PUBLIC
PCA CASE No. 2021-26
PERMANENT COURT OF ARBITRATION
BETWEEN:
WINDSTREAM ENERGY LLC
Claimant
- vs -
THE GOVERNMENT OF CANADA
Respondent
TRANSCRIPT OF ARBITRATION PROCEEDINGS
Held at the offices of Arbitration Place
333 Bay Street, Suite 900, Toronto, Ontario
on Friday, February 9, 2024, at 9:01 a.m.
VOLUME 5
FURTHER REVISED TRANSCRIPT
CONDENSED TRANSCRIPT WITH INDEX
TRIBUNAL:
Wendy Miles KC (Presiding Arbitrator)
Prof. John Gotanda
Rt. Hon. Beverley McLachlin
PERMANENT COURT OF ARBITRATION REGISTRY
José Luis Aragón Cardiel
Stefan Schäferling
Helen Griffin
COURT REPORTER:
Lisa Lamberti
Arbitration Place © 2024
900-333 Bay Street Toronto, ON M5H 2R2
[Page 1291]
APPEARANCES FOR CLAIMANT
John Terry, Counsel
Emily Sherkey, Counsel
Alexandra Shelley, Counsel
Julie Lowenstein, Counsel
Natasha Williams, Counsel
Shoshana Israel, Clerk
Nicole Wannop, Clerk
Torys LLP
Party Representative
David Mars
Fact Witnesses
Nancy Baines
Michael Killeavy
Expert Witnesses
Edward Tobis
Chris Milburn
Pierre-Antoine Tetard
[Page 1292]
APPEARANCES FOR RESPONDENT
Rodney Neufeld, Senior Counsel
Heather Squires, Senior Counsel and
Deputy Director
E. Alexandra Dosman, Counsel
Yu Cai Tian, Counsel
Kayla McMullen, Paralegal
Darian Bakelaar, Paralegal
Christine Ayoub, Paralegal
Global Affairs Canada, Trade Law Bureau
Party Representative
Rahim Punjani, Counsel
Ministry of the Attorney General, Government of
Ontario
Expert Witness
Dr. Jérôme Guillet
Fact Witnesses
Andrew Teliszewsky
Michael Lyle
Trial Graphic Expert
Ryan Knecht
Core Legal Concepts
[Page 1293]
INDEX
PAGE
CLOSING ARGUMENT BY MR. TERRY 1294
CLOSING ARGUMENT BY MR. NEUFELD 1309
CLOSING ARGUMENT BY MS. SHERKEY 1322
CLOSING ARGUMENT BY MR. TERRY (cont'd) 1414
CLOSING ARGUMENT BY MS. SQUIRES 1479
CLOSING ARGUMENT BY MS. DOSMAN 1529
CLOSING ARGUMENT BY MR. TIAN 1547
CLOSING ARGUMENT BY MR. NEUFELD (Cont'd) 1578
REPLY CLOSING ARGUMENT BY MS. SHERKEY 1615
REPLY CLOSING ARGUMENT BY MR. TERRY 1624
[Page 1294]
Toronto, Ontario
--- Upon resuming on Friday, February 9, 2024
at 9:01 a.m.
PRESIDING ARBITRATOR MILES:
Good morning, everybody, and welcome to our fifth
and final day of this Windstream II arbitration.
Unless there's no
housekeeping, Mr. Terry, you may proceed.
MR. TERRY: The only
housekeeping my friend and I discussed. You may
see the podium. It's up right now. It may go
away.
I know that Ms. Sherkey, who
is doing a fair amount of the slides, likes to be
able to stand up. So the podium is very useful
for her.
And I understand, from my
friends, that they may actually take the podium
down when they do theirs. I just wanted to
mention that so there's no confusion around that.
CO-ARBITRATOR MCLACHLIN:
Thank you.
MR. TERRY: Thanks.
CLOSING ARGUMENT BY MR. TERRY:
MR. TERRY: Good morning.
[Page 1295]
In the 15-minute presentation,
I am going to briefly set out our argument on
merits and damages and we will leave the threshold
issues, limitations, res judicata and issues
estoppel for Ms. Sherkey because she is going to
cover them right after I get done as the first
part of the two-hour presentation.
So I will use my 15 minutes to
explain, first of all, our submissions as to why
Ontario's actions, post award, breached the FET
obligation and the damages that arise.
And the damages that arise, we
say, represent the value that would have been
created but for Ontario's conduct.
And this is where we are in
the but-for world and when the market comparables
we heard so much about the last couple of days
come in in terms of that assessment.
Second, I am going to talk
about why Ontario's actions, post award, breach
the expropriation obligation and the damages that
arise.
And these damages, of course,
are not in the but-for world but the value
actually created in the FIT contract, post award,
[Page 1296]
as it stood in the real world. For example,
Windstream's costs that we also discussed.
So starting, first, with the
fair and equitable treatment claim.
The FET claim, of course,
deals with the fairness of Ontario's conduct post
the Windstream 2016 award.
The Tribunal, of course,
awarded Windstream damages resulting from
Ontario's failure to address the legal and
contractual limbo in which it had put Windstream.
But it also found, as we know,
that the FIT contract was still in force, which
was consistent with Canada's submissions to the
Tribunal that the project was frozen until the
science was done.
And the Tribunal found that
there was additional value in the FIT contract
that could be created if the parties renegotiated
and restructured.
So there was that conditional
language that we discussed.
We say Ontario breached the
fair and equitable treatment, post award, by
continuing the contractual and legal limbo; and
[Page 1297]
failing to take steps to implement the commitment
that had been made to Windstream.
And, reiterated by Canada in
the submissions when it said the project was
frozen, to freeze a project from the effects of
the moratorium, all of which resulted in
February 2020 in the termination of the FIT
contract.
Now, for the law on fair and
equitable treatment.
We are relying, actually, on
the same determination that this Tribunal made and
that, in our submission, Tribunals have reached
consensus on, although recognizing there is no
stare decisis among these Tribunals, that the
standard from Waste Management is the one that
applies.
And that is that:
"The minimum standard of
treatment of fair and
equitable
treatment --"[as read]
And this is quoting from Waste
Management:
"-- is infringed by
[Page 1298]
conduct attributable to
the state and harmful to
the Claimant if the
conduct is arbitrary,
grossly unfair, unjust or
idiosyncratic, is
discriminatory and
exposes the Claimant to
sectional or racial
prejudice, or involves a
lack of due process
leading to an outcome
which offends judicial
propriety."[as read]
And they also say in that
statement:
"In applying this
standard, it is relevant
that the treatment is in
breach of representations
made by the host state
which were reasonably
relied on by the
Claimant."[as read]
And Waste Management and other
[Page 1299]
cases have rejected the egregious standard that
Canada and other states often argue for and the
Waste Management standard should be adopted, in
our submission.
And the Tribunal, you will
recall, used some colourful language. The
previous Tribunal, in describing, with respect to
fair and equitable treatment, that the proof of
the pudding is in the eating.
And that's at paragraphs 31
and 36 of the award.
The judgment of what is fair
and equitable cannot be reached in the abstract.
It must depend on the facts of the particular
case.
"In other words, just as
the proof of the pudding
is in the eating and not
in its description, the
ultimate test of
correctness of
interpretation is not in
the description, in other
words, but in its
application on the
[Page 1300]
facts."[as read]
So it's a fact-specific
assessment as to whether there's unfairness.
We say, in this case,
Ontario's conduct was arbitrary and unfair and
breached the FET standard.
And Ms. Sherkey will be going
through this in more detail. But, our argument is
that, despite the promise to freeze, the
representations made before the Windstream I
Tribunal and the Tribunal's finding of legal and
contractual limbo, Ontario then took no steps to
resolve the situation it created.
It made the deliberate
decision -- and you recall the evidence of
Mr. Teliszewsky on this.
Made the deliberate decision
not to act. And we say that led to the
termination of the FIT contract and it's provided
no legitimate rationale for its failure to do so,
as well as the failure to carry out the research
that it stated it was going to do.
In terms of some of these
this conduct, one, Ontario never clarified the
situation after the award. It maintained the FIT
[Page 1301]
contract and Windstream's 6 million line of
credit. Of course that's the IESO that was
maintaining the line of credit.
It never, Ontario never
amended the regulations with respect to offshore
wind, and we rely there on the evidence of Sarah
Powell, which Ms. Sherkey will take you to, that
you still -- offshore wind facilities are still
eligible for REA under Ontario's legal framework,
and that you can still, in terms of the
application for grid access that we also heard
about, you can still go on the website and see the
fact they are the applicant for grid access.
So they have maintained that
situation.
Second, Ontario decided, we
say reflexively and immediately, that it would not
act to remedy the legal and contractual limbo post
award.
It did so -- and this is,
again, the evidence of Mr. Teliszewsky -- without
any meetings or discussions about its commitment
to Windstream or if the circumstances warranted
its involvement. It also stopped doing any
research in respect of the moratorium.
[Page 1302]
And you recall
Mr. Teliszewsky's evidence that he was not aware
of the commitment that had been made to
Windstream.
Third, we say this is unlike
many other times the Ontario government decided to
get involved and direct the IESO in respect of
other proponents, FIT contracts and PPAs. And you
will recall the evidence of Michael Lyle on that.
It had been done more than 100 times in the
TransCanada case.
And, fourth, the IESO
exercised the termination right relying on delay
and conduct by the Ontario government as part of
its reasons, including the lack of direction from
Ontario.
So we rely on those facts, and
Ms. Sherkey will be going into more detail, to
make out our argument about unfair and inequitable
treatment in this case.
And the loss, we say, is a
loss of the opportunity for Windstream to create
additional value in the FIT contract by
reactivating the project.
And you'll see that slide we
[Page 1303]
showed in our opening, which I think, I believe
Ms. Sherkey will come to again, that this was not
an obligation to create new value. It was an
existing project. An existing project would have
been unlocked or created simply by Canada
fulfilling its promises to Windstream.
And that Canada claims Ontario
had no obligation to renegotiate the contract. It
was just an option.
But we say Ontario had an
obligation which arises from fair and equitable
treatment. They had that international
obligation, that NAFTA obligation to treat
Windstream fairly. And that's what gets you to
the obligation, we say, to unblock the contract
and allow Windstream to create value.
The damages for the FET
violation here, as we say, we submit that the
damages are to make the Claimant whole with the
valuation date of 2020. And, again, we are in the
but-for world with the comparables.
I don't want to speak --
Ms. Sherkey will speak more about the but-for
assessment.
The one point I would make,
[Page 1304]
though, is my friends have pointed out, a number
of times in their submissions to some of their
questioning, have made the argument that, even if
the moratorium was lifted, there is still the
problem of the AOR status.
And the way that this was
dealt with by the previous Tribunal, in our
submission, certainly the way it was argued,
was that the AOR and the issues that happened
around that were all part and parcel of the fact
that the Ontario government, after originally
setting up the regulatory framework to go ahead
with offshore wind, started to make it more and
more ambiguous and then get us in this state of
legal and contractual limbo.
So you heard the evidence
originally that there were applications closer to
shore and then Ontario brought in the 5 kilometre
setback. And all that was part of the set of
issues that led to Ontario eventually putting in
the moratorium.
So, in our submission, it's a
reasonable assumption for the experts to make that
the AOR issue would be resolved together with the
moratorium in the but-for world.
[Page 1305]
The loss claim, in this
context, is the difference between the project
value at 2020 and the project value at 2016.
We acknowledge that the amount
of work that could be done in the project has been
limited, we say, because, you know, of the
blockages that have occurred from, as a result of
Ontario's actions.
But, nevertheless, we have
reliable 2020 valuations for projects of a similar
stage from Windstream's experts. And we submit
that the evidence of Dr. Guillet, while relied on,
of course, in the first Tribunal, is unreliable
and should not be -- and that the preference, in
our case, the Tribunal should prefer the evidence
of Secretariat.
Might I just get a time. I
think I have got five minutes left.
MR. ARAGÓN CARDIEL: Five
minutes left, yes.
MR. TERRY: Okay. Thank you.
That's the fair and equitable
treatment claim, and I have tried to clarify as
clearly as possible.
The expropriation claim,
[Page 1306]
again, in many respects, can be expressed more
simply.
Windstream's contract, the
Tribunal found the FIT contract was still in
force. That contract was taken completely, not
just substantially, but completely in 2020.
Windstream was substantially deprived of the value
of the investment and it is entitled to be
compensated for that loss.
And there's a two-step test
for expropriation: One, has there been a taking,
i.e. has the investor been substantially deprived
of the value of the investment; if so, was it
taken lawfully or otherwise excused by the police
powers doctrine?
And that's the test that's
being -- in our submission, has been broadly used
and accepted by NAFTA Tribunals.
We have talked about how the
FIT contract is an investment capable of
expropriation.
And you will recall that, in
our submission, number one, it fits the
definitions in interest arising from commitment of
capital, real estate or other property, tangible
[Page 1307]
or intangible. And the evidence from Sarah Powell
is that it constitutes intangible personal
property.
And, therefore, we say there's
a vested interest.
We rely on the sole effects
approach that's been adopted by Tribunals with
respect to the expropriation test. And that, of
course, if you look at the severity of the
economic impact, that's a decisive criteria
for deciding whether or not there's been
expropriation.
With respect to the Annex 14B
of the CUSMA, which Canada suggests should be
applied, which includes the investment-backed
expectations and other, and other provisions,
we will deal with that in more detail.
Essentially, we think -- and
the Tribunal, of course, made a decision on this
issue without reference to the CUSMA example.
They use other examples. And rejected that
argument.
We say, for that and other
reasons, that that particular test should not be
used by this Tribunal.
[Page 1308]
But we also say that, even if
it is applied, we do have investment-backed
expectations. And, I mean, you heard the evidence
of Nancy Baines and you have seen the witness
statements of others. And that the government's
action, in this case, did have an expropriatory
character directed particularly at Windstream.
We also say this doesn't fall
within the police powers exemption and I can
elaborate on that more in our submissions.
In terms of the damages that
arise from the substantial deprivation, the
question is -- and we all know what the
Tribunal said in Windstream I about the FIT
contract having no value.
In expropriation, since we are
not in the but-for world, the question is what
additional value is added to it.
And we have the information of
costs that was in Secretariat's report with
respect to the project-related costs which, in our
submission, should be included as value of the
project with respect to expropriation.
And so, in this case, we are
not relying on any sort of obligation on the
[Page 1309]
government in contrast to the FET argument to
unblock value.
And unless -- my time is done
and so, right on time, so I will sit down and
leave you in the good hands of Ms. Sherkey.
PRESIDING ARBITRATOR MILES:
Thank you. Thanks very much, Mr. Terry.
MS. SHERKEY: Good morning.
Oh, sorry, I didn't have a big enough coffee.
PRESIDING ARBITRATOR MILES: I
was two sips down in mine.
Mr. Neufeld.
CLOSING ARGUMENT BY MR. NEUFELD:
MR. NEUFELD: So, on Monday,
the Claimant and Canada gave opening statements
that started from two very different starting
points.
For Canada, the start is
September 30th, 2016, when the parties were issued
the Windstream I award. The award provided
finality to the dispute.
For this Tribunal, and because
it's faced with a new claim, the award also
provides your clean slate from which you must
proceed. It is the basis from which you must
[Page 1310]
assess the Respondent's behaviour and whether it
amounts to a breach of Article 1105 or 1110.
Because, by the time the award
was released, the Windstream I award, the
continuing contractual and regulatory limbo had
ceased to exist.
As the Windstream I Tribunal
held, the failure of the Government of Ontario to
take necessary measures within a reasonable period
of time after the moratorium to bring clarity to
the regulatory uncertainty constituted the
wrongful act.
The reasonable period of time
has long since passed. And we know this because,
as of May 4th, 2012, the Project was at a point it
could no longer be developed.
And, on September 30th, 2016,
the FIT Contract had no value.
It's for this reason that the
Tribunal ordered Canada to make the Claimant whole
through a payment of $25 million in damages and
$3 million in costs, and Canada did that in
March 2017.
The only part of the
Claimant's investment that was not part of the
[Page 1311]
damages order was its $6 million letter of credit,
which I will come back to.
For the Claimant, the starting
point is February 11th, 2011.
At this point in time, the
Claimant's Project had been in force majeure for
over two months because it had no site access to
do wind testing or permitting work.
This is a day, of course,
Ontario adopted the moratorium on offshore wind
and Chris Benedetti, the Claimant's government
relations advisor, asks whether its Project was
frozen.
The Claimant argues the yes
that followed that constituted a promise, which
continues as part of a continuing breach scenario.
As counsel for Claimants said
in its opening statement, the Claimant always
emphasized there was a promise to freeze.
And you heard it emphasize it
again this morning. The Claimant's reliance on
the so-called promise to freeze, is just another
attempt to reopen, relitigate its past complaint.
It argued, in Windstream I,
that -- and, here, I am quoting from its own
[Page 1312]
submission.
A direct -- as a direct
consequence of the moratorium and the Respondent's
failure to effectively freeze the Project as
promised, its investments in the Project and the
FIT Contract are now substantially worthless.
That argument was specifically
considered by the Tribunal at paragraph 239 of its
award.
And although the award did not
find a breach on the basis of that promise or use
the word "freeze", it did agree with the Claimant
that it was no longer able to finance and develop
its Project as of May 4th, 2012.
As you heard again this
morning from Mr. Terry, the Claimant relies on
arguments that Canada made in Windstream I. And
it's particular to our Windstream I
counter-memorial where we laid out the arguments
on how it was frozen.
Now, Canada submitted to the
Windstream I Tribunal, it says, until the
moratorium was done. That's when the Project was
supposed to be frozen.
But it purposefully, the
[Page 1313]
Claimant purposefully overlooks how those
arguments evolved afterwards.
Canada's rejoinder memorial
makes clear that the Ontario government informed
the Claimant that, in order to freeze the
contract, it would need to secure contract
amendments from the OPA.
And if you need to, have a
look at paragraphs 117 to 121 of Canada's
rejoinder in Windstream I which provides Canada's
take on those negotiations. They failed to
produce results because the Claimant asked for the
moon.
The award found, at
paragraph 379, as the negotiations between the OPA
and Windstream failed to produce results, by
May 2012, the Project had reached a point at which
it was no longer financeable and could not be
developed.
The Windstream Tribunal did
not find that there was a promise to freeze.
Now, in Windstream II, the
Claimant maintains that the core, the core of its
case now remains the promise to freeze the Project
from the effects of the moratorium.
[Page 1314]
Claimant's counsel's choice of
words is informative. That the promise remains
the core of its case. It indicates that the core
that was Windstream I is the core that is
Windstream II.
Its words provide support to
Canada's argument that the essential or the
essence of its complaint has, in fact, not changed
since 2013. And that it's, therefore, barred
under res judicata as well as falling outside the
time limit.
It's the Claimant's failure to
satisfy these threshold matters that Canada has
always viewed as the proper way of deciding this
dispute. After all, the burden is on the Claimant
to bring a claim that does more than just conjure
up past complaints.
It has an obligation to set
out a claim on a factual basis that is coherent
and logically ties a post award measure to the
damages it seeks. It has resoundingly failed.
But, even if Canada's
admissibility and jurisdictional arguments fail,
since the Windstream Tribunal did not find that
there was a promise to freeze and there has not
[Page 1315]
been a promise after the award, no liability can
flow.
Now let's return to the
security deposit that I mentioned.
On this, the Tribunal deducted
it from the damages Canada was ordered to pay
because it was still available -- those were the
words of the Tribunal -- it was still available to
the Claimant and could either be used as part of a
reactivated contract or be returned to it.
Now, reactivating the FIT
Contract was not seen as an obligation by the
Windstream I Tribunal, or as the only path to
avoid a future breach of the NAFTA, but rather, as
an option available to the IESO and WWIS if they
so chose.
Another option was terminating
the FIT Contract in accordance with the applicable
law.
Once again, though, the
Claimant sees things totally differently.
For it, renegotiation was an
obligation. It used the word "unblock" in its
openings and I heard it again this morning. A
suitably vague word to arrive at the result that
[Page 1316]
it wants.
The Claimant needs, after all,
not just to unblock a contract problem. It has to
change the terms of that contract. It has to lift
the moratorium. It needs an approval framework
that works for it so that it can get its
permitting done. And it needs site access, which
we heard again this morning was a reasonable
assumption to make.
We are not here for
assumptions. All of those assumptions was exactly
what it made when it signed back the FIT Contract.
This would all get done. And here we are again.
For the Claimant, the FIT
Contract still had additional value that could be
added to a conditional investment that would have
existed if the government and Windstream had
worked together to achieve that.
There is no dispute, however,
that the parties never did create new value. As
Mr. Terry said in the opening statement, the
parties have not reactivated the FIT Contract to
create new value.
Nor did the Claimant succeed
in trying to sell or partner, find a partner for
[Page 1317]
its worthless FIT Contract.
The Windstream I Tribunal may
have found that the security deposit remained
available to the Claimant but you may not be too
surprised to hear that that's not how the Claimant
sees it.
In its view, Ontario's holding
of the security was meaningful.
Note the fact that counsel
said Ontario's holding of the security. Whereas
the security deposit is actually held by the bank
and can be drawn upon by the IESO. Ontario never
held the security deposit.
But the blending of the IESO
and Ontario is a theme that ran through the
Claimant's opening statements.
You'll find, in the
transcript, that the Claimant regularly refers to
Ontario or to the government when the actor it
should be referring to is, in fact, the IESO.
You have a few examples there
in the slide.
In 2010, that's when the FIT
Contract is first entered into by the government.
The government never entered
[Page 1318]
into a FIT contract.
And it was speaking to the
government about adding a year to the FIT
Contract.
The government never returned
the $6 million letter of credit.
It wasn't the government's to
return in the first place. It was the IESO's.
If the government had worked
with Windstream to reactivate and renegotiate the
contract.
So this is all part of the
messages that the Claimant would like for you to
receive sort of uncritically.
And, Madam President, given
the Claimant's efforts to conflate Ontario and the
IESO, you will be forgiven when you asked
Mr. Killeavy whether planning was a government
issue. You will recall Mr. Killeavy's response.
He said it's an Ontario ratepayer issue.
The government acts on behalf
of the interest of Ontarians. The IESO acts in
the best interest of the ratepayers of Ontario.
Language is important.
The FIT Contract is not an
[Page 1319]
Ontario contract. It is an IESO contract and it
contains the requirement to post the security.
During our opening statements,
there was some head scratching about where the
amount of that security deposit is stipulated in
the contract. Well, it's in Exhibit A.
Which provides that the
applicant shall pay a security in the amount of
$20 per kilowatt hour.
Since the Claimant has applied
for a 300 megawatt Project, the security it had to
put up was $6 million.
And there was further head
scratching around why the IESO just didn't return
it.
Well, the answer to this
question lies in the applicable FIT Contract
termination provision.
There are numerous provisions
in the contract that allow for termination and, in
some cases, the return of the security deposit.
But only one was applicable in this instance.
Projects that have yet to
receive notice to proceed, NTP, may be
unilaterally terminated by the IESO pursuant to
[Page 1320]
Section 2.4A, in which case, the IESO would have
to pay the Project's preconstruction costs.
However, even if the IESO had
wanted to proceed this way, which would have cost
1.1 million to terminate the WIS Project, it was
prevented from doing so. Because following a
direction from the energy minister of August 2nd,
2011, obliging the OPA to waive its pre
termination rates for FIT 1 projects upon the
request of any supplier, the Claimant had made
such a request.
Section 9.1(g) and 10.1(h)
also provide termination rights. But, again, they
aren't applicable in the situation.
In 10.1(h), it's dealing with
projects that have reached commercial operation.
And 9.1(j) doesn't apply to
force majeure at all which, of course, we know
this contract was in.
So the applicable termination
provision was Section 10.1(g), and it would arise
on May 4th, 2017.
Of course, the decision to
terminate the Claimant's FIT Contract did not
occur on that date or for some time after. But
[Page 1321]
that was a result of the Claimant's domestic
application.
A court application it never
did see through.
However, you see that the
termination, whether it's the decision of
February 18th or the ultimate termination in
February 2020, the one certainty is that it did
not result in an expropriation or a breach of the
minimum standard of treatment.
And, even if it did, it didn't
result in any damages.
The Claimant has failed to
prove that this or any other alleged measures
caused it damages.
So, in the end, you have
numerous paths available to you but they all lead
to zero.
Okay. Before I turn it back
to, I guess, Ms. Sherkey, I will just mention that
our -- we have sort of divided up the questions
between us. And we are going to turn life on its
head and go from 6 to 1 in our answers.
Ms. Squires will -- the
damages boss -- will deal with Questions 6 and 5.
[Page 1322]
Ms. Dosman will deal with
Questions 5 and 4.
And, Mr. Tian, Question Number
2.
And then I will come back for
the very first question on res judicata.
And would it be a problem if
we sat to do that and answered the questions? You
don't mind; okay.
PRESIDING ARBITRATOR MILES:
Not a problem at all. Wherever you are
comfortable.
MR. NEUFELD: How was I for
time?
MR. ARAGÓN CARDIEL:
15 minutes and a half.
PRESIDING ARBITRATOR MILES:
30 seconds. It wasn't my fault.
Ms. Sherkey, we are going to
break at 10:30. Will that be okay with you?
CLOSING ARGUMENT BY MS. SHERKEY:
MS. SHERKEY: Yes.
Just a few housekeeping
matters.
The answers are going to be --
[Page 1323]
your questions are going to be answered through
the submissions. I will deal with 1 to 3 and,
Mr. Terry, 4 to 6. But they will kind of come up
organically in the right topics.
Obviously, we have a lot of
slides here. We are not going to get through each
one individually, so we are going to stay nimble,
address your questions, spend more time on some
and move more quickly through others.
And so the first -- we are
going to start with the two threshold issues and
then I am going to take you through FET. And then
Mr. Terry will take you through expropriation
damages and damages encompasses loss and
causation.
So let's jump right into the
threshold issues and into Canada's argument that
the claims are time-barred.
And I am going to jump right
away into your Question 2 in addressing this.
And so, if we start at Slide
5, I have set out the language here of the
relevant provisions.
And what we are going to spend
some time talking about is -- the test is not
[Page 1324]
controversial but what does it mean to first
acquire knowledge of the alleged breach and that
an investor knowledge that it has incurred loss.
And we say those are the very
key words: Knowledge of the alleged breach and
knowledge that the investor has incurred loss.
And the cases have answered
this for us. So that's where we are going to
start. What have the cases said on the meaning of
those words, which is going to address the part of
your question about the law.
To what extent, if at all, can
elements of the knowledge of the alleged breach
predate the three-year time period.
And so I have set out, on
Slide 8, the parties agree on the applicable test.
So we have set it out here.
We are going to go through the
legal principles and then apply Steps 2 and 3
because we agree on Step 1.
If we turn over the page. We
start with this test.
What do you have to know to
have knowledge of the breach?
My friends, in their opening,
[Page 1325]
used the word:
"Knowledge that an
alleged breach may
happen."[as read]
That is not the test.
The case law is clear. We
have put a little quote from Mobil on the side
here.
It is not enough to suspect
something will happen. Knowledge entails more
than suspicion or concern. It requires a degree
of certainty.
And I have excerpted from
Infinito which dealt with this issue in quite a
lot of detail and it wasn't the NAFTA. It was
the Canada-Costa Rica treaty. But the same
language of limitations is found in that treaty.
And where I started to
highlight:
"The Tribunal notes that
the knowledge -- it's the
knowledge of the alleged
breach and not knowledge
of the facts that make up
the alleged breach. In
[Page 1326]
other words, the
limitations period only
starts to run once the
breach (as a legal
notion) has occurred.
While a breach will
necessarily have been
caused by facts, as
discussed below, the
moment at which a breach
occurs will depend on
when a fact or group of
facts is capable of
triggering a violation of
international law."[as
read]
And then it goes on to say
that, with respect to loss or damage, that must
flow from the alleged breach.
So it doesn't always postdate
it. It can coincide.
What they don't say, but what
logically flows from that, is that the loss cannot
predate the breach.
And so I stop there and
[Page 1327]
emphasize this. We are going to look at a few
cases that facts can predate the breach. That
makes sense. Something has to happen to give rise
to a breach.
