canadians had to own "not less than 80 per cent of the corporation's voting shares issued and outstanding."38
25.
Further, under the Canadian Telecommunications Common Carrier Ownership and Control Regulations, a non-Canadian could not own more than 33 1/3% of the voting shares of a holding company of a Canadian carrier.39 The CRTC had authority to review compliance of the O&C Rules under the Telecommunications Act, while Industry Canada was responsible for ensuring compliance with the identical O&C Rules under the Radiocommunication Regulations.
26.
In August 2007, Industry Canada released an updated circular advising on the procedures relating to "Canadian Ownership and Control."40

(5) Results of the 2008 AWS Auction

27.
The 2008 AWS Auction began on 27 May 2008 and closed on 21 July 2008. Canada raised CAD 4.3 billion in revenue through the auction, and six New Entrants won licenses.41 One of those New Entrants was Wind Mobile, a joint venture between GTH and a Canadian operator, as discussed below.42 Wind Mobile won 30 AWS spectrum licenses (covering a population of 23.3 million) at a price of CAD 442.1 million.43

(6) The Conditions of License

28.
In November 2008, Canada released the updated COLs, which applied to the licenses obtained through the 2008 AWS Auction.44 With regard to the mandatory roaming and tower/site sharing, the COLs adopted the conditions set out in Industry Canada's notice of 29 February 2008.45 Other portions of the COLs relevant to the present dispute include the following:

1. Licence Term

This licence is issued for a 10-year term. The process for issuing licences after this term and any issues relating to renewal will be determined by the Minister of Industry following a public consultation.

2. Licence Transferability and Divisibility

The licensee may apply in writing to transfer its licence in whole or in part (divisibility), in both the bandwidth and geographic dimensions. Departmental approval is required for each proposed transfer of a licence, whether the transfer is in whole or in part. The transferee(s) must also provide an attestation and other supporting documentation demonstrating that it meets the eligibility criteria and all other conditions, technical or otherwise, of the licence.

[…]

Licences acquired through the set-aside of spectrum … may not be transferred or leased to, acquired by means of a change in ownership or control of the licensee, divided among, or exchanged with companies that do not meet the criteria of a new entrant, for a period of 5 years from the date of issuance.

[…]

16. Amendments

The Minister of Industry retains the discretion to amend these terms and conditions of licence at any time.46

(7) Wind Mobile's Licenses

29.
Following Industry Canada's review and confirmation of Wind Mobile's compliance with the O&C Rules (discussed below),47 Industry Canada formally issued to Wind Mobile its spectrum licenses on 13 March 2009.
30.
The COLs released by Industry Canada in November 2008 are contained in Wind Mobile's licenses.48

C. GTH'S INVESTMENT IN WIND MOBILE

(1) GTH's Entry into the Canadian Market

31.
The 2008 AWS Auction generated significant interest by potential investors, including Globalive Communications Corp. ("Globalive"), a Canadian telecommunications operator.49 Globalive began seeking investors with which it could partner to participate in the auction. At the same time, GTH had learned that Canada was planning to set aside spectrum in the 2008 AWS Action for New Entrants and saw a potentially promising investment opportunity in the Canadian market.50
32.
Globalive and GTH entered into talks in February 2008 to explore the possibility of a joint venture. On 6 March 2008, they executed a memorandum of understanding, by which GTH agreed to (a) enter into an exclusive negotiation period with Globalive and [REDACTED] GTH's investment committee had received information concerning Globalive's background and experience and its proposed joint venture structure, as well as the Canadian legal and regulatory framework and important terms of the 2008 AWS Auction.52 GTH also sought advice from the Canadian law firm [REACTED] regarding compliance with the O&C Rules.53
33.
On 10 March 2008, Globalive Wireless LP (later known as Globalive Wireless Management Corp. and operating under the brand name Wind Mobile) ("Wind Mobile") filed an application to participate in the 2008 AWS Auction and provided the required deposit [REDACTED] totalling CAD 235 million.54 Industry Canada accepted Wind Mobile's application.
34.
The Parties agree that during the period after GTH entered into exclusive negotiations with Globalive, GTH conducted detailed due diligence of the Canadian telecommunications market and the regulatory framework.55 In May 2008, GTH's investment committee decided to go forward with the joint venture with Globalive and participate in the 2008 AWS Auction through Wind Mobile.56
35.
As noted above, through its participation in the auction, Wind Mobile was issued 30 AWS spectrum licenses for a total of CAD 442.1 million.57

(2) The Structure of GTH's Investment

36.
On 30 July 2008, GTH entered into an investment agreement with Globalive Communications Holdings Ontario Inc. ("GCHO") and Mojo Investments Corp. ("Mojo"), another Canadian company.58 In this agreement, GTH agreed that it would advance funds for the total amount of the spectrum licenses through its wholly-owned subsidiary, Global Telecom Holding Canada Limited ("GTHCL") (known at the time as OTHCL), and that those licenses and all related rights would be held by Wind Mobile.59
37.
The following day, 31 July 2008, GTH entered into two shareholder agreements (together, the "SHAs"):

a. an agreement under which GTHCL and Globalive Investment Holdings Corp. ("Globalive Investment") owned all the shares in Globalive Canada Holdings Corp. ("Globalive Holdco"), which was in turn the sole owner of Wind Mobile;60 and

b. an agreement under which GTHCL, Mojo and AAL Holdings Corporation ("AAL Holdings") owned all the share capital of Globalive Investment.61

38.
In light of the existing O&C Rules, GTH could not hold more than 20% of Wind Mobile's voting shares. However, according to GTH's General Counsel, Mr. David Dobbie, GTH understood "that there was a policy movement in Canada towards a relaxation of the O&C Rules."62 Thus, the SHAs and the Articles of Incorporation for Globalive Investment gave GTH the right to take voting control over Wind Mobile if the O&C Rules were relaxed in the future.63
39.
In making its investment, GTH provided the following loans and equity contribution to Wind Mobile:

[REDACTED]

c. On 1 April 2009, GTH provided an equity contribution of CAD 82,690,158 through the purchase of Globalive Investment shares.

(3) VimpelCom's Acquisition of GTH

40.
At the time of GTH's investment in the Canadian market, Weather Investments S.p.A. ("Weather Investments") was the largest shareholder in GTH. In April 2011, control of GTH passed from Weather Investments to a wider group comprised of Weather Investments and VimpelCom Ltd. ("VimpelCom"), a telecommunications company based in The Netherlands. VimpelCom became the largest shareholder in GTH.
41.
Canada had first become aware of this potential transaction through public sources in August 2010, [REDACTED].67
42.
On 15 April 2011, Wind Mobile notified Industry Canada and the CRTC that the deal had closed, noting that "this transaction does not change anything at WIND Mobile or Globalive, or in any way affect the shareholdings."68 [REDACTED]
43.
After VimpelCom acquired GTH in April 2011, it set up a team to review strategic options for the future of Wind Mobile, [REDACTED]

D. THE OWNERSHIP & CONTROL REVIEWS

(1) Review by Industry Canada

44.
As required under the 2008 AWS Auction Licensing Framework, on 5 August 2008, Wind Mobile submitted its Declaration of Ownership and Control to Industry Canada, in order to commence the review of Wind Mobile's compliance with the O&C Rules.72 Over several months, Wind Mobile and its legal representatives met with Industry Canada to discuss areas of concerns and possible changes to the investment structure to address those concerns.73 It is undisputed that at the time, Industry Canada knew of the provisions allowing GTH to take voting control of Wind Mobile if the O&C Rules were relaxed in the future.74
45.
After certain changes were made to the corporate structure, Industry Canada found Wind Mobile to be in compliance with the Radiocommunication Regulations O&C Rules on 16 February 2009.75 Wind Mobile then provided Industry Canada with a revised Declaration of Ownership and Control.76 Industry Canada issued Wind Mobile's 30 spectrum licenses on 13 March 2009.77

(2) Review by the CRTC

46.
On 22 December 2008, the CRTC wrote to Wind Mobile and the other New Entrants offering to conduct a review of their compliance with the O&C Rules under the Telecommunications Act prior to the commencement of their operations.78 In response, on 3 April 2009, Wind Mobile submitted its ownership documents, which had been approved by Industry Canada, to the CRTC for review.79
47.
Shortly thereafter, Telus wrote to the CRTC advocating for a "more fulsome and transparent review" of Wind Mobile's ownership, citing public documents that "give rise to legitimate concerns that appropriate governance controls be put in place to ensure that Globalive is controlled in fact by Canadians."80 Shaw then wrote to the CRTC supporting Telus' request.81 Wind Mobile responded to the Incumbents' request in a letter of 5 May 2009, arguing that the public review sought by Telus and Shaw "would be highly discriminatory and contrary to the principles of administrative fairness."82
48.
After receiving this correspondence, on 22 May 2009, the CRTC initiated consultations concerning its O&C Rules review process.83 At the conclusion of the consultations, on 20 July 2009, the CRTC established a new four-tier framework for the O&C review process.84 In most cases, the CRTC would conduct a bilateral, confidential Type 1 review.85 However, the CRTC explained that:

in exceptional circumstances, the Commission will hold an oral, public, multi-party proceeding (Type 4 review) where an ownership or governance structure is of a complex or novel nature, such that in the Commission's view its determination will hold precedential value to industry players and the general public, where the Commission considers that the evidentiary record would be improved by third-party submissions, and the Commission further considers that the appearance of parties would more easily allow the Commission to complete and test the evidentiary record. Under this type of review, documentary evidence filed by the carrier under review will be available for public inspection. Third parties will have an opportunity to file written submissions and request to provide oral submissions on that evidence. At the conclusion of the review process, a public decision will be issued.86

49.
On the same day, the CRTC notified Wind Mobile that it would conduct a Type 4 review of Wind Mobile's ownership.87
50.
In the following months, the CRTC issued written interrogatories to Wind Mobile, accepted written comments from the public and held two days of oral hearings. During this process, further changes were made to Wind Mobile's structure in response to concerns expressed by the CRTC.88 Yet ultimately, the CRTC determined that Wind Mobile did not satisfy the O&C Rules. In its decision of 29 October 2009 (the "CRTC Decision"), the CRTC found that Wind Mobile had "met the test for legal control" but was "controlled in fact by Orascom, a non-Canadian" and therefore did "not meet the requirements set out in section 16 of the [Telecommunications] Act and [was not] eligible to operate as a telecommunications common carrier."89
51.
The CEO of Wind Mobile at the time, Mr. Ken Campbell, wrote to the Minister of Industry, opposing the CRTC Decision. He stated that:

the CRTC made this determination, which is not required by law, knowing that it could kill our business and totally undermine the Government's pro-competitive and pro-consumer spectrum policy.

[…]

If the regulatory delays caused by the decision are serious, we will have no choice but to abort the launch, lay off staff and mothball our operations.90

52.
After the CRTC Decision was issued, the Governor in Council (the "GiC") commenced a review pursuant to its authority under the Telecommunications Act to vary decisions of the CRTC. The GiC disagreed with the CRTC's finding that Orascom controlled Wind Mobile in fact. Thus, on 10 December 2009, the GiC varied the CRTC Decision (the "GiC Decision").91 It held that Wind Mobile satisfied the O&C Rules under the Telecommunications Act and was eligible to operate as a Canadian telecommunications common carrier.92
53.
In December 2009, Wind Mobile commenced operations as a telecommunications carrier.93
54.
The GiC Decision was challenged in Federal Court by Public Mobile Inc., another New Entrant. The respondents in the proceeding were Wind Mobile and the Attorney General of Canada. On 4 February 2011, the Federal Court agreed with Public Mobile and quashed the GiC Decision.94
55.
Both Wind Mobile and the Attorney General of Canada appealed the Federal Court decision, and by its judgment of 8 June 2011, the Federal Court of Appeal reversed the Federal Court and reinstated the GiC Decision.95 Leave to appeal to the Supreme Court of Canada was denied in April 2012, closing the matter under Canadian law.96

E. IMPLEMENTATION OF THE MANDATORY ROAMING AND TOWER/SITE SHARING

56.
As noted above, in parallel with the 2008 AWS Auction, Industry Canada adopted a policy of mandatory roaming and tower/site sharing, pursuant to which licensees were required to negotiate in good faith and provide other operators roaming and tower/site sharing at reasonable commercial terms.
57.
After the 2008 AWS Auction, Industry Canada received complaints from both Incumbents and New Entrants (including Wind Mobile) that licensees were not following the COLs on roaming and site/tower sharing.97 By letter of 15 May 2009, Wind Mobile sought clarification from Industry Canada regarding the conditions on roaming, noting that a response "is much needed and will be greatly appreciated and is, in fact, required for Rogers and [Wind Mobile] to usefully advance our negotiations and, if necessary, to proceed to arbitration."98
58.
On 1 June 2009, Industry Canada responded as follows:

While Industry Canada may provide clarifications on the existing conditions of licence, I would like to remind you that Industry Canada will only formally rule on technical feasibility or potential breaches of the conditions of licence. Disputes regarding the commercial aspects, terms or costs related to the roaming agreement should be dealt with through negotiations between the parties, and if necessary, the arbitration process as set out by Industry Canada.99

59.
GTH alleges that the arbitration process was not a viable option and that Wind Mobile therefore "had no commercial choice but to agree to the terms imposed by Rogers in order to provide service to subscribers in areas where it did not have any towers or coverage."100
60.
With regard to tower/site sharing, Industry Canada released a consultation document in February 2009. Based on the responses, in April 2009, it released its Guidelines for Compliance with the Conditions of Licence Relating to Antenna Tower and Site Sharing and to Prohibit Exclusive Site Arrangements.101 Yet as of July 2010, New Entrants requesting to share on towers were only 4.5% successful in reaching agreements, according to Industry Canada statistics.102
61.
In November 2010, the Minister announced that Industry Canada was commencing a review of its roaming and tower/site sharing policy.103 Industry Canada retained the consulting firm Nordicity to assess the effectiveness of the policy, and Nordicity provided its final report in May 2011.104
62.
In March 2012, Industry Canada launched a public consultation on proposed changes to the COLs on roaming and tower/site sharing.105 Wind Mobile commented on the proposal in May and June 2012 and also met with the Minister of Industry in January 2013 to push for regulatory change. Wind Mobile suggested, inter alia, that (a) domestic wholesale roaming rates be capped, (b) the rates be subject to CRTC review, (c) existing roaming agreements be reopened, and (d) exclusivity provisions in roaming agreements be prohibited.106
63.
On 7 March 2013, Industry Canada released revised COLs and the Revised Frameworks for Mandatory Roaming and Antenna Tower and Site Sharing, setting out the changes to the COLs for mandatory roaming and tower/site sharing and to the arbitration rules and procedures.107 Wind Mobile met with Industry Canada officials again in May and October 2013, continuing to press for additional changes and clarifications to the policy.108
64.
In 2013 and 2014, the CRTC also assessed the competitiveness of the mobile wireless services market to determine whether regulatory changes were required. In July 2014, the CRTC banned the use of exclusivity clauses in roaming agreements, based on its finding that Rogers had improperly used such clauses to prevent New Entrants from negotiating better deals with other operators.109
65.
In addition, on 19 June 2014, the Canadian Parliament amended the Telecommunications Act to prohibit carriers from charging other carriers more than the average amount they charged their own subscribers for roaming.110 Finally, in May 2015, the CRTC adopted caps on certain roaming rates.111
66.
On the basis of these facts, GTH alleges that Canada only began to meaningfully address the regulatory environment nearly five years after the 2008 AWS Auction, by which time GTH was negotiating the sale of its investment.112

F. GTH'S APPLICATION FOR VOTING CONTROL OF WIND MOBILE AND THE NATIONAL SECURITY REVIEW

67.
At the time of the 2008 AWS Auction, Canada's O&C Rules prevented GTH as a non-Canadian company from acquiring voting control over Wind Mobile. The 2008 AWS Auction Policy Framework noted that the CRTC was reviewing the O&C Rules, which "act as restrictions on foreign investment which constitutes a barrier to market entry," but that [r]emoval or liberalization of these requirements would require legislative changes."113
68.
In June 2010, the Standing Committee on Industry, Science and Technology of the Canadian Parliament issued a report, Canada's Foreign Ownership Rules and Regulations in the Telecommunications Sector, in which it advised that "the economic case in favour of the removal of foreign ownership restrictions is clear."114 Also in June 2010, Industry Canada initiated consultations on the matter with the release of the paper, Opening Canada's Doors to Foreign Investment in Telecommunications: Options for Reform.115
69.
On 14 March 2012, the Minister of Industry announced proposed changes to the O&C Rules, which would exempt telecommunication carriers with less than 10% market share from the requirement of being Canadian owned and controlled.116 On 29 June 2012, the Telecommunications Act was amended to adopt the proposed changes.117
70.
GTH asserts that, based on this amendment, it expected to be able to obtain voting control over Wind Mobile pursuant to the company's founding documents, which had been reviewed by Canada during the O&C compliance reviews of Wind Mobile.118
71.
However, GTH's attempt to take voting control of Wind Mobile remained subject to review and approval under the Investment Canada Act (the "ICA").119 Under the ICA, certain investments are subject to a net benefit review, in which the Investment Review Division of Industry Canada (the "IRD") assesses whether the proposed transaction is "likely to be of net benefit to Canada."120 In addition, the ICA had been amended in March 2009 to provide for a "review of investments in Canada by non-Canadians that could be injurious to national security."121 Under the national security review provisions of the ICA, the GiC is empowered to "take any measures in respect of the investment that [it] considers advisable to protect national security, including … directing the non-Canadian not to implement the investment."122
72.
Pursuant to the ICA, on 24 October 2012, GTH's wholly owned subsidiary GTHCL submitted an application seeking approval of its plans to acquire voting control of Wind Mobile and to purchase AAL's shares of Wind Mobile (the "Voting Control Application").123
73.
An internal Industry Canada memorandum expressed the view that the proposed transaction was not problematic "[f]rom a telecommunications policy perspective," noting that GTH was "not increasing its ownership stake in Globalive, but rather executing an option that Orascom has held since its original investment in 2009."124
74.
[REDACTED]
75.
[REDACTED]
76.
[REDACTED]
77.
[REDACTED]
78.
[REDACTED]
79.
[REDACTED]
80.
[REDACTED]
81.
[REDACTED]
82.
[REDACTED]
83.
[REDACTED]
84.
[REDACTED]

