"The Claimant's request was discussed by all three members of the Tribunal during a telephone-conference call held on 24 July 2018 based upon a draft decision and draft reasons for that decision prepared by the President of the Tribunal (preceded by earlier deliberations). The conference-call was also attended by the Tribunal's Secretary. At those deliberations, the three members of the Tribunal reached a consensus, unanimously, on a revised version of the draft decision and draft reasons. This consensus is recalled by each of the two remaining members of the Tribunal and the Secretary.
Subsequently, the revised version was sent to Professor Orrego Vicuña by the Tribunal's President on 9 August 2018 followed, later, by the final document from ICSID for Professor Orrego Vicuña's formal signature. There was no response from Professor Orrego Vicuña in regard to his signature; he was by then already unwell; and it remains unknown to ICSID whether or not he signed the final document. In these circumstances, it must be presumed that he did not do so. In the meantime, the remaining two members of the Tribunal had formally signed the final document, ready for issuance (subject to Professor Orrego Vicuña's signature) to the Parties."
"7.38 BCUC G-48-09: As regards the Claimant's claims for 'discriminatory treatment' regarding BCUC G-48-09, the Tribunal can decide these claims with relative succinctness. As regards such treatment, the Claimant's complaint is effectively directed at BC Hydro and the BCUC for precluding Celgar's ability to arbitrage with sales of energy to third parties, including its ability to access (via Fortis BC) BC Hydro's low cost energy. However, the effect of that complaint is limited, according to the Claimant's own case.
7.39 In summary, the Claimant submitted (inter alia) in its Reply that the [REDACTED] does allow Celgar to [REDACTED] In its Reply, the Claimant pleaded: 'Mercer does not claim additional or separate damages resulting from Order G-48-09's net-of-load restriction, because, as Canada correctly contends, [REDACTED]
"7.40 Thus, the Claimant only claims damages arising from the Respondent's alleged liability regarding Celgar's GBL. The Claimant does not seek further or separate damages resulting from Order G-48-09 itself. Given that the Tribunal has dismissed the Claimant's case regarding Celgar's GBL (see above),1 the Claimant's claim for 'discriminatory treatment' under NAFTA Articles 1102 and 1103 regarding BCUC Order G-48-09 becomes otiose. The Tribunal therefore dismisses this claim."
As submitted by the Respondent, these passages in the Award included the following (in material part, with footnotes here omitted):2
"7.17 Treatment: It is common ground that the treatments at issue under NAFTA Articles 1102 and 1103 are the assessment of "discriminatory treatment" by BC Hydro (which the Claimant compares both to other GBLs and to the load displacement agreements offered to other mills) and the BCUC by Order G-48-09."
"7.45 Summary: In summary, as regards the Claimant's claims under NAFTA Articles 1102 and 1103 relating to "discriminatory treatment", the Claimant has established that Celgar was treated differently from other selfgenerating pulp mills in the Province, including Howe Sound and Tembec. However, in the different circumstances pertaining to Celgar and each of these other mills, that different treatment is not proven to be "discriminatory treatment" in violation of NAFTA Articles 1102 or 1103. Whilst ostensibly comparators, none were "in like circumstances" for the purposes of NAFTA Articles 1102 and 1103; and their different treatment can best be explained on the basis of their individual circumstances under BC Hydro's consistent application of its GBL methodology. The Claimant here bore the legal burden of proving its case; the evidential burden never shifted to the Respondent; and the Claimant did not discharge its burden."
"7.46 Conclusion: For these several reasons, the Tribunal dismisses the Claimant's remaining claims as regards "discriminatory treatment" under NAFTA Articles 1102 and 1103 (together with, as assumed, NAFTA Article 1503)."
"7.63 As regards the first measure [i.e. BCUC Order G-49-09], the Tribunal has decided that that the Claimant's claims for 'discriminatory treatment' based upon NAFTA Articles 1102, 1103 and 1105(1) in relation to BCUC Order G-48-09 must be rejected."
"7.79: More specifically [under "The Tribunal's Analysis on BCUC Order G-48-09"], it is clear from the contemporaneous documents produced by the BCUC, Celgar, FortisBC and BC Hydro that BCUC Order G-48-09 did not 'prevent  FortisBC from selling Celgar any embedded cost electricity from Fortis' pre-existing resource stack while Celgar is selling electricity. [Original Emphasis]. Such prevention is the factual premise for the Claimant's claim, as to which it bore the legal burden of proof. Indeed, as the Respondent pointed out, Celgar acquired a right that no other mill in British Columbia had, which was the ability to sell all of its self-generation below its GBL to the market and to supply its Mill from FortisBC resources so long as that supply did not include BC Hydro supply to FortisBC under their PPAs."
"7.84. In summary [under "Conclusion"], for the reasons above, the Tribunal (by a majority) has decided that the Respondent has not violated NAFTA Articles 1102, 1103 and 1105(1). Nor did BC Hydro. It therefore follows that the Respondent also did not violate Article 1503(2) (even assuming its application as a matter of jurisdiction) by failing to ensure that BC Hydro did not act contrary to NAFTA Articles 1102, 1103 and 1105(1)."