And there's also cases where
breaches themselves straddle both sides of the
cutoff date. This is not one of those cases, as I
will explain. But that actually happens as well.
And so just looking at this
point that you can have knowledge of the facts, if
you turn over the page, we have highlighted a
couple of examples of cases.
So Glamis Gold, the Claimant
cited earlier events -- the challenged measure was
a 2001 denial of its permit.
And the Claimant cited earlier
events in its notice of arbitration, even calling
them offending measures.
So the Respondent said those
responding, those offending measures are out of
time. But the Tribunal said, no, those were
factual predicates to the claim. They weren't
what was actually alleged to breach.
And so what the Tribunal sets
out in the excerpt I have here, is they explain:
[Page 1328]
"It is necessary that any
action be preceded by
other steps, but such
factual predicates are
not per se the legal
basis for the claim. The
basis of the claim is to
be determined with
reference to the
submissions of the
Claimant."[as read]
That's how you determine the
alleged breach.
PRESIDING ARBITRATOR MILES:
Ms. Sherkey, I don't have a question. Everything
you are saying is very, very, very helpful. Can
you just say it a little bit slower, for me. Not
for Lisa. I just want to keep up. Thank you.
MS. SHERKEY: Of course.
So the key here is how you
determine the basis of the claim. You do it by
reference to the submission of the Claimant.
And does something form a
factual predicate, we say the promise to freeze,
for example, is the factual predicate. And I
[Page 1329]
will get into this more when we apply this. You
can have pre-existing facts but the question is
what's the breach.
And a very useful example, in
my submission, is over on the next page in Eli
Lilly.
And, in this case, this had to
do with an invalidation of the Claimant's patents
by the Canadian courts.
Just a little background to
the facts.
This case questioned the
validity of what's called the promise utility
doctrine where patents can be invalidated on the
basis that they didn't fulfil the promise they set
out to the public.
And so, in 2010 and 2011, Eli
Lilly claims its patents were invalidated and it
commenced this arbitration.
Canada argued, in that case,
this is out of time. Yes, you brought the claim
in time from when the Supreme Court of Canada
denied you leave to appeal to the Court's
invalidation of those patents.
But what you're really
[Page 1330]
challenging is the judicial treatment of the
promise utility doctrine.
The Claimant said that this
promise doctrine, which was used to invalidate its
patents, was a dramatic change in a Canadian
patent law.
And the Respondent said you
are looking at judicial decisions from 2002 up to
2008, to constitute whether or not that was a
dramatic change. So you're looking at events that
predate the limitation period. You can't do that.
And, in fact, one of the
Claimant's prior patents was invalidated in 2008
on this promise utility doctrine.
So, when the Tribunal went to
this, it said we have to find the alleged breach.
And they did it, like in Glamis Gold, by reference
to the Claimant's submissions. And they said the
Claimant is challenging the invalidation of the
patents. It's doing it by reference to the
application of the promise utility doctrine. But
what the actual breach is, is the invalidation of
its patents.
And so it disagreed with the
Respondent's attempt to, as the Tribunal said,
[Page 1331]
recharacterize the Claimant's case into something
else.
And the Claimant could not
have the requisite knowledge that it would lose
the patents until it happened.
And they noted there was an
increased risk. There might have been knowledge
of an increased risk or an increased likelihood
that this would happen -- and that's set out at
paragraph 169 -- because its prior patent was
invalidated on this basis.
But investors are not required
to bring claims for possible future breaches on
the basis of potential and, therefore, necessarily
hypothetical losses to their investments or the
increased risks of such losses.
So you do not impute knowledge
of a future breach or loss. The loss has to have
happened.
And so, in this case, it was
actually when the Supreme Court of Canada denied
leave to appeal that the invalidation happened.
Of course many facts were
known then. The lower courts had already
invalidated the patent. That had happened.
[Page 1332]
Potential loss had happened. They had been
invalidated.
But while the appeal process
was underway, the alleged breach had not, as a
legal notion, had not formed.
And then the Tribunal goes on
to say, of course, we can consider earlier events
that provide factual background to a timely claim.
And, if we go over the next
page, my friend relies on Bilcon and Rusoro as
saying, well, the proper approach is that you
break everything down, measure by measure, when
you're trying to determine an alleged breach.
We say that's not the test and
that's not consistent with the holdings in those
cases.
I am going to highlight what
Infinito found on the proper test and then I am
going to take you into Rusoro.
So what Infinito stated was
that there is a two-step test here.
First, you have to identify
when a given act or omission was performed or
completed.
So not when it started. When
[Page 1333]
it was performed or completed.
And then the second step was
to assess when the Claimant knew of that
completion. And then the loss caused thereby.
And how do you do that
analysis? You do it for each of the standards
allegedly breached.
So you don't break it out
measure by measure. You break it out breach by
breach. And the Tribunal then goes on to say when
was there knowledge of the alleged expropriation?
When was there knowledge of the alleged FET claim?
So that's how you break it
out.
And, when they did that
analysis, they go into the expropriation analysis.
When they go into knowledge of
expropriation, they don't break it down measure by
measure. They look at what's the element of
expropriation claim.
And the same with FET. They
said what's FET. What's being claimed?
And, for example, in Infinito,
they were saying, well, the FET claim is really
two things: Your ability to operate this gold mine
[Page 1334]
was frustrated; and, second, your ability to apply
for new permits was frustrated.
And then they assess when they
gain knowledge.
Each of those elements are
made up of multiple measures. But it was an
assessment of the breach of each standard.
And, if we flip over the page,
we say Rusoro doesn't stand for anything
different.
In that case, the alleged
breach -- and this is what's interesting about
Rusoro and Bilcon, unlike our case, we say.
The alleged breach straddled
both sides of the cut-off date, not just facts
that predated the claim. They alleged measures
breached the treaty and measures were on both
sides of the cut-off date.
But they said that's okay.
Because this is a composite claim and, so, it
really didn't crystallize until we were on the
proper side of the line.
And, in that type of context,
here, it was 2009 measures that were on the wrong
side of the cut-off date.
[Page 1335]
And the Tribunal said we have
to look at whether those measures are sufficiently
linked to the on-time measures to basically put
them on the right side of the line.
And, at paragraphs 229, they
note that you can look for such linkage to justify
the totality of the act. They note, in
paragraph 230, that's a legally sound approach but
it depends on the facts and circumstances.
In this case, there was no
link. The 2009 measures had to do with strict
limitations on exporting gold, increased in
exchange control requirements, and this,
ultimately, leads, in 2011, to the
nationalization, a decree that nationalized the
gold sector.
And so the Tribunal said those
are all separate measures with separate issues.
So, at paragraph 321, with the key point:
"In the specific
circumstances of this
case, we are going to
break down the alleged
composite claim into
individual breaches."[as
[Page 1336]
read]
Not individual measures.
Individual breaches.
And then it looked at the 2009
breaches which was made up of multiple measures
and said you're alleging these 2009 measures
breached the treaty. We think that claim is out
of time. But your claim that the nationalization
of the gold industry violated the NAFTA, that's in
time. That's a separate breach.
And, in this case, unlike
Rusoro and Bilcon, we are not alleging pre cutoff
measures. There are pre cutoff facts.
But we are not saying that the
alleged breach happened at multiple points of
time. We are saying it happened at a single point
of time. The breach happened when the FIT
contract was terminated.
And that's what I am going to
turn to now.
So, if we flip over to Slide
15, this deals with the other part of your
question: What is the knowledge of the alleged
breach in this case? When did the breach occur?
Not may occur. Not likely occur. When did it
[Page 1337]
occur? When were the facts capable of triggering
an international violation? To take the words
from Infinito.
Applying the Infinito
standard, we are going to look at this on each
breach alleged.
Starting with expropriation.
We say the expropriation only occurred with the
termination of the FIT contract. Nothing was
taken prior to this date.
Facts were not capable of
triggering a violation. In fact, we would have
been in the same place as we were in Windstream
I if we brought an expropriation claim before
the FIT contract was terminated.
Like Eli Lilly where the loss
did not occur until the Supreme Court of Canada
denied leave, that's when the patents were
invalidated. The FIT contract was not gone until
it was gone.
And the breach of FET is
similar. The breach is the termination of the FIT
contract. The measures, we say, are why Ontario
is responsible for that consequence. Ontario's
conduct gave rise to that termination.
[Page 1338]
But there was no breach until
there was a termination.
Dealing with a few allegations
my friends make about the timing, my friends have
said, okay, but in 2017, you knew the termination
right arose. And it was a real and tangible
likelihood that the IESO would exercise its
termination right. So you knew that.
And, if you look over on the
next slide, we say that's suspicion, not
knowledge. Particularly on the facts as you have
them. Slide 16.
So the next slide, the
transcript of Mr. Lyle is confidential.
PRESIDING ARBITRATOR MILES:
Alonso, are you here with us today?
MR. HAUSER: I am, Madam
President. I can confirm we are in confidential
mode right now.
CONFIDENTIAL TRANSCRIPT COMMENCES AT 9:52 a.m.
PRESIDING ARBITRATOR MILES:
Thank you very much and welcome back.
MR. HAUSER: Thank you.
MS. SHERKEY: The point here
is just Windstream asked to be told that it should
[Page 1339]
have known, in 2017, it was likely, is not the
test. But it asked the IESO directly, are you
going to terminate what happens on May 4th? It
was told no decision. February, no decision.
November, no decision.
And we heard from Mr. Lyle
that the IESO didn't make a decision until between
February 16th and 20th. We have excerpted his
testimony here.
So, like in Eli Lilly,
Windstream cannot be deemed to know of something
before it happens. The IESO did not know what it
was going to do.
And that's reiterated by
Mr. Lyle on the next page where he says:
"The IESO undertakes a
fact-specific exercise.
[as read]
And I asked him:
"It's not automatic that
you will exercise that
termination right."[as
read]
[Page 1340]
And he says:
"That's correct. We want
to make a thoughtful and
reasonable decision."[as
read]
So the point is simple that
you can't impute that knowledge to Windstream that
the IESO would have exercised the termination
right. All it knew was it was a possibility.
Now, the other point my
friends make --
CO-ARBITRATOR MCLACHLIN: Are
we out of.
MS. SHERKEY: We can come out
of confidential mode.
CONFIDENTIAL TRANSCRIPT ENDS AT 9:53 a.m.
MR. HAUSER: Out of
confidential. Thank you.
PRESIDING ARBITRATOR MILES:
Thank you.
MS. SHERKEY: It says the
measures challenged here were all known before
Windstream I. They are the continued application.
Windstream knew the moratorium was applied to it.
It knew that research wasn't going ahead. And it
[Page 1341]
knew that, up to that date, Ontario hadn't
directed the IESO.
Yes, those were facts that
were known. But that's not the test.
The measures all postdate the
award in terms of what happened after 2016 when
Windstream approached the government when it asked
the government what it was doing. We have gone
through those facts. And they then resulted in
the termination of the FIT contract.
So I am not going to repeat
myself on what we say the alleged breach is.
But we say Canada is
conflating here knowledge of pre-existing facts
with the conduct actually alleged to amount with
the breach. There is no treaty breach divorced
from the termination of the FIT contract.
And the point I just want to
conclude on, for limitations, is the circularity
of my friend's position.
If we go to the next slide.
If Canada's position was
accepted, there was never a path to this claim.
There was never a time this claim could have been
brought. And I break this down into more detail
[Page 1342]
over the next two slides.
But the point, the gist is, we
were premature in Windstream I. But we are now
too late, at any point after that, for the
termination.
So there just could never be a
claim on the termination of the FIT contract.
And, if you just look over on
the next slide, we break this down into timelines.
Windstream I, too premature.
Canada argued there was no expropriation because
the moratorium was temporary.
The Tribunal, as we know,
found the FIT contract was in force and finding no
expropriation.
So what should Windstream have
done? Brought a claim immediately after in 2016?
Under Canada's theory, it's
both too early and too late. We are premature
because we are in the same place as we were in
Windstream I, the same finding. FIT contract is
in force so you have no expropriation.
But we are also too late
because Canada's arguments that we have had
knowledge of facts since 2011 equally applies
[Page 1343]
then.
Same with when you go to 2017.
We are both too early and too
late.
And then when we bring the
claim in time for what happens in 2018, when
Windstream is advised of the termination right,
now it's too late.
So those are all my
submissions on limitation period.
So I will now -- sorry, I have
one more slide on limitation period. If this was
your question, I am happy to take your question.
And this is not anything that
complicated.
If we go to the next slide.
When did we have knowledge of
the loss?
It had to flow from the
termination. The test is whether loss or damage
has been incurred. Per Infinito, loss must flow
from the breach.
Here, the loss only happened
once the FIT contract was actually taken. It was
only possible before that. It was possible the
[Page 1344]
IESO could exercise its termination right but
there was no loss until it happened.
PRESIDING ARBITRATOR MILES:
Can we go back to Slide 10 -- 19, sorry. I am so
sorry, 19.
Given that the Tribunal in
Windstream I did find that there had been no
expropriation, as you say on the left-hand side
there. I understand this -- I understand your
submissions and the essence of this slide in
respect of expropriation.
I might need a little more
help for breach of FET. Okay.
So if termination of the FIT
contract was not a necessary predicate for the
Tribunal to find breach of fair and equitable
treatment in the Windstream I case, in order to
make the Claimant whole for the harm caused by
breach of fair and equitable treatment in the
Windstream I case, then the fact of termination
subsequently, I am struggling to see how that will
reopen the fair and equitable treatment claim.
Expropriation, I understand.
The Tribunal is very clear. They said to the
prematurity point. You are too soon.
[Page 1345]
But did they say you are too
soon for a fair and equitable treatment claim?
MS. SHERKEY: Their finding on
fair and equitable treatment, I think is important
context. They didn't find that it had been taken
or de facto cancelled in that context.
PRESIDING ARBITRATOR MILES:
Yeah. But my question was that a necessary
predicate for their finding on FET?
I understand they didn't find
it. But did they need to to find breach of fair
and equitable treatment, whole loss, whole remedy?
MS. SHERKEY: No. And I think
that's important when you look at the language,
particularly as they award damages for breach of
FET.
So they say the breach of FET
is the limbo that was created.
And, when they go to find
damages, they say we are awarding -- and it's
damages, of course, flowing from FET. They say
it's damage to the investment, not the full value
of the investment because the FIT contract is in
force. Leading, of course, to the phrase we have
talked a lot about. It is another matter that
[Page 1346]
the parties can renegotiate and trigger --
renegotiate the FIT contract to create value.
And so they acknowledge the
existence of the FIT contract and there was a
finding of FET for creating the limbo and the FIT
contract still exists.
PRESIDING ARBITRATOR MILES:
So the finding of FET for creating the limbo, with
what consequences? What consequences of finding
limbo gave rise to damages in the first award?
MS. SHERKEY: Well, that
was -- sorry, I just want to make sure I
understand your question on consequences.
They value the project as at
that time, including their finding that the FIT
contract was not -- did not have value at that
time, and recognized that the FIT contract can be
renegotiated.
So the FIT contract is still
in place, still existing. And that is, I would
say, still tied to their FET finding because it's
the basis of how they valued the FET breach.
CO-ARBITRATOR MCLACHLIN: What
was the $25 million for? It was for breach of
fair and equitable.
[Page 1347]
And the question in my mind is
did that put the Claimant whole for a breach of
that obligation under the trade agreement at that
time? Nothing to do with FIT. Nothing to do with
expropriation. FIT remained. No argument about
that.
But the Tribunal found a
breach and it found 25 million, if you take off
the 6. And was that to make the Claimant whole at
that time for that breach of the trade agreement
standard of fair dealing?
MS. SHERKEY: Yes. For that
breach, for the damages up to that time, and then
of course recognizing that there was still a valid
existing FIT contract that, if renegotiated, would
create further value.
And what happened afterwards,
whether Windstream's entitled to that value, and
we will come to this in res judicata, are fresh
issues for you not considered.
But we would say that's also
tied to the limitation period because now, going
forward, you still have an existing FIT contract.
You have this statement that the FIT contract can
be renegotiated to create value.
[Page 1348]
Windstream tries -- and we
will talk about this in FET -- to get engagement
from the government to clarify the situation that
continues.
And until the termination of
the FIT contract happens, there hasn't been a
breach of FET in this second world, this post-2016
world. This question of whether there was an
obligation under the government, under
international law to renegotiate the treaty --
renegotiate the contract to create value, and
whether that value was taken to Windstream is all
post-2016 elements.
PRESIDING ARBITRATOR MILES:
Why did the FIT have no value?
MS. SHERKEY: As found at the
time that the Tribunal found it, it said it was
unfinanceable as of May 2012.
PRESIDING ARBITRATOR MILES:
Why?
MS. SHERKEY: Because of the
contractual and legal limbo created by the
government. The project, at that point of time,
was no longer able to be developed within the
timelines left of the FIT contract.
[Page 1349]
If the FIT contract was
redeveloped -- or renegotiated, that state of
affairs would change.
That's where the creation of
value would be and we say unlocked. You
renegotiate the contract and now you have a
financeable valuable project beyond what was
awarded by the Tribunal in the first instance.
CO-ARBITRATOR GOTANDA: I
guess where we are struggling is the obligation to
renegotiate the FIT contract might not necessarily
be tied to the termination of it.
The termination concludes,
ultimately, your damage there -- put aside the
expropriation claim.
The expropriation claim, one
could make the argument and, given the first
Tribunal's ruling, it seems like that's -- you
don't have the expropriation claim, until it's --
it's not ripe until that happens.
But it's -- we need you to tie
it tighter together for the FET claim.
Because one could make the
argument that the claim arises as soon as post --
let's say, you know, Windstream I, they refuse to
[Page 1350]
negotiate. And what if they said, at that point,
and we are never negotiating with you?
Doesn't your claim arise
instantly sort of then? You may not know the
extent of your damage. I get that. But help us
understand that.
That's where, I think, where
we are struggling with on that.
MS. SHERKEY: Thank you,
Professor Gotanda.
I think there's a factual and
legal element to answering that.
The first is, on the factual
side, the failure to clarify the situation, post
award. And the Claimant immediately reaches out.
We will talk about this in FET.
The Claimant immediately
reaches out to the government. We want to meet.
We want to meet. We want to meet. And the
government says no, go to the IESO.
They don't say, no, you have
been fully compensated. No, we will never meet
with you. No, this contract will never be
amended. They say go deal with the IESO.
We say that's problematic but
[Page 1351]
no one is proceeding on the basis that this
project can't proceed. That's no one's
understanding. That's never clarified.
And so Windstream goes to deal
with the IESO. Certainly, the government does not
involve itself. That's a huge basis of this
claim.
But the IESO's also saying
it's not going to exercise its termination rights.
And, until it does, they have
the Ontario action. They may see results there in
the injunction. They haven't actually lost that
creation of value, that ability to renegotiate
until the IESO makes its decision to terminate.
So they know it's possible.
They know the factual predicates the government is
refusing to involve itself. It doesn't clarify
the situation. But it's refusing to involve
itself.
But, until the FIT contract is
terminated, the actual failure to renegotiate and
the actual loss of that value has not happened
yet.
CO-ARBITRATOR MCLACHLIN:
Well, I think part of the question was you don't
[Page 1352]
have to have the quantification of the loss. If
there was enough for the -- for a reasonable
person in their position to conclude that the
government was not going to negotiate, the loss
was clear. It hadn't, perhaps, been quantified in
terms of exactly how much they would lose.
But they knew that they could
not go forward and that they would lose their
investment.
So this gets us into that area
where how, how precise does the knowledge of the
loss have to be?
I think that's what's
bothering me about your answer to my friend's
question.
MS. SHERKEY: But they also
don't know what the IESO is going to do, which we
have heard is a multifactorial exercise.
The IESO is telling them we
haven't made a decision. We know, on the facts,
five and 6 out of times, this right had
previously come up. The IESO didn't exercise it.
Windstream was providing a lot of information to
the IESO to inform its decision.
So it knew it was a
[Page 1353]
possibility that the IESO was going to exercise
it.
But, until the IESO actually
did, the loss of the additional value was just a
likely -- maybe not even likely. A possible
outcome. One could argue how likely it is on the
facts but we -- Windstream asked the IESO
directly, are you going to terminate? And they
said we don't know.
And so, at that point, they
continued to ask the government to intervene.
CO-ARBITRATOR MCLACHLIN: I
don't think that answers the question. You go
back to termination.
But that's fine. I think we
have the point. And there may be questions about
exactly when the cause of action arose. That's
all I was trying to get across.
And it may not -- you could
mount a case that it doesn't require actual
termination. That's all. And I wanted to give
you an opportunity to respond to that, not whether
the termination, when it occurred or whatever.
CO-ARBITRATOR GOTANDA: There
were two questions, not slightly unrelated.
[Page 1354]
The focus, though, is not on
the IESO; is it? It's on Ontario.
MS. SHERKEY: Yeah, it's on
Ontario.
CO-ARBITRATOR GOTANDA: Right.
So the fact that the IESO may
have said something is not what we focus on for
whether or not there's a breach of it.
MS. SHERKEY: But, in my
submission, it goes to the knowledge, construct
over actual, that Windstream should have had in
terms of the alleged breach and loss.
Because the alleged breach is
the failure to renegotiate, the failure to
implement the commitments made that result in the
failure to renegotiate when they say the Ontario
government had an obligation.
And that only forms once the
FIT contract is terminated. Because, at that
point, other outcomes could still happen. They
had the Ontario application to enjoin that result.
They could still meet and have settlement
discussions with the IESO. They don't know what
that result is going to be.
So the IESO's actions are
[Page 1355]
relevant in terms of understanding what knowledge
should have happened, although the breach lies
with the Ontario government.
CO-ARBITRATOR GOTANDA: Right.
But that's where I want you to help us connect the
dots a bit more.
Because it's the Ontario
government that says, under the facts, we are not
talking to you. Probably the lawyers probably
told them. In fact, the lawyers did tell them.
Don't talk to them. Probably afraid of getting
sued.
So if they're not at all going
to take any steps, you know, at that point, their
actions, it seems like -- and help me understand
this -- are concluded at that point.
What the IESO does is, they
can do whatever they want.
But your focus, really, is on
Ontario; isn't it, for the FIT claim?
Help us just connect that a
little closer to try to understand how that works
for purposes of this.
MS. SHERKEY: Yeah. And I
think it goes to the question of when did the
[Page 1356]
breach crystallize.
Is the act of saying no --
right, when did it, as a legal notion, become an
international wrong.
In 2016, December 2016, they
get a letter saying go to the IESO.
What happens if you bring a
claim at that point in time?
In my submission, you face a
prematurity argument because you have a contract
that's still existing, they would say you should
have gone to the IESO and had those negotiations.
You didn't know what the result would be.
And so there would be a whole
load of elements of things they didn't know.
They needed to continue
through the course with the IESO and, ultimately,
get to a termination decision before those actions
of the Ontario government actually had a
consequence or a result on the Claimant's
investment.
CO-ARBITRATOR GOTANDA: And
here's the second part of that question, which is
related to what you just said now.
NAFTA may not be perfect and
[Page 1357]
the problem is it may allow you to bring one claim
but perhaps another and you just may be stuck with
that.
Is there anything that we have
from the parties in the drafting that seems to
help answer sort of this question?
Because it seems like, the
language here seems ambiguously to have a
requirement and to have this cutoff. And with the
understanding that, for every wrong, there may not
be a remedy in the end. But that's just how the,
you know, the parties to the treaty drafted it.
MS. SHERKEY: I think, on
limitation period, there is always a remedy but
you have to act on it in time. I don't think
there is a reading of that where you say there
might just never have been a claim for you.
The knowledge has to arise at
some point and then you have three years to bring
it.
So I think that's the key
question, as opposed to a possible outcome,
whether fair or unfair, that there might just not
be a remedy. As it relates to limitation period,
I would say there always is.
[Page 1358]
CO-ARBITRATOR MCLACHLIN:
Would there always be a cause of action?
MS. SHERKEY: Yeah
CO-ARBITRATOR MCLACHLIN: Even
if there wasn't -- I mean, it seems we are
getting -- I am having trouble following what you
mean by there will always be a remedy.
MS. SHERKEY: I think I was
responding, with Professor Gotanda's question, to
maybe the way the NAFTA parties just drafted this
fair or unfair, there might just not be a remedy
for a certain type of breach. You might have
another claim but not this claim, if I understood
your question correctly.
CO-ARBITRATOR GOTANDA: In
part.
I think maybe the question is
perhaps the parties to the treaty and the treaty
itself, ultimately, says you get to choose but
which one you want, in the end. Sometimes -- it's
not a perfect drafting for the Claimant, in this
case. And you may have to live with that.
Is what -- perhaps the way
they drafted it is such that maybe you can bring
the expropriation claim only until the actual, in
[Page 1359]
this case, it's terminated. But maybe the FET
claim just arose earlier.
MS. SHERKEY: I see --
CO-ARBITRATOR GOTANDA: And
there's this gap and that's just the language of
the statute just is that way.
But maybe it's not and so
that's the question for you.
MS. SHERKEY: I understand
your point.
CO-ARBITRATOR GOTANDA: Right.
MS. SHERKEY: I think it's an
interesting academic question, actually, very much
so. And very much one that would depend on the
facts.
I think the answer lies here
looking into the facts.
We would just say that gap
doesn't exist and maybe that unfairness helps --
that would result underlies the interpretation
that that's not the right interpretation or result
because it's imputing knowledge to the Claimant,
we say, before they know that it has incurred a
loss. It's imputing that they should have brought
a claim because something might happen at that
[Page 1360]
stage.
But we say, until the
termination happened, the actual loss alleged, the
failure to renegotiate and the loss of that
creation of value was -- it would be imputing the
possibility of something to them, as opposed to
knowledge, as we have seen in the test.
PRESIDING ARBITRATOR MILES:
In response to my earlier questions, you said the
Tribunal found the FIT had no value when it became
unfinanceable as of May 2012.
And you said the Tribunal
further found that that was because of the -- I am
adding words here -- you said it was because of
the contractual and legal limbo created by the
government.
The Tribunal found that the
contractual and legal limbo was the breach of FET.
MS. SHERKEY: Yes.
PRESIDING ARBITRATOR MILES:
Or the contractual legal limbo created by the
government was the breach of FET.
And the Tribunal found that,
at that point, the project could no longer be
developed within the timelines of the FIT
[Page 1361]
contract. Yes?
MS. SHERKEY: Yes.
PRESIDING ARBITRATOR MILES:
And, on your Slide 20 in your box, the grey box,
2013 to 2016, you say Windstream argued that the
FIT contract -- that the FIT contract was de facto
taken.
You -- and you have put taken
there for the purpose of expropriation. And I
understand your argument well on expropriation.
I think, like my
co-arbitrators, I am still struggling with your
argument on FET.
So you also argued that the
FIT contract was de facto gone because it had no
value because it was unfinanceable from May 2012.
MS. SHERKEY: Yes.
PRESIDING ARBITRATOR MILES:
And the Tribunal agreed with you on that. That
the value in the FIT was eliminated by the conduct
leading to the contractual and legal limbo.
MS. SHERKEY: Yes.
PRESIDING ARBITRATOR MILES:
Yes. Okay. So we agree so far.
So if your FET -- if your fair
[Page 1362]
and equitable treatment cause of action in the
first arbitration was predicated on the de facto
destruction of value in the FIT contract, and the
Tribunal agreed with you that there had been de
facto or actual destruction of the value in the
FIT contract because of the conduct creating the
legal and contractual limbo; yes?
MS. SHERKEY: Yes.
PRESIDING ARBITRATOR MILES:
Then don't you have -- coming back to Slide 5 --
knowledge of the alleged breach, fair and
equitable treatment, and knowledge of the loss,
including the loss arising out of the de facto
destruction of the FIT contract.
MS. SHERKEY: No. And I think
the key here is the finding on the damage awarded
at paragraph -- it's either 483 or 485.
PRESIDING ARBITRATOR MILES:
Yeah.
MS. SHERKEY: Where they say
we are valuing the breach flowing from 1105. It's
damage to the investment, not full value, but it
remains open on the parties to renegotiate.