G. THE 2013 TRANSFER FRAMEWORK

85.
In the years following the 2008 AWS Auction, Canada became concerned about the prospect of spectrum concentration once the five-year restriction on the transfer of set-aside licenses expired. Industry Canada had announced that that it would be holding 700 MHz and 2500 MHz spectrum auctions and that there would be spectrum caps so that New Entrants could access prime spectrum.148 Yet the viability of the New Entrants was in question, and it was unclear whether they would participate.149
86.
Against this background, on 14 January 2013, Shaw (a New Entrant) announced that it had reached an agreement with Rogers (an Incumbent) to sell Rogers a purchase option on its set-aside licenses.150 Industry analysts saw that the market was consolidating,151 and Wind Mobile strongly opposed the deal, urging Industry Canada to "immediately revoke Shaw's AWS licenses."152
87.
On 7 March 2013, Industry Canada released a Consultation on Considerations Relating to Transfers, Divisions and Subordinate Licensing of Spectrum Licences (the "2013 Transfer Consultation"). It proposed that in certain cases, Industry Canada would conduct a "detailed review" of proposed license transfers in which it would consider whether the transfer would impact, among other things, "the efficiency and competitiveness" of the Canadian telecommunications market.153
88.
The Globe & Mail reported that the Minister of Industry had initiated the consultation after learning that New Entrants were contemplating selling their spectrum licenses to Incumbents, and that his plan was to have the new rules in place before the five-year transfer restriction expired.154
89.
Together with the 2013 Transfer Consultation, Industry Canada issued a press release titled "Harper Government Puts Consumers First in Telecommunications Plan,"155 and the Minister of Industry gave a speech in which he stated:

[O]ur government is delivering on our promise to use the upcoming wireless spectrum auctions to promote four competitors in each region of the country. … [B]efore the auction, we will review the policy on spectrum licence transfers with the objective of promoting competition in the wireless sector. To be clear, our government wants to see at least four players in each market.156

90.
[REDACTED]
91.
[REDACTED]
92.
[REDACTED]
93.
In the meantime, on 16 May 2013, Telus had announced that it had reached an agreement to purchase Mobilicity (another New Entrant) and its AWS spectrum licenses for CAD 380 million.162
94.
However, on 4 June 2013, the Minister of Industry announced that Industry Canada had denied Telus' application to obtain Mobilicity's spectrum licenses. He stated:

These licences were specifically set aside for new entrants in the AWS auction. I have been clear. The Government has been clear. Spectrum set aside for new entrants was not intended to be transferred to incumbents. That is why we had to put in place restrictions on the transfers of the set-aside spectrum. That is why I will not be approving this—or any other—transfer of set-aside spectrum to incumbents ahead of the five-year limit.163

95.
The Minister also announced that, under the new transfer policy (which had yet to be published), "proposed spectrum transfers—including AWS spectrum transfers—that will result in undue concentration and therefore reduce competition will not be permitted."164 He further stated:

[L]et me be clear—our government will not hesitate to use any and every tool at our disposal to:

• protect consumers;

• promote competition; and

• promote at least four wireless providers in every region of the country.165

96.
On the same day, the Minister made similar statements before the House of Commons.166
97.
On 28 June 2013, Industry Canada released the Framework Relating to Transfers, Divisions and Subordinate Licensing of Spectrum Licences for Commercial Mobile Spectrum (the "Transfer Framework").167 The stated purpose of the Framework was "to provide guidance to licensees as to how transfers of spectrum licences will be reviewed, as well as to introduce additional conditions of licence regarding the transfer of control of spectrum licences."168
98.
The Transfer Framework stated that:

In making its determination as to the impact of a Licence Transfer on the policy objectives of this Framework, Industry Canada will analyze, among other factors, the change in spectrum concentration levels (i.e. the amount of spectrum controlled by the Applicants in comparison to that held by all licensees) that would result from the Licence Transfer.169

99.
Industry Canada then released an updated Licensing Procedure for Spectrum Licences for Terrestrial Services (the "2013 Spectrum Licencing Procedure") to reflect the new Transfer Framework. As set out in GTH's Merits Memorial, Industry Canada revised its statement on the transferability of licenses as follows:170

H. GTH’S EXIT FROM THE CANADIAN MARKET

100.
[REDACTED]
101.
Around this time, potential purchasers also sought Industry Canada's informal input regarding whether proposed transactions would be acceptable under the Transfer Framework.174 [REDACTED]
102.
[REDACTED]
103.
At this point, the application deadline for the upcoming 700 MHz spectrum auction was approaching on 17 September 2013. Pursuant to the applicable anti-collusion rules, if Wind Mobile submitted an application, it would be prohibited from speaking to other applicants during the auction period.179 [REDACTED]
104.
[REDACTED]
105.
Wind Mobile applied to participate in the 700 MHz auction in advance of the deadline. Then, in November 2013, GTH and VimpelCom representatives met with the Prime Minister's Office and Industry Canada.184 GTH understood from the discussion that [REDACTED] or for GTH to sell Wind Mobile to an Incumbent after the five-year transfer restriction.185 Thus, VimpelCom and GTH were unwilling to fund the purchase of additional spectrum, and in January 2014, Wind Mobile withdrew from the 700 MHz auction.186
106.
VimpelCom and GTH continued to explore the possibility of selling Wind Mobile to a non-Incumbent. Finally, on 15 September 2014, GTH approved the sale of its shareholding in Wind Mobile to AAL (Wind Mobile's controlling shareholder) and a group of private equity firms ("AAL Consortium"). In the transaction, AAL Consortium paid GTH CAD 11 million and assumed approximatively CAD 135 million worth of debt owed to VimpelCom and CAD 160 million in vendor loans.187 Industry Canada approved the sale in November 2014.188

I. DEVELOPMENTS AFTER GTH'S EXIT

107.
In March 2015, Industry Canada held an auction of AWS-3 spectrum licenses, in which certain spectrum was set aside for New Entrants.189 Wind Mobile acquired a block of set-aside spectrum licenses through this auction for CAD 56.4 million.190
108.
On 24 June 2015, Industry Canada approved two transfers of set-aside spectrum licenses to Rogers: (a) Rogers' purchase of the set-aside spectrum licenses of Shaw (a New Entrant) for CAD 350 million; and (b) Rogers' acquisition of Mobilicity (a New Entrant) for CAD 440 million.191 As part of these transactions, Rogers transferred all of Mobilicity's AWS spectrum to Wind Mobile, and Shaw's AWS spectrum was split between Wind Mobile and Rogers. In return, Wind Mobile transferred a some of its existing AWS spectrum to Rogers.192
109.
In an announcement on the same day, the Minister of Industry stated:

Today our government approved a series of spectrum licence transfers between Rogers, Shaw, Mobilicity and WIND. These transfers will result in at least four wireless firms in every region of the country being able to offer the latest technology, world-class service and more choice to all Canadians and their families.193

110.
On 16 December 2015, Wind Mobile's new owners sold the company's spectrum licences and business holdings to Shaw for CAD 1.6 billion.194

