Answer given by Mr De Gucht on behalf of the Commission
The Commission is aware of two cases where a Canadian Province expropriated an investor without paying due compensation, or without compensating at all, and without granting the investor access to local courts.
In AbitibiBowater v. Canada (Award of 15 December 2010), AbitbiBowater, an American investor, was expropriated by the Province of Newfoundland. The Province had passed the ‘Abitibi-Consolidated Rights and Assets Act’ which expropriated all of the company’s assets (see Section 5 of the Act) without compensation (see Section 10) and denying access to local courts to the foreign investor (see Section 11). A settlement agreement was concluded between the investor and Canada.
In Gallo v. Canada (award of 15 September 2011), a US national claimed that it was the owner of a Canadian company called 1532382 Ontario Inc. which had received the administrative approval from Ontario to use a mine for waste disposal. The Ontario legislature passed the Adams Lake Act, prohibiting the disposal of waste in that mine and revoking the previous administrative approval (see Section 2 and 3 of the Act), denying access to local courts (sections 5 to 7). M. Gallo argued that the compensation paid was not sufficient to cover its loss but the action was dismissed because the tribunal considered that M. Gallo was not an investor at the time of the expropriation.
Such cases may have arisen or arise in the future involving European investors, but these have not gone to arbitration, hence there is little publicly available information available in this context. It is possible that Canadian investors have been subject to similar treatment, but the Commission does not have information in this regard.