PRESIDING ARBITRATOR MILES:
So you put an awful lot of weight on the use of
[Page 1363]
the word "damage" there, as distinct from loss of
value.
But what did the Tribunal do
to ascertain the value of the whole investment for
the purpose of compensating loss in Windstream I?
MS. SHERKEY: Yes. And they
determined the value of the project using the 2009
to 2013 comparables with the 2016 valuation.
PRESIDING ARBITRATOR MILES:
In a but-for world.
MS. SHERKEY: In a but-for
world.
PRESIDING ARBITRATOR MILES:
And did that but-for world include the FIT
contract sans destruction of value?
MS. SHERKEY: Yes. And then
recognizing that it remains another matter that
the FIT contract can be renegotiated to create
value --
PRESIDING ARBITRATOR MILES:
Right. Leave that aside.
The unrenegotiated and
unreactivated FIT contract, in a but-for world,
was that, in your submission, attributed value by
the Tribunal in Windstream I?
[Page 1364]
MS. SHERKEY: If I can have a
moment, Mr. Terry was dealing with value so I just
want to make sure I am not stepping on his toes.
PRESIDING ARBITRATOR MILES:
And, to be fair, I am not clear in my mind whether
this is an 1116, 1117 issue or res judicata issue.
Or both. And we will flush that out during the
day. Or neither.
MS. SHERKEY: And I think, I
would love to have an answer that satisfies every
one of your concerns, and I think we are going to
circle in that, I think -- the key, it does fall
on to that line, the additional value that could
be created with the renegotiation.
We say that's something the
Tribunal recognized was beyond what was awarded
and that was where the parties were to go forward
from and we say Windstream was deprived.
That's a whole new, both for
res judicata and limitations, a whole new series
of conduct. A whole new series of knowledge.
And so everything you are
saying as to what they found there, yes.
But then the question here
turns on the renegotiation to create that
[Page 1365]
additional value not awarded and when knowledge of
that loss, that claim arose.
PRESIDING ARBITRATOR MILES:
Okay. You understand the challenge that you face
for fair and equitable treatment if one of the
facts that you reach back on is the existence of
the FIT. And the value of the FIT. And the
impact of the conduct causing legal and
contractual limbo in respect of the FIT.
If they are facts you're
relying on as necessary facts for a reactivated,
renegotiated contract will be worth X because the
original FIT contract was worth X, then you're
going back into territory that the Tribunal has
dealt with.
MS. SHERKEY: And maybe that's
best dealt with in context when we talk about the
FET breach and then Mr. Terry is going to take you
through the loss that flows from that.
So it might be that that
conversation comes up better in context tied back
to what we have been discussing this morning.
PRESIDING ARBITRATOR MILES:
Is it an 1116, 1117 issue, though? I think it must
be. I mean, I have been thinking about it in res
[Page 1366]
judicata previously.
But, if you had all of the
knowledge of the alleged breach and the damage and
loss, then you do enter into 1116, 1117 territory
on FET, potentially.
MS. SHERKEY: If you did.
PRESIDING ARBITRATOR MILES:
Yes.
MS. SHERKEY: But you have my
submissions on why they don't.
PRESIDING ARBITRATOR MILES: I
understand. Okay. All right. Very good.
That was really, really
helpful. Thank you very much.
Did you have -- what were you
going to do next?
MS. SHERKEY: Res judicata.
PRESIDING ARBITRATOR MILES:
Should we make a start. Let's go.
MS. SHERKEY: Sure.
I think we talked through
some -- there is a lot of overlapping issues here.
And do you mind if I take off
my blazer. I run very hot these days.
So we are going to start with
[Page 1367]
issue estoppel and I want to just address first,
we agree on the test that's set out at
paragraph 27. I don't -- I am not going to spend
time on it. We are just going to cut -- jump
right into applying it.
What does Windstream say is
issue estoppel. You had asked that question.
We have summarized that at
page 28. I don't plan to spend too much on it.
It's in our materials.
But we say Canada has sought
to relitigate factual issues that are set out in
the award. We set that out in full detail in our
reply memorial.
I just want to note that you
heard it again from Mr. Neufeld this morning, on
number (c), that Windstream abandoned the
discussions.
Mr. Neufeld, I made the time
note at 9:23 a.m., said that there were no results
from the negotiations with the OPA because it was
Windstream's responsibility as to why they failed.
And so that, in my submission,
is not consistent with the findings by the
Windstream I Tribunal.
[Page 1368]
PRESIDING ARBITRATOR MILES:
Are you referring to where he said because they
asked for the moon?
MS. SHERKEY: Yes.
And, in fact, it's at
paragraph -- in the FET finding, they -- the
Tribunal actually says it's not Windstream that's
responsible for that outcome. They talk about the
failure to direct the OPA but they make a finding
on that.
And they also make specific
factual findings as to what happened in the
negotiations. I laid those out in my opening.
PRESIDING ARBITRATOR MILES:
Is abandonment the same thing as asking for the
moon?
MS. SHERKEY: No.
PRESIDING ARBITRATOR MILES:
No. Okay.
MS. SHERKEY: But I would say
this is a further enhancement an addition to what
they said in their counter-memorial.
And we also have an issue
estoppel argument as it relates to the test on
expropriation. And this deals with the Annex 14B
[Page 1369]
issue, which Mr. Terry is going to deal with so I
won't steel his thunder. But just flagging there
is a point there.
So what I would like to
address is Canada's arguments on issue estoppel.
And, as I went through their
opening and, again, through their written
materials, we have characterized this, brought
this down to five issues.
And number one, to me, is
really the nub of it. This full compensation
issue.
And I think this circles on to
everything we have been talking about this
morning, which is Canada argues -- there's no
further value here. You have been fully
compensated. The project was found to have -- or
the FIT contract was found to have no value. The
Tribunal compensated you on that basis. So you're
barred from arguing there is any further loss.
We have highlighted here what
the Tribunal found. And, again, it comes back to
that line at the end and what our claim is, which
is that there was additional value that could be
created that was not because the FIT contract
[Page 1370]
wasn't renegotiated.
Also, because the FIT contract
wasn't terminated, Ontario didn't clarify the
situation.
IESO held on to the $6 million
letter of credit. Windstream made efforts to move
the project forward in the time period and
incurred additional costs.
So we say there, as Mr. Terry
touched on in his opening, there is additional
value creation in that time period.
And whether all of that
additional value beyond what was awarded is owing
to Windstream, is not a res judicata issue. It's
a merits issue.
You might not agree with us.
We hope you will. But it's a new issue.
So I was going to move off
this point unless you had any questions.
And Number 2.
Issue Number 2, we say, is
quite tied to issue Number 1. It's almost like
the flip side of the same coin.
Canada relies on the finding
that the $6 million letter of credit was a
[Page 1371]
substantial portion of the value of the FIT
contract. So there was no substantial deprivation
and says Windstream is barred from arguing there
was a substantial deprivation in this case.
And, again, this goes back to
the same point that we are talking about different
value here.
We are talking about a 2020
termination of the FIT contract where the letter
of credit was returned and the question is, is
there any further value there; what is that value;
and was Windstream substantially deprived of it?
Those are all new issues for determination.
PRESIDING ARBITRATOR MILES:
And, for both these issues, you are not
distinguishing between expropriation and fair and
equitable; you are saying it's the same either
way?
MS. SHERKEY: Well, I think
you have, in FET, the alleged loss is the loss of
the value that could have been created. And
remember the arrow. We will go to that in FET.
So we say whether or not
Windstream was entitled to that value creation,
that was barred, we say, by Ontario's conduct, is
[Page 1372]
a new issue, a merits issue as to whether or not
that was a wrong or a loss they had a right to.
On expro, the claim is for, as
Mr. Terry explained in the opening, and we will
get into more detail with you, it's for the costs
incurred in the 2016 period. The efforts to move
the project forward while Windstream had ongoing
obligations under the FIT contract and whether
those new costs incurred, post 2016, as part of
the project value were taken is a new issue.
PRESIDING ARBITRATOR MILES:
That's helpful.
Number 3, the promise to
freeze. Canada says you cannot relitigate these
pre-2016 facts.
And what Mr. Neufeld said this
morning was he called it the so-called promise.
And he said the Tribunal did not find a promise to
freeze.
And I want to be very specific
here about what was -- what the commitment is and
what the Tribunal found.
The Tribunal found, at
paragraph 371, that the conference call happened.
It found that, during the call, the government
[Page 1373]
officials confirmed that the project was not
terminated, and that it would go forward once the
studies have been completed. That's the
Tribunal's finding.
And then it pastes excerpts
from the transcript.
So it's not a so-called
promise. It's a factual finding the Tribunal made
that what was said on the call -- I have a
printout of the transcript here; it's C-484 -- in
fact happened.
And there are multiple
statements in here, not just the one line from
Mr. -- the one excerpt from Mr. Benedetti,
Mr. Neufeld mentioned.
But a statement by
Mr. Mitchell:
"We acknowledge your
project is unique and
that it has a FIT
contract and so, to that
end, Perry is here. We
have asked the OPA sit
down with you and
negotiate a number of
[Page 1374]
pieces, including the
force majeure provisions.
We are going to attempt
to create a solution that
will be acceptable to you
so that is NRG's
position."[as read]
Andrew Mitchell again:
"There is really no way
to proceed at this point.
But, with respect to your
FIT contract, we are
going to work with the
OPA to make provisions to
ensure that there is a
solution that is
acceptable."[as read]
Ian Baines:
"What I am hearing very
clearly is that the
project has been
terminated.
Perry Checcini.
No, you're not hearing
that."[as read]
[Page 1375]
PRESIDING ARBITRATOR MILES:
You are in res judicata now, right.
So, in terms of issue
estoppel, do you accept that, if the Tribunal made
a finding as to the veracity or intent or effect
of certain statements, conversations, facts that
relate to this period that, if there is a fact in
issue as to what was said or what was meant by
what was said or what was the effect of what was
said --
MS. SHERKEY: Yeah.
PRESIDING ARBITRATOR MILES:
-- that we are bound by that determination of
that fact in issue for this period.
MS. SHERKEY: Yes.
PRESIDING ARBITRATOR MILES:
So we take the facts as that Tribunal found them.
MS. SHERKEY: As that Tribunal
found them.
Now, the question is, and this
is what goes. Does that fact exist. It's found
by the Tribunal. It's not a so-called fact. It's
a fact.
It would be, if we are now
saying if Canada was saying it didn't happen, if
[Page 1376]
we were trying to take opposite results, that's
issue estoppel.
That's not the issue here.
The issue here is whether that
fact is a factual predicate that is allowed to
form the basis of a new claim and we say yes.
It was a fact that was before
the Windstream I Tribunal. It found a breach of
FET on the facts before it.
But whether those facts, as a
factual event, then form part of what gives rise
to a new treaty breach, a new obligation, is not
exhausted. It's just a separate question.
And think, for example, of a
gold mine. You may have a representation to
induce a project.
We will move you through the
process speedily and you will go through our
regulatory process, something to that effect, as
we have seen in other cases.
And there is a first claim on
delay. The project is not terminated but there
were delays in getting your EA approvals. The
Tribunal finds that fact happened. Yeah, there
were delays. You suffered damages. Here you go.
[Page 1377]
And then, later, the gold mine
is nationalized and they weren't allowed through
the regulatory process.
That second claim is going to
be based on the same fact, the same
representation. But it's a new question of a new
breach.
So facts can overlap. We say
they are not exhausted.
CO-ARBITRATOR GOTANDA: That's
not a preclusion issue.
The preclusion issue is the
fact that the conversation occurred, as opposed
to, right.
MS. SHERKEY: Yeah.
CO-ARBITRATOR GOTANDA: Yeah.
Okay.
MS. SHERKEY: We say it
occurred. The Tribunal found it occurred.
CO-ARBITRATOR GOTANDA: Right.
Right.
MS. SHERKEY: So the question
is what role, if anything, does that background
fact have on finding a breach here in this
instance. That's a merits issue for you to
[Page 1378]
determine.
CO-ARBITRATOR GOTANDA: Right.
Not a res judicata --
MS. SHERKEY: Not a res
judicata issue.
CO-ARBITRATOR GOTANDA: Yeah.
MS. SHERKEY: So we say this
is quite simple.
PRESIDING ARBITRATOR MILES: I
did say we would stop at 10:30 but I would quite
like you to keep going to 10:45 if you're okay.
MS. SHERKEY: I actually think
I am going to be less than five minutes.
PRESIDING ARBITRATOR MILES:
Okay. We can take the break when you're done.
But you won't get through res
judicata.
MS. SHERKEY: I don't plan to
be long on cause of action estoppel.
PRESIDING ARBITRATOR MILES:
Let's see how you go. If you can get through by
quarter to, then we will clean them up. Thanks.
MS. SHERKEY: Sure.
PRESIDING ARBITRATOR MILES:
Thanks.
[Page 1379]
MS. SHERKEY: So, issue Number
4, Canada argues that we are challenging the
measures about the failure to lift the moratorium
and the moratorium's application to the project.
And, again, we -- of course,
we have to focus on what the Tribunal found.
The finding that is res
judicata. The decision to impose the moratorium
was not wrongful. It didn't breach the NAFTA.
Absolutely. That finding is res judicata.
We are not alleging here, in
any way, that the moratorium is wrongful. It's
not even alleged to breach, itself, the NAFTA.
The question is whether its
continued application, the failure to conduct
research, led to the circumstances that created
the conditions to terminate the contract that led
to the termination right arising and being
exercised. That's a separate issue.
Similarly, the Tribunal also
said, in finding a breach of FET, that the failure
to take the necessary steps or measures within a
reasonable period of time after imposing the
moratorium to bring clarity to the regulatory
uncertainty surrounding the status and development
[Page 1380]
of the project created by the moratorium breached
Article 1105.
So, yes, the application of
the moratorium is part of that uncertainty that
leads to a breach. But they don't -- there is no
finding as to whether a continued application,
after this date, in ways that would give rise to
the termination of the FIT contract, is a breach.
It's just a separate issue.
And, on the final point -- and
we talked about this quite a lot in opening -- on
DCF.
I will make this very simple.
It's not an issue that needs to be determined.
What you'll hear, in the
damages, we are putting forward the comparable
methodology. That's the primary valuation
methodology for you to apply.
DCF can be used as a secondary
reasonability check but we are agreed on the
comparables methodology.
PRESIDING ARBITRATOR MILES:
Okay. I had not appreciated that from a day with
your three experts.
But your primary valuation
[Page 1381]
methodology is the comparables?
MS. SHERKEY: Yes.
PRESIDING ARBITRATOR MILES:
Okay.
And the DCF as a reality
check.
MS. SHERKEY: Yes.
PRESIDING ARBITRATOR MILES:
Okay.
CO-ARBITRATOR GOTANDA: So
here's an issue, though, I do want you to address.
And that is Canada seems to be
arguing that Dr. Guillet's evidence, that the
Tribunal found that -- they basically say that it
was comprehensive -- the most comprehensive
evidence relating to comparable transactions
methodology and that it included undisclosed
confidential information that it did not see fit
to exclude.
Is the finding of the Tribunal
that it can -- that we are bound by undisclosed
confidential information, is that collateral
estoppel? And why?
MS. SHERKEY: No, I have a
response and then I will look at Mr. Terry to see
[Page 1382]
if I messed up his damages submissions.
But I think the answer is
quite simple.
They decided on the basis of
those valuations before them, in 2009, 2013, what
was reliable enough for them. That was the
evidence before them to assess on that valuation.
I do not believe it is a fair
reading to say that means it's res judicata as to
how that valuation methodology is to be applied in
all circumstances going forward.
We know valuation standards
say you -- what they say about hindsight, what
they say about confidential info. You have to
assess the reliability of the comparables before
you. They are new comparables. It's new evidence
on a new methodology.
And so we would say you are
not bound to accept that, just because they
accepted some confidential data, that you have to.
CO-ARBITRATOR GOTANDA: Well,
I guess there's three points to that.
One is, is are we bound by the
approach?
Second is are we bound by --
[Page 1383]
if it's the same, exactly the same comparable is
offered, are we bound to use that, even if it's
now pointed out that that was in error?
And, three, are you arguing,
at all, that, perhaps, we are not bound or perhaps
you can address -- perhaps we are not bound under
sort of general principles of res judicata?
I don't -- I have never seen
an international case raised in this manner. I
have seen it in domestic, having taught this issue
domestic sort of US law. I don't know what the
law is in Canada on this.
But there are well recognized
exceptions to the application of collateral
estoppel and res judicata, including, for
example -- and I am not alleging at all this is
the case here -- but fraud, for example. When
there's fraud, you don't need to apply it. That's
a very well recognized exception.
Less well recognized
exception, under sort of domestic law, though, is
violation of due process. You don't have a chance
to challenge it or mistake.
And so what's your thought on
that?
[Page 1384]
MS. SHERKEY: If you're okay
with it, Professor Gotanda, I think what makes
sense is we will have your questions from the
transcript and Mr. Terry will address them.
Obviously, it won't be in the res judicata.
But, when he comes to the
comparables methodology, I think it might be a
more fruitful discussion with him, as he is
engaging in that, to discuss that with you. So we
will take your questions and answer them.
Is that okay with you?
PRESIDING ARBITRATOR MILES: I
think that's a good idea.
I was just going to say it
comes up from Slide 72 in Canada's closing slides
and it is a new point.
MS. SHERKEY: Okay.
PRESIDING ARBITRATOR MILES:
We hadn't been aware of the point until this
morning.
But, if the earlier Tribunal
did something wrong, I suppose, or got something
wrong, what are the limits, if any, of collateral
estoppel on that?
And it seems to be that Canada
[Page 1385]
is saying, if they thought confidential was good
enough, you are bound by that.
And, if that wasn't right --
whether it's right or not, we don't know. But, if
that wasn't right, are you bound by collateral
estoppel?
MS. SHERKEY: Yeah. And I
think what we will need to take away and will talk
about in the break, this is a new arising in
closing, and so what time is needed to properly
answer it for this Tribunal, will be something I
think we will also discuss in terms of also
answering the question.
PRESIDING ARBITRATOR MILES:
The authorities are on the record. It's just
easier for us, if you look at them, rather than we
look at them.
You did say we all know what
the International Valuations Standards say about
confidentiality. I don't know what they say about
confidentiality. I didn't know they said anything
about it.
MS. SHERKEY: I might have
misspoken. This is where I am not the damages
person. I was thinking hindsight there --
[Page 1386]
PRESIDING ARBITRATOR MILES:
Yeah, you said hindsight and confidential.
So ex post, ex-ante approach
to valuation methodology and the valuation date
and how to treat that; that is built into the
methodology standards.
MS. SHERKEY: Yes.
PRESIDING ARBITRATOR MILES: I
am not aware of anything on confidentiality, so I
will proceed on that basis unless told otherwise.
MS. SHERKEY: Yes, I
apologize. I might be right but I leave it to my
colleagues to confirm that.
PRESIDING ARBITRATOR MILES:
And there may be a nuance in there, if you're
looking at market comparables, what you can take
into account and confidentiality may be implicit
somewhere in there, but you'd have to show me
that.
MS. SHERKEY: We will come
back to that.
PRESIDING ARBITRATOR MILES:
Did you want to say anything else quickly about
res judicata?
MS. SHERKEY: It's just cause
[Page 1387]
of action estoppel, which I think, unless the
Tribunal will have lots of questions on it, I
can -- I have a few slides but I think I can cut
through it pretty quickly.
PRESIDING ARBITRATOR MILES:
Why don't you just do that. And then we have a
clean break so good.
MS. SHERKEY: Parties don't
disagree on the principles. That was one of your
questions. Agreed on principles. Principle on
page 38, again, agreed.
It's what the Tribunal
determined that matters, not what was alleged.
We've got to focus on what was definitively
settled.
And so, here, essentially, if
we go to Slide 39, the question is -- and the
parties agree -- does the prior claim concern the
same claims based on the same factual and legal
bases? Do the facts and circumstances arise from
a single event and give rise to a right of relief?
We say no. You have my point.
This is a case about Ontario's responsibility for
the termination of the FIT contract. That is not
what was before the Tribunal.
[Page 1388]
Really, we think -- I
understand the points of issue estoppel. We have
talked about that and how it gives rise.
That's really where this
discussion takes place, we say, as it relates to
the causes of action. They are just distinct.
Particularly, based on what the Tribunal found.
And, if you look at what my
friend's arguments are, on paragraph 40, in my
friend's opening, they didn't talk about what the
Tribunal found. They talked about what Windstream
argued and we heard let's just simply compare what
was argued in Windstream I with Windstream II.
And they had these fancy charts of the complaints
in the two proceedings.
And we say this just isn't the
right consideration. The question is what was
found by the Tribunal. And you have my point on
why the determination is different than what was
ultimately found.
My friend, in opening, at
Slide 41, asked the question, what would the
Tribunal say. And he said the Tribunal would say
it's already decided these issues.
Respectfully, that's just not
[Page 1389]
a hypothetical that we can answer. It's now the
question before you.
We also heard from my
colleagues, in opening at Slide 42, that this case
isn't about the termination of FIT contract. They
say we are not challenging the IESO's exercise of
discretion but we are using the termination as a
hook to fish out all the old claims.
And so the termination of the
FIT contract isn't the cause of action here.
And we -- that's just not our
claim. And, again, you are to look at what our
claim is, our submissions, as the -- we saw the
case law on limitations that said that.
And the issue here is whether
is Ontario is responsible for the termination.
The fact that we are not challenging the IESO's
contractual exercise isn't the question.
Just clarifying one point that
came up in opening.
Ms. Miles, it arose -- Madam
President, it arose out of a question you had in
opening about Canada doing what it is alleging we
did. It was successful in expropriation in
arguing that the contract wasn't de facto
[Page 1390]
cancelled. And Mr. Neufeld's response is that he
doesn't think it was part of the arguments they
ran.
We have put the excerpt here
on one of their arguments in expropriation.
The moratorium was a temporary
measure. That was one of their arguments in
expropriation as to why there wasn't one. And
they go on, at paragraph 486, that the Claimant
asserts that the Tribunal should ignore these
facts and conclude that the project has been
cancelled.
This assertion misrepresents
the current status of the project.
They go on to make their point
that we say they have re-raised, in this
arbitration, that, if the contract wasn't frozen,
it was due to the actions of Windstream and not
accepting the OPA's offers.
And it's all part and parcel
of their argument that it was a temporary measure.
PRESIDING ARBITRATOR MILES:
And this is under the section of their brief --
sorry, I don't have it to hand -- dealing with
expropriation?
[Page 1391]
MS. SHERKEY: Expropriation,
subheading temporary measure.
PRESIDING ARBITRATOR MILES:
Did they make the same arguments under FET?
MS. SHERKEY: I will have to
double-check that. I do not believe so but I will
double-check that. I will come back to that after
the break.
The last point here on this is
identity of cause of action. I just -- Canada
relied on Apotex III in their opening as highly
relevant, because there was an event that happened
after the first one, a new event, like they say
the termination is new, but there was still res
judicata.
And I think what's very
important, in looking at what was ruled on in
Apotex III, is that the Tribunal said -- and that
had to do with the -- there was a tentative
approval of the drug product, the drug application
called ANDAs. That was found to not be an
investment.
Then the ANDAs were made
final. That was the new fact. They were made
final. And they brought this new claim, saying,
[Page 1392]
well, you dealt with tentatives, ANDAs, and now we
have finals. That's a new fact. That's a new
claim.
And the key point is what the
Tribunal found, saying:
"It's clear from the
reasons that the parties
distinctively put in
issue ANDAS
generally."[as read]
So just tentative ANDAS
weren't what was in issue there. It also included
final approved ANDAs and the Tribunal actually
decided that issue.
So that's the key finding
there.
And then, on identity of
object, the point is very simple.
No dispute, Windstream argued,
for the same relief it argued for the full value
of its investment. But you have our position on
what was awarded and the key part about
renegotiating and additional value.
So those are the submissions
on the two threshold issues.
[Page 1393]
PRESIDING ARBITRATOR MILES:
Ms. Sherkey thank you so, so much. And sorry to
keep you up for so long. And, Lisa, apologies to
you.
If the rest of the day is like
this that, from my point of view, will be
spectacular. That's incredibly helpful. So thank
you very much.
And we will -- so we will take
a break. How long do we need? Let's take 15
because a few things came up there.
So we will come back just
short of 15. We will come back at five past 11.
Okay.
--- Upon recess at 10:53 a.m.
--- Upon resuming at 11:09 a.m.
MS. SHERKEY: I have just two
clean up clarification points.
On one point where we ended on
international standards for confidential info, I
was not wrong and I do have a source for you and I
thought I would just give that to you now while
it's fresh in our mind.
C-2278 is the International
Valuations Standards, paragraph 23(j), requires
[Page 1394]
the nature -- 20.3(j), as Ms. Shelley reminds me,
is the nature and sources of information upon
which valuers rely must be disclosed.
Section 105, para 30.7,
sufficient info on transactions should be
available to allow the valuer to develop a
reasonable understanding of the comparable asset
and assess the valuation metrics comparable
evidence.
PRESIDING ARBITRATOR MILES:
That's really helpful. You have taught me
something.
I take it, from the last part
of that, that that is in the market comparable
methodologies?
MS. SHERKEY: Yes.
PRESIDING ARBITRATOR MILES:
So not for DCF, necessarily?
MS. SHERKEY: That was
focussed on the comparable methodology. 20.3(j)
is general. The first one. The first one, nature
and sources of information upon which valuer
relies to be disclosed general.
PRESIDING ARBITRATOR MILES:
And the Section 1.5, para 37, was the specific.
[Page 1395]
MS. SHERKEY: Paragraph 30.7
is comparables.
PRESIDING ARBITRATOR MILES:
That's excellent.
And, just while we are on it,
the -- I understand -- I don't believe Dr. Guillet
referred to the standards. Secretariat did, but
the CVS, not the IVS.
Is that something that we need
be concerned about? We don't believe the CVS are
on the record.
MS. SHERKEY: Ms. Shelley is
looking.
The other question while she
looks -- can I have a time update?
MR. ARAGÓN CARDIEL: It's been
one hour and 15 minutes since the start of your
presentation.
MS. SHERKEY: Okay. So
45 minutes, which means I will need to be a bit
nimble on FET to ensure that Mr. Terry has time to
speak to you about expro and damages.
PRESIDING ARBITRATOR MILES:
That's fine. Nimble is good.
If you could sort out, perhaps
[Page 1396]
in the break and let us know after lunch, on the
standards. If we could get agreement between the
parties that, although neither expert, I think,
has referred to the International Valuations
Standards, that we may, that would be helpful.
And it may be they are in the
party's submissions. They must be referred to
somewhere, which is why they are an exhibit.
MS. SHERKEY: We will look at
that.
PRESIDING ARBITRATOR MILES:
It shouldn't be contentious. And I don't know
what the difference is between the Canadian and
the international, so.
All right, okay. Off you go.
MS. SHERKEY: So, for FET, I
had ten slides here on the legal standard which I
think, for the interests of time, I propose to
move past, unless there is questions that you
have.
They are all in the written
submissions and we have highlighted them here.
But you heard Mr. Terry this
morning. Waste Management is the standard applied
by almost every NAFTA Tribunal and Canada has,
[Page 1397]
itself, relied on it in its materials.
So the breach of FET.
We say this is a case of --
and we are going to move to Slide 60.
We say this is a case of
arbitrary and grossly unfair conduct. I have
given an excerpt here of what arbitrariness is.
We say it's not, as Canada
suggests, limited to conduct that violates due
process or does not respect legal rules.
And that's one element that
may be arbitrary but the case law has found there
are other elements, and we have given a
description here from the Lemire case as well as
cites to other cases, including the lack of a
legitimate purpose, decisions based on discretion,
prejudice, personal preference, reasons not
matching up, reasons measure being taken for
reasons different than what's put forward, as well
as a willful disregard of due process and
procedure.
So, as the Tribunal in
Windstream I said, we can talk about the standards
-- well, they don't say this. This is my add on.
But we can talk about the
[Page 1398]
legal threshold to the end of the day. But, as
the proof of the pudding is in the eating, we just
got to look at the facts.
So we say here that there is a
bunch of conduct that leads to the arbitrary and
unfair gross result.
