In the meantime, Exxon Mobile and Murphy have given notice of their intention to pursue NAFTA Chapter 11 arbitration against Canada. The issue is interesting because it relates to performance requirements and dovetails with litigation that is still pending in Canada. The basic issue is that the NAFTA originally allowed Canada to continue certain existing performance requirements. However, in 2004, the Canada-Newfoundland Offshore Petroleum Board imposed certain research requirements or, in the alternative, payments into a fund. Exxon and Murphy claim the new requirements are illegal performance requirements and violate a number of NAFTA provisions including:
- Article 1106 on performance requirements
- Article 1108 which prevents the amendment of grandfathered measures to create additional requirements
Here is a Reuters article on the claim. This will be interesting to watch.
I've been on the road a bit. When I get back, I'm sure there will be more to post.