IV. PROCEDURAL HISTORY

111.
On 28 May 2016, GTH submitted to ICSID a Request for Arbitration, including exhibits 1 to 36 and Annexes A to I.
112.
On 6 June 2016, in accordance with Article 36 of the ICSID Convention, the Secretary-General of ICSID registered the Request for Arbitration and so notified the Parties. In the Notice of Registration, the Secretary-General invited the Parties to proceed to constitute an arbitral tribunal as soon as possible pursuant to Articles 37 to 40 of the ICSID Convention.
113.
By correspondence of 12 and 13 August 2016, the Parties informed ICSID of their agreed method of constituting the Tribunal. The Parties agreed that the Tribunal would be composed of three members, with each Party appointing one arbitrator, and third, presiding arbitrator to be appointed pursuant to a list procedure. In this regard, the Parties specified that they would exchange lists of candidates for the President of the Tribunal without copying ICSID.
114.
In accordance with the Parties' agreed method of appointment, GTH appointed Mr. Gary Born, a national of the United States of America, as arbitrator. Canada then appointed Professor Vaughan Lowe, a national of the United Kingdom, as arbitrator. Professor Lowe accepted his appointment on 19 August 2016, and Mr. Born accepted his appointment on 25 August 2016.
115.
On 30 August 2016, the Parties informed ICSID that they had agreed to an amended schedule for the list procedure by which the presiding arbitrator was to be appointed.
116.
On 19 January 2017, the Parties jointly requested ICSID's assistance in appointing the President of the Tribunal. Specifically, the Parties asked ICSID to provide them with a list of seven candidates, which had been pre-screened for conflicts and availability. Upon receipt of the list, each Party had the option to agree to appoint a candidate from the other Party's previously exchanged lists of candidates. Otherwise, each Party would be permitted to strike two names from the list and rank the remaining candidates from one to five, with one being the most preferred. The candidate with the lowest total score would be appointed.
117.
At ICSID's request, the Parties specified on 25 January 2017 that in the event of a tie among candidates, the candidate with the lowest difference between the points assigned by each Party would be appointed. If the tie were still not resolved, the Parties would attempt to agree on one of the candidates with the lowest total score. In the absence of agreement, the Secretary-General would select and appoint the President from among those candidates.
118.
On 6 February 2017, ICSID provided the Parties with the requested strike-and-rank list.
119.
Pursuant to the Parties' agreed procedure, considering the results of the Parties' rankings, the Secretary-General appointed Professor Dr. Georges Affaki, a national of France and Syria, as President of the Tribunal. Professor Affaki accepted his appointment on 21 February 2017.
120.
On the same date, in accordance with ICSID Arbitration Rule 6(1), the Secretary-General notified the Parties that all three arbitrators had accepted their appointments and that the Tribunal was therefore deemed to have been constituted on that date. The Parties were provided copies of the declarations required under ICSID Arbitration Rule 6(2) signed by Professor Affaki, Mr. Born and Professor Lowe, as well as the accompanying statements of Mr. Born and Professor Lowe.
121.
Following its constitution, the Tribunal consulted with the Parties regarding the format and date of the first session. The Tribunal determined that the first session would be held by teleconference on 21 April 2017.
122.
On 10 March 2017, in preparation for the first session, the Secretary of the Tribunal transmitted to the Parties a draft agenda and a draft procedural order, which had been approved by the Tribunal. The Parties were invited to confer on procedural matters and to inform the Tribunal of any agreements they reached or, in the absence of agreement, of their respective positions.
123.
On 7 April 2017, the Parties submitted a joint draft procedural order reflecting the Parties' agreement on most procedural issues. A limited number of matters remained in dispute, including the place of the proceeding, confidentiality and the "number and sequence of pleadings, including whether the proceedings should be bifurcated to deal with Canada's preliminary objections on jurisdiction and admissibility."195
124.
Later on 7 April 2017, GTH submitted a letter addressing the disputed procedural issues. Canada submitted (a) a request for bifurcation, including legal authorities RL-001 to RL-036, and (b) a letter addressing the other disputed procedural matters.
125.
On 14 April 2017, Canada submitted a letter containing its response to GTH's letter of 7 April 2017. On the same day, GTH filed a Submission on Bifurcation, Publication and Place of Proceeding, together with legal authorities CL-001 to CL-0018.
126.
Also on 14 April 2017, the Tribunal confirmed that the Parties would be given an opportunity to make oral presentations on the issue of bifurcation during the first session. The Tribunal noted that, after hearing the Parties' presentations, it would consult the Parties regarding the need for any further procedure.
127.
The first session was held by teleconference as scheduled on 21 April 2017.
128.
Following the first session, the Tribunal determined that it would be premature to decide whether to bifurcate the proceeding at that stage, and that the Tribunal would be better-placed to decide after receiving the Respondent's jurisdictional objections. The Tribunal informed the Parties of this determination on 2 May 2017.
129.
The Tribunal continued to consult the Parties regarding the outstanding disputed procedural issues, encouraging them to agree as far as possible. The Parties were able to reach agreement on certain matters, including that the place of arbitration would be Paris, France. On 13 June 2017, the Tribunal issued Procedural Order No. 1 ("PO1"), embodying the agreements of the Parties and the decisions of the Tribunal regarding the procedure to govern the arbitration. The Procedural Timetable was attached as Annex A of PO1.
130.
With regard to issues of confidentiality and transparency, the Parties were directed to consult and agree on a draft confidentiality order. PO1 provided that The Tribunal's awards, decisions and orders would be published on the ICSID website, subject to the redaction of confidential information under a Confidentiality Order to be agreed by the parties.
131.
On 31 August 2017, Mr. Born provided the Parties with a supplemental statement pursuant to Arbitration Rule 6.
132.
In accordance with the Procedural Timetable, on 29 September 2017, GTH filed its Memorial on the Merits and Damages, together with exhibits C-001 to C-254, legal authorities CL-001 to CL-089,196 the Expert Report of Santiago Dellepiane A. and Pablo T. Spiller, and the Witness Statements of Kenneth D. Campbell, Michael C. Connolly, David L. C. Dobbie and Andrew M. Dry ("Merits Memorial").
133.
On 5 October 2017, Mr. Born provided the Parties with a supplemental statement pursuant to Arbitration Rule 6.
134.
On 26 October 2017, the Parties submitted a draft Confidentiality Order. They sought the Tribunal's resolution of one disputed issue. On 30 October 2017, the Tribunal issued the Confidentiality Order applicable to the proceeding.
135.
On 15 November 2017, Canada filed its Memorial on Jurisdiction and Admissibility and Request for Bifurcation, together with exhibits R-001 to R-078, legal authorities RL-038 to RL-163 and the Expert Report of Prof. Dr. Mohamed S. Abdel Wahab ("Jur. Memorial").
136.
On 29 November 2017, GTH filed its Response to Canada's Request for Bifurcation.
137.
On 14 December 2017, the Tribunal issued Procedural Order No. 2 ("PO2"), in which it decided to deny the Respondent's request for bifurcation. Accordingly, the arbitration proceeded in accordance with the Procedural Timetable applicable to a joined proceeding.
138.
On 26 February 2018, Canada filed its Counter-Memorial on Merits and Damages, including exhibits R-079 to R-264 and legal authorities RL-164 to RL-242, the Expert Report of The Brattle Group, and the Witness Statements of Jennifer Aitken, Peter Hill and Iain Stewart ("Merits Counter-Memorial").
139.
In accordance with Section 15.1 of PO1 and the Procedural Timetable, on 28 March 2018, each Party served on the other Party a request for the production of documents. Subsequently, each Party set forth its objections to the other Party's requests for documents and then its responses to the other Party's objections.
140.
On 2 May 2018, the Parties informed the Tribunal that they were in the process of discussing their document requests with a view to reaching agreement on additional points. The Parties jointly requested that the deadline to submit the document request schedules to the Tribunal be extended. On 3 May 2018, the Tribunal confirmed the Parties' agreed extension.
141.
On 14 May 2018, each Party submitted its document production schedule to the Tribunal. The Respondent also submitted a cover letter and supporting documentation.
142.
By correspondence of 15 and 16 May 2018, the Parties made further, unsolicited submissions relating to the document requests.
143.
On 1 June 2018, the Tribunal issued Procedural Order No. 3, including Annexes A and B ("PO3") containing its decisions on the Parties' document requests. In PO3, the Tribunal stated that it was "not ordering the production of any document subject to legal privilege."197
144.
On 18 July 2018, GTH informed the Tribunal that the Parties had agreed to extend a number of deadlines on the Procedural Timetable. The following day, the Tribunal approved the Parties' agreement.
145.
By letter of 21 August 2018, Canada requested a further extension of time to complete its document production pursuant to PO3 and proposed a revised Procedural Timetable to accommodate this extension. At the Tribunal's invitation, GTH submitted a response to the Respondent's letter on 24 August 2018. GTH opposed the requested extension. On 27 August 2018, the Tribunal informed the Parties of its decision on the matter and issued a revised Procedural Timetable.
146.
On 9 October 2018, GTH submitted a letter to the Tribunal, together with Appendices A to G, in which it objected to certain categories of privilege claimed by Canada. On 10 October 2018, the Respondent informed the Tribunal by email that it intended to submit a response to GTH's letter. By email of 11 October 2018, the Tribunal took note of both GTH's letter and Canada's email.
147.
On 17 October 2018, Canada submitted an electronic copy of its response to GTH's letter of 9 October 2018. Canada subsequently filed a hard copy of the response, together with exhibits R-265 to R-292 and legal authorities RL-243 to RL-255. In its response, Canada informed the Tribunal that there were also outstanding issues related to GTH's production of documents and privilege claims, but did not make any application to the Tribunal in this respect.
148.
On 2 November 2018, Canada submitted a letter, together with exhibits R-293 to R-295 and Appendices A to F. It requested that the Tribunal (a) order GTH to conduct a document-by-document review and to produce several categories of documents over which it had asserted privilege; and (b) stay the proceedings until the Tribunal had an opportunity to address these issues.
149.
On 3 November 2018, the Tribunal issued Procedural Order No. 4 ("PO4"), addressing GTH's objections to the Canada's privilege claims. Pursuant to PO4, Canada was required to conduct a review of withheld and redacted documents, and to produce any documents not subject to privilege in light of the Tribunal's guidance.
150.
In the cover email to PO4, the Tribunal invited GTH to comment on Canada's letter of 2 November 2018. The Tribunal also asked for an update regarding the Parties' redaction of the procedural orders which had been issued but not yet published.
151.
On 5 November 2018, GTH submitted its Reply on Merits & Damages and Counter-Memorial on Jurisdiction and Admissibility, including exhibits C-255 to C-401, legal authorities CL-090 to CL-183, the Expert Report of Dr. Hani Sarie-Eldin and the Second Expert Report of Santiago Dellepiane A. and Pablo T. Spiller ("Merits Reply and Jur. Counter-Memorial").
152.
By letter of 8 November 2018, Canada (a) sought an extension to the deadline for its compliance with PO4; (b) informed the Tribunal that the Parties had reached agreement on the redaction and publication of PO3; and (c) identified a number of disagreements between the Parties regarding the designation of information as Confidential or Restricted Access Information in PO2 and the Parties' submissions.
153.
On 10 November 2018, the Tribunal wrote to the Parties in response to Canada's letter of 8 November 2018. The Tribunal (a) granted the requested extension; (b) confirmed that PO3 would be published without its Annexes as agreed by the Parties; and (c) set a pleading schedule for the issue of the designation of information as Confidential or Restricted Access Information.
154.
One 12 November 2018, GTH submitted two letters, together with exhibits C-402 to C-428 and legal authorities CL-184 to CL-188. The first letter responded to Canada's letter of 2 November 2018 concerning GTH's production of documents and privilege claims. The second letter was in response to Canada's letter of 8 November 2018 concerning the designation of information as Confidential or Restricted Access Information.
155.
By email of 14 November 2018, Canada sought leave to respond to GTH's letter of 12 November 2018 concerning the Claimant's privilege claims.
156.
On 15 November 2018, the Tribunal wrote to the Parties, noting its concern with the multiplication of submissions and replies in relation to privilege claims. The Tribunal informed the Parties that it had decided not to grant Canada leave for a further submission, and would instead convene a procedural telephone conference to discuss with the Parties a means to ensure the production of responsive documents within a useful time period while retaining the agreed hearing dates in April 2019.
157.
On 16 November 2018, Canada submitted its reply on the issue of confidentiality, in accordance with the Tribunal's instructions of 10 November 2018.
158.
On 19 November 2018, the President held the case management teleconference with the Parties. An audio recording of the teleconference was made available to the Parties and the Tribunal following the call. During the teleconference, at the invitation of the President, the Parties agreed to take a number of steps aimed at completing the document production phase as efficiently as possible.
159.
By letter of 22 November 2018, the Tribunal reminded the Parties of the various steps agreed during the case management teleconference. In accordance with the Tribunal's directions, both Parties submitted letters on 25 November 2018 providing certain information requested by the Tribunal. GTH submitted exhibits C-429 to C-431 with its letter, and Canada submitted exhibits R-295 to R-298 with its letter concerning privilege under the ICA.
160.
On 29 November 2018, the Parties submitted a Stern Schedule containing their respective positions on the disputed issues relating to GTH's assertion of legal privilege. It was accompanied by Canada's exhibits R-299 to R-320 and legal authorities RL-256 to RL-261, and GTH's legal authorities CL-189 to CL-192.
161.
On 2 December 2018, GTH confirmed that its positions in the Stern Schedule did not take account of new arguments advanced by Canada and that it would be available if the Tribunal wished to hear GTH's position on these matters.
162.
On 7 December 2018, GTH confirmed that the Parties had agreed to the redactions of PO2, and provided the non-confidential version of the Order, which was published on the ICSID website.
163.
On 13 December 2018, the Tribunal issued Procedural Order No. 5, including Annex A ("PO5"), containing its decision on each outstanding issue of legal privilege that had been identified by the Parties in their Stern Schedule dated 29 November 2018.
164.
In PO5, the Tribunal addressed the Parties' submissions on whether there is an exception to the waiver of privilege where parties have a common interest. The Tribunal held that, "the onus is on GTH to demonstrate that the law applicable to privilege for each communication recognises common interest privilege and that the communication qualifies for common interest privilege."198 GTH was granted leave to present evidence concerning the attachment of common interest privilege for each relevant communication, provided that it did so without delay.
165.
The Tribunal also noted in PO5 that if the Parties sought further guidance or a determination from the Tribunal in relation to limited waivers of legal privilege, the Tribunal would require better particularised pleadings in this respect.
166.
By email of 20 December 2018, GTH informed the Tribunal that it planned to make submissions with respect to common interest privilege and limited waiver of privilege, pursuant to PO5. In response, the Tribunal encouraged the Parties to attempt to reach an agreement on these matters. The Tribunal instructed the Parties that, if they were unable to reach such an agreement, they should make precise submissions in the form of a Stern Schedule.
167.
On 7 January 2019, the Parties informed the Tribunal that they had been unable to reach agreement on the remaining issues of legal privilege. On behalf of the Parties, Canada submitted the Stern Schedule containing the Parties' respective positions on these matters.199 It was accompanied by Canada's exhibits R-321 to R-358 and GTH's exhibits C-432 to C-447.
168.
On 11 January 2019, the Parties informed the Tribunal of certain agreements they had reached relating to the Procedural Timetable. They provided further clarification about their agreement on 23 January 2019, and in response, the Tribunal issued a revised Procedural Timetable on 28 January 2019.
169.
On 18 January 2019, the Tribunal issued Procedural Order No. 6, including Annex A ("PO6") containing its decision on common interest privilege, limited waiver of privilege and subject matter waiver of privilege.
170.
By letter of 22 January 2019, Canada requested information regarding the relationship between Mr. Born and GTH's counsel, Gibson Dunn & Crutcher, LLP. GTH responded on 27 January 2019, and Mr. Born provided a statement on 28 January 2019. On 30 January 2019, Canada stated that it appreciated the clarifications and had taken note of Mr. Born's statement that no present or past relation with Gibson Dunn & Crutcher, LLP affects his independence or impartiality in this arbitration.
171.
By letter of 27 January 2019, GTH sought leave to (a) include in the evidentiary record documents produced pursuant to PO6, and (b) adduce new evidence of un-waived privilege for certain categories of documents. The Tribunal responded on 30 January 2019. It granted GTH's first request, noting that Canada would be permitted to submit any responsive evidence within seven days after GTH filed the new documents. Regarding GTH's second request, the Tribunal invited Canada to comment.
172.
On 3 February 2019, Canada submitted its Rejoinder on Merits and Damages and Reply on Jurisdiction and Admissibility, including exhibits R-359 to R-598, legal authorities RL-262 to RL-329, the Second Expert Report of The Brattle Group, the Second Legal Expert Report of Prof. Dr. Mohamed S. Abdel Wahab, and the Rejoinder Witness Statements of Jenifer Aitken, Peter Hill and Iain Stewart ("Merits Rejoinder and Jur. Reply").
173.
By letter of 12 February 2019, Canada informed the Tribunal that the Parties had been unable to reach agreement on the remaining issues of legal privilege. Canada requested "that the Tribunal apply Article 3.8 of the IBA Rules and organise the tendering by GTH of certain non-disclosed and redacted documents to a Tribunal-appointed neutral expert."
174.
Upon the invitation of the Tribunal, GTH responded to Canada's letter on 15 February 2019. GTH opposed Canada's request for an expert review of the disputed documents and suggested that the Tribunal itself conduct a review to resolve the Parties' outstanding dispute over the two categories of documents addressed in GTH's letter of 27 January 2019 and certain other redacted documents.
175.
Canada responded to GTH's proposal by letter of 18 February 2019. Canada stated that it was "willing to proceed with the Tribunal reviewing certain documents rather than appointing an independent expert to do so."
176.
By letter of 19 February 2019, the Tribunal informed the Parties that, in light of the Parties' agreement, the Tribunal would conduct the review of documents. The Tribunal instructed the Parties to consult regarding the precise scope of the Tribunal's review and offered guidance in this regard. The Tribunal also instructed GTH to submit a hyperlinked schedule of the disputed documents to the Tribunal no later than 25 February 2019.
177.
On 25 February 2019, GTH informed the Tribunal that, despite the Parties' continued discussions regarding GTH's privilege claims, there remained more than 160 documents in dispute. GTH shared its view that "it would be neither procedurally fair nor proper for the Tribunal to review all of these documents." Therefore, GTH stated that "the only timely and procedurally fair way forward is to accept Respondent's suggestion that an independent third party be appointed to review all of the disputed privileged documents."
178.
The Tribunal responded to the Parties on the same day. It noted that, considering Canada's letter of 12 February 2019 and GTH's letter of 25 February 2019, the Tribunal understood there to be a joint application by the Parties to appoint an independent expert to review the disputed documents. The Tribunal granted the application and confirmed that it had identified a list of potential candidates and instructed ICSID to contact them to inquire about their availability and independence. The Parties were instructed to consult and attempt to agree on detailed Terms of Reference and a list of documents to be provided to the expert.
179.
The Parties submitted their joint proposed Terms of Reference on 28 February 2019. After reviewing the Parties' proposal and making certain additions, the Tribunal provided the revised Terms of Reference to the Parties for their consideration. Both Parties subsequently confirmed their agreement with the revised Terms of Reference.
180.
On 1 March 2019, the President of the Tribunal held a pre-hearing teleconference with the Parties to discuss the organization of the upcoming hearing. Following the teleconference, the President deliberated with his co-arbitrators regarding the outstanding issues.
181.
On 2 March 2019, the Tribunal informed the Parties that it intended to appoint Dr. Patricia Shaughnessy to serve as the independent expert, and that Dr. Shaughnessy had confirmed her availability and independence. The Parties were given until the following day to raise any objection to the appointment.
182.
As neither Party raised any objection, on 3 March 2019, the Tribunal confirmed the appointment of Dr. Shaughnessy as the independent expert, and she signed the Terms of Reference.
183.
On 4 March 2019, GTH provided Dr. Shaughnessy with a hyperlinked schedule of the disputed documents. Dr. Shaughnessy conducted her review and, on 12 March 2019, submitted her assessment to the Tribunal.
184.
On 14 March 2019, the Tribunal issued two orders: Procedural Order No. 7 ("PO7") containing the Parties agreements and the Tribunal's decisions relating to the organization of the hearing; and Procedural Order No. 8, including Annex A ("PO8"), by which it adopted Dr. Shaughnessy's assessment of the privilege issues.
185.
On 5 March 2019, GTH filed its Rejoinder on Jurisdiction and Admissibility, including exhibits C-448 to C-455, legal authorities CL-193 to CL-213, the Second Expert Report of Dr. Hani Sarie-Eldin and the Second Witness Statement of Mr. David L. C. Dobbie ("Jur. Rejoinder").
186.
On 18 March 2019, GTH wrote to the Tribunal, challenging the completeness of Canada's document production pursuant to PO3 and requesting certain relief from the Tribunal.
187.
In response, the President of the Tribunal wrote to the Parties to encourage them to confer together with an aim to reaching a consensus on the matters outlined in GTH's letter. In the event the Parties were unable to agree, the President invited Canada to provide a response. By letter of 23 March 2019, Canada informed the Tribunal that the Parties had been unable to resolve their disagreement and set out its response to GTH's letter of 18 March 2019.
188.
On 25 March 2019, the Tribunal issued Procedural Order No. 9, including Annex A ("PO9") containing its decision on GTH's request of 18 March 2019.
189.
A hearing on jurisdiction, merits and quantum took place at the Word Bank Office in Paris from 1 to 12 April 2019 (the "Hearing"). The following persons were present at the Hearing:

Tribunal
Professor Georges Affaki, President
Mr. Gary Born
Professor Vaughan Lowe

Acting Secretary of the Tribunal
Ms. Jara Minguez

For GTH

Counsel :
Ms. Penny Madden QC, Gibson, Dunn & Crutcher LLP
Mr. Rahim Moloo, Gibson, Dunn & Crutcher LLP
Ms. Charline Yim Gibson, Dunn & Crutcher LLP
Mr. Piers Plumptre, Gibson, Dunn & Crutcher LLP
Ms. Laura Corbin Gibson, Dunn & Crutcher LLP
Ms. Nadia Wahba Gibson, Dunn & Crutcher LLP
Ms. Marryum Kahloon, Gibson, Dunn & Crutcher LLP
Mr. Paul Evans, Gibson, Dunn & Crutcher LLP

Parties :
Mr. Alex Shalaby, Global Telecom Holding S.A.E.
Mr. David Dobbie (also a witness), VEON Ltd., formerly Global Telecom Holding S.A.E.
Mr. Matthew Matule, VEON Ltd.
Mr. Tim Burke, VEON Ltd.

Witnesses / Experts :
Mr. John Andrew, Aird & Berlis LLP
Mr. Kenneth Campbell, Formerly Wind Mobile
Mr. Michael Connolly, Formerly Industry Canada
Mr. Andrew Dry, VEON Ltd.
Dr. Hani Sarie-Eldin, Sarie-Eldin & Partners
Dr. Pablo Spiller, Compass Lexecon
Mr. Santiago Dellepiane, Berkeley Research Group
Ms. Daniela Bambaci, Berkeley Research Group
Mr. Miguel Nakhle, Compass Lexecon
Mr. Charles Rice, Compass Lexecon

For Canada

Counsel :
Ms. Sylvie Tabet, General Counsel, Trade Law Bureau, Government of Canada
Mr. Jean-Francois Hebert, Senior Counsel, Trade Law Bureau, Government of Canada
Mr. Scott Little, Senior Counsel, Trade Law Bureau, Government of Canada
Mr. Mark Klaver, Counsel, Trade Law Bureau, Government of Canada
Ms. Johannie Dallaire, Counsel, Trade Law Bureau, Government of Canada
Mr. Stefan Kuuskne, Counsel, Trade Law Bureau, Government of Canada
Ms. Darian Bakelaar, Paralegal, Trade Law Bureau, Government of Canada
Mr. Benjamin Tait, Paralegal, Trade Law Bureau, Government of Canada

Parties :
Ms. Natacha Guilbault, Senior Counsel, Innovation, Science and Economic Development, Government of Canada
Ms. Jennifer Mulligan, Paralegal, Innovation, Science and Economic Development, Government of Canada
Mr. Aldo Ongaro, Manager and Party Representative, Innovation, Science and Economic Development, Government of Canada
Ms. Shamali Gupta, Officer and Party Representative, Investment Trade Policy, Government of Canada
Mr. Vincent Boulanger, Officer, Investment Trade Policy, Government of Canada

Witnesses / Experts :
Mr. Chris Reynolds, Trial Graphics Expert, Core Legal Ms. Jenifer Aitken, Witness, Government of Canada
Mr. Peter Hill, Witness, Government of Canada
Mr. Iain Stewart, Witness, Government of Canada
Prof. Dr. Mohamed Abdel-Wahab, Expert Witness, Zulficar & Partners
Dr. Coleman Bazelon, Expert Witness, The Brattle Group
Mr. Benjamin Sacks, Expert Witness, The Brattle Group
Mr. Fabricio Nunez, Expert Consultant, The Brattle Group

Court Reporter
Mr. Trevor McGowan

190.
On 23 April 2019, GTH submitted an application requesting that the Tribunal make certain inferences in relation to five exhibits on the record: C-258, C-261, C-262, C-264, and C-333. Canada requested leave to respond, which the Tribunal granted. On 29 April 2019, Canada submitted its response. The Tribunal then invited GTH to indicate whether it wished to reply, and in response, GTH stated that it did not consider it necessary to comment further at that time.
191.
On 24 May 2019, each Party submitted its Post-Hearing Submission.
192.
On 11 June 2019, each Party submitted its Submission on Costs.
193.
On 21 November 2019, GTH submitted a letter to the Tribunal seeking leave to submit nine new documents into the record. GTH attached these nine documents as Appendices A to I to the Application.
194.
On 24 November 2019, the Tribunal acknowledged receipt of the Application and provided instructions to the Parties. The Tribunal noted that GTH had referenced being prejudiced by not being able to make arguments or to cross examine witnesses on the nine documents. In this regard, the Tribunal stated:

The Tribunal is concerned about allegations of impairment of a Party's right to fully state its case. Claimant is invited to specify by no later than 27 November 2019 whether the Application is limited to seeking leave to submitting the nine appendices A to I on the record or is also meant to include any further requests.

