Bilcon of Delaware et al v. Government of Canada, Permanent Court of Arbitration (PCA)

The Claimants were seeking to build a basalt quarry and marine terminal in Nova Scotia, and brought a NAFTA arbitration claim after federal and provincial governments denied the project its permits. The Tribunal found that the permit review process was in breach of NAFTA’s national treatment standards in the liability phase. During the damages phase, the Claimants requested an award of $443 million. Retained by Canada to evaluate the reasonableness of this claim, Mr. Chodorow explained that, given the particular circumstances of this project, the Claimants’ request was excessive and inconsistent with past transactions of ownership interests in the project, and that past investment in the project was limited. The Tribunal concluded that, based on the prior transactions and past investment in the project, the value of the opportunity lost by the Claimants due to Canada’s breach was $7 million.