Despite the promise to freeze,
despite the representations Canada made in
Windstream I about the legal status of the FIT
contract, and then despite the Tribunal's finding
of legal and contractual limbo, we say Ontario
then took no steps to resolve the situation it
created.
Instead, it made an immediate
and deliberate decision to take no further action
and there's no legitimate rationale for this
failure to do so and failure to renegotiate the
contract.
And we have set out four
categories.
Mr. Terry reviewed them with
you, at a high level, this morning, and this is
what I am going to walk through on the facts
leading to the NAFTA breach.
So the first is the lack of
[Page 1399]
clarification.
After the award, Windstream
has an expectation and a belief that there is a
path forward for the project.
I highlighted Ms. Baines'
evidence for you in opening as to why it had that
belief and where it came from.
And one of the key points is
it immediately, if we go to the next slide, Slide
62, it immediately and clearly communicates this
to Ontario. It sends letters asking to meet. It
sets out its position that there is next steps for
the project.
Ontario responds and says you
should meet with the IESO. But they never respond
to say you have been fully compensated, what are
you doing trying to move this project forward.
There's no path here. No one clarifies that
situation.
On the contrary, everyone, we
say, on the evidence, proceeds on the basis that
there is a valid FIT contract and a potential path
forward for the project.
And, if we look through this,
we see, on internal documents noting, on the next
[Page 1400]
slide, the FIT contract remains in force and, of
course, you have my submissions from opening that
the $6 million letter of credit is not returned to
Windstream.
And, Mr. Neufeld, in opening,
took you through termination rights in the
contract to say, well, they couldn't have returned
it. There wasn't an ability to terminate and,
indeed, that doesn't arise until Section 10.1(g).
Contractually, that was right
but that is not the only options available to the
government, particularly on their position that
Windstream's been fully compensated and there's no
path forward.
We have seen many examples of
terminations in this record.
TransCanada, the example I
walked through with Mr. Lyle. The government made
a political decision to terminate that contract
when there was no contractual right. The OPA
implemented it.
The same with a number of
other greenfield sales. There was another of
other examples. They passed legislation to
terminate the White Pines project. They issued
[Page 1401]
directives to terminate other contracts.
And so, if Windstream was
fully compensated, they didn't have to keep the
contract in force. There were means to terminate
it. And there was, according to them, no damages.
But Windstream would have had certainty as to what
the status of affairs was and would have gotten
its $6 million back.
PRESIDING ARBITRATOR MILES:
Is there any factual evidence on the record,
documentary or testimony, or that Windstream asked
for the $6 million back or took any steps to try
to renegotiate early termination to get the
$6 million back?
MS. SHERKEY: No. Not in the
post-2016 period. Because it was focused on
moving the project forward and it was meeting and
asking how can we do that, what can we do in that
realm.
So it's the opposite. They
had the obligation and they were trying to move it
forward, but they're understanding that there was
a path to do that. So they weren't looking for
the early termination.
And if the government was
[Page 1402]
saying there is no path, if the government was
saying you have been fully compensated, don't
incur project costs, don't take any steps here
because you have no project, we say it was for
them to clarify that situation.
PRESIDING ARBITRATOR MILES:
And when you say the opposite, that's right, isn't
it, on the facts, insofar as Windstream went to
court to stop the IESO giving their $6 million
back.
MS. SHERKEY: Yes, yes.
PRESIDING ARBITRATOR MILES:
So they took affirmative positive steps --
MS. SHERKEY: Yes.
PRESIDING ARBITRATOR MILES:
-- not to get their money back.
MS. SHERKEY: Yes. Well, took
affirmative steps to preserve their project and
the additional value, they say, should have been
created, which ties --
PRESIDING ARBITRATOR MILES:
And the consequence of that.
MS. SHERKEY: And the
consequence of that ties up the 6 million.
Assuming the IESO would
[Page 1403]
exercise its rights, right away, and it could have
gone on indefinitely.
We don't know that
hypothetical, if the IESO application was brought
when the right would have been exercised.
They didn't have to exercise
it. They just had the option to exercise it.
PRESIDING ARBITRATOR MILES:
But Windstream knew, at the time it brought its
injunction proceedings, that termination was
imminent. That's why it brought the injunction
proceedings.
MS. SHERKEY: The right was
imminent but they didn't know if a decision would
be made or not.
PRESIDING ARBITRATOR MILES:
Okay.
And Canada never -- sorry,
IESO never defended those injunction proceedings
on the basis of but we are not going to terminate,
don't worry?
MS. SHERKEY: No. They first
said it was premature. We haven't exercised it.
And then, when the parties reached the adjournment
agreement for it to make that decision, that's
[Page 1404]
when it was brought back on, with the decision
having been made.
But, up until that point, the
argument was you're premature.
PRESIDING ARBITRATOR MILES:
Okay. Thanks.
And so, as Mr. Terry touched
on, at Slide 64, the regulatory framework.
So the IESO contract is in
force. Windstream never hears back from the
Ontario clarifying the situation. The $6 million
is held on to. The regulatory framework continues
to envisage offshore wind, as the Windstream I
Tribunal found. That continued after the award.
That continues to this day.
There have been other
amendments to the REA, but not to offshore wind.
And another point is that, in
addition to retaining the $6 million security,
Windstream's other applications, its AOR
applications, are still pending. Nothing's been
returned. Nothing's been cancelled.
Over on the next slide, 65.
Then, in addition, there's the
public statements we went through in opening that
[Page 1405]
are set out in Ms. Baines' witness statement.
Ontario states research is being finalized. When
asked if the project could be built, the
government says yes.
So these all lead to the
expectations, the understanding, as Windstream
tries to move the project forward in this period,
to the extent it could.
And then, what we have
learned, in this arbitration, is that MEI has
decided immediately, when it received the
Windstream award, nothing further was required of
it. It was not going to meet with Windstream. It
was not going to take any steps.
And what we learned from
Mr. Teliszewsky is there were no discussions
before they made this decision. MEI wasn't
meeting and said, hey, Windstream is trying to
meet with us. Should we meet with them? Is a
renegotiation of the contract something we should
do? They have given directives in other cases.
We saw the TransCanada example. There is the
greenfield itself. There is a whole list of them
in our evidence where they have clearly gotten
involved in other contractual matters where they
[Page 1406]
felt it was appropriate but they didn't have any
such discussions in this case.
I have highlighted his
evidence here on that point.
And, in fact, the commitment
that was made, on February 11th, at the
teleconference call, if we search over the page,
as the chief of staff, he had no knowledge of
this.
So there certainly weren't any
discussions of whether there was an obligation on
the government or what role that commitment has on
this going forward. The chief of staff wasn't
even aware of it.
And they not only decide, at
MEI, that there is not going to be any dealings
with Windstream. But, if you flip over the next
page, they also communicate to all branches of the
Ontario government; Premier's office, MNR, MOE, we
see them all copied on this email.
We strongly suggest no
political government representatives engage in
dialogue with Windstream or their
consultants/lobbyists at this time.
Then we have Ontario stopping
[Page 1407]
to do research.
Research was the entire stated
rationale of the moratorium. It -- Canada's
position in Windstream I was that the moratorium
was temporary. You saw the statement I just took
you to that Ontario stated, after the award, when
asked questions about the Windstream I award that
was finalizing research.
Now, in this arbitration, we
hear further confirmation that, in fact, this
research isn't happening. There's no need to do
it. And we say there's no credible basis for
this.
And, again, this is all part
of the circumstances that lead to the termination.
But when Canada, in this
arbitration, says there's no need to do this
research -- and they talk about, as well, in that
paragraph where they say that, Ontario's energy
needs in September 2016. There's no evidence
before you on that.
There is no witness statement.
There's nothing in this record that tells you why
they stopped doing research. We just have the
assertion that they have.
[Page 1408]
We asked for documents to be
produced on this. We don't have them. And, in
fact, we have a document produced from a freedom
of information request that says, given the new
government's message on wind power, this is the
Ford government who came in in June 2018. I don't
think it's about doing more studies anymore.
So whatever rationale once
existed for the moratorium seems to have been
replaced by others.
And, ultimately, what this FET
claim really comes down to is this failure to
direct. Ontario's decision to not involve itself
when we say it had made commitments to do so, that
there was further value to be awarded and the
government took no actions without any meaningful
discussions.
Now, Canada's response on this
is there was no need to direct.
Again, highlighting, in
September 2016, Ontario was moving away from
long-term energies. And, again, that's not the
evidence before you as to was that was a
motivation for the government.
Mr. Teliszewsky said that
[Page 1409]
Ontario decided, after it received the award,
there was nothing further required of it and they
didn't have further meetings or discussions about
it beyond informational updates.
So the evidence is not that
the energy needs had any bearing on the decision.
Second, Canada says it's
completely normal practice to refer parties to the
IESO. That's what Ontario does and so it was
completely reasonable here. The IESO is the
contractual counterparties.
And we say there are two
issues with this.
The first issue is over on the
next page. This puts Windstream into a cycle of
between MEI and IESO. These were not
contractual issues with a contract. These were
political issues that the IESO could not resolve.
The IESO did not make the
commitments to Windstream. The IESO had no
ability to talk about the moratorium, when it
would be lifted, what its impact is. That was not
the IESO's purview.
So the Ministry was sending
Windstream to a party who could not address these
[Page 1410]
political issues while -- and the IESO was saying
we can't deal with those. Contractually, we are
not going to amend your contract.
And so then the second issue,
we say, with Canada's response on this is that
it's just not true.
The Ontario government, in
many instances, has used its directive power to
involve itself in contractual relationships with
other parties. There is significant evidence we
have put forward that we can now confirm, in
closing, is unchallenged.
Ms. Powell, I have excerpted
her expert testimony here, explains these powers
and why it would not be exceptional and she sets
out a number of examples.
Mr. Smitherman does the same
in his witness statement, as does Mr. Killeavy,
who was cross-examined but not on these issues.
And, again, just in the
interests of time, we have excerpted here examples
of times they have involved themselves in other
contractual matters and didn't say, sorry, you
have to go to your contractual counterparty. We
don't get involved in these things.
[Page 1411]
And, in fact, one of those
examples is Windstream itself when it was
negotiating with the OPA, at the time, to sign the
FIT contract and was asking for the extra year.
The OPA said no. Windstream went to MEI. MEI
didn't say no, we don't involve ourselves in these
things. It went to the OPA. And said give them
the extra year, and they did.
Slide 76 is confidential.
What I propose to do, I think, just, with time, is
I am not going to get too into the weeds of it.
So I just propose not to put it on the page and
talk at a high level, if that's suitable. We can
see if we need to change that.
But, essentially, the point is
it's the same slide I had in opening. It's
detailed in our written materials.
The IESO's reasons for
terminating the FIT contract all circle around
the -- the Ontario government's conduct. Delay by
Ontario government, in the moratorium, in the
development of the project and the lack of
direction from the government makes it very clear
that it was because of the conduct of the
government that the termination right arose.
[Page 1412]
And this failure to implement
the promise to freeze is, yes, a 2011 promise.
We say it was reiterated
during the Windstream I hearing in what -- when
you think, chronologically, of the events that
lead to the post-2016 period, we have highlighted
here the excerpt from the Windstream I award on
what Canada's position was in the arbitration.
As well as, on the next slide,
excerpts from the counter-memorial.
And, at the hearing, of times
they made the statement about the contract being
frozen, its ability to proceed when the necessary
scientific research was completed and informed.
And, from the government's
point of view, nothing prevents the Claimants from
moving forward once the policy framework's in
place.
So this leads to the breach.
We say there was no legitimate
rationale for refusing to implement the
commitments made. This wasn't about creating new
value or a new project, sitting down to say let's
come up with something brand new for you.
This was, we say, unblocking
[Page 1413]
the impediments put there by the government. And
that simple step of doing that would have had
value creation recognized by Windstream I Tribunal
that it was not awarding.
Canada says, well, we could
have done that but we didn't have to do that.
And we say that obligation
arises by virtue of the fair and equitable
treatment that it is arbitrary, it is unfair to
have made those commitments, to have recognized
that there was still a path to further value,
beyond what the Tribunal was awarded and blocking
that from Windstream.
And then the failure to
resolve the legal and contractual limbo for the
period of time shortly after the moratorium was
found by the Tribunal.
And then, with that finding,
Ontario did nothing to change its conduct after
the award. We talked through its failure to
clarify the situation, to conduct legal research.
It's holding on to this $6 million letter of
credit, the AOR applications.
And we say this, like in
Mobil, continues to breach its international
[Page 1414]
obligations and its duties to perform its
obligations in good faith.
The final point I will make on
FET is a direct answer to your questions, which is
you had asked, if you accept the limitation
argument on some of the measures, but not all of
them, what impacts does that have to your FET
case?
Essentially, the FET case is
B. That's the real heart of the issue.
So, if you remove A, we say
there's no impact. It's still a background fact.
Factually, the termination right arose because the
contract remained in force majeure, the moratorium
continued to apply. But the breach, the heart of
everything is on Ontario's decision to take no
steps to ensure the FIT contract was renegotiated.
So I hope that addresses your
question.
And those -- those are the
submissions on FET.
PRESIDING ARBITRATOR MILES:
Very good. Thank you very much.
CLOSING ARGUMENT BY MR. TERRY (cont'd):
MR. TERRY: So I will be
[Page 1415]
covering expro and damages and I will skip ahead
on expro to Slide 96.
And, the part I am skipping, I
already discussed in my opening, it's the sole
effects point and also the vested rights point.
So this gets to the question
of the application of CUSMA and the tests set out
in Annex 14B of CUSMA.
And we have five arguments
here.
First of all, we say this was
actually -- this is res judicata from the previous
Tribunal. Or issue estoppel from the previous
Tribunal.
The argument was made not with
CUSMA but with other similar provisions in other
treaties, customary law and, for other reasons,
that the Tribunal should apply this test. The
Tribunal did not apply that test. They applied
the sole effects doctrine instead.
So we would argue that that
issue is already dealt with by the previous
Tribunal.
And we have got, on the next
slide, Slide 97, we show the arguments that were
[Page 1416]
made in Canada's counter-memorial with respect to
that issue.
The second reason, on Slide
98, is, just to be very clear, the CUSMA --
certainly with respect to claims being brought
under CUSMA -- and, for example, there can be
claims brought between the US and Mexico under
CUSMA -- it's very clear that this test is applied
through the treaties. And we have set that out on
this slide.
But, here, we are dealing with
a legacy claim under the NAFTA.
So you look to Annex 14C of
the CUSMA and there's nothing there that indicates
at all that the provisions that are set out in
14B, Annex 14B are applicable to legacy claims
such as claims between Canada or from the US
investor in Canada.
So, again, as we say here, if
the state parties had wanted to make it
applicable, they could have in drafting, in
agreeing on language in the CUSMA in Annex 14C.
Third, the next slide, Slide
99, we say that Canada's not put forward evidence
of state practice or opinio juris to establish
[Page 1417]
that Annex 14B reflects the contents of customary
international law and we set out, briefly, that
customary international law, of course, requires
state practice of opinio juris. State practice
must be widespread and consistent and we just
don't have that evidence from Canada.
The fourth reason, just on the
next page, just looks to the jurisprudence on the
sole effects and emphasizes, from this
jurisprudence, that the intent, i.e. the character
of the measure itself, whether it's intended to be
expropriatory, is secondary and the focus is on
what the effects, the economic effects on the
investment are.
And that's, again, consistent,
we say, that the test that's set out in the CUSMA
should not be applicable in this case.
And then, finally, the fifth
reason, on Slide 101, is that there's no broad
public purpose exemption to expropriation in the
jurisprudence. And, effectively, that's what
Canada's trying to do, we would say, in trying to
apply CUSMA to this case, is bring in the broad
public purpose doctrine.
And, again, we have set that
[Page 1418]
out on the next slide as well, 102 and 103.
So by way of -- those are the
sort of preliminary matters on sort of what's
required on expro.
Our argument, as I said, in
opening is quite straightforward in terms of
expropriation. We say that there was, to the
extent the Tribunal did not find an expropriation
of the FIT contract in the 2016 decision, clearly
now, the FIT contract is gone.
Yes, I see you're about to
have a question.
PRESIDING ARBITRATOR MILES: I
was just wanting to check that your second to
fifth reasons inclusive are all arguments that you
put forward in Windstream I that led to your first
reason?
MR. TERRY: I will just
double-check and with my far more knowledgeable
colleagues.
PRESIDING ARBITRATOR MILES:
Are there any new arguments other than collateral
estoppel?
MS. SHERKEY: Sorry, the --
your second and fifth reasons, in terms of this
[Page 1419]
issue of the applicable test on expropriation?
PRESIDING ARBITRATOR MILES:
No, I am sorry. I was catching up.
You had five reasons why
Canada's test, on the basis of Annex 14B of CUSMA,
should be rejected. The first was issue estoppel.
And you had two, three, four, five.
Were two, three, four, five
all arguments that you made in the first
arbitration?
MS. SHERKEY: Two was not
because there was no CUSMA. So, in terms of the
actual direct applicability, no.
And third is kind of tied to
that. Canada is now arguing that the CUSMA is
reflected in customary international law.
Four and five were before the
Windstream I Tribunal.
Five, in terms of police
powers, there are some new authorities there that
have come out more recently but the argument is
the same.
PRESIDING ARBITRATOR MILES:
That's helpful. Thank you.
MR. TERRY: I would like to go
[Page 1420]
to Slide 105.
And, again, as I said before,
our expropriation argument is straightforward.
We say that value has been
created subsequent to the award. We provide the
examples, as you have heard, in paragraph 105,
about the costs that were incurred with respect to
this issue.
And we later on, in the
damages, have a slide that sets out Secretariat's
determination of the costs incurred and also in
response to your questions about -- your question
about the incurring of those costs from the day of
the hearing versus the date of the award.
So I will deal with that now,
if that's okay.
CO-ARBITRATOR MCLACHLIN: How
do you link the expenditures to the creation of
value? Value is usually measured on what you get
in the marketplace.
MR. TERRY: Yeah. We rely in
this on Secretariat's report where they include
project costs and general principles of damages
were project cost, sunk costs are included as
value in a valuation of a project.
[Page 1421]
So there's, in the damages
valuation, as we know from investment arbitration
cases, is often Tribunals will choose sunk costs
as opposed to full damages based on either
comparables or DCF.
So that's what we rely upon.
CO-ARBITRATOR MCLACHLIN:
Thank you.
MR. TERRY: All right.
PRESIDING ARBITRATOR MILES:
Is that right? That's the second time your
damages case has taken me by surprise this
morning. The first time was when you said your
primary damages case is comparables, not DCF. I
now understand that to be your position.
But are you saying that's
still not the case on expropriation? Your primary
damages methodology for expropriation is the
investment costs valuation methodology, not market
comparables and not DCF?
MR. TERRY: The issue and,
frankly, to be completely candid, I would be
pleased if the Tribunal has a different
perspective in this.
But we
[Page 1438]
1 connection. We are talking about the connection
2 here.
3 MR. TERRY: Yes. So that's
4 the breach.
5 And the connection is that,
6 that particular breach, because the IESO was not
7 directed by Ontario -- and Ms. Sherkey went
8 through all the ways in which the IESO can be
9 directed, both formal and informal, to take those
10 steps to renegotiate the contract. The contract
11 was then terminated because, of course, it had
12 come to the expiry date.
13 PRESIDING ARBITRATOR MILES: I
14 think it's just made sense to me now.
15 So Canada, you say, breach of
16 FET, Canada's omitting to intervene, so it's a
17 negative act, Canada's omission in intervening is
18 a breach. We need to decide whether or not that's
19 a breach.
20 If we decide there is a
21 breach, your causation is, but-for their failure
22 to intervene, the IESO would have done something
23 different?
24 MR. TERRY: Yes. And,
25 specifically, the omission was the omission to
[Page 1439]
1 direct the IESO to uphold the commitment.
2 So we say, in that causation,
3 it's very direct. The IESO is being told to do
4 something by the government.
5 PRESIDING ARBITRATOR MILES:
6 Mr. Neufeld, just when your team gets to it. It
7 would be interesting to understand, as at now, in
8 closing, if that's in dispute, if we were to find
9 that the failure of Canada to intervene and direct
10 the IESO were a breach of FET, is causation, at
11 that point, in issue?
12 Ms. Squires, I should be
13 talking to you.
14 I know, in your opening, you
15 spent an awful lot of time on Biwater Gauff and
16 you were, going to their point, there can't be
17 causation if there is no loss. I don't think
18 that's a universal view on all awards and
19 certainly not in the dissent in that award.
20 But, leaving aside that
21 argument which we will need to consider because
22 you've pleaded very eloquently on that. But, for
23 that, is that causation actually in dispute.
24 And, sorry, my penny is
25 dropping a bit late on this point.
[Page 1440]
1 Perhaps that is why you
2 focused so much on Biwater Gauff. Because that
3 point really can't be disputed. It doesn't mean
4 their FET claim, necessarily, succeeds or gets
5 close to succeeding, there's still the breach
6 needs to establish.
7 But, in that causation, had
8 the government intervened, would the IESO have
9 done what the government directed it to do.
10 MR. TERRY: Yes. That's --
11 yeah. That's exactly right. That's the causation
12 link.
13 So perhaps I will turn to the
14 next slides which gets, as you say, to the
15 experts' job of the but-for world. They are
16 instructed to assume.
17 So there are some issues
18 raised which we are just responding to in the
19 but-for context and explaining why -- well,
20 explaining the support for these and for the
21 counterfactual and the but-for world.
22 First, the IESO would not have
23 had the ability to terminate the FIT contract.
24 And, again, if Ontario had upheld its commitments
25 to Windstream, it would have directed the IESO to
[Page 1441]
1 renegotiate or amend the FIT contract.
2 Secondly, the moratorium would
3 have been lifted and we note that the a
4 moratorium, just by its definition, is temporary
5 but it was always certainly advertised by Ontario,
6 at the time, as being temporary. And, you know,
7 there's lots of evidence in the record in both
8 proceedings on that.
9 The stated premise of the
10 rationale was that it was temporary measure while
11 the government conducted scientific research, as
12 you have heard about.
13 And this was also canvassed
14 before Windstream I. So applying reasonable
15 assumptions in but-for, by definition, this
16 measure cannot last and must be lifted.
17 Then, if we go to the next
18 slide, we had issues that were raised about
19 technical feasibility and whether or not the
20 project would have been able to achieve commercial
21 operation. This summarizes some of the relevant
22 evidence here.
23 There were questions, by the
24 way -- it's important to emphasize here that, at
25 the previous hearing, Canada put forward its own
[Page 1442]
1 set of technical experts to match Windstream's
2 technical experts.
3 That wasn't done in this
4 particular case and, of course, Canada didn't --
5 chose not to cross-examine Mr. Irvine, the primary
6 technical expert for Windstream.
7 And, in this particular
8 case and so, you know, in our submission, the
9 best evidence is the experts on this one. There
10 were questions put to other experts to damages
11 experts, for example, to get information with
12 respect to these issues.
13 But, if Canada had wanted to
14 take these issues on squarely, in my submission,
15 they had the opportunity to call these experts.
16 CO-ARBITRATOR MCLACHLIN: Can
17 I ask you a question that's been bothering me.
18 Perhaps it shouldn't.
19 But your case is that there
20 should have been a renegotiation.
21 Had there been, there would
22 have been a lot of possibilities. One would have
23 been that the tariff price would have been
24 changed, which may be a reason why you're not
25 emphasizing the DCF at this point so much.
[Page 1443]
1 But would it have affected --
2 if the price had been reduced, for example, what
3 would it do to your comparables?
4 MR. TERRY: Yeah, I think,
5 again, I hesitate because I am not an expert on
6 this and I don't believe Secretariat gave evidence
7 on that particular issue.
8 But the assumption would,
9 presumably, be that, if the tariff price would
10 lower, the project value would be lower. I mean,
11 that's my common sense approach.
12 CO-ARBITRATOR MCLACHLIN: I
13 just wondered if you had actually proved your case
14 to the balance of probabilities on that question
15 of what would have been renegotiated and how that
16 would have affected damages.
17 So, in that general sense, you
18 say you have established, on a balance of
19 probabilities, that the comparables or the DCF
20 figures put forward would have been those that
21 would have been achieved on a renegotiation?
22 MR. TERRY: Well, what we have
23 done with the experts -- and we certainly
24 considered and the experts have considered this
25 issue. Of course there's no, there's no
[Page 1444]
1 particular evidence and it's difficult to make
2 assumptions about what would happen in any
3 particular negotiation in the future.
4 The experts have done
5 sensitivity analysis with respect to certain
6 issues. They have given ranges of damages.
7 You also, of course, have -- I
8 will be getting to it but there's indicia of
9 other -- other indicia that's useful for
10 comparables analysis.
11 So the answer is we don't have
12 and, of course, if the Tribunal directs the
13 experts to do a sensitivity analysis on that, we
14 don't have that evidence right now with respect to
15 what would happen, what would be likely to happen
16 in any particular negotiation.
17 We have the evidence that's
18 provided with the experts and there's flexibility
19 and sort of optionality that's provided.
20 So, in that respect, I
21 don't -- again, Ms. Miles yesterday, mentioned a
22 hospital pass. I mean, I appreciate, to some
23 extent, that we would be looking to the Tribunal
24 to use the evidence to if you were to go to
25 make a determination of a breach and being do that
[Page 1445]
1 to rely on the evidence, but we don't have that
2 particular evidence in front of you.
3 CO-ARBITRATOR MCLACHLIN:
4 That's very helpful because I just wanted to know
5 what we are working with here.
6 MR. TERRY: Sure.
7 CO-ARBITRATOR MCLACHLIN:
8 Thank you.
9 MR. TERRY: And we do, we have
10 actually put these references in in a different
11 context but we do refer, later on, at Slide 137,
12 to some examples of cases where Tribunals have, as
13 they are working their way through damages and
14 they decide they are taking a different path and
15 want more evidence, certainly Tribunals have
16 directed the parties to provide additional
17 evidence on that in certain circumstances.
18 I am not saying you should do
19 that here. I am just using, providing examples
20 where that's occurred.
21 PRESIDING ARBITRATOR MILES:
22 Is the Econ One damages decision out? Or was that
23 just the merits decision?
24 MR. TERRY: I believe -- I --
25 this is just from personal knowledge. I am not --
[Page 1446]
1 my colleague who was pulling this case, Natasha
2 Williams, I don't know if you heard from
3 yesterday.
4 MS. SHERKEY: I just did a
5 quick look at italaw and I only see the directions
6 on quantum and I don't see a decision yet.
7 PRESIDING ARBITRATOR MILES:
8 Yes, I don't think the decision is out yet.
9 CO-ARBITRATOR GOTANDA: There
10 are cases -- and correct me if I am wrong on
11 this -- in the record that don't have comparables
12 that don't have an FIT contract.
13 MR. TERRY: Yes, there are
14 certainly examples of those, yes.
15 CO-ARBITRATOR GOTANDA: Yes.
16 PRESIDING ARBITRATOR MILES:
17 Just coming back to Justice McLachlin's question
18 which I think puts the finger on the button.
19 So first on the as I
20 understand the parties' quantum experts,
21 Dr. Guillet says, in an early stage development,
22 tariff price is irrelevant. He is pretty clear
23 about that.
24 He says that it's -- the only
25 two factors are the price paid on the sale of an
[Page 1447]
1 early stage development, and the wind capacity.
2 So he gets his multiplier of
3 .6 using those two factors. So those are the only
4 variables in his equation.
5 So tariff price would not come
6 in. Secretariat disagree with that. And this is
7 the discussion about the New York lease cases is
8 much higher tariff price because they are attached
9 to those leases and they're outliers that
10 Dr. Guillet chooses to exclude.
11 So we have that information so
12 Claimant says tariff price affects market
13 comparables valuation. Respondent expert says it
14 doesn't. Everybody accepts tariff price has to
15 impact a DCF because it's one of the main inputs
16 into a DCF.
17 So I think, unless someone
18 corrects me in the course of today, there's -- the
19 data we need is clear on that.
20 What I wanted to come to,
21 relatedly, is the next step.