195.
In its message, the Tribunal also invited Canada to respond to GTH's request.
196.
By email of 26 November 2019, GTH replied to the Tribunal's query and confirmed that "the Application is limited to seeking leave to submit Appendices A to I into the record as new Factual Exhibits and does not seek other relief."
197.
On 4 December 2019, Canada submitted its response to the Application, together with Annex A and Appendices A to F.
198.
On 8 December 2019, the Tribunal issued Procedural No. 10, including Annex A ("PO10"), addressing GTH's request of 21 November 2019. The Tribunal decided to grant GTH's request with respect to each of the nine documents.
199.
In the meantime, on 27 November 2019, the Parties jointly requested that the Tribunal provide guidance on certain confidentiality issues relating to the publication of the Tribunal's procedural orders. The Tribunal provided the requested advice on 16 January 2020.
200.
On 10 March 2020, the Parties informed the Tribunal that they had agreed on the redaction of Confidential and Restricted Access Information in PO5, PO6, PO8 and PO10. The Secretary confirmed that the non-confidential versions of these orders would be published on the ICSID website.
201.
Also on 10 March 2020, the Tribunal declared the proceeding closed in accordance with ICSID Arbitration Rule 38(1).

V. THE PARTIES' REQUESTS FOR RELIEF

A. GTH'S REQUEST FOR RELIEF

202.
GTH asserts that the Tribunal has jurisdiction over this dispute and that Canada has breached the BIT by failing to (a) afford GTH fair and equitable treatment, (b) ensure full protection and security of GTH's investment, (c) guarantee the unrestricted transfer of GTH's investment, and (d) grant GTH's investment treatment no less favourable than that which it provides to investments of its own investors.200
203.
GTH requests that the Tribunal:

(a) DECLARE that it has jurisdiction over GTH's claims in this Arbitration;

(b) DECLARE that each of GTH's claims in this Arbitration are admissible;

(c) DISMISS all of Canada's objections on jurisdiction and admissibility;

(d) DECLARE that Canada has breached its obligations to GTH under the BIT arising from Canada's blocking of the sale of Wind Mobile to an Incumbent, specifically:

(i) The fair and equitable treatment standard pursuant to Article II(2)(a) of the BIT,

(ii) The full protection and security standard pursuant to Article II(2)(b) of the BIT, and

(iii) The unrestricted transfer guarantee pursuant to Article IX(1) of the BIT;

(e) DECLARE that Canada has breached its obligations to GTH under the BIT arising from Canada's treatment of GTH due to alleged national security concerns, specifically:

(i) The fair and equitable treatment standard pursuant to Article II(2)(a) of the BIT,

(ii) The full protection and security standard pursuant to Article II(2)(b) of the BIT, and

(iii) National treatment protection pursuant to Article IV(1) of the BIT;

(f) DECLARE that Canada has breached the fair and equitable treatment standard pursuant to Article II(2)(a) and the full protection and security standard pursuant to Article II(2)(b) of the BIT due to its cumulative treatment of GTH's investment, including but not limited to the breaches at paragraphs 78(d) and 78(e);

(g) ORDER Canada to pay GTH the following amounts valued as of 30 September 2018, to be updated to the Date of Award (or other such amount the Tribunal determines to be appropriate):

(i) For any breach found under paragraph 78(d), US$ 1,807 billion or, in the alternative, US$ 768.2 million;

(ii) For any breach found under paragraph 78(e), US$ 1,807 billion or, in the alternative, US$ 993.5 million or, in the further alternative, US$ 884.9 million;

(iii) For any breach found under paragraph 78(f), US$ 1,807 billion or, in the alternative, US$ 1,311 billion.

(h) ORDER Canada to pay all of the costs and expenses of the Arbitration, including GTH's legal fees, the fees and expenses of any experts, the fees and expenses of the Tribunal, and ICSID's other costs; and

(i) AWARD such other relief as the Tribunal considers appropriate.201

B. CANADA'S REQUEST FOR RELIEF

204.
Canada submits that the Tribunal lacks jurisdiction over this dispute, and it denies each of GTH's claims under the BIT.
205.
Canada requests that the Tribunal render an award:

a) Declaring that GTH is not an "investor" of the Arab Republic of Egypt within the meaning of Article I of the Canada-Egypt FIPA and that the Tribunal lacks jurisdiction over GTH's claims.202

In the alternative,

b) Declaring that the adoption of the Transfer Framework did not breach Canada's obligations under Articles II(2)(a), II(2)(b), and IX(1) of the Canada-Egypt FIPA; and

c) Declaring that the national security review of GTH's application to acquire voting control of GTH falls within the dispute settlement exception in Article II(4)(b) of the Canada-Egypt FIPA and that the Tribunal lacks jurisdiction over GTH's claims related to the national security review.

In the further alternative,

d) Declaring not admissible pursuant to the reservation in Article IV(2)(d) and its annex, the claim that the national security review of GTH's application to acquire voting control of GTH breaches Article IV(1) of the Canada-Egypt FIPA; and

e) Declaring that the national security review of GTH's application to acquire voting control of Wind Mobile did not breach Canada's obligations under Articles II(2)(a) and II(2)(b) of the Canada-Egypt FIPA; and

f) Declaring that Canada's cumulative treatment of GTH's investment did not breach Canada's obligations under Articles II(2)(a) and II(2)(b) of the Canada-Egypt FIPA.

And in all cases,

g) Dismiss GTH's claim for damages and ordering that GTH bear the costs of the arbitration, including Canada's costs for legal representation and assistance.

VI. JURISDICTION AND ADMISSIBILITY

206.
Canada's position is that the Tribunal lacks jurisdiction over GTH's claims because: (a) GTH does not qualify as an "investor" under Article I(g) of the BIT; (b) Article II(4)(b) of the BIT deprives the Tribunal of jurisdiction over GTH's claims concerning the Transfer Framework; (c) the claims are time-barred under Article XIII(3)(d) of the BIT; and (d) Article IV(2)(d) excludes GTH's national treatment claims from dispute resolution under the BIT. Canada objects to the admissibility of GTH's claims relating to the treatment of Wind Mobile on the basis that GTH lacks standing to bring these claims.
207.
The following table reflects Canada's view of how its objections affect GTH's claims.203

ANNEX - IMPLICATIONS OF JURISDICTION AND ADMISSIBILITY OBJECTIONS WITH RESPECT TO THE CLAIMS IN CLAIMANT’S MEMORIAL

In the table below "X" indicates the Tribunal’s lack of jurisdiction over a claim of breach of the FIPA or the Claimant’s lack of standing as a result of Canada’s jurisdictional and admissibility objections.

Challenged Measures(¶¶ 24 and 301 of the Claimant’sMemorial)Obligations Allegedly Breached*Jurisdiction Ratione Personae under Article XIII and Article 25 of the ICISD ConventionArticle II(4)(b) Dispute Settlement Exclusion of Decisions Not to Permit Establishment or Acquisition of EnterprisesJurisdiction RationeTemporis underArticle XIII(3)Article IV and its Annex Exclusion of the Application of National Treatment Obligations to ServicesStanding to Claim for Damages Arising from Treatment of Wind Mobile
Blocking GTH’s right to transfer Wind Mobile’s set-aside spectrum licenses to an incumbent at the expiration of the Five-Year Rollout Period Self-standing breach of: FET. FPS. UTI X X
Subjecting GTH to an unreasonable, arbitrary, non-transparent national security review of the Voting Control Application, without due process Self-standing breach of: FET. FPS. NT X X X (NT obligation only)
Subjecting GTH’s investment to a redundant CRTC Review Composite breach of FET X X
Failing to uphold basic conditions to alleviate barriers to market entry (particularly with respect to roaming and tower sharing) Composite breach of FET. FPS X X X

* FET: Obligation to accord Fair and Equitable Treatment under Article II(2)(a): FPS: Obligation to accord Full Protection and Security under Article H(2)(b); UTI: Obligation to Guarantee Unrestricted Transfer of Investments under Article IX(1): NT : Obligation to accord National Treatment under Articles 11(3) and IV.

208.
In response, GTH asserts that Canada's objections must be dismissed because the Tribunal has jurisdiction over all of GTH's claims, and the claims relating to the treatment of Wind Mobile are admissible.
209.
Below, the Tribunal addresses the applicable legal standard and each of Canada's five objections. The Tribunal's decision on jurisdiction and admissibility is contained in Section VI.G.

A. APPLICABLE LEGAL STANDARD

(1) Canada's Position

210.
Canada submits that the burden of establishing the Tribunal's jurisdiction over GTH's claims lies with GTH.204 As stated by the tribunal in Tulip v. Turkey, "it is for Claimant to satisfy the burden of proof required at the jurisdictional phase," and this burden remains with the claimant even when a jurisdictional objection is raised by a respondent.205 In this regard, Canada cites National Gas v. Egypt, in which the tribunal reasoned as follows:

Although it is the Respondent which has here raised specific jurisdictional objections, it is not for the Respondent to disprove the Tribunal's jurisdiction. Under international law, as a matter of legal logic and the application of the principle traditionally expressed by the Latin maxim "actori incumbit probatio", it is for the Claimant to discharge the burden of proving all essential facts required to establish jurisdiction for its claims.206

211.
Thus, according to Canada, only when a claimant has proven the facts necessary to establish jurisdiction does "the burden shift[] to the respondent to show why, despite the facts proved by the claimant, the tribunal does not have jurisdiction."207
212.
Further, in Canada's view, a State's consent to jurisdiction must be "clearly and unambiguously ascertained"; if there is any ambiguity, a tribunal should decline jurisdiction.208
213.
Canada contends that, in this case, its consent to arbitration contained in Article XIII of the BIT is conditioned on a potential claimant satisfying certain requirements and procedures.209 According to Canada, these conditions are fundamental bases of its consent. Canada highlights Article XIII(5) of the BIT, which states that "[e]ach Contracting Party hereby gives its unconditional consent to the submission of a dispute to international arbitration in accordance with the provisions of this Article."210
214.
For Canada, it follows that GTH must prove that it has fulfilled all the requirements of Article XIII of the BIT in order to establish the Tribunal's jurisdiction.211

(2) GTH's Position

215.
In its submissions on the legal standard applicable to Canada's preliminary objections, GTH does not challenge Canada's position regarding the burden of proof.212 GTH focuses instead on the applicable rules of treaty interpretation, arguing that Canada's objections rest on a flawed interpretation of the BIT.213
216.
GTH submits that the Tribunal must interpret the BIT's jurisdictional requirements in accordance with the Vienna Convention on the Law of Treaties (the "VCLT"), which provides the principles of customary law applicable to treaty interpretation.214
217.
According to GTH, Canada's interpretation of the BIT is inconsistent with these rules in the following ways:

a. Canada fails to interpret the ordinary meaning of certain terms in accordance with Article 31 of the VCLT. In particular, Canada's interpretation "undermines the BIT's purpose to promote the free flow of investments between the Parties."215

b. Canada ignores the express terms of the BIT and instead improperly relies on supplementary means of interpretation, such as Canada's other treaties. This approach is contrary to Article 32 of the VCLT.216

c. Canada does not attempt to find the meaning of terms that best reconciles the multiple authentic texts of the BIT (the English, French and Arabic versions) and instead relies on interpretations that cannot be supported by all three versions.217

d. There are no special rules of interpretation for treaty provisions dealing with a State's consent to arbitration. Yet, in an attempt to heighten the standard of proof, Canada mischaracterizes the law and asserts that State's consent to a tribunal's jurisdiction must be "unambiguously ascertained."218

(3) The Tribunal's Analysis

218.
The Tribunal notes that there is no disputed issue that it needs to decide on this matter at this stage. The Tribunal need not decide on issues such as the burden of proof and treaty interpretation in the abstract and will instead consider such matters when relevant in relation to each jurisdictional objection in the sections below.

B. WHETHER GTH IS A QUALIFYING INVESTOR UNDER ARTICLE I(G) OF THE BIT

219.
Canada's first objection is that the Tribunal lacks jurisdiction ratione personae over all GTH's claims because GTH does not qualify as an "investor" under Article I(g) of the BIT.
220.
GTH argues that Canada's objection is based on a misreading of the BIT and must be dismissed.

(1) Relevant Provision of the BIT

221.
Article I(g) of the BIT defines "investor" as follows:

(g) "investor" means […] in the case of the Arab Republic of Egypt:

any natural or juridical person, including the Government of the Arab Republic of Egypt who invests in the territory of Canada.

[…]

the term "juridical person" means any entity established in accordance with, and recognized as a juridical person by the laws of the Arab Republic of Egypt: such as public institutions, corporations, foundations, private companies, firms, establishments and organizations, and having permanent residence in the territory of the Arab Republic of Egypt.219

222.
The Parties have also referred to the Arabic and French versions of this provision, which together with the English are all equally authentic texts.
223.
The definition of "investisseur" found in Article I(f) of the French BIT reads as follows:

« investisseur désigne » […] Dans le cas de la République arabe d'Égypte : toute personne physique ou morale, y compris le gouvernement de la République arabe d'Égypte, qui fait un investissement sur le territoire canadien :

[…]

par le terme « personne morale », il faut entendre toute entité constituée en conformité avec les lois de la République arabe d'Égypte et reconnue comme personne morale par ces lois: dont les institutions publiques, les personnes morales proprement dites (ou corporations) les fondations, les compagnies privées, les firmes, les établissements et les associations, ayant le droit de résidence permanente sur le territoire de la République arabe d'Égypte.220

224.

The Arabic version of Article I(g) reads as follows:

[...] : ز) "اﻟﻤﺴﺘﺜﻤﺮ" ﯾﻌﻨﻲ)

:ﻓﻲ ﺣﺎﻟﺔ ﺟﻤﮭﻮرﯾﺔ ﻣﺼﺮ اﻟﻌﺮﺑﯿﺔ

:أي ﺷﺨﺺ طﺒﯿﻌﻲ أو إﻋﺘﺒﺎري ﺑﻤﺎ ﻓﻲ ذﻟﻚ ﺣﻜﻮﻣﺔ ﺟﻤﮭﻮرﯾﺔ ﻣﺼﺮ اﻟﻌﺮﺑﯿﺔ ﯾﺴﺘﺜﻤﺮ ﻓﻲ إﻗﻠﯿﻢ ﻛﻨﺪا

[...]

۲ - و ﯾﻌﻨﻲ "ﺷﺨﺺ إﻋﺘﺒﺎري" أي ﻣﻨﺸﺄة ﺗﻜﻮﻧﺖ أو أﻧﺸﺌﺖ وﻓﻘﺎً ﻟﻘﻮاﻧﯿﻦ ﺟﻤﮭﻮرﯾﺔ ﻣﺼﺮ اﻟﻌﺮﺑﯿﺔ ﻣﺜﻞ ااﻟﻤﻨﺸﺂت اﻟﻌﺎﻣﺔ و اﻟﺸﺮﻛﺎت اﻟﻌﺎﻣﺔ و اﻟﺨﺎﺻﺔ و اﻟﻤﺆﺳﺴﺎت و اﻟﻤﻨﻈﻤﺎت و اﻟﺘﻲ ﻟﮭﺎ إﻗﺎﻣﺔ داﺋﻤﺔ ﻓﻲ إﻗﻠﯿﻢ ﺟﻤﮭﻮرﯾﺔ ﻣﺼﺮ اﻟﻌﺮﺑﯿﺔ.221

(2) Canada's Position

225.
Canada submits that GTH has failed to prove that it (a) was established in accordance with, and recognized as juridical person by the laws of Egypt and (b) had its "permanent residence" in Egypt at the time it filed the Request for Arbitration.222 Thus, GTH is neither an "investor" under the BIT nor a "National of another Contracting State" within the meaning of Article 25(2)(b) of the ICSID Convention, and the Tribunal therefore lacks jurisdiction ratione personae over GTH's claims.223

a. Establishing the Tribunal's Jurisdiction Ratione Personae Under the ICSID Convention and the BIT

