Loewen Group Inc. Essay: Case Study Vs USA ICSID Case No. ARB(AF)/98/3.

1. Select a case from the list of International Law Cases below.
2. Advise your lecturer by email of your group members with student ID numbers and chosen case. Please note: your lecturer’s prior approval of your case is required.
3. Select the party you wish to represent (ex. China in the “Philippines vs. China in the South China sea” case; or Canada in “Canada vs Australia – Measures

Affecting Importation of Salmon”).

4. Research, read and understand your selected case.
5. Prepare and submit a written report discussing the following:
6. background of the dispute
7. brief facts of the case
8. the legal issues presented
9. the individual parties’ arguments, with particular emphasis on your selected party’s arguments
10. the tribunal’s decision
11. the importance or significance of the case in international law (i.e. why is the case important in the development of international law). You can also discuss any other developments following the court or tribunal’s decision

Word limits:

1. The total word limit for the group report is 2,000 words (+/- 10% allowed). This word count limit will be strictly enforced. A deduction of 2 marks will be imposed for every 50 words over the word count. Anything over the word count will not be read by your lecturer.
2. The total word count for the report must be clearly written on the cover sheet of the assignment. A paper will not be marked if the word count is not written on the cover sheet and will be required to resubmit. Lecturer approval of chosen case:
3. You must email your lecturer your list of group members and chosen case by week 4.
4. You must obtain approval by email from your lecturer of your group and chosen case before starting work on it. You must NOT start work on your group assignment until your lecturer approves your group and case. Please note: failure to obtain lecturer approval will result in a failing mark for the entire group for this assignment.

In the international scenario, many of the cases have been reported where one of the parties in the case has breached one or more term/condition of International Law. As the name implies such cases emerges in that situation whereas laws of more than one country involved. Either party to the case belong to different nations or the on them laws related to different nations applies. The case taken for this report is Loewen Group Inc. and Raymond L Loewen vs the USA ICSID Case No. ARB(AF)/98/3/(June 26, 2003). The case is related to breach of certain terms of The North American Free Trade Agreement. In the following report, discussion related to background and facts of the case, arguments of the parties and decision of the case is summarized. 

Background of the Dispute: This case was started with an issue when the Mississippi court provided a decision that resulted in a damage award worth $500 million in against of a Canadian company named The Loewen Group Inc. (TLGI). The proceedings were going on related to a case in Mississippi court in which, Loewen Group Inc. was one of the party (Stephan, 2011). While providing this award, the court has not considered many of the factors. The defendant of this case was a local insurer, O’Keefe. It was cited from the side of the defendant that both the company and it is CEO i.e. Loewen Group Inc. and Mr. Loewen is racist and they have refused to provide the services to African Americans. On relying on the facts, provide by O’Keefe, the Mississippi court has concluded that TLGI is liable under this case and the court has provided a verdict against of TLGI for $500 Million (Alvarez and  Reisman, 2008). This amount was included $400 million in the form of punitive damages, $26 Million for compensatory damages and further $74 Million for the emotional distress happened to defendant i.e. O’Keefe (Dugan, Wallace, Rubins and Sabahi, 2011).

After the aforesaid incident and decision granted by the court, TLGI wanted to seek a remedy against the award rendered by the Mississippi court. Therefore, to make a request to revise the award provided by the Mississippi court, TLGI moved towards to the tribunal. The lead issue starts here. Mississippi case does only provide a background here, but the lead case was Loewen Group Inc. and Raymond L Loewen vs the USA. This was a case where the TLGI and it is CEO challenged the decision of Mississippi court, which was a trial court of US jurisdiction. In this case, there were two-plaintiff i.e. TLGI and Raymond L Loewen who bring an action against the decision of the respondent i.e. US government. Many of the hearing were processed and at last, after hearing both the parties of the case, the final judgment has been granted.

In the facts of the case, an important term named NAFTA was a significant one to study because plaintiff has challenged the decision of trial court based on the provisions led out under the articles of NAFTA. NAFTA i.e. The North American Free Trade Agreement is a negotiation that has been entered by the government of three countries such as Mexico, Canada, and the United States. This agreement was related to the topic of free trade zone. This agreement was divided into chapters and each of the chapters was based on different topics. The plaintiffs of the case challenged the decision of the trial court on the basis of the facts that trial court has not considered the rules stipulated under NAFTA. As TLGI was a Canadian company, Mississippi court must have considered the provisions of NAFTA because TLGI was a foreign company in this case. Both the plaintiffs filed their response and arbitration under Chapter 11 of NAFTA. The articles of chapter 11 under which the arbitration filed were article 1116 and article 1117.