22 If the breach is the omission
23 in intervening. And the loss is the loss of a
24 renegotiated, reactivated FIT. You would say --
25 and this is where we get to the overlapping but
[Page 1448]
1 the entirely different but-for purposes.
2 The but-for on causation, the
3 legal question, but-for the omission, there would
4 have been a reactivated renegotiated contract, is
5 your FET case.
6 And then what the experts say
7 is, in their but-for world, here is what that
8 reactivated and renegotiated contract would have
9 been worth, in a but-for world, less the real
10 world.
11 So they also use but-for but
12 not in the legal sense.
13 Then they -- what they do is
14 they back that. They take Secretariat, certainly
15 on both -- well, on their DCF, for sure. They
16 value the entire project. And then they discount
17 it in different ways, either using the IRR with
18 the structured transaction approach or they
19 discount it with the haircut, with the
20 55-60 percent haircut.
21 And that's where they take
22 whole lifetime value of this project back to what
23 you're actually saying you lost here, which is not
24 a whole contract but a reactivated and
25 renegotiated contract.
[Page 1449]
1 So wouldn't you say that, in
2 the way they have modelled the quantum with the
3 discounting optionality of either IRR or if we
4 accepted the IRR were high enough or the haircut,
5 that that accounts for impact that we may
6 otherwise call break in the chain of causation.
7 So you might have had a
8 renegotiated contract but you were never going to
9 get to full project, that you have already
10 accounted for that risk if you might not get that.
11 To put it another way, insofar
12 as all a renegotiated reactivated contract gives
13 you is a chance to run this project, that
14 discounting for that probability of succeeding in
15 that chance is already in your damages model, you
16 would say?
17 MR. TERRY: Yeah. And I
18 think, I mean, there is one thing also, of course,
19 it's important to clarify here.
20 If you look at what the
21 commitment that was made by the government to
22 Windstream was to keep the project whole, so to
23 allow it to proceed once the moratorium was done,
24 the science had been done.
25 So, yes, we do say they should
[Page 1450]
1 have directed the IESO to renegotiate and
2 reactivate the contract.
3 But our case, I mean, at its
4 highest, in this respect, is that keep whole means
5 maintain the same tariff price, maintain the same
6 contractual provisions.
7 Now, if you understand what I
8 am saying there.
9 So, you know, that is,
10 essentially, I think the starting point for the
11 Secretariat model.
12 Certainly, it's the
13 proposition that Justice McLachlin has put forward
14 that, instead of the government making it whole,
15 that what might happen instead, in the but-for
16 world, is a renegotiated contract and some change
17 in the tariff price or other provisions in the
18 contract is certainly, you know, it's certainly
19 within the realm of what could occur.
20 Secretariat has done its
21 discounting and its analysis on the basis of the
22 project had been kept whole.
23 I think they have described,
24 in their report and in their evidence, the very
25 sensitivity analysis they have done in response to
[Page 1451]
1 certain issues that have been raised.
2 But, and I look at my
3 colleagues and experts in the back to confirm that
4 I am not misstating anything here.
5 But Secretariat has not, has
6 not done an analysis that tries to, for example,
7 to look at the various ways in which a contract
8 might be negotiated and the various sensitivities
9 that arise on that.
10 And that's, that's, I guess,
11 where I point to some of the case law, if the
12 Tribunal wants to have more work done in that
13 particular area that you can use in terms of your
14 deliberations, there are precedents for doing
15 that.
16 CO-ARBITRATOR MCLACHLIN:
17 Thank you.
18 PRESIDING ARBITRATOR MILES: I
19 think what I was just trying to get to was because
20 of the discounting, whichever approach you take,
21 the evidentiary burden is not quite so high that
22 the Claimant need show there would never be any
23 regulatory impediment ever on this project. There
24 would never ever be a technical issue or a
25 construction issue on this project.
[Page 1452]
1 That's all the risk that's
2 built in in that haircut or in their IRR. The
3 reason why an investor would expect a much higher
4 IRR much earlier in the project is because all
5 that uncertainty is still out there.
6 And unless there were, you
7 know, a complete guillotine drop of, you know, you
8 just can't build windmills this big or this small,
9 then that risk is what you say you factored in.
10 And the question for us, if we
11 ever were to get there, is have you factored in
12 enough risk. But that's not a causation point.
13 That's a valuation point.
14 MR. TERRY: Exactly, yes. I
15 would agree.
16 I was on Slide 119 and I don't
17 need to spend a lot of time on this one.
18 But if I could stay on Slide
19 119, briefly.
20 Is just that we do have the
21 evidence about technical feasibility that comes
22 from the experts, Wood and Two Dogs, that the
23 principal who is at Wood is now at Two Dogs.
24 That's why you see it's a different company name
25 in the reference to Two Dogs.
[Page 1453]
1 And just, you heard yesterday
2 from Dr. Guillet he would not describe himself as
3 a technical expert. And so there's no technical
4 expert that's been brought in to rebut or respond
5 to what Wood and Two Dogs say.
6 And, and we have also the
7 evidence, the regulatory evidence, again, from
8 Sarah Powell who testified in the last proceeding
9 and provided witness statement in this proceeding,
10 about the permitting requirements here and her
11 conclusion that it was commercially reasonable for
12 a developer with a FIT contract to assume it would
13 obtain AOR status in due course.
14 With respect to the AOR status
15 also, go to Slide 120.
16 And I referred to this in
17 opening so I will be brief here.
18 But we included some further
19 references here and some excerpts from the
20 Tribunal's decision just to make the point that
21 the site release issues and the AOR release
22 issues, in our submission and my submissions, it
23 was considered this way by the Windstream
24 Tribunal, were really part and parcel of the
25 moratorium and the ambiguity and the lack of
[Page 1454]
1 clarity in the law that the Tribunal was dealing
2 with there.
3 So it's reasonable, in our
4 submission, for the experts to assume that, in
5 addition to the moratorium being lifted, if it
6 were to be lifted, then the AOR site release
7 issues would also be clarified by the government
8 and the project would be able to proceed.
9 Now if I can move now to Slide
10 122. And I will be brief. We have included some
11 transcript references.
12 First of all, with respect to
13 Secretariat properly applying valuation standards,
14 you heard this evidence from them.
15 The one point I would add here
16 is that -- and, President Miles, I think you had
17 raised a question about the CBV provisions.
18 There is, in paragraph 3.6 of
19 the first Secretariat report, they say that their
20 valuation was proposed to be a level of
21 comprehensive valuation report under the CBV and
22 it's generally consistent with International
23 Valuations Standards.
24 So I just give you that
25 reference.
[Page 1455]
1 So we have Secretariat, in our
2 submission, properly applying valuation standards,
3 choosing an appropriate period for comparables,
4 making, we would say, that the proper
5 determinations about hindsight and valuation
6 analysis that you can't be using hindsight, which,
7 we would say, is well established by law and by
8 valuation principle.
9 And then, on the next slide,
10 their assumption and contingent consideration must
11 be included in a fair market value assessment. We
12 obviously had a lot of discussion on that.
13 And then, for market approach,
14 you have to select appropriate or you have to
15 select comparable transactions.
16 And then multiple valuation
17 methods and reasonability checks should be
18 considered.
19 So very much consistent with
20 damage valuation principles.
21 In the next set of slides, we
22 set out why, in our submission, Dr. Guillet did
23 not apply valuation standards. And he said he
24 didn't apply any valuation standards. He admitted
25 using hindsight.
[Page 1456]
1 He didn't provide a rationale
2 for his period of time for comparable
3 transactions, other than saying that he just chose
4 all -- he says -- I asked was that a particular
5 date that he had chosen:
6 "That's the earliest
7 transaction for which I
8 had information."[as
9 read]
10 And my understanding from him
11 was he just provided all the transactions he was
12 aware of and put them in his tables.
13 He as we, on Slide 125, he
14 did not include contingent consideration even when
15 it was included in PwC auditor's report that we
16 reviewed.
17 His early stage table includes
18 transactions that are not comparable and that's,
19 we would say, is a floating wind turbine
20 transactions.
21 And then, on the next page --
22 and I don't have to belabour this. There were
23 various issues during his cross-examination which
24 came up with respect to stages of development and
25 certain inconsistencies, I would submit.
[Page 1457]
1 On the next page, Slide 127,
2 he made errors in his calculations, all of which,
3 it's important to note, they all understated his
4 valuations.
5 And he did not check
6 confidential data for errors and we will see
7 the -- you can see, on the right side:
8 "Did you go back and
9 check your confidential
10 information to see
11 whether you made similar
12 errors?" [as read]
13 I asked that question after
14 the point with Secretariat.
15 And he said:
16 "I don't believe I did,
17 no.
18 "QUESTION: And how
19 exactly can we or the
20 experts validate?
21 "I guess you can't."[as
22 read]
23 Just, in response, Professor
24 Gotanda, to the questions you had raised with
25 Ms. Sherkey about responding to Canada's point
[Page 1458]
1 about res judicata with respect to the Tribunal's
2 use of confidential transactions.
3 The three confidential
4 transactions which the Tribunal relied on for
5 their earlier -- for, in the first report, were
6 from 2009, 2011 and -- well, there were two from
7 2011 and two from 2009.
8 And my our submission is
9 that those are -- because they are so early with
10 respect to the exercise you engage in here in
11 2020, they should be excluded just on the basis of
12 not being in the comparable range.
13 I believe my friends from
14 Canada -- I saw one of their slides and they seem
15 to be circling a set of comparables that were
16 later than that. And I am not sure, I don't know
17 whether Ms. Squires wants to enlighten -- let us
18 know now or come to it later, but I am not sure
19 Canada is even relying on those particular
20 comparables from Dr. Guillet now.
21 But, in any event, I would say
22 there is a basis for you to exclude them and not
23 rely on them just on the basis of comparables
24 principles.
25 As you know, they were -- in
[Page 1459]
1 addition to those three, there were ten others in
2 the early stage report and five in the late stage
3 report, and none of those were considered by
4 Dr. Guillet previously.
5 CO-ARBITRATOR MCLACHLIN: Can
6 I ask you this.
7 Did the Windstream I panel
8 consider confidential comparables?
9 MR. TERRY: Sorry, that was
10 what I meant to be addressing right there.
11 And I apologize if it's
12 getting late in the submissions. Yeah, those are
13 the ones I was discussing.
14 CO-ARBITRATOR MCLACHLIN: That
15 is what you are discussing.
16 MR. TERRY: Sorry, I apologize
17 if I was unclear there.
18 Those are the three
19 confidential comparables, 2009 and two from 2011.
20 CO-ARBITRATOR MCLACHLIN:
21 Okay.
22 CO-ARBITRATOR GOTANDA: I
23 wonder if you wanted to elaborate any more on
24 Canada's assertion that we are bound by, under
25 preclusion principles, on using undisclosed
[Page 1460]
1 confidential information.
2 They do note here, though,
3 that, despite that, you said you are severely
4 prejudiced by it.
5 So do you have anything to add
6 to that.
7 MR. TERRY: I acknowledge, I
8 think as discussed before, that I am not sure
9 there's international, you know, investment case
10 law or international jurisprudence on the point.
11 There may be domestic law jurisprudence.
12 But, just aside from that
13 point, you, as Tribunal members, are dealing with
14 a different valuation date, a different set of
15 comparables, first of all. And making your own
16 determination, as CND expert, as to whether or not
17 you want to rely on this confidential information.
18 All those, in my submission,
19 are factors that, again, subject to looking at
20 whether there's jurisprudence and what the
21 jurisprudence says, since this came up recently.
22 But those are factors that
23 would, in my submission, mitigate against applying
24 a strict set of res judicata principles to those --
25 preclusion effect to those -- the determination
[Page 1461]
1 made by the previous Tribunal.
2 The other thing I would that's
3 important in this context is there was no in
4 this particular hearing, there were some obvious
5 mathematical errors that we went through that
6 were -- that I was able to cross-examine
7 Dr. Guillet on.
8 And, as part of that, I was
9 able to find out whether he went back and checked
10 his confidential information. That was not
11 information that we you know, there were no
12 errors at that time. Those questions didn't arise
13 in the first, in the first hearing.
14 So there's additional
15 information that's available to you in making that
16 determination that wasn't available to the
17 Tribunal, previously.
18 As I said, we were happy over
19 the break or subsequently to see if there is
20 actually case law that's addressed here.
21 Because I must admit that I
22 don't have expertise in that particular area, in
23 the international context, as to what would arise
24 when the same witness is being -- has had a
25 particular determination made about their evidence
[Page 1462]
1 in this sort of context.
2 The key point I would focus
3 on, though, is that those three confidential data
4 points that were relied on by the previous
5 Tribunal, there is another basis for excluding
6 them here completely. So I don't think you have
7 to deal with that particular issue.
8 And --
9 CO-ARBITRATOR GOTANDA: I am
10 not so sure. Because, if I understand what Canada
11 is saying, is it's broader. It's what they are
12 saying is the approach. Not just the particular
13 cases, but the approach itself, we are bound by
14 that.
15 And I could be over reading
16 that and they certainly will have a chance. But I
17 wanted to give you a chance to respond to that and
18 tell us what your view is on the approach of using
19 undisclosed confidential information.
20 And whether we are bound by
21 that, as a matter of preclusion, and then should
22 there be an exception, is there an exception to
23 any of the preclusion rules sort of apply in your
24 argument here?
25 MR. TERRY: You heard earlier
[Page 1463]
1 about in terms of whether Tribunal members should
2 accept this sort of information and you heard what
3 the standards were with respect to that issue,
4 that information that Ms. Sherkey put forward.
5 I mean another factor to
6 consider, in this particular case, is that the
7 acceptance of the confidential information, I
8 would submit, is bound up in the Tribunal's
9 assessment that there were reliability of the
10 expert overall.
11 There may be circumstances
12 where a Tribunal decides it will not accept
13 confidential information because it can't be
14 tested and, for all the reasons set out in the
15 standard, there may be circumstances in which the
16 Tribunal decides that it's going to accept the
17 confidential information and it's very hard to
18 separate, to separate their determination on that,
19 as a matter of principle, from their determination
20 as to the matter of impression from the witness.
21 And, in my submission, it's --
22 you have the full ability to reach a different
23 conclusion than the Tribunal with respect to the
24 reliability of Dr. Guillet's evidence.
25 You have seen him dealing with
[Page 1464]
1 a different set of transactions in a different
2 context.
3 And I guess I can't say it
4 more clearly than, as a Tribunal, you're able to
5 make your own determinations with respect to how
6 much you want to rely on the evidence of a
7 particular expert and you're not bound by the
8 Tribunal making a determination.
9 CO-ARBITRATOR GOTANDA: I will
10 put it and you can decide if you -- do you believe
11 that the Tribunal, relying on an undisclosed
12 confidential information in the previous case,
13 from your view, violated not from our view, we
14 have not opined on anything -- violated your due
15 process rights so fundamentally that a subsequent
16 Tribunal shouldn't rely upon it?
17 That's the issue, or one of
18 the issues.
19 MR. TERRY: We certainly made
20 that argument before the previous Tribunal. The
21 Tribunal did not agree with us. I think we would
22 maintain the position that we had then. That we
23 think our position is a better position.
24 But I just want to make clear,
25 because I know it's come up a couple times here,
[Page 1465]
1 we are not suggesting that, somehow, the previous
2 Tribunal's decision should be revisited in any
3 respect.
4 CO-ARBITRATOR GOTANDA: No.
5 And our job is not to say they made a mistake or
6 correct any mistakes or not follow them because of
7 mistakes.
8 But, yet, there's certain
9 principles that flow from an argument that we want
10 to be very careful about with respect to due
11 process claims.
12 MR. TERRY: Then if we could
13 move on, we get to the losses.
14 And if I could go to Slide
15 130.
16 So this is Secretariat's
17 evidence, just summarizing it. And I think we all
18 understand the but-for counterfactual they were
19 using and we are focusing on comparable
20 transactions here.
21 We haven't put DCF in here
22 but, as you heard, DCF is a check rather than the
23 primary valuation method we are putting forward.
24 And this is the ten
25 comparables were in their main report and you saw
[Page 1466]
1 that they focused on four, in particular, in their
2 presentation.
3 And those, of course, set out
4 a range and we have discussed, I think, already
5 the basis in which the experts came up with those
6 ranges.
7 Now, if we go to the next
8 page, Slide 131.
9 All right. We are not moving
10 on the slide but -- sorry, this is a confidential
11 slide because it includes information with respect
12 to Mr. Lyle.
13 PRESIDING ARBITRATOR MILES:
14 Do you want to talk about it?
15 MR. TERRY: Yes.
16 PRESIDING ARBITRATOR MILES:
17 Okay.
18 Alonso, can we please go into
19 confidential.
20 --- CONFIDENTIAL TRANSCRIPT COMMENCES AT 12:38
21 p.m.
22 MR. HAUSER: Confidential
23 mode, Madam President.
24 PRESIDING ARBITRATOR MILES:
25 Thank you very much.
[Page 1467]
1 MR. TERRY: Just briefly,
2 these are other -- we call them other indicators
3 of loss here. But evidence the that, in our
4 submission, can also be taken in account by the
5 Tribunal that came out during the evidence over
6 the last several days.
7 First of all, you will recall,
8 in Dr. Guillet's report, Table 5 of his second
9 report, when he applied the corrected numbers,
10 corrected from his first report, there was a slide
11 there that had the weighted average of his early
12 stage transactions, in the pre-2015 period versus
13 the 2015 to 2020 period, and that showed 3.7 times
14 increase in the weighted average.
15 So and I recognize, in that
16 slide, that he also had a project by project
17 comparable, not with the weighted GW average. I
18 think that was a different increase, from I think
19 0.6 to 0.7. So more significant increase in his
20 weighted average.
21 So you can see the number you
22 get from that.
23 This is also the evidence
24 that's confidential from Michael Lyle, refers to
25 the Ontario settlements paid out.
[Page 1468]
1 You will recall that, when he
2 was examined, he stated that there were reports of
3 231 million being paid to the various non-wind,
4 primarily solar projects that are being cancelled,
5 [Redacted]
6 [Redacted]
7 [Redacted]
8 [Redacted]
9 [Redacted]
10 [Redacted]
11 [Redacted]
12 [Redacted]
13 [Redacted]
14 [Redacted]
15 And, again, we are just
16 describing this as indicators of loss.
17 Then we also have the third
18 bullet. You will recall that Secretariat had
19 evidence with respect to a check where they look
20 at the costs incurred, apply a multiple to that.
21 In the LEM transaction, they
22 found that there was a multiple of 9.4 times costs
23 incurred.
24 So, again, if you apply that
25 to the context of costs incurred in our case, the
[Page 1469]
1 number is 260.38 million.
2 And then there's also -- the
3 number was, you will recall you asked, I think,
4 Madam President, Secretariat to do an alternative
5 calculation using or one of the Tribunal
6 members did, using a 20 percent IRR. They did
7 that and they came up with 147.3 million.
8 PRESIDING ARBITRATOR MILES: I
9 was just wondering why you squared the factor at
10 the same point but it's a footnote. It threw me.
11 MR. TERRY: And then we set
12 out below, again, the evidence from the
13 Secretariat with respect to applying a 20 percent
14 IRR.
15 So, again, optionality here,
16 as the Tribunal considers the damages evidence and
17 what to apply.
18 On the next slide, there is a
19 question the Tribunal had with respect to the
20 appreciation of value between 2016 --
21 We can come out of
22 confidential.
23 PRESIDING ARBITRATOR MILES:
24 Alonso, let us out, please.
25 --- CONFIDENTIAL TRANSCRIPT ENDS AT 12:42 p.m.
[Page 1470]
1 MR. HAUSER: We are back.
2 PRESIDING ARBITRATOR MILES:
3 Thank you very much.
4 MR. TERRY: The approach
5 that's taken by the experts with respect to the
6 appreciation of value, the difference in value
7 between the two, as you know, is set out in the
8 slide.
9 Fair market value of the
10 project, calculated as of February 18th, 2020,
11 less the NAFTA 1 award, less the return of the
12 letter of credit, provides the differential
13 between the project value in 2016 and in 2020.
14 And that's how they calculate
15 their damages in the market approach, and we set
16 out the income approach below.
17 And then, finally, the last
18 slide, starting at page 134, Slide 134, and I --
19 we have got three slides here, 134, 135 and 136
20 that were prepared, I think late last night in
21 response to the Tribunal's question about the
22 difference between sunk costs being calculated
23 from the date of the award, September 27th, 2016,
24 the first day of the award, and the June 15th,
25 2015, date which the day up to which Deloitte
[Page 1471]
1 calculated costs.
2 I should say the Slide 135, I
3 have been informed by my colleagues who were
4 preparing this, can just be removed. It was an
5 earlier version of a slide.
6 And I might turn -- I might
7 have to turn to my colleague Ms. Shelley who
8 prepared this.
9 But the first slide sets out
10 the loss suffered by the Claimant, the sunk costs,
11 as set out in the Secretariat report. And you'll
12 probably recall seeing this particular summary of
13 costs incurred.
14 And the second slide, the
15 slide at 136, identifies, more particularly, the
16 different types of costs here. This is an effort
17 to determine which ones occurred after the date of
18 the award versus the date between when Deloitte
19 did their work and when the award occurred.
20 You can see that, for many of
21 them, there is precise information that allows the
22 numbers to be confirmed. These are the numbers in
23 the right-hand column.
24 There are others, for example,
25 if you look to the column, the third from the
[Page 1472]
1 right, you will see that there are costs,
2 capitalized costs, management fees, and also the
3 interest paid, which have been prorated in the
4 slide to come up with the new calculation of costs
5 which would lower the amount from 9.48 to
6 6.17 million.
7 CO-ARBITRATOR GOTANDA: I have
8 a question regarding that, that just dawned on me.
9 And it comes from your causation, I think, your
10 point.
11 If these are do you have a
12 causation problem with respect to the cost claimed
13 for the interest earned and interest paid?
14 Because, if I understand --
15 and here is where you are going to have to help
16 me.
17 If I understand your argument
18 on the expropriation, you're just looking at this
19 period and I am going back to what were the things
20 that, in the reasonable investment-backed
21 expectations, you're required to keep the letter
22 of credit going. You couldn't just -- you weren't
23 induced to, in other words, create a new letter of
24 credit, post Windstream I. If you didn't keep it
25 up, you would have lost it, actually.
[Page 1473]
1 MR. TERRY: Correct.
2 CO-ARBITRATOR GOTANDA: I get
3 that. I think that's the kind of argument but I
4 am not sure how it works on the causation
5 argument. Because it didn't cause the loss
6 post -- their actions didn't cause the loss, post
7 of Windstream I.
8 Are you following me with this
9 argument?
10 MR. TERRY: I mean I am not
11 sure that I am but, I mean, our submission on this
12 is that these are project-related costs that have
13 to be incurred.
14 CO-ARBITRATOR GOTANDA:
15 Absolutely. And, actually, everyone agrees with
16 that. Both experts agree this is a
17 project-related cost.
18 MR. TERRY: Right.
19 CO-ARBITRATOR GOTANDA: But it
20 can be a project-related cost but not caused by
21 the expropriation in that period.
22 You following me on that?
23 MR. TERRY: My submission is
24 that once -- when the expropriation occurs, the
25 question is what's the value of the investment at
[Page 1474]
1 the time the expropriation occurs.
2 And, to do that, it's
3 appropriate to look back at what the sunk -- has
4 there been additional value created? Because, of
5 course, the Tribunal said, in 2016, you know, the
6 FIT contract has no value, it's not financeable.
7 So, therefore, has there been additional value
8 created?
9 The value that is being -- the
10 value of the project, as of 2020, includes the
11 various sunk costs that were required to, for
12 example, maintain a contract, maintain the letter
13 of credit, do everything to both advance the
14 project, to the extent Windstream was able to,
15 despite the government's, you know, omissions, we
16 would say, and also to protect the project.
17 So that's our primary
18 submission on that with respect to that point.
19 CO-ARBITRATOR GOTANDA: Right.
20 And I am going to push back a little and here is
21 where you have to help me because I am going to
22 anticipate Canada's argument.
23 And Canada's argument would
24 be, post Windstream I, you have to give us a
25 reasonable time to terminate this letter of credit
[Page 1475]
1 and so it's not -- again, it's back to the
2 causation and is this a loss caused directly by
3 the acts of Canada versus this would have been --
4 you would have incurred it anyway, post Windstream
5 I. That should have been, to some extent,
6 compensated by the previous Tribunal.
7 I am probably reading way more
8 into what they would argue. I am not sure.
9 But you see the argument. I
10 am trying to anticipate the argument so I
11 understand, then, your position on that.
12 MR. TERRY: I think our
13 submission is, is just simple. That, when you
14 come to make the valuation in 2020, you have to
15 value the value of the project at that particular
16 time and that includes the project costs.
17 Now, in terms of anticipating
18 what would happen earlier on, Ms. Sherkey dealt
19 with that.
20 All through this period, we
21 have got the evidence that Canada, first of all,
22 is working with the government to try and -- right
23 up to the end, Canada is trying to meet with the
24 government, trying to deal -- Canada signals,
25 earlier on, they suggest they should keep -- to
[Page 1476]
1 Windstream that they should keep going with this,
2 with the efforts and incurring the costs they are
3 describing.
4 We have the evidence, in
5 particular, I believe it was of Michael Lyle, in
6 terms of the termination decision not being made
7 until very late.
8 So, all through that period,
9 Windstream was working on the basis that it made
10 sense for it, from an investment perspective, to
11 continue to incur these costs both to move the
12 project forward, to protect the investment.
13 So that's -- I am not sure,
14 again, Professor, if I am responding to your
15 argument.
16 CO-ARBITRATOR GOTANDA: I
17 think I got it. Yeah. Yeah.
18 MR. TERRY: The only general
19 argument I also make is, of course, our submission
20 is that you don't need to apply the reasonable
21 investment-backed -- investment expectation.
22 CO-ARBITRATOR GOTANDA: Yes, I
23 get that. Okay.
24 Okay. I would be interested
25 to see what Canada's argument, if any, might be on
[Page 1477]
1 that. Thank you.
2 MR. TERRY: And the, finally,
3 last slide is just the one that references these
4 two cases.
5 If the Tribunal would like a
6 further breakdown of post NAFTA costs in any way,
7 they have been done pro rata here.
8 But, if you want more
9 particular information or if there are other
10 damages issues that arise, we have examples of
11 previous Tribunals that have found, if they don't
12 have sufficient evidence, they have asked for more
13 information.
14 Unless further questions,
15 thanks for your patience. We are done.
16 MS. SHERKEY: If I could have
17 an indulgence of 20 seconds.
18 Madam President, you had asked
19 a question about some references and I just have
20 an answer for you.
21 Which was, in limitations
22 period, I had raised the point that Canada had
23 argued the moratorium was temporary. You said
24 that was in the context of expropriation. Do you
25 have examples where they raised a similar argument
[Page 1478]
1 in FET.
2 And I will just refer you to
3 paragraphs 24, 445 and 555 -- 455.
4 PRESIDING ARBITRATOR MILES:
5 Of what?
6 MS. SHERKEY: Of the
7 counter-memorial of Canada and Windstream I.
8 PRESIDING ARBITRATOR MILES:
9 Thank you.
10 It says, in the transcript,
11 555 to 455?
12 MS. SHERKEY: I misspoke. It
13 should be 455, not 555.
14 So 24, 445, and 455.
15 PRESIDING ARBITRATOR MILES: I
16 see. Just 455. Okay.
17 Perfect. Thank you.
18 So I am not here to make
19 myself popular so I will have us back, please, at
20 1:20. Okay. It's like the nod my teenage son
21 gives me. You are the boss but I am not happy
22 about it.
23 We are going to come back at
24 1:20 because this is useful, unbelievably useful
25 and valuable and I want to give you time as early
[Page 1479]
1 as possible in the day while we are fresh and it
2 will continue to be useful and valuable.
3 We took about three and a half
4 hours this morning. We were only supposed to use
5 two and a half hours this morning.
6 It may be that we absolutely
7 don't need that sort of time because just the way
8 the questions flow.
9 But you will absolutely get
10 your two hours. Whether you need a third is -- we
11 will see. You may not.