226.
According to Canada, GTH must prove that it was an "investor" under Article I(g) of the BIT at the time it filed the Request for Arbitration on 28 May 2016 in order to establish the Tribunal's jurisdiction ratione personae under the ICSID Convention and the BIT.224
227.
Canada highlights that its consent to arbitrate under Article 25 of the ICSID Convention extends only to "a national of another Contracting State," within the meaning of Article 25(2).225 Canada asserts that Article 25(2)(b), which applies to juridical persons, "does not impose any particular test" for determining the nationality of a juridical person and instead "leaves broad discretion to the Contracting States to define … corporate nationality, under the relevant BIT."226 Thus, in Canada's view, the definition of "national of another Contracting State" is determined by the nationality requirements contained in the applicable treaty. In the present case, those nationality requirements are set forth in Article I(g) of the BIT.
228.
Similarly, Canada asserts that its consent to arbitrate under Article XIII(1) of the BIT extends only to a dispute with "an investor of the other Contracting Party."227
229.
Therefore, Canada concludes, if GTH cannot prove that it qualified as an "investor" under Article I(g) of the BIT "at the time of the alleged breaches, and that it continued to qualify as such until the time that it commenced arbitral proceedings," the Tribunal lacks jurisdiction ratione personae.228

b. Interpretation of Article I(g) of the BIT

230.
Canada's position is that under Article I(g) of the BIT, GTH must show that it had permanent residence in Egypt on the date it submitted the Request for Arbitration.229 Canada advances a number of arguments to support this interpretation.
231.
First, in Canada's view, the ordinary meaning of Article I(g) is that an entity must fulfil two requirements to qualify as a "juridical person" in Egypt: the first requirement is to be "established in accordance with, and recognized as a juridical person by the laws of the Arab Republic of Egypt," and the second is "having permanent residence in the territory of the Arab Republic of Egypt."230 Canada notes that these requirements are linked by the word "and," which indicates that the second requirement is separate from, and additional to, the first requirement.231
232.
Second, Canada relies on the principle of effet utile, arguing that a contrary interpretation would render the words "and having permanent residence in the territory of the Arab Republic of Egypt" meaningless.232 Canada cites Tenaris v. Venezuela, in which the tribunal applied the effet utile principle to give meaning to the terms "sede" (seat in Portuguese) and "siège social" in the applicable treaties. The tribunal stated that "if 'siège social' and 'sede' are to have any meaning, and not be entirely superfluous, each must connote something different to, or over and above, the purely formal matter of the address of a registered office or statutory seat."233 Canada also cites CEAC v. Montenegro and Mera v. Serbia, in which the tribunals found that the phrase "having its seat …" introduced an additional requirement into the definition of investor.234
233.
Third, Canada asserts that its interpretation is supported by the context of the definition of "investor" in the BIT, which includes a differently worded definitions for Canadian and Egyptian investors.235 The definition of a Canadian investor (which covers "any enterprise incorporated or duly constituted in accordance with applicable laws of Canada, who makes the investment in the territory of the Arab Republic of Egypt") requires only incorporation and not permanent residency. In Canada's view, if the Contracting Parties had wanted both Canadian and Egyptian investors to be covered by an incorporation test only, they would not have drafted asymmetrical definitions of "investor" and included the permanent residency requirement in the definition of an Egyptian investor.236
234.
Canada rejects GTH's argument that Canada's approach would undermine the reciprocal nature of investment protection under the BIT.237 For Canada, "an expectation that a BIT applies in exactly the same way, to the same types of entities in both jurisdictions would be unrealistic," especially because the relevant rules of corporate law differ among States.238 Canada adds that asymmetrical definitions of "investor" in investment treaties are not uncommon.239 Indeed, the scope of natural persons who qualify as investors under the BIT also differs between Canada and Egypt.240
235.
Fourth, Canada argues that the equally authentic Arabic version of the BIT supports its interpretation of Article I(g).241 The Arabic version is similar to the English version, except that it includes the terms "which have" (in Arabic) instead of the present participle "having." Thus, according to Canada, the clause referring to permanent residency is introduced with the words "and which have," indicating a separate and additional requirement.242
236.
Fifth, Canada denies that the equally authentic French text of the BIT undermines its interpretation.243 Canada acknowledges that the French text is "slightly different" from the English and Arabic texts, in that the final clause of the definition of "personne morale" ("juridical person") is "ayant le droit de résidence permanente sur le territoire de la République arabe d'Égypte" ("having the right to permanent residence in the Arab Republic of Egypt"). Thus, the word "and" does not appear as in the English and Arabic texts, and the French text refers to "the right to permanent residence" instead of "permanent residence."244
237.
In Canada's view, any difference in the meaning among the three authentic texts is removed by the application of Article 31 of the VCLT.245 In particular, Canada argues that the inclusion of the phrase "ayant le droit de résidence permanente" in the French text, when read in context, indicates that the Contracting Parties intended for only a subset of entities that meet the first requirement to fall within the definition of "investisseur."246
238.
Sixth, Canada argues that the principle of effet utile requires that the words "ayant le droit de résidence permanente" be interpreted as adding something to the first part of the definition. According to Canada:

Egyptian law does not recognize a concept of permanent residence for either natural or juridical persons, meaning there is no right of permanent residence for legal entities under Egyptian Law. In order for these terms to be given meaning, and be read consistently with the English and Arabic texts, the reference to having a right of permanent residence in the French text must be understood as requiring that the entity actually have permanent residence in Egypt.247

239.
Seventh, Canada argues that its interpretation is the only way to reconcile the three authentic texts of the BIT.248 In this regard, Canada points out that if the Tribunal does not find that an interpretation of Article I(g) of the BIT under Articles 31 and 32 of the VCLT removes the difference in meaning between the French version and the English and Arabic versions, the Tribunal must adopt the meaning that best reconciles the three versions, in light of the object and purpose of the Treaty.249 According to Canada, because two of the three authentic versions of the BIT require permanent residence in Egypt, the phrase "ayant le droit de résidence permanente" should be interpreted as requiring the effective exercise of that right.250
240.
Eighth, Canada denies that this interpretation would "stifle the object and purpose of the BIT" by restricting its scope, as GTH alleges.251 Canada urges the Tribunal to avoid overly broad interpretations of the BIT on the basis of GTH's "myopic view of a treaty's object and purpose that would systematically favour investors to the detriment of host States every time interpretive issues need to be resolved."252
241.
Finally, Canada contends GTH has not clearly explained the meaning it ascribes to the words "and having permanent residence in the territory of the Arab Republic of Egypt," and that, in any event, none of the interpretations GTH advances is viable.253
242.
In particular, Canada does not accept that the phrase refers to "another example of a type of entity that qualifies as an Egyptian juridical person."254 Canada agrees with GTH that the words "such as" followed by a colon introduce a non-exhaustive list of entities that satisfy the requirement of being established in accordance with, and recognized as juridical persons by Egyptian law.255 However, Canada argues that the list stops at the word "organizations" and is followed by a participle clause (beginning with "…, and having") which introduces an additional condition.256
243.
Similarly, Canada does not agree with GTH's assertion, in relation to the French text, that the phrase "ayant le droit de résidence permanent" is intended to "describe[] a common characteristic amongst the preceding list of example entities."257 Canada highlights that this phrase is set off with a comma and that "ayant" is not preceded by the word "or."258 In Canada's view, this means that the verb "ayant" is attached to the subject "toute entité" rather than to any of the example entities listed, and that the final clause must contain a separate requirement.259 Furthermore, Canada argues that GTH's interpretation is not supported by its own expert on Egyptian law, Dr. Sarie-Eldin, [REDACTED]260 Thus, he evidently does not consider permanent residence to be an inherent characteristic of the entities listed in Article I(g).

c. The Meaning of Permanent Residence

244.
Canada submits that the concept of "permanent residence" in Article I(g) of the BIT refers to the jurisdiction with which the entity has the strongest attachment and where it currently resides and intends to continue residing.261
245.
In advancing its interpretation, Canada urges the Tribunal to interpret "permanent residence" as an autonomous treaty concept in accordance with the VCLT.262 In Canada's view, this is necessary because Egyptian law does not recognize the concept of "permanent residence," especially in the context of juridical persons.263 According to Canada, approaching "permanent residence" as an autonomous treaty standard would be consistent with a number of arbitral decisions addressing criteria such as "permanent residence" or "siège social."264 For example, in Binder v. Czech Republic, the tribunal decided that "permanent residence should be considered to be a treaty concept and should as such be given an autonomous meaning and be interpreted according to the principles of [the VCLT]."265
246.
Therefore, Canada considers the ordinary meaning of the terms "permanent" and "residence," with reference to the Oxford Dictionary,266 and concludes that:

the ordinary meaning of "permanent residence" in a jurisdiction indicates that a juridical person must have strong and enduring ties to that jurisdiction in terms of its business activities, management and operations, and an intention to maintain these ties. Moreover, these ties must be stronger than the entity's ties to any other jurisdiction at the time when the permanence of residence is assessed.267

247.
According to Canada, this interpretation is supported by arbitral decisions interpreting "permanent residence" requirements of investment treaties in the context of natural persons.268 In Binder v. Czech Republic, the tribunal found that an investor's permanent residence is in the State to which "the investor has the strongest attachment."269 In Uzan v. Turkey, the tribunal found that for a natural person to be "permanently residing" in a State, they must be legally permitted to reside in that jurisdiction and must permanently reside there as a matter of fact.270
248.
Canada also relies on Professor Abdel Wahab's opinion that maintaining a principal place of management in Egypt is "an indispensable prerequisite and a condition sine qua non of a permanent residence."271 Canada disagrees with the opinion of Dr. Sarie-Eldin, who attempts to equate "permanent residence" with "registered office."272 In Canada's view, if that had been Egypt's intention, it would have included "registered office" as a requirement in the BIT, as it did in its investment treaty with Finland.273
249.
Finally, Canada offers an alternative argument in case the Tribunal disagrees that "permanent residence" is an autonomous treaty standard or seeks guidance from Egyptian law. In that event, Canada "agrees with GTH that the concept of domicile as understood in Egyptian law

is the connecting factor in Egyptian law that more closely resembles 'permanent residence' both from a definitional and functional perspective."274

d. [REDACTED]

250.
[REDACTED]
251.
[REDACTED]
252.
[REDACTED]
253.
[REDACTED]
254.
[REDACTED]

e. Whether GTH was "established in accordance with, and recognized as a juridical person by the laws of the Arab Republic of Egypt"

255.
Canada asserts that the Parties agree that, to qualify as an "investor" under Article I(g) of the BIT, GTH must show that it was "established in accordance with, and recognized as a juridical person by the laws of the Arab Republic of Egypt."299 In its Merits Rejoinder and Jur. Reply, Canada set out a new allegation that GTH has not satisfied this requirement.300 Canada states that it "advances this argument for the first time in its Rejoinder because [it] is based on documents produced in response to Canada's document requests."301
256.
Canada's position is that GTH cannot rely on its registration in the Egyptian Commercial Register to establish that it is an "investor" under the BIT because GTH does not, as a matter of fact, meet the requirements applicable to a joint stock company under Egyptian law.302
257.
In this regard, Professor Abdel Wahab cites Article 1 of the Companies Law of Egypt, which provides that "[e]very company incorporated in the Arab Republic of Egypt shall locate its principal place in Egypt."303 Thus, according to Professor Abdel Wahab, "having the actual principal place of management in Egypt is a prerequisite to validly incorporate a JSC" and is also "necessary to maintain the JSC's good standing."304
258.
In Professor Abdel Wahab's opinion, the principal place of management of a juridical person in Egypt "is the physical place where its actual board meetings are held."305 As noted above, Canada alleges that GTH held no board meetings in Egypt after February 2015.306 While GTH alleges that it still holds general assembly meetings in Egypt, Professor Abdel Wahab considers this irrelevant to determining the principal place of management because "the general assembly is simply a meeting of shareholders and not the directors, who are entrusted with managing and operating the company."307
259.
REDACTED].308 According to Canada, in numerous cases, tribunals have looked beyond official government documents to satisfy themselves of the underlying facts pertaining to jurisdiction.309 Canada urges the Tribunal to do the same in this case and "not give any legal effect to the information contained on the relevant extracts of the Commercial Register."310

(3) GTH's Position

260.
GTH's position is that the Tribunal has jurisdiction ratione personae over this dispute pursuant to Article 25 of the ICSID Convention and Article XIII of the BIT because on the date of the Request for Arbitration, GTH was a "juridical person" that had made an investment in Canada, within the meaning of Article I(g) of the BIT.311
261.
GTH submits that (a) Article I(g) of the BIT does not require an entity to have a permanent residence in Egypt to qualify as a "juridical person"; (b) Canada's interpretation of "permanent residence" has no basis; [REDACTED]; and (d) Canada's argument that GTH is not recognized as a juridical person by Egyptian law is untimely and unfounded.

a. Interpretation of Article I(g) of the BIT

262.
GTH argues that there is no "permanent residence" requirement in the BIT, as asserted by Canada.312 GTH considers that this is clear from the ordinary meaning of Article I(g) of the BIT in all three authentic language versions.313
263.
In GTH's view, Article I(g) of the BIT contains a broad definition of an Egyptian investor this is a "juridical person" ("any entity established in accordance with, and recognized as a juridical person by the laws of the Arab Republic of Egypt"), followed by the words "such as" and a colon, which introduces a non-exhaustive list of entities that could qualify as a "juridical person" separated by commas.314 GTH notes that the phrase "and having permanent residence in the territory of the Arab Republic of Egypt" follows the colon and is separated from the preceding examples by a comma.315 Therefore, GTH argues that this phrase "is yet another example of a type of entity that qualifies as an Egyptian juridical person."316
264.
In this regard, GTH rejects Canada's argument that the sentence resumes after the non-exhaustive list of examples to introduce an additional condition applicable to "any entity."317 According to GTH, the "dispositive grammatical rule on this issue is that a sentence does not resume following a colon."318
265.
Turning to the French version of the BIT, GTH submits that there are two important features of the text which confirm that "permanent residence" is not an independent requirement: (a) after the list of examples, the text refers to entities "having the right to permanent residence" in Egypt; and (b) that phrase is not preceded by the word "and."319 Thus, in GTH's view, that "phrase describes a common characteristic amongst the preceding list of example entities," and any entity with the right to permanent residence in Egypt may qualify as a "juridical person."320 GTH asserts that this interpretation is consistent with Article 53 of the Egyptian Civil code, which states that a juridical person is "entitled to … [a]n independent domicile."321
266.
With respect to the Arabic version of the BIT, GTH notes that text is similar to the English version and considers that the punctuation should be inferred from the English version.322 According to GTH, in the Arabic version, the phrase "and which have permanent residence" refers back to the other example entities on the list.323 For GTH, this is confirmed by the use of the plural term "have," because if the phrase referred to "any entity," as Canada submits, it would have used the singular "has."324
267.
GTH recognizes that there are differences in the language of the three authentic versions of the BIT and asserts that the Tribunal must adopt the interpretation that best reconciles the three texts.325 In this regard, GTH states:

The consistent element across the three equally authentic versions of the BIT is that while entities having permanent residence form part of or describes the list of entities that qualify as Egyptian juridical persons under the BIT, permanent residence is not an independent requirement to qualify as an Egyptian juridical person investor.326

268.
GTH contends that Canada's alternative interpretation of Article I(g) of the BIT, which adds a separate requirement that an entity must have a permanent residence in Egypt, is contrary to the ordinary meaning of the three authentic texts of the BIT.327
269.
GTH denies that the asymmetrical definitions of Egyptian and Canadian investors somehow support Canada's interpretation.328 According to GTH, Canada's argument undermines the reciprocal promotion of investment and the equal and non-discriminatory treatment of investors.329 Further, GTH asserts that the definition of a Canadian "enterprise" investor is "consistent in both structure and substance" with the definition of an Egyptian "juridical person."330 It includes "any enterprise incorporated or duly constituted in accordance with [Canadian law]" and then lists examples.331
270.
Moreover, GTH argues that Canada fails to give meaning to the terms "the right to" in the French version of the BIT, contrary to the principle of effet utile.332 GTH cites Canada's acknowledgement that its interpretation "accords with two out of the three versions of the Canada-Egypt FIPA."333 For GTH, this is insufficient to meet the mandate of Article 33(4) of the VCLT.334 GTH considers Canada's interpretation would also "stifle the object and purpose of the BIT."335

b. Meaning of Permanent Residence

271.
GTH reviews the dictionary definitions of the terms "permanent" and "residence" and concludes that the ordinary meaning of "permanent residence" is a place where an entity resides for a continuing period.336
272.
GTH sees no basis for Canada's argument that "permanent residence" indicates a single place where an entity has the "strongest attachment."337 GTH's submissions on this point include the following arguments:

a. Canada's interpretation is inconsistent with the ordinary meaning of "permanent residence."338

b. Canada's interpretation would require multinational companies to have a single permanent residence, which is illogical in light of the reality of corporate personality.339

c. Tribunals have recognized that even natural persons may have more than one permanent residence.340

d. Canada attempts to impose something like a dominant nationality test, which is not recognized as a general principle of international law.341 Canada's own authorities confirm that tribunals will not apply such a restrictive test without express treaty language.342

e. Canada draws its interpretation from two cases that address the question of whether a natural person could advance a claim against the State of their nationality, which is irrelevant in the present case.343 In any event, these decisions do not help Canada. In Binder v. Czech Republic, the tribunal's decision was based on the parties' agreement that the claimant could be an investor of only one of the State parties to the relevant treaty, and the tribunal refused to exclude "the possibility of two permanent residences."344 In Uzan v. Turkey, the tribunal's decision was based on specific treaty language, which is not found in the BIT.345

273.
GTH considers that although Egyptian law is of limited relevance in interpreting the BIT, Egyptian law could provide the Tribunal with insight into Egypt's intent in drafting Article I(g).346 In this regard, the Parties' experts on Egyptian law agree that Egyptian law does not recognize the concept of "permanent residence" for juridical persons.347 However, according to GTH, the concept of "domicile" under Egyptian law is analogous to the concept of "permanent residence" in the BIT.348 Professor Sarie-Eldin opines that, under Egyptian law, (a) all juridical persons are entitled to an "independent domicile" under Egyptian law; (b) "domicile" is deemed to be the place where management is located; and (c) for a juridical person with its principal place of management abroad, "its place of management [in Egypt] is deemed to be the place where its local management is located."349
274.
GTH also discusses the concepts of "resident" and "registered office" under Egyptian law. GTH agrees with Professor Abdel Wahab that a juridical person is considered "resident" in Egypt if it is incorporated under Egyptian law.350 GTH highlights that as an Egyptian joint stock company, it is required to have "registered office" in Egypt.351 [REDACTED]

c. [REDACTED]

