|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|
|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)|
|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|
|RER-[Name]||Expert report of [Name] submitted by 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|
|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|
|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|
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
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
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.
The Minister of Industry retains the discretion to amend these terms and conditions of licence at any time.46
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
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
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
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
[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
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
[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
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
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
Professor Georges Affaki, President
Mr. Gary Born
Professor Vaughan Lowe
Acting Secretary of the Tribunal
Ms. Jara Minguez
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
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
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
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
Mr. Trevor McGowan
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.
(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
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.
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 Convention||Article II(4)(b) Dispute Settlement Exclusion of Decisions Not to Permit Establishment or Acquisition of Enterprises||Jurisdiction RationeTemporis underArticle XIII(3)||Article IV and its Annex Exclusion of the Application of National Treatment Obligations to Services||Standing 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.
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
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
(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
« 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
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
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
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
is the connecting factor in Egyptian law that more closely resembles 'permanent residence' both from a definitional and functional perspective."274
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
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
"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
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
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
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
[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
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
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
(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
(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
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
The share conversion is an acquisition of shares, and in this case it also amounts to an acquisition of Wind Mobile.460
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
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
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
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.
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