12 And then the 15 minutes each
13 at the end for the end game.
14 All right. See you back here
15 at twenty past, please.
16 --- Upon luncheon recess at 12:55 p.m.
17 --- Upon resuming at 1:32 p.m.
18 CLOSING ARGUMENT BY MS. SQUIRES:
19 MS. SQUIRES: Good afternoon.
20 So, as Mr. Neufeld mentioned
21 this morning, we have structured our presentation
22 to give you our closing remarks this afternoon in
23 response to the six questions that were posed.
24 So we don't have any other
25 kind of formal presentation. We were just going
[Page 1480]
1 to answer the six questions. But I think it will
2 take us a bit of time to work through them.
3 And, as you can tell by the
4 fact that I am up here, we are going in reverse.
5 So we are going to start with the causation
6 question the Tribunal had.
7 So the Tribunal asked what is
8 the loss that has arisen since the first Award and
9 what breach caused that loss.
10 What I plan to do, over the
11 next little bit, is walk the Tribunal through the
12 various breaches at issue here, what the proper
13 but-for scenario would be for each breach and,
14 finally, what specific loss would arise out of
15 that.
16 So three steps for each
17 breach.
18 So I want to turn first to
19 Article 1105.
20 CO-ARBITRATOR MCLACHLIN:
21 Where are you in your --
22 MS. SQUIRES: We are turning
23 to the first slide now.
24 CO-ARBITRATOR MCLACHLIN: Oh,
25 okay. Sorry.
[Page 1481]
1 MS. SQUIRES: It's because
2 it's an excerpt from the Claimant so it's the
3 Claimant's page 94.
4 So, in this arbitration, as
5 you can see here on the slide, the Claimant argues
6 that there was no legitimate rationale for
7 Ontario's refusal to do anything to make good on
8 its promises to Windstream and to continue the
9 very conduct found to be in breach of the NAFTA.
10 It argued that, by continuing
11 the course of conduct already found to breach
12 Article 1105, Ontario failed to meet its
13 international obligations.
14 So, the starting point of this
15 breach, then, is the breach as it was found by the
16 Windstream I Tribunal.
17 The Windstream I Tribunal
18 found that, following the imposition of the
19 moratorium, additional and more detailed
20 regulations governing offshore wind were never
21 developed.
22 The government let the OPA
23 conduct the negotiations with Windstream even if
24 the decision on the moratorium had been taken by
25 the government and not the OPA. And, without
[Page 1482]
1 providing any direction to the OPA for the
2 negotiations, although it had authority to do so.
3 As a result, the negotiations
4 between the OPA and Windstream failed to produce
5 results. By May of 2012, the Project had reached
6 a point at which it was no longer financeable.
7 For those reasons, the
8 Tribunal found that the government's conduct
9 vis-à-vis Windstream, during the period following
10 the imposition of the moratorium, was a breach of
11 a minimum standard of treatment as it appears in
12 Article 1105.
13 The Claimant now argues that
14 the continued application of that breach, such
15 that the IESO was in a position where they could
16 and did terminate the FIT Contract, is a new
17 breach in this arbitration.
18 Assuming the Tribunal agrees,
19 what counterfactual world would apply here so we
20 can isolate the losses arising out of that breach,
21 specifically.
22 The remainder of paragraph 370
23 on the Award provides some helpful guidance on
24 what Ontario could have done to prevent an Article
25 1105 breach from happening. And, in doing so, it
[Page 1483]
1 provides us an appropriate counterfactual world.
2 So we can see here on the
3 slide that the Tribunal noted that the government
4 could have done two things.
5 It could have prevented a
6 breach of 1105 by either promptly completing the
7 required scientific research and establishing the
8 appropriate regulatory framework for offshore wind
9 and reactivating Windstream's FIT contract.
10 Or, by amending the relevant
11 regulations so as to exclude offshore wind
12 altogether as a source of renewable energy, and
13 terminating Windstream's FIT contract in
14 accordance with the applicable law.
15 So I am going to deal with the
16 second scenario there first. And we are going to
17 walk through two different but-fors using the
18 Tribunal's wording as the basis.
19 So, in the scenario, instead
20 of a breach found by the Windstream I Tribunal
21 continuing --
22 CO-ARBITRATOR MCLACHLIN: May
23 I just say you are going awfully fast and I am
24 struggling to keep up. Perhaps just a little more
25 slowly.
[Page 1484]
1 MS. SQUIRES: No problem. No
2 problem.
3 So, in this scenario, instead
4 of the breach found by the Windstream I Tribunal
5 continuing, Ontario's regulations are amended to
6 exclude offshore wind and, instead of the FIT
7 Contract being terminated on February 18th, 2020,
8 it is terminated instead on May 4th, 2017, when
9 the IESO Section 10.1(g) termination rights first
10 arose.
11 So what loss would arise out
12 of that.
13 And I think two questions come
14 up here.
15 The first goes to a question
16 that Professor Gotanda asked.
17 So you can see on the slide
18 here that, in our view, the loss that arises here
19 would be the cost to the Claimant to maintain its
20 letter of credit for an extra two years and nine
21 months.
22 This morning, Professor
23 Gotanda asked about Windstream maintaining the
24 second letter of credit and how that pertains to
25 the issue of causation.
[Page 1485]
1 And if we were to turn back
2 the Exhibit C-2082, we can see that the bank of
3 credit -- the letter of credit from the Bank of
4 Montreal was taken out after May 4th, 2017. So
5 after both parties had a right to terminate the
6 FIT Contract.
7 So, in this scenario,
8 Windstream could have terminated the FIT Contract
9 instead of taking out a second letter of credit
10 and, as such, would not have incurred any interest
11 costs.
12 Even leaving that aside,
13 though, when we look at the loss that would arise
14 out of that, I do want to take just a brief side
15 track to discuss quantum.
16 And what the scenario would
17 lead us to with respect to quantum.
18 And we are going to keep the
19 same Exhibit C-2082 up because it is the only
20 exhibit we have that demonstrates the interest
21 paid on the letter of credit.
22 You can see on the slide there
23 that we will highlight for you, interest payments,
24 which, as we have corrected on the record, were
25 actually a fee and not interest at all.
[Page 1486]
1 So Windstream made these
2 fees -- made -- paid these fees with respect to
3 its first $6 million letter of credit and these
4 fees were paid on May 8th, 2017.
5 So just four -- and you can
6 see on this slide as well, the principal amounts
7 that the individuals put forward behind that
8 letter of credit.
9 So just four days after the
10 termination right arose, you can see here that the
11 principal was paid. And we see that, just below
12 that, the return of that original letter of credit
13 money. And we can see that that came back to
14 Windstream on July 5th, 2017.
15 On June 26th, 2017, the new
16 letter of credit was deposited at the Bank of
17 Montreal.
18 So the Claimant then sends the
19 money to Bank of Montreal, along with $120,000
20 fee, to secure the new line of credit.
21 And, eventually, we see that,
22 on March 26th, 2020, that money comes back from
23 the Bank of Montreal to the Claimant as
24 $6.162 million, so they get their $6 million
25 letter of credit back. They also get their fee
[Page 1487]
1 back.
2 There are no interest payments
3 on this ledger between May 8th, 2017, and the date
4 of the valuation date.
5 The Claimant has not
6 demonstrated that it has incurred any loss by
7 maintaining the letter of credit from May 2017 to
8 the termination date.
9 PRESIDING ARBITRATOR MILES:
10 For this purpose, are you distinguishing interest
11 from fees?
12 MS. SQUIRES: I think I am
13 confusing myself. No -- yes. For the Bank of
14 Montreal, it would be interest. In the previous
15 letter of credit, it would have been a fee.
16 That's correct.
17 PRESIDING ARBITRATOR MILES:
18 So are you saying there was no interest and no
19 fees incurred after the date of the Award?
20 MS. SQUIRES: There is no
21 evidence on the record that there were interest or
22 fees incurred after the date of the Award.
23 PRESIDING ARBITRATOR MILES:
24 Interest or fees; that's your submission?
25 MS. SQUIRES: Correct.
[Page 1488]
1 PRESIDING ARBITRATOR MILES:
2 Okay.
3 MS. SQUIRES: So now on to the
4 other but-for scenario that the Tribunal could
5 apply with respect to a breach of 1105 and going
6 back to the Tribunal's words.
7 In this scenario, what could
8 have prevented the 1105 breach was Ontario
9 promptly completing the required scientific
10 research and establishing the appropriate
11 regulatory framework for offshore wind and
12 Windstream's FIT Contract is reactivated.
13 Now, unlike the previous
14 option we just talked about, this scenario
15 requires two assumptions. And these are the types
16 of assumptions the Claimant would ask you to form,
17 says you are required to make.
18 The first is that, by using
19 the words "completing the required scientific
20 research and establishing the appropriate
21 regulatory framework", this necessarily leads to a
22 lifting of the moratorium.
23 And, second, that a
24 reactivation of Windstream's FIT contract means
25 that the term -- at minimum, the termination right
[Page 1489]
1 which made the Claimant's Project worthless, as of
2 May 2017, is not in play.
3 And the reasons these
4 assumptions must be made is that, if not, the
5 counterfactual world reverts back to the real
6 world, moratorium in place, termination rights in
7 place.
8 So what loss arises out of
9 that scenario?
10 CO-ARBITRATOR MCLACHLIN: I
11 need to digest that. Thank you.
12 MS. SQUIRES: Good. Okay.
13 So we have included them on
14 the slides as well for later on, but.
15 So, unlike in the previous
16 scenario, here, we would be looking at much the
17 same world as was evaluated in the Windstream I
18 arbitration. Except for, this time, the Tribunal
19 is left to determine the value of the Project as
20 it existed on the valuation date here,
21 February 18th, 2020.
22 The loss that would arise in
23 this situation is the delta or appreciation, if
24 there is any, in the fair market value between the
25 Project, as it was valued in Windstream I, and the
[Page 1490]
1 fair market value as it was as it was on the
2 valuation date.
3 This would compensate the
4 Claimant for the incremental increase in the value
5 of the Project due to any market changes that
6 occurred between the Windstream I Award and the
7 valuation date. That was when the loss -- that
8 was lost when the FIT Contract was terminated.
9 Now, Article 1110 -- and I
10 have to admit this has changed a little bit, given
11 what we heard this morning that the valuation
12 model has now changed for them to be sunk costs
13 only. So I am still going to provide the proper
14 but-for and I will also respond to what the
15 Claimant raised this morning.
16 So, in order to define the
17 breach of Article 1110, we have used the
18 Claimant's words in the Secretariat report at the
19 paragraph 1.9, where they define the alleged
20 breaches.
21 And recall that the
22 Secretariat report has indicated that they have
23 valued an expropriation claim.
24 The counterfactual world in
25 this breach reverses the termination of the FIT
[Page 1491]
1 contract. It would ensure that Windstream's FIT
2 contract was "deferred, frozen, or on hold until
3 the moratorium was lifted".
4 It would also assume that, on
5 the valuation day, the moratorium is lifted and
6 the Project can move ahead with an amended FIT
7 Contract so that the 10.1(g) termination rights
8 are no longer active.
9 The loss, in this scenario, is
10 the same as would arise in the 1105 scenario I
11 just discussed.
12 The difference though, now,
13 according to the Claimant, is that they wish to
14 value their expropriation claim on the basis of
15 sunk costs.
16 And a loss that arises in this
17 scenario, as you can see on the slide, is the fair
18 market value of the investment as it existed on
19 the valuation date here, less the fair market
20 value of the investment as it existed on the date
21 of the Windstream I Award.
22 Now the Claimant is relying on
23 sunk costs to say this equals value.
24 Article 1110 requires that
25 compensation be paid for the fair market value for
[Page 1492]
1 the Project, but they have not demonstrated that
2 costs and value are the same.
3 And the best example of this I
4 can put forward at the moment is I asked the
5 Claimant's experts whether they had valued two
6 studies that they encapsulate in their sunk costs.
7 And I asked whether they had valued those two
8 studies as to what you could sell them for at the
9 marketplace. Their answer was no.
10 If this so, therefore, they
11 have not shown that costs translate directly into
12 value.
13 And I would note that, if this
14 is the fair market value of the Project, as the
15 Claimants allege, that when you deduct the fair
16 market value as it existed in Windstream I, the
17 Claimant gets nothing because that is a negative
18 value.
19 There's also been numerous
20 questions with respect --
21 CO-ARBITRATOR GOTANDA: I am
22 not following that.
23 PRESIDING ARBITRATOR MILES:
24 No.
25 MS. SQUIRES: It's a bit of an
[Page 1493]
1 artificial exercise.
2 So they are saying that, as of
3 February 18th, 2020, the value of their Project
4 was their sunk costs which is about 6 million
5 right now.
6 In order to determine loss on
7 the but-for world, you would subtract the fair
8 market value as it existed in February 18th, 2020,
9 from the previous fair market value.
10 PRESIDING ARBITRATOR MILES:
11 That's not what they are doing.
12 They are applying a different
13 method -- as of this morning --
14 MS. SQUIRES: Oh, I know.
15 Yes, yes.
16 PRESIDING ARBITRATOR MILES:
17 They are applying a different methodology.
18 MS. SQUIRES: Yeah.
19 PRESIDING ARBITRATOR MILES:
20 And they are treating sunk costs as costs. Not as
21 value. As costs.
22 MS. SQUIRES: Yes.
23 PRESIDING ARBITRATOR MILES:
24 Because that is a valid International Valuations
25 Standards methodology.
[Page 1494]
1 That is the case that's been
2 put this morning. Could you answer that case.
3 MS. SQUIRES: Yes, that's
4 exactly where I am headed to next.
5 So, in the course of the
6 cross-examinations of the witness of the experts
7 from Secretariat, Canada raised numerous questions
8 with respect to sunk costs.
9 And the Claimant drew our
10 attention this morning to the International
11 Valuations Standards and mentioned Article 20.3
12 about the nature and sources of information which
13 values rely on and that they must be disclosed.
14 The Tribunal may recall that,
15 on numerous instances, the Claimant's expert told
16 us that they were relying on calls they had with
17 Mr. Mars, emails from Mr. Mars, invoices that they
18 had seen, none of which are on the record.
19 They have also not told us how
20 they arrived at ensuring there was no double
21 compensation being counted here with respect to
22 the interaction of Schedule C -- Schedule 3 and
23 Exhibit C-2020.
24 With respect to the management
25 fees that they rely on.
[Page 1495]
1 They relied on a post Notice
2 of Intent invoice from a company that we do not
3 know where it belongs in this chain, called
4 Kinetic Blueprint, that involves fees paid in
5 2015.
6 On their accounting fees, they
7 provided no invoices whatsoever. I don't think we
8 dispute that they use an accountant, but we cannot
9 tell which accounting fees they paid went to
10 development costs and which went to other costs.
11 CO-ARBITRATOR GOTANDA: To be
12 fair though, if I remember correctly, and you can
13 correct me if I am wrong, I recall that the
14 Claimant's experts, Secretariat, saying that they
15 were relying on documents but they basically have
16 been audited.
17 MS. SQUIRES: So the financial
18 statements they relied on for the incomplete
19 Project value which led to their capital costs
20 were unaudited financial statements.
21 CO-ARBITRATOR GOTANDA: Oh,
22 okay.
23 MS. SQUIRES: And those are on
24 the record from 2015 to 2019. All WWIS financial
25 statements are unaudited.
[Page 1496]
1 CO-ARBITRATOR GOTANDA: Can I
2 take you back to the -- and maybe have your answer
3 to the letter of credit that the -- and the
4 interest paid which I just heard your response
5 there.
6 Their response, as I
7 understand it, is that this was a legitimate cost
8 because, post Windstream I, given what the
9 Tribunal said, plus the fact that the -- I guess
10 it was IESO said we are still considering what to
11 do.
12 So they were left in the catch
13 22; weren't they?
14 They needed to maintain a
15 letter of credit so they didn't -- and the
16 argument is, if I understand it correctly, is that
17 Ontario never stepped in and said we are not going
18 forward with this.
19 So, therefore, they went ahead
20 and incurred this and other costs and they
21 wouldn't have done so but for the government
22 taking some action to say, no, we are not, not
23 going forward. And, therefore, these are what
24 they are claiming is their legitimate sort of
25 expenses in the end.
[Page 1497]
1 MS. SQUIRES: That's right.
2 So that is the claim that they
3 are making. That they continued to maintain the
4 letter of credit, to spend this money, because they
5 had a goal of continuing to develop the Project.
6 And, in response to that, I
7 would draw the -- I am trying to get the exhibit
8 number for you. But I would draw the Tribunal --
9 sorry, it's not a problem with the exhibit number.
10 It's a problem with me being able to read
11 handwriting.
12 I am going to draw the
13 Tribunal's attention to Exhibit R-795.
14 That's a letter from Ms. Dolly
15 Goyette at the Ministry of Energy to the Claimant
16 in response to the numerous letters no yes,
17 is that the right one? In response to the
18 numerous the Ortech project description report,
19 all the documents, the three documents the
20 Claimant said it submitted in their "REA
21 submission".
22 You can see, in this document,
23 which is dated August 25th, 2017, that the
24 Ministry of Energy told them that, if they wanted
25 to proceed with any further studies or work on the
[Page 1498]
1 Project, it was at their own risk.
2 CO-ARBITRATOR GOTANDA: But
3 not the letter of credit; right? Isn't the letter
4 of credit something different?
5 In other words, if they don't
6 establish that project, maintain it, the Project
7 is done.
8 So the fact that we have IESO
9 saying we haven't decided yet, is not unreasonable
10 given they just got the Award. They have to read
11 it.
12 And then Ontario not going
13 anything. Sitting in the Claimant's shoes, what
14 they did, it seems like one could make the
15 argument, wouldn't it, that they were acting
16 reasonably and maintaining the letter of credit
17 because they were, technically, it seems like, in
18 this catch 22 situation, that they had to do that.
19 Otherwise, there would be no Project.
20 MS. SQUIRES: Yes, right. I
21 guess there is two points I would make to that.
22 And, you are right, it does come down a little bit
23 to what was reasonable in those circumstances.
24 I would say, first, there is a
25 duty of mitigation on the Claimant and whether or
[Page 1499]
1 not that would apply here.
2 But, most importantly, the
3 Windstream I Award money, as we saw in 2082, was
4 used to pay down all of the expenses.
5 So there were no costs because
6 the Windstream I Tribunal's money was used to pay
7 for those costs.
8 CO-ARBITRATOR GOTANDA: Yeah.
9 But they wanted -- they desperately wanted this
10 Project to go forward.
11 And given that there was this
12 language from what the Tribunal said that, if you
13 get together with the other side, you could create
14 sort of value.
15 And then you have the IESO not
16 saying we are not terminating yet, you know, the
17 contract -- we are still trying to figure out
18 whether or not -- what to do. And then you have
19 Ontario not telling them anything or giving any
20 direction.
21 So it's not unreasonable for
22 them or maybe they were it was the appropriate
23 course of action to maintain at least the letter
24 of credit.
25 Putting aside further studies
[Page 1500]
1 are at your own risk. But, the letter of credit,
2 if they didn't maintain that, aren't they out at
3 that point?
4 MS. SQUIRES: Yes. So the
5 letter of credit did have to be maintained to keep
6 the FIT contract. That is correct.
7 I think it does come down to,
8 like you say, a test of what was reasonable to do
9 in those circumstances.
10 But, ultimately, the letter of
11 credit, we don't have any evidence of interest
12 being paid on that letter of credit, cost to the
13 Claimant for having proceeded in that way. And I
14 think there's a very much an evidentiary question
15 that would need to be addressed there as well.
16 CO-ARBITRATOR GOTANDA: Okay.
17 That may be. But, thank you.
18 MS. SQUIRES: I am with you.
19 CO-ARBITRATOR GOTANDA: Yeah.
20 Thank you.
21 MS. SQUIRES: So that brings
22 me to Question 5 and that's the question on loss.
23 So this is ultimately how we
24 would determine what is the quantum of loss I just
25 described.
[Page 1501]
1 And the Tribunal has asked us
2 on what basis is each party claiming appreciation,
3 or lack of, between the date of the first Award
4 and the valuation date.
5 And, in addition to that, on
6 what date was the Claimant made whole by the first
7 Award.
8 So I am going to start with a
9 question of what date was the Claimant made whole.
10 In the Windstream I Award, at
11 paragraph 484, we can see that the Tribunal held
12 that, in their view, the proper date of
13 quantification of the damages to the investment
14 was the date of the Award.
15 In their view, it was on that
16 date that damages to the Claimant's investment
17 crystallized. And, because of that, we say that
18 the Claimant was made whole as of the date of the
19 award.
20 Now, assuming we are starting
21 from zero or the position where the Claimant was
22 made whole by the Windstream I Award, the Tribunal
23 has asked us how we would determine any
24 appreciation value that has accrued to the
25 investment.
[Page 1502]
1 The Claimant argues that
2 changes in the offshore wind market globally, but
3 especially in the United States, since the
4 Windstream I Award means that the Claimant's
5 investment would have a higher fair market value,
6 as of the date of the termination, than it did in
7 September 2016 when the Windstream I Award came
8 out.
9 In fact, we have heard from
10 Secretariat that the Claimant believes these
11 market increases have led to its Project going
12 from a fair market value of $31 million to
13 $300 million in under four years.
14 Now this sounds illogical and
15 that's because it is.
16 When a correct basis for
17 determining appreciation is applied, the
18 Claimant's Project did not change in value over
19 the relevant period.
20 So let's look at why.
21 In the first Windstream
22 arbitration, the Tribunal held that the fair
23 market value of the Claimant's investment but for
24 the breach was $31 million.
25 In coming to that finding,
[Page 1503]
1 they relied on a comparable transactions
2 methodology, as we know. And derived a fair
3 market value out of transactions that took place
4 between 2009 and 2013 that were at a similar stage
5 of development, as defined by Dr. Guillet.
6 It is that value that must be
7 deducted from what the Tribunal considers the
8 proper method to value the Project as it exists in
9 February 18th, 2020.
10 Canada maintains that, given
11 the Project has not changed at all since
12 February 11th, 2011, and thus, remains an early
13 stage project, the doctrine of res judicata
14 applies to bar this Tribunal from applying a DCF.
15 And my colleague Mr. Neufeld
16 will speak to that shortly when he outlines all of
17 the issues that fall within that area.
18 But this means that what we
19 have on the table, then, and especially after this
20 morning -- as it does not appear anymore that the
21 Claimant is relying on its DCF as its primary
22 valuation methodology -- is two market comparables
23 analysis for the Tribunal to choose from: That of
24 Dr. Guillet and that of Secretariat.
25 I am going to explain to you
[Page 1504]
1 why the one the valuation from Dr. Guillet
2 should be preferred.
3 The Claimant's market
4 comparables analysis arrives at a Project
5 valuation of $300 million but that is because
6 their market comparables approach is based on a
7 flawed premise.
8 The Claimant's experts have
9 been instructed to assume, among other things,
10 that the Claimant was farther along in the site
11 control process than it was; that it would have
12 received all environmental permits; and that its
13 conditional grid connection would have become
14 guaranteed; and, importantly, that it would have
15 been built within the five year timeline of the
16 FIT Contract while relying on a FIT contract
17 interpretation that has already been rejected by
18 Ontario courts.
19 These types of assumptions
20 should not be imported into a market comparables
21 analysis. It brings with it the same level of
22 impermissible speculation that makes the DCF
23 inappropriate here as well.
24 PRESIDING ARBITRATOR MILES:
25 When you say further along in the project than it
[Page 1505]
1 was, according to what project development
2 timeline or stages or whose?
3 MS. SQUIRES: So, here, I am
4 talking about, if we look at the four factors that
5 lead to fully permitted.
6 PRESIDING ARBITRATOR MILES: I
7 understand.
8 So whose timeline are you
9 relying on here?
10 MS. SQUIRES: I don't know if
11 it matters, at the end of the day. As we
12 mentioned, it's a spectrum.
13 PRESIDING ARBITRATOR MILES:
14 Yeah. Okay. And Mr. Neufeld will come back to it
15 because this goes to the heart of the issue
16 estoppel on this point.
17 If we are relying on
18 Dr. Guillet's development timeline schedule, and
19 if the Tribunal took a decision in the first Award
20 even to apply the market approach because of
21 Dr. Guillet's evidence, expert opinion on his
22 timelines, and Dr. Guillet has told us, in these
23 proceedings, maybe he has, maybe he hasn't. This
24 is for us to think about. That, actually, they
25 are different now. I have changed my mind.
[Page 1506]
1 Or not I have changed my mind.
2 Let's be fair. The market's changed.
3 And you said nothing has
4 changed since the date of the Award for valuation
5 purposes. The valuation date has changed.
6 You accept that; don't you?
7 MS. SQUIRES: Yes. I mean,
8 nothing has changed with respect to project
9 development since that time.
10 PRESIDING ARBITRATOR MILES:
11 Right.
12 So the valuation date has
13 changed.
14 And, because of that change in
15 valuation date, we have different ex-ante
16 information available to us than what the Tribunal
17 had in 2016.
18 And, indeed, Dr. Guillet has
19 different ex-ante and a little bit of ex post.
20 But different ex-ante information available to him
21 than what he had when he gave his opinion to that
22 Tribunal upon which it based its decision.
23 This is the point on your
24 Slide 72 that comes to the point Professor Gotanda
[Page 1507]
1 has raised on res judicata.
2 But it's also a loss point as
3 well.
4 If, for some reason, we did
5 not accept Dr. Guillet's fairly binary judgment
6 that valuation date does not change the multiplier
7 and the market approach, and we looked to what the
8 correct multiplier is as at today's valuation
9 date.
10 Do you accept that that
11 multiplier could have changed because what we
12 know, at today's valuation date, is different to
13 what the Tribunal knew at the previous valuation
14 date?
15 MS. SQUIRES: So I accept that
16 the multiplier could have changed based on the
17 market.
18 I think everybody agrees that
19 the Project has not itself moved along since the
20 time it entered force majeure.
21 Our position would be, and
22 consistent with the testimony of Dr. Guillet in
23 the first and second arbitrations that, because of
24 the Project's specific characteristics, it remains
25 at the very beginning of the early stage
[Page 1508]
1 development and that part of his diagram of stages
2 of development has not changed.
3 PRESIDING ARBITRATOR MILES:
4 Okay. That's your submission.
5 Because he spent a lot of time
6 with this whole new stage of mid stage
7 development.
8 MS. SQUIRES: Yes.
9 PRESIDING ARBITRATOR MILES:
10 Which didn't exist in his earlier opinion.
11 And the four elements of fully
12 permitted, I think it's his evidence that they too
13 are not linear.
14 MS. SQUIRES: Um-hmm.
15 PRESIDING ARBITRATOR MILES:
16 That you weight those four factors in different
17 ways in a combination of three and almost one,
18 might be a very different state of certainty,
19 because that's what we are looking for, than two
20 other definite factors and two others quite close.
21 So they are not -- they don't
22 work sequentially in that -- in an absolute way.
23 And I think he was very helpful on that and I
24 found him very candid that he has more information
25 now.
[Page 1509]
1 So the facts haven't changed
2 but the effect of the combination of facts and
3 factors on how you value a development stage
4 project, wherever it sits within that three parts
5 of development, that might have changed.
6 MS. SQUIRES: I do agree that
7 the phases have developed over time. As you say,
8 with Dr. Guillet's analysis, he has moved from a
9 certain number of phases to five phases now and
10 that has changed over time. I agree.
11 Fundamentally, at the end of
12 the day, though, you have to place the Project, as
13 it exists here, on that continuum.
14 And what we have is a Project
15 that did not have access to its site and, in fact,
16 as designed in this arbitration, it's on grid
17 cells that were not even part of the application
18 to which it alleges it had priority status.
19 It has made assumptions to get
20 it further along in the development stage.
21 The most obvious of that is
22 that site release would have been granted. It has
23 to make those assumptions because it knows that,
24 if it didn't, it's an early stage development
25 project.
[Page 1510]
1 There is a reason why the
2 Secretariat report has almost two pages of
3 assumptions.
4 And that's because they need
5 this Tribunal to go back to a world where
6 everything was perfect. We can get this built on
7 time. We can do it faster than anyone else in the
8 world. We can do it cheaper. We can renegotiate
9 our turbine sales agreements.