275.
[REDACTED]
276.
[REDACTED]

d. Whether GTH was "established in accordance with, and recognized as a juridical person by the laws of the Arab Republic of Egypt"

277.
In response to Canada's position that GTH is not "established in accordance with, and recognized as a juridical person by the laws of the Arab Republic of Egypt," GTH contends that this objection is untimely and, in any event, wrong.365
278.
GTH refers to the requirement in the ICSID Arbitration Rules that jurisdictional objections must be raised "as early as possible" and "no later than the expiration of the time limit fixed for the filing of the counter-memorial."366 GTH asserts that, by raising this objection in its Merits Rejoinder and Jur. Reply, Canada has failed to comply with this Rule. GTH does not accept Canada's explanation that the objection is based on documents GTH produced in the document production phase.367 According to GTH, "every document except one Canada has cited to form the factual basis of this objection is a publicly available document that Canada has had access to for the duration of this Arbitration."368 The one document originating from GTH's document production could not have given rise to the new objection, as Canada itself states that this document "expressly recognized" the points contained in the public documents.369 Thus, GTH argues that Canada's objection must be dismissed as untimely.
279.
In any event, GTH further argues that Canada's objection has no merit, as GTH has been established in accordance with and recognized as a juridical person by the laws of Egypt at all times.370
280.
According to GTH, Canada's position is based on Professor Abdel Wahab's incorrect view that an Egyptian joint stock company must have its "principal place of management" in Egypt.371 Dr. Sarie-Eldin explains that the relevant requirement is that a joint stock company must maintain a "principal place" in Egypt that is registered on the commercial register.372 GTH asserts that it has met this requirement because at all times, the address on its commercial register was the Nile City Towers complex in Cairo.373 Thus, GTH is a valid Egyptian joint stock company, and no Egyptian regulatory authority has alleged otherwise, despite knowing that some of GTH's functions have moved to The Netherlands.374

(4) The Tribunal's Analysis

281.
The Parties dispute whether GTH was a qualifying "investor" of Egypt at the time of the submission of the Request for Arbitration on 28 May 2016, as the term is defined in BIT Article I(g).375
282.
The BIT provides two separate, and different, definitions for "investor" according to whether the investor is Canadian or Egyptian. In this arbitration, only the latter is relevant. Within the definition provided in Article I(g) for an Egyptian investor, separate meanings are ascribed to an investor who is a natural person and to an investor which is a juridical person. Given the undisputed status of GTH as a corporation,376 only the definition of juridical person in Article I(g) of the BIT is relevant to determine whether GTH is a protected investor.
283.
As indicated in the BIT, the treaty has been authenticated in three languages: Arabic, English and French, "all versions being equally authentic."377 In relevant parts, Article I(g) provides:

"investor" means : […]

In the case of the Arab Republic of Egypt: […]

any natural or juridical person any natural or juridical person, including the Government of the Arab Republic of Egypt who invests in the territory of Canada. […]

(ii) the term "juridical person" means any entity established in accordance with, and recognized as a juridical person by the laws of the Arab Republic of Egypt: such as public institutions, corporations, foundations, private companies, firms, establishments and organizations, and having permanent residence in the territory of the Arab Republic of Egypt.378

284.

The corresponding terms in the equally authentic French and Arabic versions are as follows:

f) « investisseur » désigne : […] Dans le cas de la République arabe d'Égypte: toute personne physique ou morale, y compris le gouvernement de la République arabe d'Égypte, qui fait un investissement sur le territoire canadien : […]

ii) Par le terme « personne morale », il faut entendre toute entité constituée en conformité avec les lois de la République arabe d'Égypte et reconnue comme personne morale par ces lois : dont les institutions publiques, les personnes morales proprement dites (ou corporations) les fondations, les compagnies privées, les firmes, les établissements et les associations, ayant le droit de résidence permanente sur le territoire de la République arabe d'Égypte.379

[...] : ز) "اﻟﻤﺴﺘﺜﻤﺮ" ﯾﻌﻨﻲ)

:ﻓﻲ ﺣﺎﻟﺔ ﺟﻤﮭﻮرﯾﺔ ﻣﺼﺮ اﻟﻌﺮﺑﯿﺔ

:أي ﺷﺨﺺ طﺒﯿﻌﻲ أو إﻋﺘﺒﺎري ﺑﻤﺎ ﻓﻲ ذﻟﻚ ﺣﻜﻮﻣﺔ ﺟﻤﮭﻮرﯾﺔ ﻣﺼﺮ اﻟﻌﺮﺑﯿﺔ ﯾﺴﺘﺜﻤﺮ ﻓﻲ إﻗﻠﯿﻢ ﻛﻨﺪا

[...]

۲ - و ﯾﻌﻨﻲ "ﺷﺨﺺ إﻋﺘﺒﺎري" أي ﻣﻨﺸﺄة ﺗﻜﻮﻧﺖ أو أﻧﺸﺌﺖ وﻓﻘﺎً ﻟﻘﻮاﻧﯿﻦ ﺟﻤﮭﻮرﯾﺔ ﻣﺼﺮ اﻟﻌﺮﺑﯿﺔ ﻣﺜﻞ ااﻟﻤﻨﺸﺂت اﻟﻌﺎﻣﺔ و اﻟﺸﺮﻛﺎت اﻟﻌﺎﻣﺔ و اﻟﺨﺎﺻﺔ و اﻟﻤﺆﺳﺴﺎت و اﻟﻤﻨﻈﻤﺎت و اﻟﺘﻲ ﻟﮭﺎ إﻗﺎﻣﺔ داﺋﻤﺔ ﻓﻲ إﻗﻠﯿﻢ ﺟﻤﮭﻮرﯾﺔ ﻣﺼﺮ اﻟﻌﺮﺑﯿﺔ.380

285.
As is obvious on their face, the three linguistic versions of the BIT are not identical. For example, the Arabic version omits the reference to "and recognised as a juridical person by," which is found both in the English and in the French versions.381 Punctuation marks are also inconsistently inserted in the relevant subparagraphs across the three linguistic versions. That said, none of those differences casts doubt on the requirement in the BIT that an Egyptian investor that is a juridical person must be established in accordance with the laws of Egypt and must have permanent residence in the territory of Egypt.
286.
The foregoing two conditions of establishment and of permanent residence are cumulative. GTH's attempt to question the application of a requirement of permanent residence to a juridical person based on its reading of the punctuation marks in Article I(g)(ii) of the BIT goes counter to the explicit terms of that provision. Indeed, GTH's submission that, because of the positioning of the colon and of the comma in subparagraph (ii), the requirement of permanent residence only applies to the specific categories listed after the colon but not generically to "any entity established" goes counter to the ordinary meaning of the conjunction "and" appearing in the English and in the Arabic version, and to the acceptable usage of the comma in the French version. Taken together, those conjunction and punctuation mark, when read in light of Article 33(4) of the VCLT, denote the intention of the drafters of the BIT to close the illustrative list of non-exhaustive categories of juridical persons investors of Egypt (such as public institutions … and organisations) and return to a general requirement of "permanent residence" that is applicable to all juridical persons regardless of the category.
287.
The Tribunal notes that both Parties have made submissions on the point that the French version of the BIT refers to "ayant le droit de résidence permanente," which translates in English as "having the right to permanent residence" in Egypt. On its face, that reference appears to set a different standard from the equally authentic English and Arabic versions which require the investor to "have permanent residence."382 Neither Party nor their experts has suggested that the French version sets a different standard that must prevail over the other versions of the BIT. In any event, the Tribunal considers that it has been plainly evidenced in fact that GTH had been established – not only had the right to become established – in accordance with the laws of Egypt and remained so on the date of the Request for Arbitration,383and that it is recognised as a juridical person by the laws of Egypt and remained so on the date of the Request for Arbitration.384 The following brief exchange at the hearing between the Tribunal and Canada's Egyptian law expert helpfully confirms those facts:

MR BORN: Can I interject, just so that I'm sure I understand your testimony. I think you agreed with Ms Madden that GTH is incorporated in Egypt and remains recognised under Egyptian law as a joint stock company?

A. Indeed, Professor.385

288.
This is further corroborated by GTH's Egyptian law expert's unqualified evidence at the hearing:

The second issue: is GTH established and recognised under Egyptian law? And again, my conclusion is: yes, it is. Definitely and without any doubt, it has been incorporated in compliance with Egyptian law and continued to be in compliance with Egyptian law, and continues to be an Egyptian company. Because the only requirement to be an Egyptian national as a company is to be incorporated under Egyptian law, and this is where you get your nationality as an Egyptian company.386

289.
Canada's submission that GTH "is not an entity established in accordance with the laws of Egypt"387 because GTH allegedly does not have a principal place of management in Egypt is rebutted by the production by GTH of a contemporaneous extract from the Commercial Register, approved by the Egyptian government, certifying that GTH has its headquarters in Egypt.388
290.
That first requirement for a qualifying investor under Article I(g)(ii) being established, the Tribunal is therefore left with the task of determining whether GTH had permanent residence in the territory of Egypt on the relevant date. The term "permanent residence" is not defined in the BIT. Likewise, both Egyptian law experts instructed by the Parties agree that the term is not defined either in Egyptian law.389 The Parties agreed in their pleadings,390 and reiterated at the hearing, that it is an autonomous treaty concept:

[MS TABET:] Now, how to interpret the concept of "permanent residence": the best way, by interpreting the treaty, if we accept that it's an autonomous standard, not one that refers to Egyptian law, is to adopt an ordinary meaning definition of "permanent residence".

THE PRESIDENT: So you accept that "permanent residence", in the definition of Egyptian investor, is an autonomous concept of the treaty, and that the Tribunal does not have to look at Egyptian law for interpreting it?

MS TABET: I think that is our position, and we have made alternative submissions as well. THE PRESIDENT: Right. Could Claimant remind me if on that point that concords with your submission? Do you accept that the Tribunal has to look only at the treaty to interpret "permanent residence" in the definition of Egyptian investor?

MS MADDEN: Yes, this is a public international law question.

THE PRESIDENT: Thank you. So the Tribunal does not have to look at the course of conduct, or precedent in Egyptian diplomacy in concluding similar treaties; we'll just concentrate on that particular treaty?

MS MADDEN: I think that's right, yes, sir.

THE PRESIDENT: Canada confirms?

MS TABET: Yes.

THE PRESIDENT: Thank you, that's helpful.391

291.
The Tribunal will therefore be guided in its interpretation of the term "permanent residence" by the rules of interpretation of treaties set out in VCLT, including in particular Articles 31 to 33.

Article 31. General rule of interpretation

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

(a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;

(b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

3. There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

(c) any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended.

Article 32. Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd or unreasonable.

Article 33. Interpretation of treaties authenticated in two or more languages

1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail.

2. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree.

3. The terms of the treaty are presumed to have the same meaning in each authentic text.

4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.392

292.
The Tribunal finds no support in the BIT for Canada's contention that "permanent residence," as used in the BIT, requires strong and enduring ties "that must be stronger than the entity's ties to any other jurisdiction at the time when the permanence of residence is assessed."393 For an international corporation engaged in business in numerous markets to be required to have a single permanent residence would be an extraordinary limitation and a departure from customary and legitimate means of doing business that ought only be considered where the BIT itself or, absent that and in accordance with the VCLT, its preparatory work or the circumstances of its conclusion warrant such a construction. No such evidence is adduced by Canada. The Tribunal considers that a juridical person can have more than one permanent residence absent an overriding mandatory limitation in the applicable laws.
293.
The Tribunal agrees with Canada that the Contracting Parties agreed to promote foreign investments only according to the terms of the BIT and its scope provisions.394 However, where those terms are provided without limitation as is the case in Article I(g)(ii) for "permanent residence," the Tribunal cannot imply arbitrary limitations for that would unbalance the BIT's substantive provisions.395 As GTH rightly points out,396 Canada's reliance on Binder v. Czech Republic overlooks the essential linchpin on which that award rests expressis verbis : "the Parties agree that the BIT envisages a permanent residence in one State only."397 There is no evidence of any such agreement between the Parties in these proceedings as concerns the Egypt-Canada BIT.
294.
The Tribunal also considered Canada's Egyptian law expert's opinion that, under Egyptian law referred to in Article I(g)(ii), "permanent residence" means the principal place of management. To that end, the expert testified as follows:

So if a company that is presumably an Egyptian joint stock company just maintains an office, this is not demonstrative of domicile or permanent residence, as indicative also of the company being a foreign company, because an Egyptian company would have its principal place of management in Egypt.398

295.
Domestic procedural matters such as the address where a company may be validly served with legal documents and other corporate issues governed by the Egyptian Companies Act399 are of little assistance to this Tribunal for the purpose of determining its jurisdiction over an investor pursuant to the identification of its permanent residence, an autonomous treaty concept.400 The Tribunal considers that any contention implying a notion of exclusiveness in the identification of the permanent residence of a company faces the difficulty that, in all three linguistic versions of Article I(g)(ii), "permanent residence" is ascribed no qualifications, and requires no minimum bar or specific material manifestations. A registered office, as evidenced in the contemporaneous Commercial Register extract adduced in evidence, suffices to show "permanent residence".401 While Canada questioned at the hearing the accuracy of the information contained on the Commercial Register,402 it has not provided any satisfactory evidence of that contention. Canada also accepts that the determination of the relevant place is a factual determination.403 The officially-certified, signed and stamped extract of the Commercial Register,404 an Egyptian government-issued document, referring to the headquarters of GTH at the relevant time as being located in Egypt, is accepted by the Tribunal as sufficient evidence of the company's establishment in accordance with, and of its recognition as a juridical person by, the laws of Egypt.
296.
Absent a requirement in the BIT, the Tribunal need not decide whether the address shown on the official registry extract as being GTH's headquarters corresponds to the company's principal place of management.405 Exclusive location concepts of that sort are better left to statutes or model laws that explicitly require them, as in the case of cross-border insolvency.406 Resorting to a Procrustean forcing of such concepts into the text of the BIT absent compelling evidence of the Contracting Parties' intention to restrict "permanent residence" is not an approach that this Tribunal considers appropriate for the interpretation of the BIT.
297.
[REDACTED] The Tribunal considers that GTH need not meet other thresholds asserted by Canada absent a specific requirement in the BIT. Canada in effect takes the position that GTH is required to maintain a one and only "principal place of management" in Egypt at the relevant time. As already noted, there is no requirement of exclusiveness in the BIT. [REDACTED]
298.
[REDACTED]
299.
As to submissions attempting to infer support from the concept of natural persons' domicile under any of the Contracting Parties' domestic laws, they are simply irrelevant in the case of corporate investors, because the BIT explicitly differentiates in Article I(g) between their [REDACTED] definition in subparagraph (ii) and that of individual investors in subparagraph (i).
300.
[REDACTED] As such, GTH meets the requirements for an "investor" as defined in the BIT.

C. WHETHER ARTICLE II(4)(B) OF THE BIT DEPRIVES THE TRIBUNAL OF JURISDICTION OVER GTH'S CLAIMS RELATING TO THE VOTING CONTROL APPLICATION

301.
Canada's second objection is aimed at GTH's claim concerning the national security review conducted in the context of GTH's attempt to acquire voting control of Wind Mobile. According to Canada, this claim is excluded from the dispute resolution provision of the BIT pursuant to Article II(4)(b) of the BIT, and the Tribunal therefore lacks jurisdiction over the claim.
302.
GTH argues that Canada's objection must be dismissed because GTH's claim does not relate to an "acquisition" within the meaning of Article II(4) of the BIT.412 Rather, it relates to the exercise of rights already acquired at the time it made its investment, before the national security review. Alternatively, GTH asserts that its claim concerns the process leading up to [REDACTED] not the decision itself and is therefore permitted under Article II(4)(a) of the BIT.413

(1) Relevant Provision of the BIT

303.
Article II(4) of the BIT provides that:

(a) Decisions by either Contracting Party, pursuant to measures not inconsistent with this Agreement, as to whether or not to permit an acquisition shall not be subject to the provisions of Articles XIII or XV of this Agreement.