"7.85 The Tribunal (by a majority) therefore dismisses on the merits as to liability all the Claimant's remaining claims under NAFTA Articles 1102, 1103, 1105 and 1503. It follows that no issues related to compensation under these provisions requires the decision of the Tribunal and, also, that the Claimant's claims for compensation and its related claims for interest are dismissed."
"8.5 Liability: The Tribunal (by a majority) dismisses the Claimant's remaining claims as to which it has and may exercise jurisdiction; namely: (i) the Claimant's claims relating to BCUC Order G-48-09 under NAFTA Articles 1102, 1103, 1105...".
The Respondent also relied upon Paragraphs 7.22, 7.23, 7.33 and 7.66 to 7.75 of the Award.
"(1) Within 45 days after the date of the award either party, with notice to the other party may request the Tribunal, through the Secretary-General, to decide any question which it had omitted to decide in the award."
"12. In relation to Article 57, the power to supplement is limited to the situation in which the Tribunal omitted 'to decide any question'. Article 57 does not empower a Tribunal to issue a supplementary decision as a means to consider new evidence, to hear new arguments, to rehear an issue, or to modify or supplement its original reasoning. In short, Article 57 does not empower the Arbitral Tribunal to make a new decision, or to modify its existing decision, or even to supplement the reasoning of its existing decision. The applicant under Article 57 must clearly identify a 'question' that the award had failed to decide."
"19. We agree that, apart from the dismissal in the Award of June 26, 2003 of all the claims 'in their entirety', there is no distinct reference in the Award to a discussion of Raymond Loewen's claim under art. 1116. We agree also that, as there was no jurisdictional objection to his claim under art. 1116, that claim fell to be determined by the decision on the merits.
"20. But the dismissal of all the claims 'in their entirety' following the examination of the merits was necessarily a resolution of the art. 1116 claim. That dismissal was a consequence of the reasoning expressed in paras 213-216. We therefore reject the argument that the Award did not deal with the art. 1116 claim. "21. It follows that Respondent is correct when it argues that Raymond Loewen is asking the Tribunal to reconsider its decision to dismiss that claim and to reconsider the reasoning (described by Raymond Loewen as 'obiter dicta') which led the Tribunal to dismiss the claim. In the context of the dismissal of Loewen's claims, that reasoning was not merely 'obiter dicta'. It was the reasoning on which that part of the Award was based; and it is not open to the Tribunal to reconsider it. There is no logical basis on which the Tribunal can draw a distinction between the relationship of that reasoning to the dismissal of the Loewen claims on the one hand and to the Raymond Loewen claim under art. 1116 on the other hand."
"13. The Claimants' submissions in the present case link the reference to a 'question' in Article 57 to the requirement in Article 52(1)(i) that the Award contains 'the decision of the Tribunal on every question submitted to it.' 'Question' can be presumed to have the same meaning in both contexts. The meaning of 'question', and particularly the level of abstraction at which a 'question' should be conceived, are matters that the Tribunal is required to address in the present Decision."
"14. Article 52(1)(i) also requires a Tribunal in its Award to provide 'the reasons upon which the decision is based'. The Claimants relate the requirement of reasons in Article 52(1)(i) to the power to make a supplementary decision in Article 57, suggesting that a decision on any question and the requirement of reasons are inextricably linked. This is true in Article 52, but not in Article 57. The Claimants argue, in effect, that the requirement for reasons for a decision on a question in Article 52(1)(i) means that a failure to give reasons, or to give sufficient reasons, ipso facto means the Tribunal has omitted to decide a question. This is not necessarily so...".
"15....The failure to provide an adequate statement of reasons does not necessarily mean that the Tribunal has omitted to decide a question (the only basis of an Article 57 application). Article 57 empowers the Tribunal to 'decide a question which it had omitted to decide in the award,' but not to modify or supplement its reasoning on a question it did in fact decide."
"16.... As the Measures [i.e. BCUC Order G-48-09 and Celgar's GBL] have the same practical impact on Celgar together and separately [Footnote 7: see below], we constructed only one But-For Scenario to calculate Mercer's historical and future cash flows and the fair market value of Mercer's investment in Celgar as of 31 December 2013 absent the Measures...."
"Footnote 7: "BCUC Order G-48-09 indirectly prevents Celgar from selling its below load self-generation because it cannot access replacement power as FortisBC is prevented from selling embedded-cost utility electricity that includes BC Hydro PPA electricity to self-generators that are selling electricity below their load. Similarly, the BC Hydro EPA's GBL of 349 GWh/year (set at Celgar's 2007 load) and its exclusivity provisions prevent Celgar from selling electricity below the assigned GBL to third parties. BCUC Order G-48-09 and the BC Hydro EPA's GBL (together and separately) have the same effective impact of holding Celgar to a 'net-of-2007-load' standard by preventing it from selling 349 GWh/year of its self-generated electricity."
[The Claimant]: Now, this is a little bit of a complicated point, but I think this is one point of common agreement between us and Canada. There are no separate damages stemming from the G-48-09 discrimination that are distinct from the damages that flow from the discriminatory setting of Celgar's GBL.
[The Tribunal]: To pick up the point by Professor Douglas,12 so that point it doesn't matter whether we deal with the Measures separately or collectively.
[The Claimant] That's correct. I think we deal with them collectively."