Facts of the Case

According to article 1116, an investor may submit a claim under this section stating that another party did not comply with the provisions of this article of NAFTA and due to such failure defendant the plaintiff has suffered from a loss (Douglas, 2009)

Article 1117 on the other side, states that an investor of the party can initiate a proceeding in the matter of breach of NAFTA provision on behalf of the enterprise he controls or owns directly or indirectly. Nevertheless, an investor of the party can only do so where due to a breach of the duty of a third person, the enterprises suffer a loss (Douglas, Pauwelyn and Viñuales, 2014).

Based on the provisions stated in both the articles, Mr. Loewen made claims. He made two claims in the case. One is in the capacity of an individual investor of TLGI under article 1116 and another one under the provisions of article 1117 on behalf of the investment that he owned.

In 1998, Mr. Loewen and TLGI filed the subjective arbitration and in addition to the article 1116 and 1117 of NAFTA, they also took help of additional facility rules of ICSID. Both of the plaintiffs asserted that the proceedings under Mississippi Court were completely in breach of the provisions of NAFTA as a minimum standard of guaranteed treatment to foreign investors has not been provided to TLGI. In 2002, the company has adopted a bankruptcy recognition plan. According to this plan, the parent company emerges as a united state entity. Now, in the case, respondent i.e. US objected that TLGI was no longer a foreign entity for US government and therefore the actions initiated under article 1116 and 1117 were not legal and bind to be entertained by the tribunal. The US further argued and requested tribunal to dismiss the case on the basis of the fact that in case of customary international law it is required for a claimant to maintain the foreign nationality until the final judgment of the case and hence tribunal should not entertain this case further.

The Legal Issues Presented in the case

There were many legal issues were involved in the case. First, one was the nationality of TLGI. Because of international being entity, TLGI was required to be treated carefully and according to the provisions of NAFTA. Nevertheless, the Mississippi court did not consider any international law or treaty while giving an award of $500 million to TLGI. In addition to this, later on, when TLGI took help of international law, it was necessary to be an international entity to take the help of such law. TLGI prepared a bankruptcy plan and thereof the a US entity emerged as parent corporation. Another issue, which was involved in the case, was the jurisdiction of the tribunal. In the decision given in the year 2003, the tribunal stated that the same is not able to determine that whether Mr. Raymond L. Loewen owns or control TLGI or not. Another issue was that in the decision of the year 2003, tribunal only considered one claim of Mr. Loewen out of two. The tribunal did not even mention the claim made by Mr. Loewen under article 1116.

Articles 1116 and 1117 of NAFTA

Argument of Plaintiff: - Mr. Loewen being the representator of TLGI argued that the tribunal must consider the claim made under article 1116 as well as article 1117. Defendant argued that in the decision given by tribunal in the year 2001, there was no mention of article 1116 claim and therefore in the decision, the tribunal has not resolved the case on jurisdictional grounds. Further, Mr. Loewen also made a claim that although after bankruptcy plan, the company lost it is Canadian nationality but at the time of Mississippi proceedings, the same was a Canadian company and it was the liability of Mississippi court to treat the same better considering an international entity. Further, the plaintiff demanded $725 Million in compensation from tribunal (Investment Policy Hub, 2018).

Argument of Respondent: - US stated that the tribunal must not consider the claim made by Mr. Loewen because the claim was made to seek the remedies granted under NAFTA, which are only available to international entities. Now, as TLGI remains lost it is Canadian nationality, then tribunal must dismiss the case. Further, US argued that no sufficient proofs are there to justify the ownership and control of Mr. Loewen, hence the second claim made under article 1117 has no base in actual.

The decision of the case is important to discuss over here. In 2002 when TLGI adopted bankruptcy plan and lost it is Canadian nationality, then the US argued in the case that tribunal must not entertain the case further (Gaillard and Bachand, 2011). In the year 2003, the tribunal provided some decisions in the case. Under this decision, the tribunal rejected the applications of TLGI and Mr. Loewen on the following basis:-

1. Tribunal does not have a jurisdiction to entertain those cases where identity and nationality of an entity are questionable. This case is related to a Canadian company, control, and ownership of which is available to a US Corporation.
2. Tribunal does not have a jurisdiction to entertain, as the same is not able to determine that whether Mr. Loewen is the substantial owner of TLGI or not as the same has made a claim under the chapter 11 of NAFTA on behalf of TLGI.
3. The claims made by Raymond L., Loewen are dismissed in their entirety (US Department of State, 2018).