(b) Decisions by either Contracting Party not to permit establishment of a new business enterprise or acquisition of an existing business enterprise or a share of such enterprise by investors or prospective investors shall not be subject to the provisions of Article XIII of this Agreement.414

(2) Canada's Position

304.
Canada submits that the ordinary meaning of Article II(4)(b) of the BIT is unambiguous: any decision falling within the scope of the provision is excluded from investor-State dispute settlement.415 In other words, Canada has not consented to arbitrate any dispute arising out of a decision covered by Article II(4)(b) of the BIT, regardless of whether such a decision is subject to obligations contained in the BIT.416
305.
In Canada's view, the object and purpose of Article II(4)(b) is to allow the Contracting Parties to retain their sovereignty over decisions concerning the establishment or acquisition of businesses, which can be sensitive.417 Canada asserts that most investment treaties contain some form of limitation or exclusion in this respect.418
306.
According to Canada, decisions made pursuant to the ICA fall within the scope of Article II(4)(b) of the BIT. Canada argues that this is by design; it "has always sought in all of its trade and investment agreements a broad exclusion for its ICA review process and the result of such review."419 Canada highlights that the language of Part IV.1 of the ICA, which governs the scope of the national security review, mirrors the language in Article II(4)(b) of the BIT. It applies to an investment, implemented or proposed, by a non-Canadian:

(a) to establish a new Canadian business;

(b) to acquire control of a Canadian business in any manner described in subsection 28(1); or

(c) to acquire, in whole or in part, or to establish an entity carrying on all or any part of its operations in Canada …420

307.
The ICA was triggered when GTH submitted the Voting Control Application.421 [REDACTED] was a "decision" within the scope of Article II(4)(b) of the BIT, which is excluded from the Tribunal's jurisdiction.422
308.
[REDACTED] Accepting this allegation as true for the purpose of the jurisdictional objection, Canada concludes that there was a "decision" within the meaning of Article II(4)(b) of the BIT. [REDACTED]
309.
Contrary to GTH's submission, Canada contends that GTH's attempt to gain voting control of Wind Mobile was clearly an "acquisition" within the meaning of Article II(4)(b).426 According to Canada, it is undisputed that through the proposed transaction, GTH sought to convert Class D non-voting shares of Wind Mobile into Class B voting shares.427 Under the Shareholders' Agreement, that conversion process would involve GTH returning the original shares and acquiring new shares it did not already own.428 This would also have constituted an acquisition of legal control of Wind Mobile.429 [REDACTED] Ultimately, GTH would have held over 99% of the voting and equity shares of Wind Mobile.431
310.
Canada cites contemporaneous documents in which GTH refers to the proposed transaction as an acquisition.432 In addition, Canada points to [REDACTED] the national treatment obligation contained in Article II(3) of the BIT.433 As that provision concerns the "acquisition of an existing business enterprise or a share of such enterprise," Canada argues that GTH cannot turn around and claim that the Voting Control Application did not relate to such an acquisition.434
311.
Canada rejects GTH's attempt to distinguish between the national security review process, on the one hand, [REDACTED].435 In Canada's view, this approach would render the exclusion in Article II(4)(b) meaningless.436 It is also contrary to the ordinary meaning of "decision," which includes the "process of arriving at a conclusion regarding a matter under consideration."437 According to Canada, GTH's interpretation is based on a strained reading of Article II(4)(a), which is not even the basis of Canada's jurisdictional objection.438
312.
In any event, Canada argues that GTH's description of the alleged breach is not in fact limited to the review process, but [REDACTED] For example, GTH challenges [REDACTED] through a national security review."439 Moreover, Canada submits that "GTH has not identified any damages that flow from the national security review process that are independent from the alleged decision."440
313.
In light of the above, Canada asserts that the challenged measures fall within Article II(4)(b) as a decision not to permit the acquisition of an existing business enterprise or a share of such enterprise.

(3) GTH's Position

314.
GTH's primary position is that Article II(4) of the BIT is irrelevant because the Voting Control Application was not an attempted "acquisition" within the meaning of that provision.441 Therefore, Canada's objection must be dismissed.
315.
In this regard, GTH argues that the subject of its Voting Control Application was neither the acquisition of Wind Mobile nor the acquisition of shares in Wind Mobile, but rather a conversion of GTH's non-voting shares into voting shares in order to take control of Wind Mobile.442 GTH asserts that it could not acquire something it already owned.
316.
GTH does not accept Canada's "highly formalistic argument about the mechanics of a share conversion," which in GTH's view, ignores the fact that GTH was seeking to exercise its pre-existing right to obtain control over Wind Mobile once the O&C Rules were relaxed."443
317.
GTH alleges that at the time it submitted the Voting Control Application, Canada recognized that the transaction was not an acquisition but a share conversion. [REDACTED]
318.
According to GTH, Canada supports its objection by expanding the scope of the term "acquisition" in Article II(4) to cover "all forms of transactions that lead to gaining control or ownership of the enterprise."445 In GTH's view, there is no basis for this addition to the text; if the Contracting Parties had intended Article II(4) to cover an acquisition of control, they would have done so.446
319.
Similarly, GTH sees Canada's submissions relating to the ICA as an attempt to improperly expand the scope of Article II(4).447 According to GTH, the language of the ICA is clearly broader than Article II(4) in that it allows Canada to review a proposed investment when a non-Canadian seeks "to acquire control of a Canadian business."448 Yet Canada seeks to import this domestic law into the BIT to avoid its international obligations.449 GTH notes that the BIT does not contain a reference to the ICA, whereas Canada has explicitly and clearly named that legislation "where it meant to do so in other treaties."450
320.
GTH submits that in considering Canada's objection, the Tribunal should not simply "accept Canada's bald assertion that its actions fall under any particular carve-out," but should examine the factual record and consider whether Canada's conduct was bona fide.451
321.
GTH's alternative argument is that, even if the Tribunal were to find that the Voting Control Application was an "acquisition," GTH's claim does not fall within the exclusion of Article II(4).452 According to GTH, when Article II(4) is considered as a whole, it becomes clear that the provision covers only decisions relating to acquisitions and not to the process of reaching such decisions.453
322.
Based on a comparison of the language of subparagraphs (a) and (b) of Article II(4), GTH makes the following observations:

a. Article II(4)(a) covers all acquisitions, whereas Article II(4)(b) covers only "acquisition[s] of an existing business enterprise or a share of such enterprise." Therefore, only Article II(4)(a) could apply to the Voting Control Application, given that the alleged "acquisition" related to voting control of Wind Mobile.454

b. Article II(4)(a) refers to the decision-making process ("whether or not to permit"), whereas Article II(4)(b) refers to the decision itself. Therefore, the exception to dispute resolution does not apply to a decision-making process relating to acquisitions.455

c. Under Article II(4)(a), [REDACTED] is not exempt from dispute resolution if it was reached in a manner that is inconsistent with the BIT.456

323.
GTH concludes that, even if Article II(4) were applicable, it could not exclude GTH's claims because the subject of those claims "[REDACTED]."457 According to GTH, that decision-making process falls within the Tribunal's jurisdiction under Article II(4)(a). In addition, GTH asserts that under Article II(4)(a), "[REDACTED] remains subject to dispute resolution because the dispute arises from measures inconsistent with its obligations under the BIT."458

(4) The Tribunal's Analysis

324.
The decisions in this section of the Award are taken by a majority of the Tribunal.
325.
In support of its second jurisdictional challenge based on Article II(4)(b) of the BIT, Canada advances both its construction of the relevant BIT provision and policy reasons to show that its [REDACTED] is excluded from the arbitration mechanism set out in Article XIII of the BIT.459 The Tribunal, by a majority, finds neither of those two grounds to be convincing.
326.
First, Canada's reference to its treaty practice allegedly systematically excluding from international treaty dispute settlement mechanisms ICA-related decisions in respect of the establishment or acquisition of a business enterprise is insufficient to deny the Tribunal's jurisdiction under the BIT. The Tribunal must determine the scope of its jurisdiction with reference to the terms of the BIT, as interpreted in accordance with Article 31 of the VCLT. Consistent with its alleged practice, Canada could have specifically referred to its foreign ownership and control legislation in Article II(4)(b) of the BIT; it has not done so, although the ICA had been enacted in 1985 and, as such, predated the BIT.
327.
The additional argument that Canada refrained from specifically naming the ICA in the BIT to afford symmetrical protection to both Contracting States is not persuasive either. The BIT features other protections afforded nominally to one or the other of the Contracting States and their respective nationals without any consistent symmetrical approach (e.g., Article I(g) and the Annex).
328.
Second, the Tribunal is not persuaded by Canada's argument that, for the purpose of acquiring voting control of Wind Mobile, GTH's intended conversion of Class D non-voting shares of Wind Mobile into Class B voting shares involves an "acquisition of shares" within the meaning of Article II(4)(b) or, as Canada put it more synthetically at the hearing:

The share conversion is an acquisition of shares, and in this case it also amounts to an acquisition of Wind Mobile.460

329.
The Amended and Restated Shareholders' Agreement461 to which Canada refers mentions in section 4 of Schedule C a conversion of Class D non-voting shares into Class B voting shares on the basis of one Class D share for each Class B share. The fact that the mechanism involves a return of Class D share certificates and the issue of Class B share certificates does not mean, absent evidence of an animus novandi, that new Class B shares are acquired. It is simply that the shareholder's rights over the shares are enhanced with the ability to vote. Had the conversion of Class D shares into Class B shares involved an obligation to "acquire" ownership of the Class B shares to achieve the conversion, GTH would in all logic have had to "sell" its Class D shares which, being nominative, would have had to be annulled. This would have triggered a reduction in Wind Mobile's corporate capital, even for a scintilla temporis, until capital is increased with the issue of the new Class B shares. A complex annulment/issue/acquisition of share process of that sort would be expected to be mentioned in a sophisticated document like the Amended and Restated Shareholders' Agreement. No such mention can be found therein. The fact is that the Agreement only refers to a conversion of shares, and does so consistently throughout. As GTH puts it: "GTH sought to convert non-voting shares that it already owned by exercising a preexisting right, that GTH had already acquired, to assume voting control of its investment."462
330.
As to Canada's argument that GTH has referred in some of its correspondence to "acquisition," it is difficult to draw any firm inferences out of inconsistent references, the reason being that those references often are made to issues other than the conversion of the non-voting shares. Importantly, those references – if they were to be considered – ought to be read against the following statement [REDACTED]
331.
Canada ran a further case to the effect that:

the acquisition of voting shares would also have amounted to an acquisition of the enterprise resulting from an acquisition of legal control. Article II(4) applies to decisions not to permit the acquisition of an existing business enterprise or a share of such enterprise.134 There is no basis on which to limit the exclusion to certain forms of acquisitions of an existing business enterprise. Acquisitions of existing business enterprises are often realized through acquisitions of control.464

332.
Canada supports its contention by referring to subsection 28(1) of the ICA, which includes a reference to the acquisition of voting control.465 The difficulty for Canada is that the BIT refers to the "acquisition of an existing business enterprise, or a share of an enterprise," but not to the acquisition of voting control. One cannot be held to be necessarily subsumed in the other. Absent a reference in the BIT to the acquisition of legal control, and in conformity with the general rule of interpretation in Article 31(1) of the VCLT, the majority of the Tribunal considers that the BIT refers in Article II(4)(b) to the acquisition of an enterprise or a share thereof in the sense of ownership as opposed to control.
333.
It should be added that the object and purpose of the treaty – a general interpretation standard under Article 31(1) of the VCLT – commands that potentially choosing a broad interpretation of the terms of the treaty so as to read a reference to an "acquisition of an existing business enterprise or a share of such enterprise" as including an acquisition of legal control should only be considered with caution. Broadening exclusions from the protections accorded in the BIT by a Contracting Party to nationals of the other Contracting Party, beyond their explicit terms, would hardly be conducive to the encouragement of the creation of favourable conditions for investors to make investments.
334.
Therefore, the Tribunal, by a majority, decides that it cannot accept Canada's assertion that the challenged measures fall within the scope of Article II(4)(b) of the BIT as a decision not to permit the acquisition of an existing business enterprise or a share of such enterprise. The objection on jurisdiction is therefore rejected.
335.
With the above determination made, the Tribunal need not go into the additional argument that GTH adduces seeking to differentiate between "a decision" and "the process of reaching that decision."466
336.
One Member of the Tribunal considers that the exception under Article II(4) of the BIT to the right of the investor to submit disputes to arbitration is applicable to the present dispute. This Member considers that the measure complained of here concerned the acquisition of voting control over Wind Mobile and thus constitutes an "acquisition … of an existing business enterprise" within the meaning of Article II(4), interpreted in good faith in accordance with the ordinary meaning to be given to those terms in their context and in the light of the object and purpose of the BIT. The focus in that Article in its English and French texts467 is on the acquisition of a "business enterprise," i.e., an economic entity rather than a legal entity; and from the point of view of the Contracting Parties, for whose benefit the Article II(4) exception is established, the acquisition of control is at least as significant in the context of the control of foreign investment (with which the BIT is by its nature essentially concerned) as is the acquisition of rights of financial participation in a business without any correlative rights to control that business. Furthermore, this Member considers that the object and purpose of the treaty is not confined to the promotion and protection of investments, but must be understood to include both the fair treatment of investments and the preservation of certain regulatory competences for the State hosting the investment. The majority of the Tribunal has considered the minority's opinion, but decided that it does not change its interpretation of the provision.

D. WHETHER ARTICLE IV(2)(D) OF THE BIT DEPRIVES THE TRIBUNAL OF JURISDICTION OVER THE CLAIMANT'S NATIONAL TREATMENT CLAIMS

337.
Canada's next objection targets GTH's claim that Canada breached its national treatment obligations contained in the BIT. Canada submits that this claim is precluded by the reservation it made pursuant to Article IV(2)(d) of the BIT, and the Tribunal therefore lacks jurisdiction ratione materiae over the claim.468
338.
In response, GTH argues that this objection must be dismissed because (a) Canada never exercised its right to make or maintain an exception under Article IV(2)(d), and (b) in any event, Canada did not reserve the right to maintain exceptions with respect to investments made in the telecommunications sector.

(1) Relevant Provisions of the BIT

339.
Article IV(II)(d) of the BIT specifies that the Contracting Parties' national treatment obligations "do not apply to: […] the right of each Contracting Party to make or maintain exceptions within the sectors or matters listed in the Annex to this Agreement."469
340.
The Annex states:

1. In accordance with Article IV, subparagraph 2(d), Canada reserves the right to make and maintain exceptions in the sectors or matters listed below:

- social services (i.e. public law enforcement; correctional services; income security or insurance; social security or insurance; social welfare; public education; public training; health and child care);

- services in any other sector;

- government securities - as described in SIC 8152;

- residency requirements for ownership of oceanfront land;

- measures implementing the Northwest Territories and the Yukon Oil and Gas Accords.

2. For the purpose of this Annex, "SIC" means, with respect to Canada, Standard Industrial Classification numbers as set out in Statistics Canada, Standard Industrial Classification, fourth edition, 1980.470

(2) Canada's Position

341.
Canada submits that the BIT imposes no national treatment obligations on Canada within the sectors listed in its Annex, because Canada has reserved the right to act inconsistently with those obligations under Article V(1)(d).471 Canada has listed all service sectors in its Annex, which includes the telecommunication sector.472 Therefore, GTH's national treatment claim, which relates exclusively to the telecommunications sector, is excluded from the scope of the BIT's national treatment provisions.473

a. Whether Canada has Made an Exception Under Article IV(2)(d) of the BIT

342.
According to Canada, it may make or maintain an exception pursuant to Article IV(2)(d) at any time by adopting or maintaining measures or by according treatment that would otherwise be inconsistent with the national treatment obligations; it is not required to take any additional steps to exercise this right.474
343.
Canada argues that its interpretation of Article IV(2)(d) is based on the ordinary meaning of the text, which is "that Canada has maintained policy flexibility to not accord national treatment to investors of Egypt and their investments within the matters or sectors listed in the Annex."475 Canada considers that the dictionary definitions of the terms "make," "maintain" and "exception" support its interpretation.476 Further, according to Canada, the text simply does not specify any procedural requirements that must be fulfilled to trigger the exception. In particular, Canada points out that the BIT does not contain a notification requirement, unlike some other investment treaties.477 Thus, there is no basis for GTH's assertion that Canada must notify Egypt and its investors before exercising its right to make an exception.478
344.
Canada contends that its interpretation is reinforced by the context of Article IV(2)(d), and in particular by Egypt's list of excepted sectors or matters, which uses language that is not compatible with GTH's argument that a State must enact a reservation before it becomes effective.479 Canada also refers to the object and purpose of Article IV(2)(d), which in its view, is "to ensure that Canada's national treatment obligations in its FIPAs do not unduly limit Canada's policy space."480 Canada notes that when then BIT was negotiated in the 1990s, "it was common for BITs to include only very weak or no national treatment obligations."481
345.
Turning to past arbitral decisions, Canada cites Lauder v. Czech Republic and Lemire v. Ukraine, in which the tribunals considered reservations similar to Article IV(2)(d) of the BIT.482 The Lauder tribunal found that the reservation allowed the State to "treat foreign investment less favorably than domestic investment … in the sectors or matters for which it has reserved the right to make or maintain an exception in the Annex to the Treaty."483 The Lemire tribunal characterized the national treatment obligation in the relevant treaty as "a general principle, subject to an exception (for investment in listed sectors and matters)."484 According to Canada, the tribunals in these cases ultimately decided that the exceptions did not apply, but for reasons not present in this case.485
346.
Canada rejects GTH's attempt to read procedural requirements into Article IV(2)(d).486 In Canada's view, GTH's argument is based on a misunderstanding of the difference between existing non-conforming measures and future non-conforming measures.487 Article IV(2)(a)-(c) lists existing non-conforming measures, whereas Article IV(2)(d) excludes future non-conforming by referring to the right to make or maintain exceptions.488 In this way, the Contracting Parties sought "to preserve maximum flexibility"489 to introduce "new non-conforming measures in the future."490 Canada considers that Article XVI of the BIT, which GTH cites to support its interpretation, reinforces Canada's position. It requires the Contracting Parties, within two years after the entry into force of the BIT, to notify one another of any existing non-conforming measures; it does not apply to future measures, which by their very nature cannot be identified.491
347.
Canada further contends that the BIT does not distinguish between the reservation of a right and the exercise of a right, as GTH suggests.492 In this regard, Canada refers to "denial of benefits" clauses, which are found in certain investment treaties and often use the language of a reservation of rights. According to Canada, tribunals have found that such language allows the State to deny the treaty rights at the time they are being claimed.493

b. Whether the Annex Includes Telecommunications

348.
Regarding the scope of the exception, Canada's position is that the Annex of the BIT excludes all services, including telecommunications.494 Canada highlights that the first exclusion listed in the Annex is "social services," which is followed by "services in any other sector."495 Canada reads these together to mean that all service sectors, including social services, fall within the scope of the exception.496 Thus, Canada sees no basis for GTH's position that telecommunications are not covered by the Annex.
349.
In Canada's view, its interpretation of the Annex is confirmed by Canada's treaty practice. It argues that nearly all its investment treaties from 1994 to the late 1990s contain provisions identical or similar to Article IV(2)(d) the Annex of the BIT, which contains a broad exception for all services from Canada's national treatment obligations.497 Canada opposes GTH's argument that Canada specifically identified telecommunications in other treaties when it sought to exclude that sector.498 Canada points out that GTH cites treaties from 2013 and 2014, which reflect an "evolution in the architecture of Canada's FIPAs over the past three decades."499 These treaties and the BIT all exclude telecommunications, albeit in different ways.500
350.
In addition, Canada considers GTH's position that telecommunications is not a service "plainly wrong and contradicted by the fact that the measures at issue clearly relate to the provision of telecommunications services by Wind Mobile."501
351.
In this regard, Canada considers GTH's reliance on the Standard Industrial Classification misplaced because (a) it is referenced in the BIT only with respect to "government securities" and not "any other services"; (b) it does not contain a single category for all services in which telecommunications would fall; and (c) it refers to "telecommunications broadcasting and transmission services" and therefore does not suggest that telecommunications are not services.502