10 All these things, they need to
11 have them. They have assumed them all away for
12 the purposes of their market comparables, just as
13 they did for their discounted cash flow in the
14 first arbitration.
15 PRESIDING ARBITRATOR MILES:
16 Well, that's not quite right; is it? They took a
17 60 percent haircut on their discounted cash flow
18 in their first valuation. And they put a
19 15 percent IRR on their structured transaction
20 model. Both of those things do the opposite of
21 assuming away risk.
22 MS. SQUIRES: I think it
23 assumes some risk away.
24 PRESIDING ARBITRATOR MILES:
25 60 percent.
[Page 1511]
1 MS. SQUIRES: Sure,
2 60 percent.
3 I think if you look back to
4 the discounted cash flow model that Canada put
5 forward in the Windstream I arbitration, when
6 proper risk, when proper discount rates are
7 applied, it actually discounts the Project back to
8 zero so --
9 PRESIDING ARBITRATOR MILES:
10 Well, I won't get you to define proper in that
11 context.
12 MS. SQUIRES: Yes. I think
13 that's a subjective analysis, I think.
14 I do want to -- before passing
15 things over to my colleague, Ms. Dosman, I do want
16 to take a couple minutes to address the comments
17 with respect to the Claimant and the contents of
18 Dr. Guillet's report and the confidential -- his
19 reliance on confidential information.
20 PRESIDING ARBITRATOR MILES:
21 Just before you do that, I just have a question
22 following on from my earlier question.
23 At paragraph 475 of the
24 earlier Award, I just want to understand, are
25 you -- you have been very clear, as you have been
[Page 1512]
1 throughout the arbitration, that you're relying on
2 paragraph 475 for the finding, including, as I
3 understand it, issue estoppel that the Claimant
4 did not have site control.
5 You have been less clear about
6 whether or not we are precluded from the
7 Tribunal's finding that the Claimant did have a
8 grid connection.
9 Can you just be clear as to
10 what your position is on that.
11 MS. SQUIRES: Yeah. So I, I
12 think this is a bit of a complicated factual
13 issue.
14 PRESIDING ARBITRATOR MILES:
15 So this -- so just so I understand.
16 Grid connection is a bit of a
17 complicated issue but site control is not a bit of
18 a complicated issue, in your submission.
19 MS. SQUIRES: No, no. I would
20 say they are both complicated issues because the
21 way it's been pled.
22 PRESIDING ARBITRATOR MILES:
23 Okay. Okay.
24 MS. SQUIRES: So a couple of
25 factual backgrounds to the grid assessment.
[Page 1513]
1 The --
2 PRESIDING ARBITRATOR MILES:
3 We don't have to go through the evidence and
4 submissions again because we have got all the
5 arguments on that.
6 I think what I am just really
7 trying to understand -- and I think the answer
8 sounds like it's a yes.
9 Are you maintaining your
10 position that, either because it doesn't really
11 mean grid connection, that we are not bound by
12 that finding although we are bound by the site
13 control finding?
14 MS. SQUIRES: Yeah. So --
15 PRESIDING ARBITRATOR MILES:
16 Basically, how we get there, you have pleaded
17 fully.
18 MS. SQUIRES: Exactly.
19 PRESIDING ARBITRATOR MILES:
20 But you are saying we can you are asking us to
21 assume there was no grid connection or to find
22 that there was no grid connection?
23 MS. SQUIRES: I guess it would
24 depend on a finding of whether the Tribunal there
25 meant grid connection as it's defined for the
[Page 1514]
1 purpose of valuation. And I believe Mr. Tetard
2 raised the same questions himself when he read the
3 Award.
4 PRESIDING ARBITRATOR MILES:
5 Right.
6 And to which then, you would
7 think, to be logically consistent, it would also
8 raise the question as to what the Tribunal meant
9 by site control.
10 MS. SQUIRES: I think, in the
11 Award, there is very little discussion on grid
12 connection. There is quite a bit of discussion on
13 site control. They have walked through the site
14 control process. They have a very good
15 appreciation of what they are talking about there.
16 Paragraph 107 of the Award
17 walks through all three steps in the process. It
18 situates the Claimant in that process. We do not
19 have that grid control so it's a bit harder to
20 say.
21 PRESIDING ARBITRATOR MILES:
22 Okay. I have your position. It does feel rather
23 like you want to have your cake and eat it but I
24 understand that that is your position. That's all
25 right. I like cake too.
[Page 1515]
1 But Mr. Neufeld will come to
2 res judicata so you will come back around on this.
3 MS. SQUIRES: Perhaps he has
4 no sweet tooth. We will see.
5 So the last point I want to
6 make, before Ms. Dosman steps up here, is just a
7 couple notes on Dr. Guillet's evidence and the
8 confidential information that he does rely on,
9 because it has, very clearly, become an issue.
10 As the Claimant has mentioned,
11 as the Tribunal is aware, this issue was discussed
12 before the Windstream I Tribunal submissions were
13 made and, in the end, the Tribunal decided, based
14 on the IBA Rules on the Taking of Evidence and the
15 UNCITRAL Rules, Article 27.3, that the question of
16 Dr. Guillet's reliance on confidential information
17 went to the weight of that testimony.
18 When, in speaking about the
19 res judicata effect of that this morning,
20 Mr. Terry spoke about the fact that new things
21 have come to light here. That, in the Windstream
22 I arbitration, he did not ask about the underlying
23 data and he did not know that there was any
24 correction.
25 MR. TERRY: Sorry, that's not
[Page 1516]
1 correct.
2 PRESIDING ARBITRATOR MILES: I
3 didn't hear that either. I didn't hear that
4 that's what he said.
5 Were you suggesting Mr. Terry
6 didn't ask in cross-examination; was that what you
7 were trying to say because he didn't say?
8 MS. SQUIRES: Sorry. In the
9 Windstream I hearing, he mentioned that he did not
10 ask about corrections to the report so did not
11 know to then.
12 PRESIDING ARBITRATOR MILES: I
13 did not hear Mr. Terry say that this morning.
14 Mr. Terry, do you want to
15 clarify what you said?
16 MR. TERRY: What I certainly
17 said -- what I believe I said, and certainly
18 intended to say, was that, this time, there was a
19 new avenue opened up because we had evidence of
20 errors and that that, therefore, caused me to ask
21 him questions about it and that we didn't have
22 evidence of errors the first time.
23 I certainly recall asking him
24 questions, in cross-examination, about the
25 confidential nature but not that.
[Page 1517]
1 MS. SQUIRES: Okay.
2 I am going to -- okay.
3 So, in the first Windstream I
4 arbitration, there was no evidence of errors on
5 the part of Dr. Guillet.
6 In the cross-examination of
7 Dr. Guillet in the Windstream I arbitration, at
8 page 185, my friend Mr. Terry -- and that's
9 Exhibit C-2466 -- asked Dr. Guillet about the
10 North Sea offshore wind project.
11 In response, Dr. Guillet said:
12 "Maybe, well, North Sea.
13 Sorry, North Sea one is
14 not on the list. But,
15 yes, it should be."[as
16 read]
17 There were errors made in
18 Dr. Guillet's report in the Windstream I
19 arbitration and they were questioned.
20 Second, if there are concerns
21 about Dr. Guillet's use of the numbers dating back
22 to 2008 -- oh, yes?
23 CO-ARBITRATOR GOTANDA: I
24 understand that. And I understand entirely that
25 the Tribunal would give weight, can assess weight
[Page 1518]
1 to testimony.
2 It's a different thing, isn't
3 it, to allow evidence in when the other side can't
4 test it at all? That, I think, is the complaint
5 of the Claimants.
6 So it doesn't go to the
7 Tribunal's weight of his testimony because -- and
8 that -- and I am not even sure that, for our
9 purposes, we can revisit that. But that's a
10 different issue than allowing something in when
11 you don't have the opportunity to test.
12 MS. SQUIRES: I agree.
13 And you are correct in that
14 the evidence is useful when it can be tested.
15 PRESIDING ARBITRATOR MILES:
16 This comes at the footnote of the Award at
17 paragraph 497. Footnote 1041 of the earlier
18 Award.
19 In relying on Dr. Guillet's
20 evidence, the Tribunal keeps in mind that some
21 third party confidential evidence underlying the
22 Green Giraffe report was not made available to the
23 Claimant. They refer back to paragraph 63 and 66
24 which is the document production exercise.
25 At paragraph 67 is where the
[Page 1519]
1 Tribunal says we are not going to order production
2 of the underlying information but the fact that it
3 is not provided will go to the weight that we
4 attribute to that evidence.
5 CO-ARBITRATOR GOTANDA: Right.
6 PRESIDING ARBITRATOR MILES:
7 Did we do that?
8 CO-ARBITRATOR GOTANDA: No.
9 No.
10 PRESIDING ARBITRATOR MILES:
11 Remind me, Mr. Terry, did you request this data in
12 these proceedings?
13 MR. TERRY: I don't believe so
14 but I will check with the team.
15 PRESIDING ARBITRATOR MILES: I
16 am glad you need to check too.
17 MR. TERRY: No. So you did
18 not make a similar order.
19 PRESIDING ARBITRATOR MILES:
20 Because we were not asked to.
21 MR. TERRY: Yes, yes.
22 Correct. Correct. I didn't mean to suggest
23 anything otherwise.
24 MS. SQUIRES: I will note on
25 that point, however, the Claimant has made quite a
[Page 1520]
1 few inferences or perhaps direct statements in its
2 reply rejoinder that we should not be relying on
3 Dr. Guillet's evidence because it's not readily
4 available. Canada responded to that in the
5 rejoinder memorial by drawing out the
6 correspondence from Windstream I. So the
7 opportunity was certainly there.
8 Despite all that, I am going
9 to give you some comfort.
10 If you decide no weight should
11 be given to certain parts of Dr. Guillet's
12 evidence -- and, to be clear, because Mr. Terry
13 mentioned this morning, it is not our position
14 that you should go to this as your first
15 valuation. We are still of the view that the 23
16 projects are relevant.
17 That being said, I am going to
18 triage the data by two different points.
19 If we were first to focus only
20 on projects which are valued based on transactions
21 that go from 2016 to 2020, in doing so, we would
22 arrive at a multiple of 0.056 million euros per
23 megawatt.
24 For the Project, that
25 translates into 16.8 million euros.
[Page 1521]
1 You'll recall the Windstream I
2 Tribunal valued the Project at 21 million euros
3 per megawatt.
4 If we were then to reduce
5 those Projects to take out ones that Dr. Guillet
6 has either provided no information for or has only
7 provided some information for, we would be down to
8 three projects.
9 Those projects would give us
10 an implied multiple of 0.07. That number may
11 sound very familiar.
12 That is precisely the number
13 the Windstream I Tribunal used to value the
14 Project. That will get you at a value of 21
15 million euros per megawatt. Exactly the same.
16 So before I yield the floor --
17 no.
18 PRESIDING ARBITRATOR MILES:
19 Ms. Squires, you are not going through any adding
20 back in what would now if we were to take the
21 finding in the earlier Tribunal that, by
22 definition, having one of the four factors means
23 the Project is early stage development.
24 Therefore, any project that does not have one of
25 the four factors is early stage development by
[Page 1522]
1 definition.
2 Does that not mean we also
3 have to -- we can take out all the non-disclosed.
4 But don't we also have to put
5 in the four or five projects from Dr. Guillet's
6 reports in these proceedings from what he calls a
7 late stage development chart but, actually, he
8 accepted, on cross, did not have one of the four
9 features?
10 And, if we did that, excluding
11 the 1.35 outlier, which is the Welsh one, doesn't
12 that take us to -- I did the maths. That was .15
13 or 115 -- .15 I think it was.
14 But, to be consistent --
15 right. So the exercise you have done here --
16 MS. SQUIRES: I follow you.
17 PRESIDING ARBITRATOR MILES:
18 is ignoring the late-stage projects that
19 actually, by Dr. Guillet's own definition, didn't
20 have one of the four features of fully permitting.
21 MS. SQUIRES: So I believe the
22 response to that is you cannot place equal weight
23 on all four and all four of the factors that go
24 into full permitting.
25 And the reason of that is, in
[Page 1523]
1 certain scenarios, one comes first and, in certain
2 scenarios, one comes last.
3 PRESIDING ARBITRATOR MILES:
4 Sure.
5 But isn't that resolved by the
6 fact that there is a range, there is a range of
7 values for each of those phases and that range
8 takes that into account?
9 You might have a FIT contract
10 and nothing else. But an FIT contract is, to use
11 another judge's phrase, a thing written water. If
12 there's absolutely no land, no property, no right
13 to build anything. You just have a contract say
14 in the never, never. You got to build something
15 that's unbuildable. You would get this tariff
16 that may be worth nothing.
17 But that's why we have a
18 range. That's why we have .001 -- have I got too
19 many zeroes?
20 MS. SQUIRES: .01 is the
21 beginning.
22 PRESIDING ARBITRATOR MILES:
23 .01 to 1 in that early stage development. That's
24 precisely why.
25 Because the four factors are
[Page 1524]
1 not binary -- are not linear. That's what I keep
2 saying. That's, I think, what Dr. Guillet --
3 that's what I learned from Dr. Guillet.
4 MS. SQUIRES: I am with you on
5 the early stage is 0.01 to 0.1. The Secretariat
6 report --
7 PRESIDING ARBITRATOR MILES:
8 Well, and that was what the earlier Tribunal said.
9 It was based on what information was given to
10 them. We have been given different information.
11 The Tribunal concluded if you
12 don't have one of four factors, by definition,
13 you're early stage development.
14 The Tribunal concluded,
15 because of the market comparables Dr. Guillet gave
16 them, and they checked against Mr. Low and others
17 the Deloitte market comparable, they concluded
18 that market comparables are projects that didn't
19 have one of those four factors, were, by
20 definition, early stage. And the market
21 comparable multiplier taking those early stage
22 projects gave a variable, gave a range from .01 to
23 .1.
24 If we were to do exactly the
25 same exercise that the Tribunal did on our own
[Page 1525]
1 data, wouldn't we need to treat early stage
2 development as all projects that do not have, for
3 final, one of those four features, take all of
4 those projects, which includes, after
5 cross-examination, we know a number of projects in
6 Dr. Guillet's second table on late stage
7 development, and then take the range, the range
8 that that gives us.
9 What we do in that range and
10 whether or not we would consider this Project to
11 be at the mean or the average, which is what the
12 Tribunal did earlier, that's a separate question.
13 We might say it belongs right at the early, early
14 end of that range but doesn't the range change?
15 MS. SQUIRES: So perhaps just
16 a point of clarification, if you don't mind.
17 The outside range would be the
18 Secretariat number? Is that the outside range?
19 CO-ARBITRATOR MCLACHLIN: No.
20 MS. SQUIRES: I am trying to
21 figure out what range we are working with.
22 PRESIDING ARBITRATOR MILES: I
23 don't know. The mean I got was .15 so I can't
24 remember what the range was. I think the range
25 went up to .32. Because I took out the outlier.
[Page 1526]
1 Actually, I think it got to
2 .24 which was the amended item on the second chart
3 which Dr. Guillet accepted was amended. I took
4 out two outliers. I took out .32 of the first --
5 and, at this point, we are probably getting into
6 such made up numbers, none of it made sense.
7 MS. SQUIRES: That's okay.
8 PRESIDING ARBITRATOR MILES:
9 But maybe that's the point; right.
10 But, on this chart, I did not
11 include .28, for the reasons Secretariat said, off
12 this chart and I think neither have you.
13 And, on the late stage
14 development chart, I excluded 1.35 or 1.3
15 something because it just seemed like such an
16 outlier.
17 But took all of the other
18 items that Mr. Terry had highlighted. I think you
19 were in the room when we did it. I just added
20 those up and divided them by 12. So eight from
21 here and four from the other chart.
22 And that was how to get the
23 mean. I can't remember what the highest number
24 was. But I think it's about.24. So that would
25 give you the range. The range would be .01 to
[Page 1527]
1 .24.
2 MS. SQUIRES: Right.
3 PRESIDING ARBITRATOR MILES:
4 And, yes, that's different. That would match up,
5 that would enter into the late stage development,
6 even financial close of what Dr. Guillet said
7 eight years ago. But we have a different
8 valuation date so we have different information.
9 MS. SQUIRES: Just give me one
10 second.
11 I agree with you. If you were
12 to combine them in that way to create a range that
13 goes from both experts' view as to what would
14 constitute an early stage, then we would be
15 looking there and would try to place the Project
16 in that, using the market comparables.
17 I would note that
18 Secretariat's multiple of the Project, on the
19 projects that they use, when they have their full
20 list of ten, that gives them a valuation of the
21 Project of 1.01, which is quite at the higher in
22 even the range we are talking about there.
23 So.
24 PRESIDING ARBITRATOR MILES: I
25 just checked. Yes, it would.
[Page 1528]
1 The highest in the range taken
2 from Mr. Terry's cross-examination yesterday was
3 .32. Because I omitted, as I said, the Welsh
4 project that was 1.33.
5 So, including Seagreen 1, LEM,
6 Ørsted, Saint-Brieuc, those four no, it's the
7 late stage development chart. And then doing
8 exactly what you did here, yeah.
9 MS. SQUIRES: Yeah, yeah.
10 Unless there are further
11 questions.
12 CO-ARBITRATOR GOTANDA: So,
13 just for clarification, I am a little confused.
14 Are you abandoning, then, the
15 claim in Slide 72 that it's collateral estoppel as
16 to including undisclosed confidential information?
17 MS. SQUIRES: Mr. Neufeld is
18 shaking -- I don't believe so.
19 And Mr. Neufeld is shaking his
20 head no at me because he would like to address
21 this when he stands up to discuss the points on
22 estoppel.
23 CO-ARBITRATOR GOTANDA: Okay.
24 MS. SQUIRES: I am estopped
25 from talking about estoppel, it seems.
[Page 1529]
1 PRESIDING ARBITRATOR MILES:
2 Very good.
3 MS. SQUIRES: Thank you very
4 much.
5 PRESIDING ARBITRATOR MILES:
6 Thank you. We are going to be dreaming these
7 numbers all weekend.
8 MS. SQUIRES: We have been
9 doing it for eight years.
10 CLOSING ARGUMENT BY MS. DOSMAN:
11 MS. DOSMAN: Good afternoon.
12 Hello again.
13 I think I will be relatively
14 brief, although famous last words.
15 In Question 4, the Tribunal
16 asked for more clarity on the Claimant's position
17 with respect to CUSMA Annex 14B. And, in
18 particular, whether it must look at
19 investment-backed expectations as an element of
20 the test.
21 We believe Canada's position
22 on that is clear, set out in rejoinder at
23 paragraphs 145 to 147, counter-memorial at 151.
24 PRESIDING ARBITRATOR MILES:
25 And, to be fair, if it helps, your position was
[Page 1530]
1 clearer to us than the Claimant's position prior
2 to this morning.
3 MS. DOSMAN: Okay. Excellent.
4 To the extent the Tribunal is
5 minded to do more reading on this topic, we have
6 included a few references on Slides 28 through 31.
7 PRESIDING ARBITRATOR MILES:
8 And those are the cases that get you to
9 investment-backed expectations without CUSMA Annex
10 14B.
11 MS. DOSMAN: Correct.
12 PRESIDING ARBITRATOR MILES:
13 Perfect. That's really helpful to have those.
14 Thank you.
15 MS. DOSMAN: Love. Love that.
16 Okay. We can move, then, to
17 Question 3.
18 PRESIDING ARBITRATOR MILES: I
19 am sorry. Just what's your position on what the
20 Tribunal did with that in the earlier Award?
21 MS. DOSMAN: You said it.
22 They went straight to end game. They didn't do
23 the full test.
24 PRESIDING ARBITRATOR MILES:
25 Got it. Okay. Thanks.
[Page 1531]
1 So we are not precluded one
2 way or the other.
3 MS. DOSMAN: Correct.
4 PRESIDING ARBITRATOR MILES:
5 Okay. Thanks.
6 MS. DOSMAN: I think I get the
7 record for quickest question.
8 Question 3, the Tribunal asked
9 us, accepting Canada's case that certain measures
10 fall outside the three year limitation period, so
11 if we take those elements out, what would the
12 minimum standard of treatment basis be arising out
13 of the remaining elements.
14 If you'll permit, I would like
15 to make just one preliminary remark on --
16 responsive remark to Ms. Sherkey's submissions on
17 the standard to be applied under Article 1105(1).
18 And it's really just a note of
19 caution. Again, I did address the standard, in
20 Canada's view, in our written pleadings and in our
21 opening submissions.
22 And I won't return to that now
23 but I would like to call up the case to which
24 Ms. Sherkey took us, Lemire. It's CL-188.
25 And I flag this because of the
[Page 1532]
1 need to be precise and careful about which cases
2 we refer to in discussing the minimum standard of
3 treatment.
4 As you know, we do have the
5 note of interpretation that clarifies that, in the
6 case of the NAFTA, fair and equitable treatment
7 does not require anything more than that which is
8 required by the minimum standard of treatment
9 under customary international law.
10 And cases like Lemire involve
11 very different treaty language in which, for
12 example, here, this is the US-Ukraine BIT.
13 I am not going back to the BIT
14 itself, just the Award.
15 At paragraph 256, they quote
16 the relevant provision as including commitment
17 that neither party shall, in any way, impair, by
18 arbitrary or discriminatory measures, blah, blah,
19 blah, investment.
20 So you have, in that treaty,
21 an independent obligation with respect to
22 "arbitrary indiscriminatory measures" and we don't
23 have that in NAFTA.
24 So, for references to our
25 submissions on the scope of the standard, I
[Page 1533]
1 addressed it yesterday at Slides 151 to --
2 yesterday -- ah, Monday. Slides 151 to 156. And
3 the references to our written pleadings at
4 paragraphs 202 to 203 of the counter-memorial and
5 103 to 106 of the rejoinder.
6 So just sort of a note of
7 caution on the standard.
8 PRESIDING ARBITRATOR MILES: I
9 think it was the gross that I was interested in.
10 Just the -- and, yes, you are right. It was
11 Lemire, paragraph 262, at Slide 60, the Claimant
12 was relying on.
13 MS. DOSMAN: Yes.
14 PRESIDING ARBITRATOR MILES:
15 Arbitrariness has been founded on other bases.
16 I thought, it doesn't say it
17 on the slide, but I thought that was the
18 Claimant's answer to it is on the slide.
19 Prohibits arbitrary and grossly unfair conduct.
20 Does grossly unfair get in the
21 interpretation though?
22 MS. DOSMAN: Get in, sorry?
23 PRESIDING ARBITRATOR MILES:
24 Sorry, that's my Kiwi accent.
25 Get into the interpretation
[Page 1534]
1 note.
2 MS. DOSMAN: Interpretation
3 note. Does it get into the minimum standard of
4 treatment.
5 So Canada's submission is that
6 egregious conduct is required.
7 That's also reflected in the
8 Waste Management standard in the sense of them
9 using language such as manifestly, arbitrary and
10 that conduct must offend sense of judicial
11 propriety.
12 So we say it's more than
13 something that's simply arbitrary.
14 PRESIDING ARBITRATOR MILES:
15 Okay.
16 MS. DOSMAN: It must be really
17 quite severe.
18 PRESIDING ARBITRATOR MILES:
19 But you are happy with Waste Management because --
20 MS. DOSMAN: We have cited to
21 it, yes.
22 PRESIDING ARBITRATOR MILES:
23 -- I got from the Claimant this morning. They
24 were happy with Waste Management --
25 MS. DOSMAN: There are some
[Page 1535]
1 elements in there that we don't necessarily agree
2 with, with respect to the relevance of -- they
3 make a reference to legitimate expectations which
4 we think are potentially relevant but not always
5 relevant.
6 So it's not a whole hearted
7 endorsement but we are happy with the level --
8 with the acuteness of the language that the Waste
9 Management Tribunal uses.
10 PRESIDING ARBITRATOR MILES:
11 That's a very careful government answer.
12 For future reference, I don't
13 understand the Claimant to be putting their case
14 on legitimate expectations here.
15 MS. DOSMAN: No, no, no.
16 PRESIDING ARBITRATOR MILES:
17 So, in terms of the Waste Management definition
18 that's relevant for our proceedings, the parties
19 are at one on that.
20 MS. DOSMAN: With the emphasis
21 on manifestly arbitrary --
22 PRESIDING ARBITRATOR MILES:
23 The bits that are good for you. You are in line.
24 MS. DOSMAN: You can tell it's
25 Friday.
[Page 1536]
1 So, to move on to your
2 question then, and you will not be shocked by my
3 answer which is that what is left, if we are
4 looking at the period solely within the critical
5 date of December 22nd, 2017, forward, is a simple
6 exercise of a contractual right.
7 So the breach of Article 1105(1)
8 was fully remedied by the Award.
9 There was no new breaching
10 measure or activity that arose afterwards. I
11 believe I heard this morning that the termination
12 itself by the IESO is not being challenged as an
13 independent breach.
14 And that's essentially what
15 took place during that under three-year period.
16 So just brief recall. The
17 IESO communicated its intention to terminate on
18 February 20th, 2018.
19 And, as a result, WWIS
20 reactivated its domestic application seeking to
21 challenge the termination decision domestically.
22 That was on April 20th, 2018.
23 And then, one year and nine
24 months later, so January 15th, 2020, is when WWIS
25 filed its notice of abandonment of that domestic
[Page 1537]
1 application.
2 And then this arbitration was
3 commenced one week after that.
4 So we have a somewhat
5 protracted but otherwise fairly -- you know, it
6 was a contractual termination that was a right for
7 the IESO to exercise.
8 PRESIDING ARBITRATOR MILES:
9 Okay.
10 MS. DOSMAN: And I will just
11 warn you, the slides are a bit out of order. So,
12 if you come back to them later, you can use your
13 judgment, but.
14 Any other merits-related to
15 which I can give a careful answer?
16 PRESIDING ARBITRATOR MILES:
17 No, I think that's all clear. Thank you.
18 MS. DOSMAN: Oh, sorry. I had
19 made a note to myself and, since I was ending on
20 facts, it is sort of a segue.
21 Professor Gotanda, you had
22 asked about the reasonableness of entering into
23 the letter of -- the second letter of credit, so
24 post the date at which termination could be
25 exercised.
[Page 1538]
1 And this sort of flows from my
2 friend's comment that they aren't challenging the
3 specific IESO decision. So we really have to look
4 to Ontario here.
5 And, in my submission, Ontario
6 was very clear with the Claimant that it was not
7 interested in speaking to it.
8 So I think you can I agree
9 there is another step to -- from we are not going
10 to talk to, to we are not going to do anything to
11 renegotiate your contract. But at least that.
12 For example, Andrew
13 Teliszewsky, in paragraph 27 of his witness
14 statement, refers to a conversation with a
15 representative of the Claimant. And that was in
16 October or November 2016. And he said he was very
17 clear you have to talk to the IESO. The IESO is
18 the contractual counterparty.
19 The same message was repeated
20 in writing in two letters from the Ministry of
21 Energy to David Mars. The first being
22 December 6th, 2016, which is Exhibit C-2471,
23 Exhibit 3, and the second being February 21st,
24 2017, C-2076.
25 So I guess I would just -- I
[Page 1539]
1 think that could maybe play into the mix of what
2 they could expect.
3 CO-ARBITRATOR GOTANDA: But
4 that -- saying I refuse to speak to you is not the
5 same as telling them this is not going forward and
6 we are not going to direct IESO to do anything.
7 They never said that, did
8 they, before they established the second letter of
9 credit?
10 MS. DOSMAN: So, yeah, and
11 this is why I acknowledge there is another step to
12 get to that definitive of a statement.
13 But I do submit that they said
14 speak to the IESO because they are the ones who
15 are the contractual counterparty to you in this
16 case.
17 CO-ARBITRATOR GOTANDA: That
18 almost makes your position worse; doesn't it?
19 MS. DOSMAN: Does it? How so?
20 CO-ARBITRATOR GOTANDA:
21 Because --
22 MS. DOSMAN: Am I fired from
23 the Government of Canada?