In this decision, the US got the victory. Even after such victory, US requested the tribunal to provide a supplementary decision as per the provision for article 58 of ICSID. This article says that a supplementary decision has the same impacts similar to original and complete decisions. The US made this demand because somewhere the same was aware that the decision provided by the tribunal is not a complete one, as the same does not include the claim under article 1116. At last, Mr. Loewen moved to a new arbitral tribunal to remand the rest of the issue that was remained outstanding in the decision of the prior tribunal.

On 13^th September 2004, the tribunal refused the request of US and did not provide any supplementary decision in the case. The tribunal while giving the decision agreed that Mississippi court has treated the plaintiffs of the case very badly. However, this tribunal also did the same as became fail to provide a proper justice. The tribunal disregarded the law and the award provided by the same was also incomplete (Nafta Claims.Com, 2018).

The significance of the decision:

It is for sure an important case in the area of International Law. The significance of the case is high for the reason that it was an appeal in against if the damages awarded by the trial court. Parties to the case challenged the decision of the lower court. Further, the tribunal also failed to provide proper justice because the same was confused about the jurisdiction. Therefore this is to be stated that the case enlightens the fact that jurisdiction must be clear. What if an entity loss it is international identity later on in a case? Will the plaintiff get success in the decision? The trial court given provided unnecessary award because claimants are racist, however, the Mississippi court was required to look after other facts too. Similarly, at the time of appeal proceedings, tribunal only held that TLGI lost it is Canadian nationality and therefore the same cannot seek a relief under the provisions of NAFTA but the tribunal did not look after the reason of such “loss of identity.” The lead reason was a poor financial condition of TLGI, which was a result of the damaged awarded by Mississippi court. As the decision of the tribunal was not satisfactory for the plaintiffs, Mr. Loewen had to knock the door of another new tribunal.

Plaintiff did not receive a fair decision either in Mississippi court or in the appellate tribunal. It has noted that after this case, governments of different nations became clearer about their intention and provisions of International Law. Further, some clarification has also been made to clear the scope and jurisdictions of courts and tribunals in the matters related to International Law.

Conclusion

In conclusion, this can be stated that the trial court did not hear the case properly and awarded a damage worth $500 Million, that TLGI had to pay to the respondent of the case i.e. O’Keefe. Further, when TLGI and it is CEO of that time Mr. Loewen made an appeal against the decision of the trial court, the tribunal did not consider every fact in it is a decision. In fact, the claim made under article 1116 was not been mentioned anywhere in the decision of the tribunal. In the year 2003, tribunal gave it is a final decision by stating that tribunal is dismissing the claim made by plaintiff because jurisdiction is not clear and tribunal cannot consider such cases where the international identity of the plaintiff is in doubt. Further, the ownership of Mr. Loewen in TLGI is also not clear and therefore claim is dismissing hereby. This decision of tribunal was incomplete and unfair.

References

Alvarez and  Reisman, (2008) The Reasons Requirement in International Investment Arbitration: Critical Case Studies.  Leiden: Martinus Nijhoff Publishers.

Douglas, Z. (2009) The International Law of Investment Claims. New York: Cambridge University Press.

Douglas, Z., Pauwelyn, J.,  and Viñuales, J., E. (2014) The Foundations of International Investment Law: Bringing Theory into Practice. UK: OUP Oxford.

Dugan, C., Wallace, D., Rubins, N.,  and Sabahi, B. (2011) Investor-State Arbitration. New York: Oxford University Press.

Gaillard, E., and Bachand, F. (2011) Fifteen Years of NAFTA Chapter 11 Arbitration. USA: Juris Publishing, Inc.

Investment Policy Hub, 2018) Loewen v. USA. [online] Available  from:  https://investmentpolicyhub.unctad.org/ISDS/Details/24https://www.naftaclaims.com/disputes/usa/Loewen/Motion_to_Vacate_and_Remand.pdf [Accessed on 21/09/18]

Loewen Group Inc. and Raymond L Loewen vs the USA ICSID Case No. ARB(AF)/98/3/(June 26, 2003).

Nafta Claims.Com. (2018) United States District Court For The District Of Columbia. [online] Available  from:  https://www.naftaclaims.com/disputes/usa/Loewen/Motion_to_Vacate_and_Remand.pdf [Accessed on 21/09/18]

Stephan, P., B. (2011) International Trade and Investment. US: LexisNexis.

US Department of State. (2018) The Loewen Group, Inc. and Raymond L. Loewen v. United States of America. [online] Available  from:  https://www.state.gov/s/l/c3755.htm [Accessed on 21/09/18]