(3) GTH's Position

352.
GTH's position is that Canada's objection must be dismissed because Canada did not exclude telecommunications from its national treatment obligations.503 GTH argues that Canada has not exercised its right to make an exception under Article IV(2) of the BIT and that, in any event, the Annex does not cover telecommunications.504

a. Whether Canada has Made an Exception Under Article IV(2)(d) of the BIT

353.
GTH acknowledges that Canada has a right under Article IV(2)(d) to make and maintain exceptions to national treatment protection.505 However, GTH contends that this is "simply a right reserved to make an exclusion in the future," and the exercise of this right requires more than the mere adoption of a measure.506
354.
For GTH, this is clear from the ordinary meaning of Article IV(2) and the Annex.507 GTH points out a distinction between Article IV(a)-(c) and Article IV(d): while the former refer to "measures" that the Contracting Parties can make or maintain without violating the national treatment obligation, the latter only permits the Contracting Parties to "make or maintain exceptions" within certain sectors specified in the Annex.508 Thus, the provision identifies certain existing exceptions to national treatment and leaves it to the States whether to exercise their right to make further exceptions in the future.509
355.
Turning to the Annex, GTH highlights that Canada "reserve[d] the right to make and maintain exceptions" in the listed sectors.510 In GTH's view, if Canada had wished to make the exception rather than reserve the right to do so, it would have used different language. GTH points to Article IV(2)(a)(ii) of the BIT, which expressly excludes certain future non-conforming measures.511
356.
GTH asserts that such a reservation of rights cannot be equated with the exercise of a right, as recognized by numerous arbitral tribunals.512 According to GTH, Canada attempts to equate the two concepts by relying almost exclusively on its 2004 Model BIT, which is irrelevant to the present case.513 In any event, unlike the BIT, the 2004 Model BIT clearly states that the national treatment provisions "shall not apply to any measure that a Party adopts or maintains with respect to sectors, subsectors or activities, as set out in its schedule to Annex II."514 GTH finds this difference in language from that of the BIT "telling."515
357.
Therefore, GTH argues that Canada must affirmatively exercise its right to make exceptions to national treatment "by providing notice to investors that are subject to the BIT's protections," and that such notice cannot have retroactive effect.516 As support for this point, GTH cites arbitral decisions addressing "denial of benefits" clauses.517 GTH considers that Article XVI of the BIT provides guidance regarding how such notice should be provided.518 That provision requires the Contracting Parties to "exchange letters listing, to the extent possible, any existing measures that do not conform to the obligations."519
358.
According to GTH, Canada's reliance on Lemire v. Ukraine and Lauder v. Czech Republic does not help its case, because these decisions merely confirm the proposition that a State can reserve the right to make exceptions, which is not disputed.520
359.
In sum, GTH's view is that Canada must exercise its right to make or maintain an exception before such an exception can take effect.521 As Canada has failed to provide any evidence that it sought to exercise its right, the objection must fail.522

b. Whether the Annex Includes Telecommunications

360.
In any event, GTH argues that the telecommunication sector does not fall within the scope of the reservation of rights contained in the Annex to the BIT.523 GTH rejects Canada's position that telecommunications is covered by the item "services in any other sector."524 GTH advances the following arguments to support its view:

a. The category "services in any other sector" is not equivalent to "services sectors," as Canada suggests.525

b. Canada's interpretation would render the first item in the list ("social services") superfluous.526

c. In any event, the telecommunications sector is not a service sector; it also covers infrastructure, construction and product sales.527

d. Canada's own Standard Industrial Classification, which is referenced in the Annex to the BIT, classifies telecommunications as a utility, not a service.528

e. In other investment treaties, Canada has expressly exempted measures with respect to "telecommunications services" but did not do so in the BIT. Indeed, in other treaties, Canada exempted "telecommunications services" in addition to "the establishment or acquisition in Canada of an investment in the services sectors."529

361.
Therefore, GTH submits that even if Canada were able to exercise its right to make an exception merely by adopting a non-conforming measure (which GTH denies), this jurisdictional objection must still be dismissed because telecommunications does not fall within Canada's purported exception.
362.
Finally, GTH adds that Canada's national security review would not fall within the purported exception in any case because it is not a measure targeting "services"; rather, it targets all foreign investments regardless of the sector.530

(4) The Tribunal's Analysis

363.
As a preliminary point, the Tribunal notes that Article IV(2)(d) of the BIT concerns exceptions to national treatment, which is a substantive protection granted under the BIT. Canada invokes this provision as an objection to the Tribunal's jurisdiction, and GTH has responded on that basis. In the Tribunal's view, the issue might be better characterised as a question of admissibility or even merits, given its relevance to substantive protection rather than to the dispute resolution provisions of the BIT. However, this distinction carries no practical consequence in the present circumstances. Regardless of how one chooses to characterise Canada's objection, its operation is the same: if the Tribunal upholds the objection, it will not consider GTH's national treatment claim any further. Therefore, the Tribunal will address Canada's objection as pleaded by the Parties.
364.
The decisions in this section of the Award are taken by the Tribunal acting by a majority.
365.
The Tribunal must determine whether, pursuant to Article IV(2)(d) and the Annex of the BIT, measures taken in the telecommunications sector are excluded from the scope of Canada's national treatment obligations. To reach that determination, the Tribunal will address in turn two main questions: (a) has Canada validly made an exception under Article IV(2)(d)? and (b) if so, is telecommunications captured by that exception? With respect to each of these questions, the Tribunal's fundamental task is to interpret the relevant provisions of the BIT in accordance with Article 31(1) of the VCLT.
366.
Article IV of the BIT is structured as a statement of general principle in paragraph (1), subject to a number of exceptions set forth in paragraph (2). Specifically, paragraph (2) states that paragraph (1) and certain other provisions of the BIT "do not apply to" subparagraphs (a) to (d). Subparagraph (a) refers to "existing non-conforming measures" and a very specific category of measures adopted after the date of the entry into force of the BIT (relating to ownership and participation in State entities). In turn, subparagraphs (b) and (c) refer to the continuation, renewal and amendment of such measures.
367.
Of primary interest to the Tribunal is Article IV(2)(d), which provides that the national treatment obligation in paragraph (1) "does not apply to … the right of each Contracting Party to make or maintain exceptions within the sectors or matters listed in the Annex."531 The text makes clear that the right to make an exception in a sector or a matter is subject to only one condition: the sector or matter must be listed in the Annex. In the Annex, Canada "reserves the right to make and maintain exceptions" in five categories, including "social services" and "services in any other sector."532 This language, similar in all three authentic linguistic versions of the BIT, leaves no room for doubt that Canada has the right to make exceptions to its national treatment obligation with respect to "services." Unattractive as the result may seem to the dissenting minority,533 such is the Parties' agreement as recorded in the explicit terms of the BIT. The Tribunal is neither expected nor empowered to rewrite the Treaty to make its substantive protections more efficient for the interests of a party. The Tribunal is not expected either to adapt the application of the terms of the Treaty to suit the variable size of the concerned sectors in the Canadian economy.534
368.
A remaining question is whether Canada may exercise that right by simply adopting or applying an inconsistent measure, or whether Canada must take an intermediary step to "activate" that right. Canada's position is that the "right to make exceptions is the right to take inconsistent measures," whereas GTH contends that Canada must affirmatively exercise its right to make exceptions, such as "by providing notice to investors that are subject to the BIT's protections."535
369.
The Tribunal finds that the correct, and most reasonable, interpretation of Article IV(2)(d) and the Annex supports Canada's position. In particular, there is simply no basis in the text of the BIT to impose an additional procedural requirement that triggers the effectiveness of the exception.536
370.
In this regard, it is useful to consider Article XVI of the BIT, which provides:

1. The Contracting Parties shall, within a two year period after the entry into force of this Agreement, exchange letters listing, to the extent possible, any existing measures that do not conform to the obligations in subparagraph (3)(a) of Article II, Article IV or paragraphs (1) and (2) of Article V.

2. Each Contracting Party shall, to the extent practicable, ensure that its laws, regulations, procedures, and administrative rulings of general application respecting any matter covered by this Agreement are promptly published or otherwise made available in such a manner as to enable interested persons and the other Contracting Party to become acquainted with them.

371.
Article XVI(1) sets out a process by which the Contracting Parties are to notify one another of any existing non-conforming measures, but there is no such process prescribed for exercising the right granted by Article IV(2)(d). The obvious indication is that if the Contracting Parties had intended for that right to be subject to any notification requirement beyond listing the relevant sector or matter in the Annex, they would have included it in the text of the BIT.537 Even if there were any want of diligence on the part of Canada in publicising this fact under Article XVI(2) (Transparency) of the BIT, that could amount to a breach of Article XVI(2) but would not, of itself, imply any violation of any other Article of the BIT.
372.
With regard to the Annex, the reference to "services in any other sector" must be read in the context of the four other listed items. These refer to matters as specific as "government securities – as described in SIC 8152" and "residency requirements for ownership of oceanfront land" and "measures implementing the Northwest Territories and the Yukon Oil and Gas Accords." The specificity of these categories also suggests that no further action by Canada is required or contemplated prior to its entitlement to rely upon these asserted "exceptions." Although "services in any other sector" is broader than the other items listed, there is no indication in the text that it should be treated differently.
373.
The Tribunal can but note that the text of the Annex could have been drafted in clearer terms. For instance, Canada could have stated that its national treatment obligation does not apply to non-conforming measures in the listed sectors or matters. At the same time, the Tribunal understands that the terms used ("reserves the right to make exceptions") reflect the fact that Article IV(2)(d) is largely forward looking. While Article IV(2)(a) to (c) are primarily concerned with existing measures (and thus refer clearly to excluded "non-conforming measures"), the main purpose of Article IV(2)(d) is to exclude measures that might be adopted in the future.
374.
In any event, the Tribunal must interpret the text of the BIT as it is, not as it should have been drafted in an ideal situation. As already mentioned, the text leaves no doubt that Canada has the right to make exceptions to its national treatment obligation in "services," and the Tribunal declines to subject that right to a notice requirement or other procedural hurdle which is not included in the BIT. Thus, the Tribunal concludes that under Article IV(2)(d) and the Annex, Canada may adopt or apply measures with respect to "services" that are not in conformity with its national treatment obligation.
375.
It is important to emphasize that this exception is limited to the national treatment provisions of the BIT. Canada remains obligated to provide Egyptian investors fair and equitable treatment when adopting or applying any measures in relation to "services" under Article II(2)(a) of the BIT, and Canada must be reasonably transparent in the adoption of laws, regulations and procedures that might affect "services" under Article XVI(2).
376.
The Tribunal now turns to the question of whether "services in any other sector" includes telecommunications, which is the sector at issue in the present case. The Tribunal has no difficulty finding that it does.
377.
As noted above, the first item listed in the Annex is "social services," followed by "services in any other sector." The only plausible interpretation is that all services, including social services, fall within the scope of the Annex.538 The Tribunal cannot accept GTH's argument that "services in any other sector" should be read more narrowly to give meaning to the reference to "social services" in the preceding item. That Canada chose to divide services into two categories, and provide further elaboration in respect of the first category, does not alter the clear language of the Annex.
378.
While the breadth of the category "services in any other sector" might seem surprising, the language is consistent with many of Canada's investment treaties from the mid- to late- 1990s, which contain similar exceptions for services.539 In any event, it is not for the Tribunal to judge the extent to which a State chooses to guarantee investors national treatment (or not).
379.
The Tribunal is also unpersuaded by GTH's assertion that telecommunications is not a service sector. That assertion fails to reflect reality and runs contrary to GTH's own description of Wind Mobile's activities, which were aimed at providing mobile telecommunications services to Canadian customers.540
380.
In light of the findings above, the Tribunal concludes that GTH's national treatment claim, which relates exclusively to the telecommunications sector, is excluded from the scope of the BIT's national treatment provisions. Accordingly, the national treatment claim is dismissed and will not be considered on the merits.

E. WHETHER THE CLAIMS ARE TIME-BARRED UNDER ARTICLE XIII(3)(D) OF THE BIT

381.
Canada's submits that the Tribunal lacks jurisdiction ratione temporis over certain of GTH's claims because they are time-barred pursuant to the limitations period contained in Article XIII(3)(d) of the BIT.
382.
GTH argues that its claims relating to Canada's cumulative, or composite, breaches of the BIT are not impacted by the notification period in Article XIII(3)(d) of the BIT, and the Tribunal should therefore dismiss Canada's objection.

(1) Relevant Provision of the BIT

383.
Article XIII(3)(d) of the BIT provides:

An investor may submit a dispute as referred to in paragraph (1) to arbitration in accordance with paragraph (4) only if: […] not more than three years have elapsed from the date on which the investor first acquired, or should have first acquired, knowledge of the alleged breach and knowledge that the investor has incurred loss or damage.541

(2) Canada's Position

384.
Canada submits that the Tribunal lacks jurisdiction ratione temporis over GTH's claims challenging (a) the CRTC's O&C review of Wind Mobile and (b) Canada's alleged failure to maintain a regulatory framework for roaming and tower site/sharing favourable to New Entrants.542 In Canada's view, these claims fall outside the strict limitations period in Article XIII(3)(b) of the BIT, and GTH cannot evade that limitations period by alleging that the measures are part of a composite breach.543
385.
According to Canada, Article XIII(3)(d) places a strict limitation on when an investor may submit a dispute to arbitration: an investor may not submit a claim if more than three years have elapsed since it first acquired knowledge, or should have first acquired knowledge, of the alleged breach and alleged loss arising out of that breach.544 If this condition is not met, Canada has not consented to arbitrate the dispute, and the Tribunal therefore lacks jurisdiction.545 Several tribunals considering the limitations period in Articles 1116(2) and 1117(2) of NAFTA (which contain the same language as Article XIII(3)(d)) have confirmed that the limitations period is a fundamental basis of a State's consent to arbitrate, and an investor's failure to comply deprives the tribunal of jurisdiction.546
386.
Canada contends that GTH cannot evade the limitations period by alleging that the measures form part of a cumulative or composite breach.547 In Canada's view, GTH has repeatedly changed its characterization of the measures relating to the CRTC review and the roaming and tower/site sharing framework throughout this proceeding in an attempt to circumvent Article XIII(3)(d).548 However, Canada sees no merit in any of GTH's theories.
387.
Canada asserts that Article XIII(3)(d) is a "clear and rigid limitation defense … not subject to any suspension, prolongation or other qualification."549 In particular, as stated by the tribunal in Grand River v. United States, a claimant cannot "base its claim on the most recent transgression, [when] it had knowledge of earlier breaches and injuries."550 Canada contends that GTH must not be permitted to toll the limitations period by tying untimely measures to more recent ones.551 In Canada's view, that would strip Article XIII(3)(d) of any purpose.552
388.
In any event, Canada considers that GTH has failed to prove a cumulative or composite breach.553 Canada states that establishing a composite breach "requires demonstrating that the measures were all unified by a common purpose or intent."554 This is a fact-specific inquiry.555 In this regard, Canada cites Rusoro v. Venezuela, in which the tribunal examined whether a series of measures shared a sufficient "connection" to consider them "a unity" for purposes of the relevant limitations period and found no such linkage.556