24 CO-ARBITRATOR GOTANDA:
25 Because the argument, then, would be the IESO said
[Page 1540]
1 we are still thinking about it.
2 MS. DOSMAN: No, but the IESO
3 is okay to still be thinking about it because
4 that's not --
5 CO-ARBITRATOR GOTANDA: That's
6 fine. They know, then, at that point.
7 MS. DOSMAN: But that itself
8 is not a breach, from what I heard.
9 CO-ARBITRATOR GOTANDA: That
10 is true.
11 MS. DOSMAN: Yeah.
12 CO-ARBITRATOR GOTANDA: But
13 what we are trying to determine, though, is were
14 they reasonable in that circumstance. That period
15 of time, was it reasonable for them to take out
16 that second letter of credit.
17 And by them -- by the
18 affirmative act -- two affirmative acts; one is we
19 are not talking to you; and the second is you have
20 to go talk to the IESO. And then the IESO says we
21 are not we haven't made a decision yet.
22 And the fact that they didn't,
23 at that point, say -- Ontario say, no, or direct
24 the IESO not to do anything or direct them to, you
25 know, to tell them don't do this.
[Page 1541]
1 It's reasonable, wouldn't it,
2 under the circumstances for them to establish the
3 letter of credit -- that's not saying there's a
4 breach.
5 MS. DOSMAN: No, no, no, no.
6 Yeah --
7 CO-ARBITRATOR GOTANDA: All I
8 am focussing on here is whether the act of
9 establishing the letter of credit, under that
10 circumstance, was something that was, that was
11 almost necessary. They would have been in a catch
12 22 had they not.
13 And, given that entire
14 circumstance, including that affirmative
15 direction, what do you think? Don't you think it
16 was reasonable for them?
17 MS. DOSMAN: I don't know.
18 They had just been through litigation that found a
19 breach and that was remedied.
20 CO-ARBITRATOR GOTANDA: But
21 the Tribunal told them you can get together with
22 the other side and, therefore, we will then -- you
23 can create value.
24 So I am trying to think of
25 what the counter your counter argument -- and I
[Page 1542]
1 will let you say it -- would be that their
2 position, they shouldn't have done it.
3 MS. DOSMAN: So I guess the
4 context for that decision to refinance -- you
5 know, to put in a second letter of credit, is that
6 there had been this long litigation, a breach was
7 found. Ontario viewed the matter as resolved.
8 So Ontario, at that point, was
9 seeing this as a contractual matter. Sure.
10 As the Windstream I Tribunal
11 recognized, contractual counterparties can get
12 together and change their minds. That's fine.
13 But Ontario -- and I do take
14 my friend's case to be very much that of Ontario,
15 rather than, you know -- the Ontario's decisions
16 or omissions are at issue here.
17 That their line was that they
18 did not give any indication that there would be
19 movement, that they would take an affirmative
20 action so as to interfere with that contractual
21 relationship.
22 Instead, the message was go
23 back to your contract. Go back to your contract.
24 I see a furrowed brow.
25 PRESIDING ARBITRATOR MILES:
[Page 1543]
1 That's my wrinkles. That's all.
2 Paragraph 483, the Tribunal
3 didn't say IESO. The Tribunal said three times in
4 that sentence.
5 On the other hand, the
6 Tribunal does not consider it appropriate or
7 necessary to make any further adjustments although
8 the FIT contract could have been reactivated and
9 renegotiated by the Parties.
10 MS. DOSMAN: Yes, to the
11 contract.
12 PRESIDING ARBITRATOR MILES:
13 Well, no. It's capital P. It's a defined term in
14 the Award --
15 MS. DOSMAN: Okay. Okay.
16 That's not how I --
17 PRESIDING ARBITRATOR MILES:
18 the Parties.
19 Well, it's a capital P.
20 MS. DOSMAN: I accept that.
21 Yeah.
22 PRESIDING ARBITRATOR MILES:
23 So I think "Parties" is defined in the contract --
24 or memo. Let's have a look.
25 MS. DOSMAN: I am sure it is.
[Page 1544]
1 PRESIDING ARBITRATOR MILES:
2 Of course it's not.
3 MR. NEUFELD: No, this is
4 another problem.
5 PRESIDING ARBITRATOR MILES: I
6 see. So it's not actually.
7 So it would take a word search
8 to see how proper noun parties is used in the
9 Award. But then they say it's another matter that
10 the Parties -- again, capital P -- can create such
11 value.
12 It doesn't, it doesn't -- so
13 would you say that paragraph 438 could be read or,
14 in your submissions, should be read that that
15 proper noun, Parties, is the Parties to the
16 contract.
17 MS. DOSMAN: I would prefer to
18 do a word search to make sure but I have always
19 understood that.
20 PRESIDING ARBITRATOR MILES:
21 That's your --
22 MS. DOSMAN: Yeah, that has
23 been my understanding.
24 But, you know, if it is
25 capital P Ontario, doesn't that strengthen the
[Page 1545]
1 idea that -- doesn't Ontario's message that we are
2 not going to speak to you undermine the
3 reasonableness --
4 PRESIDING ARBITRATOR MILES:
5 Well, I am not sure.
6 I think what both parties have
7 sought to do today is separate out IESO had the
8 contracting obligation. They had to dot the I and
9 cross the Ps and sign -- cross the Ts and sign the
10 piece of paper in the contract themselves.
11 But the IESO could have been
12 directed on what to contract, how to contract,
13 whether or not to renegotiate, reactivate, what to
14 put in the terms of that contract, at all times by
15 Ontario.
16 So Ontario had the control
17 over the contract, although the operationalization
18 of that control was IESO.
19 So, if I have understood that
20 correctly as being the parties' positions, what
21 that means, I think, for the question you posed --
22 and I am not sure why I am answering your
23 questions, but here we are is, is that, for
24 Ontario to communicate to Claimant qua contracting
25 party, it's saying no, no, no. You deal with your
[Page 1546]
1 contract with your contracting counterparty. But
2 that's not the same as saying and we are going to
3 have nothing to do with it.
4 MS. DOSMAN: Absolutely, yeah.
5 PRESIDING ARBITRATOR MILES:
6 We are not going to talk to IESO. We are not
7 going to give any directions. We out of this
8 game.
9 They are just saying you do
10 your contract negotiations between A and B. We
11 are C. What C and B do, that's behind our
12 curtain.
13 MS. DOSMAN: Fair enough. I
14 think I acknowledged there was another step to
15 take.
16 PRESIDING ARBITRATOR MILES:
17 That was the step --
18 MS. DOSMAN: The
19 communications would be part of the context.
20 I also just think, on
21 attribution, I can feel my colleague Mr. Neufeld's
22 brain exploding because I don't believe it's
23 Canada's position that the two were one and the
24 same for the purposes of the contract, so.
25 PRESIDING ARBITRATOR MILES: I
[Page 1547]
1 don't think that's what I said.
2 MS. DOSMAN: Okay. Good.
3 Good. I misunderstood.
4 PRESIDING ARBITRATOR MILES: I
5 think I was trying to reflect both parties'
6 positions as the absolute opposite. But I don't
7 understand you to be saying that Ontario is
8 claiming it had no directive.
9 MS. DOSMAN: Power, ability,
10 theoretically.
11 PRESIDING ARBITRATOR MILES:
12 Yeah. Over what the -- that it couldn't direct
13 what the IESO did. In fact, we have got, I think,
14 excerpted examples of other contract examples
15 where it did direct.
16 MS. DOSMAN: I believe that's
17 in our pleadings as well, an option not an
18 obligation.
19 PRESIDING ARBITRATOR MILES: I
20 don't believe there is an attribution argument
21 made in these proceedings.
22 MS. DOSMAN: Good. I am not
23 fired then.
24 I will leave you now.
25 CLOSING ARGUMENT BY MR. TIAN:
[Page 1548]
1 MR. TIAN: Madam President,
2 members of the Tribunal, good afternoon.
3 To answer the Tribunal's
4 second question on time limitation, I will first
5 address the legal issue on whether components of
6 an alleged composite measure can be individually
7 analyzed for time-bar purposes.
8 Then, I will present facts
9 related to the Claimant's knowledge of the alleged
10 breach and loss.
11 As a preliminary matter,
12 Articles 1116(2) and 1117(2) not only cover actual
13 knowledge but constructive knowledge as well.
14 Therefore, when my friend
15 submitted, this morning, "you cannot impute
16 knowledge of a future breach or loss", this
17 ignores the clear language of the treaty
18 provisions.
19 If a reasonable and prudent
20 investor ought to have known the alleged breach or
21 loss, then of course that knowledge can be imputed
22 to the Claimant because he cannot willfully abstain
23 from the inquiry in order to avoid actual
24 knowledge.
25 The time-bar requirements for
[Page 1549]
1 a series of associated actions, such as those
2 challenges in this case, mandates the Tribunal to
3 only analyze the measures falling within the
4 limitation period.
5 The Spence tribunal correctly
6 held that a series of associated actions may be
7 divided up into those that meet the time-bar
8 requirement and others justiciable, and those that
9 do not meet the time-bar requirement and, thus,
10 not justiciable.
11 Therefore, to the extent that
12 the components of a series of measures took place
13 prior to the critical date and the Claimant knew
14 them, they could not form part of the basis of the
15 cause of action.
16 Of course this does not
17 prevent the Tribunal from considering background
18 facts that predates the critical date.
19 However, as the Glamis Gold
20 tribunal held and the parties appear to agree on
21 this, such factual predicates are not per se the
22 legal basis for the claim.
23 In this specific case, what
24 are the background facts?
25 Failure to do the studies is
[Page 1550]
1 not presented as a background fact.
2 Continued application of the
3 moratorium is not presented as a ground fact.
4 Nor is a failure to direct the
5 IESO, not to terminate or to freeze the FIT
6 Contract.
7 These are the measures that
8 the Claimant challenges. Even it's the essence of
9 its claim. They are not background facts.
10 PRESIDING ARBITRATOR MILES:
11 But, just be absolutely clear, and you have said
12 it.
13 If we were to consider they
14 are background facts in the way being put by the
15 Claimant, you would accept that they are within
16 the time-bar?
17 MR. TIAN: If they are indeed
18 background facts, that means they would be outside
19 of the limitation period and the Tribunal's basis
20 for consideration of a breach would be informed by
21 the measures within the limitation period,
22 informed by those background information.
23 So this, in other words, the
24 background fact cannot be the basis of any breach.
25 PRESIDING ARBITRATOR MILES:
[Page 1551]
1 Oh, I am sorry. I thought you had said Glamis
2 Gold does not preclude background facts that form
3 part of the breach. And then I thought you were
4 distinguishing measures which I still don't really
5 follow.
6 But -- and I was asking you if
7 we found these were background facts that were
8 part of the breach, are we not precluded? I am
9 confused.
10 I am sorry, what do you say
11 Glamis Gold says?
12 MR. TIAN: It says the
13 background facts are not per se the legal basis
14 for the claim.
15 And, as we understand it, it
16 refers to when they are background facts. That
17 would not be part of a legal basis. Therefore,
18 the Tribunal would only look at the legal basis of
19 a cause of action that are not those background
20 facts.
21 PRESIDING ARBITRATOR MILES:
22 If the Tribunal finds that background facts are
23 part of the cause of action but that the cause of
24 action, as a whole, arises within the limitation
25 period, in your submission, can we include those
[Page 1552]
1 background facts that arose more than three years
2 ago; yes or no?
3 MR. TIAN: Yes. Because the
4 premise of the question is the cause of action
5 arose within the limitation period.
6 PRESIDING ARBITRATOR MILES:
7 Yeah. Good. Okay. That's what I thought you
8 meant the first time. Then you sent me off in
9 three different directions like a pinball.
10 MR. TIAN: Sorry about that.
11 Okay. Maybe it was me.
12 And there is an obvious
13 disconnect in the Claimant's submissions when it
14 says it is not challenging precut-off date
15 measures.
16 Because all of the Ontario's
17 measures and the last one from the IESO are
18 precisely precut-off date measures.
19 CO-ARBITRATOR GOTANDA: So I
20 am a little -- I just want to and this is my
21 confusion on this probably.
22 So the statute requires -- the
23 Article 1116 requires knowledge of the alleged
24 breach and knowledge that the investor has
25 incurred loss or damage.
[Page 1553]
1 So, if you have facts leading
2 to knowledge of the alleged breach, does that
3 alone start the clock running that you have to be
4 within -- in other words, the limitation -- the
5 three-year limitation period for that; or does the
6 fact that you also need the investor has incurred
7 loss or damage?
8 MR. TIAN: The legal test is
9 you need both.
10 So both the knowledge of loss
11 and the knowledge of the alleged breach.
12 CO-ARBITRATOR GOTANDA: Right.
13 MR. TIAN: I think that's the
14 distinction I am trying to make between background
15 facts and measures.
16 CO-ARBITRATOR GOTANDA: Right.
17 MR. TIAN: Measures could be
18 challenged independently as a cause of action.
19 Whereas background facts, in Canada's submissions,
20 cannot.
21 CO-ARBITRATOR GOTANDA: I see.
22 I think I got it.
23 CO-ARBITRATOR MCLACHLIN:
24 Background facts are just what you build your
25 claim on or foundation.
[Page 1554]
1 But the real question is when
2 did the breach, when did these facts combine with
3 other things to constitute a breach.
4 MR. TIAN: Precisely.
5 The Claimant has tried to
6 label Canada's arguments as circular, that it is
7 too early to challenge the termination as an
8 expropriation claim in Windstream I and too late
9 now.
10 However, this ignores the
11 essence of its claim that is not the termination
12 itself. But, rather, the circumstances that
13 Ontario created leading to the termination of the
14 FIT contract.
15 It cannot argue, on one hand,
16 for liability that Canada -- rather, Ontario's
17 measures breached the minimum standard of
18 treatment and expropriated its investment, and
19 then, on the other hand, that they are not looking
20 for the same measures for time-bar purposes.
21 CO-ARBITRATOR GOTANDA: And
22 that's where I get a little confused.
23 Because expropriation, at
24 least the way I read the Windstream I Award, is
25 that cause of action doesn't arise until there's a
[Page 1555]
1 termination of the contract.
2 Am I misreading it or is that
3 incorrect?
4 MR. TIAN: The cause of
5 action, in case of expropriation, is somewhat
6 linked with the loss or damage, for that respect.
7 And it is our standpoint that
8 the knowledge of loss for the expropriation claim
9 arose at least on May 2012 when the Claimant had
10 knowledge that its Project could not move forward
11 in a way that respects the FIT contract's
12 timeline.
13 CO-ARBITRATOR GOTANDA: But
14 then how does that square with the Tribunal's
15 decision saying, essentially, that your claim is,
16 essentially, not ripe here because the contract is
17 still in force and it hasn't been, hasn't been
18 terminated. Hasn't been taken, in other words.
19 If you can't bring the claim
20 until they actually take the property, that's a
21 different question as to whether or not you have
22 incurred damage.
23 In other words, they haven't
24 actually incurred -- the word I think that the
25 Claimants are focusing on is they haven't incurred
[Page 1556]
1 the loss or damage.
2 You may know that -- you think
3 that there might be loss or damage but you
4 actually haven't incurred it, and I think that's
5 what the Court was saying. The Tribunal was
6 saying -- the earlier Tribunal was saying. It
7 just wasn't incurred yet.
8 And so, therefore, until that
9 time where the contract is actually terminated,
10 it's not incurred.
11 MR. TIAN: Canada understands
12 the first Tribunal's Award not to mean that an
13 expropriation would arise when the contract is
14 terminated.
15 In fact, the Tribunal did not
16 opine on that question. The Tribunal only opined
17 that, back then, there was no expropriation. And
18 it is up to this Tribunal to decide whether there
19 is a viable claim of expropriation after the
20 contract has been terminated in 2018 and effective
21 in 2020.
22 So it wasn't the question that
23 was specifically on the mind of the first
24 Tribunal.
25 CO-ARBITRATOR MCLACHLIN:
[Page 1557]
1 Where are you on your slides?
2 MR. TIAN: This one.
3 CO-ARBITRATOR MCLACHLIN:
4 Okay, I will go back there. Thank you.
5 MR. TIAN: The essence of the
6 Claimant's complaint -- that is Ontario's
7 measures -- and the background fact -- that is any
8 promise that was made in 2011 -- to the extent it
9 is relevant at all or predate the critical date,
10 the starting point of the limitation period
11 analysis is the essence of the cause of action.
12 At paragraph 206 of the reply,
13 the Claimant attempts to portray its cause of
14 action as the composite measure arising from the
15 sixth individual measures. Yet, it makes no
16 submission as to how the six individual measures
17 amount to a composite measure.
18 Nor does it make any
19 submission on the effect of a composite breach on
20 time-bar requirements.
21 The Tribunal must reject the
22 Claimant's unsubstantiated attempt to amalgam all
23 the challenge measures which means the Tribunal is
24 to analyze each measure individually.
25 And, even if the six measures
[Page 1558]
1 were to amount to a composite measure, the proper
2 approach remains to analyze them individually for
3 time-bar purposes.
4 When faced with a composite
5 breach claim, the Rusoro Mining tribunal stated
6 that the better approach of finding time-bar,
7 consistent in breaking down each alleged composite
8 claim into individual breaches, each referring to
9 a certain government measure and to apply the
10 time-bar to each of such breaches separately.
11 The Bilcon --
12 PRESIDING ARBITRATOR MILES:
13 Just semantically, a measure may, in total, be the
14 basis of a breach. But, on the other hand, a
15 measure may not be the entirety of the breach.
16 Just, it's simple logic. A
17 measure could be all that you're required to have
18 a breach or a measure could be an element of a
19 breach, depending on what the measure is and
20 depending on how you're using the word measure.
21 Again, whether you're using it as a thing, as a
22 proper noun, or just a description like an
23 element.
24 MR. TIAN: Yes.
25 PRESIDING ARBITRATOR MILES:
[Page 1559]
1 Right. So I think I understand your position more
2 clearly now.
3 But insofar as the Claimant's
4 alleging a measure qua breach, your position is,
5 if that measure qua breach occurred more than
6 three years before the notice of intention itself;
7 right?
8 MR. TIAN: Yes.
9 PRESIDING ARBITRATOR MILES:
10 If, on the other hand, we decide that it's not the
11 way the Claimant is treating -- is using the word
12 "measure" in the context of its we consider
13 it's using some of the elements as background
14 facts that give rise to a breach that did occur
15 within the three years, then you would accept that
16 Glamis Gold says that that is part of the
17 background facts and we can use those background
18 facts that are older than three years?
19 MR. TIAN: To inform the
20 actual alleged breach.
21 PRESIDING ARBITRATOR MILES:
22 Well, right. But they be a necessary element of
23 the actual breach. It's not just to inform.
24 There could be four of the five required elements,
25 all except loss predate.
[Page 1560]
1 But, if the loss didn't occur
2 until within the three-year period, then all of
3 your elements of breach don't arise and you don't
4 enter 1116/1117 territory until that loss arises;
5 correct? It's not just to inform.
6 MR. TIAN: In Glamis, it is to
7 inform.
8 CO-ARBITRATOR MCLACHLIN: May
9 I come in.
10 Taking you back to Glamis
11 Gold, three lines from the bottom, starting at
12 four:
13 "You may cite to earlier
14 events as background
15 facts."[as read]
16 In quotes.
17 That would be to inform.
18 "Or factual
19 predicates."[as read]
20 End quotes.
21 Factual predicates. That
22 connotes that it's going to become an element of a
23 breach that may arise later.
24 So it could be an element.
25 It's a little more, I think, with respect, and
[Page 1561]
1 this is a question, actually, for you.
2 But isn't it a little more
3 than simply to inform.
4 You could have elements of a
5 breach that had not constituted a breach before
6 the limitation period because they weren't added
7 to other things.
8 When you add something else
9 after the period starts to run and, click, it all
10 comes together and you have that magic thing
11 called a breach. And, at that point, you can't
12 describe that breach without going back to cite
13 Glamis Gold again, the factual predicates.
14 So it seems, to me, it's
15 pretty clear.
16 The question is whether your
17 breach came after but you can certainly consider
18 elements of the breach that came.
19 MR. TIAN: You can consider
20 elements of the breach that are part of the
21 background facts.
22 CO-ARBITRATOR MCLACHLIN:
23 Thank you.
24 PRESIDING ARBITRATOR MILES:
25 Okay. I think we are clear on that.
[Page 1562]
1 MR. TIAN: If I may just add
2 to that.
3 When you rely on it for a
4 breach, that does not mean it would necessarily
5 reset the time-bar to zero.
6 CO-ARBITRATOR MCLACHLIN: I
7 don't understand that.
8 MR. TIAN: It means that it
9 does not necessarily put the three-year period at
10 the beginning of the very first background facts.
11 CO-ARBITRATOR MCLACHLIN: The
12 beginning is when you have your cause of action.
13 MR. TIAN: Yes.
14 CO-ARBITRATOR MCLACHLIN:
15 That's the critical question; right?
16 MR. TIAN: Yes.
17 CO-ARBITRATOR MCLACHLIN: We
18 agree on that. Thank you.
19 MR. TIAN: And the Bilcon
20 tribunal similarly echoed, in finding that it's
21 possible and appropriate, as the tribunals in
22 Feldman, Mondev and Grand River, to separate a
23 series of events into distinct components; some
24 time-barred and some still eligible for
25 consideration on the merits.
[Page 1563]
1 And, therefore, looking at the
2 six measures individually, the Claimant still
3 acquired knowledge of five of them before the
4 critical date.
5 For knowledge of the alleged
6 breach, the question becomes when did the Claimant
7 first acquire actual or constructive knowledge of
8 individual challenged measures and whether that is
9 before the critical date.
10 Measure A, the Claimant
11 challenges Ontario's failure to conduct further
12 studies.
13 The Claimant was well aware
14 that Ontario did not plan to conduct any further
15 studies to lift the moratorium at the time of the
16 Windstream I.
17 CO-ARBITRATOR MCLACHLIN: I
18 have to question you on this because it's just not
19 sitting -- I am not understanding why you would go
20 back to test each of the individual measures if we
21 have agreed that the critical thing is when the
22 cause of action arises and you can look at
23 components that arise before then.
24 So why would we then be
25 testing each of the elements? It seems to me the
[Page 1564]
1 test goes to when the cause of action arises.
2 So if, at some point here, a
3 cause of action arises, then we apply the
4 limitation period, but not before.
5 MR. TIAN: As Canada has
6 understand the essence of the Claimant's case, the
7 cause of action remains with Ontario's measures.
8 Therefore, we are going to look at Ontario's
9 measures to determine when the cause of action
10 arose.
11 PRESIDING ARBITRATOR MILES:
12 This does feel very similar to your opening. You
13 have taken us through those dates.
14 I don't think it's in disputes
15 what dates A, B, C, D occurred. It's E and F and
16 failure to amend after the Award that postdate and
17 that fall within the three-year period.
18 So you don't need to go
19 through all these dates again. You have already
20 done that.
21 You can see what we are still
22 grappling with is a point -- well, the issue for
23 us -- and it may be that you have made your
24 submissions and it's for us to decide which is
25 probably right.
[Page 1565]
1 The question for us is when do
2 we find the cause of action to have arisen and for
3 the Claimant to have knowledge, possibly
4 constructive knowledge of the cause of action and
5 the loss arising out of that cause of action, and
6 whether they are background fact or measures. The
7 date is not in dispute. We know what dates they
8 were. So we know what we have to do, as a matter
9 of law, to claw back things that predate three
10 years of the notice of intention.
11 So you don't need to go back
12 through your opening submissions again on that.
13 MR. TIAN: So just one point
14 on that.
15 Our position is that measure
16 F, the very last one, is also time-barred.
17 CO-ARBITRATOR MCLACHLIN: Yes,
18 that's your position.
19 MR. TIAN: Along with the four
20 other Ontario measures.
21 PRESIDING ARBITRATOR MILES:
22 And that goes to the point that you made in
23 opening on continuing breach which I think was
24 Rusoro you relied on for that. I may be wrong.
25 That might have been continuing breach.
[Page 1566]
1 But that was your point on
2 continuing breach. If you start doing something
3 that's a breach, you keep doing that same
4 breaching thing, your time starts to run from the
5 date you start doing it?
6 MR. TIAN: That is correct,
7 from a legal standpoint. But, on the facts of
8 this case, we have actual -- we have evidence as
9 to the Claimant's actual knowledge of the measure
10 F.
11 PRESIDING ARBITRATOR MILES:
12 Right. But measure F is a continuing breach.
13 MR. TIAN: It's a continuing
14 measure.
15 PRESIDING ARBITRATOR MILES:
16 Okay. Okay. All right.
17 MR. TIAN: Therefore, looking
18 at the -- all the time-barred measures, the
19 Claimant's cause of action clearly arose before
20 the critical date, and that informs its knowledge
21 of the alleged breach.
22 Turning to the Claimant's
23 knowledge of its loss or damage.
24 It points to the termination
25 of the contract by the IESO in 2018 as its first
[Page 1567]
1 acquisition of knowledge but that's not the
2 essence of the Claimant's damage case.
3 The essence of its damage
4 case, is its inability to develop the Project
5 and to receive steady revenue provided by the FIT
6 Contract.
7 PRESIDING ARBITRATOR MILES:
8 So, Mr. Tian, I was trying to help you along.
9 You dealt with all of this in
10 your opening. We understand your position on when
11 you submit the individual knowledge of the
12 individual measures slash elements/components
13 arose. We have got that. You don't need to do
14 that again.
15 MR. TIAN: Yeah, I am going
16 with loss.
17 CO-ARBITRATOR MCLACHLIN: That
18 would be Slide 58 then.
19 PRESIDING ARBITRATOR MILES:
20 Oh, sorry. Right. Good. Slide 58.
21 MR. TIAN: And the Claimant
22 knew of that inability to develop its Project in
23 May 2012 when it could not develop the Project in
24 time to meet the requirements of the FIT Contract.
25 And the Claimant's counsel
[Page 1568]
1 acknowledged this morning that that's the moment
2 where the consequences of Ontario's actions
3 materialized. It was back then that the Project
4 cannot be developed in time. It is no longer
5 financeable back then.
6 And that inability to develop
7 the Project, as of May 2012, marks the Claimant's
8 first acquisition of the knowledge of the damage
9 that it now seeks to recover in this arbitration.
10 Namely, the steady revenue
11 provided by the FIT Contract.
12 Simply put, the Project was
13 unbuildable as of May 2012 and any further income
14 that would have derived from that FIT contract was
15 irretrievably lost.
16 CO-ARBITRATOR MCLACHLIN: I
17 just want to understand this.
18 You did have a moratorium and
19 you did have a force majeure which would kind of
20 put things on hold. And you did have, as the
21 first Tribunal found, I think, everybody was on
22 the footing that it might go forward eventually.
23 So why, I am having trouble
24 understanding the 2012 date. That may be my
25 problem. But perhaps you could address my
[Page 1569]
1 concerns and tell me where I am confused.
2 MR. TIAN: The as of
3 May 2012, the Claimant knew the Project could not
4 be developed in time to meet the timeline of the
5 FIT Contract.
6 And it would be the FIT
7 Contract that would grant it the revenue that it
8 seeks to recover.
9 CO-ARBITRATOR MCLACHLIN:
10 Well, what do you say about the force majeure?
11 What was the impact?
12 MR. TIAN: I am sorry, I --
13 CO-ARBITRATOR MCLACHLIN: If
14 they had been -- maybe I am wrong. But they said
15 we can't perform on time because of your
16 moratorium, so now the reason they gave notice of
17 force majeure, which was accepted, was that they
18 wanted to put everything on hold.
19 Implication being that this
20 will eventually be developed. We will get more
21 time.
22 What do you say about that?
23 MR. TIAN: That's -- whether
24 there is any such promise and whether that promise
25 could be reasonably relied upon, is another
[Page 1570]
1 question.
2 But the facts is that they
3 were told by Ontario that there's no direction to
4 be made and they were told by the OPA back then
5 that the OPA is not prepared to renegotiate the
6 contract.
7 CO-ARBITRATOR MCLACHLIN: So
8 the moratorium was actually a termination, on your
9 point of view, effective termination. They could
10 never revive the thing?
11 MR. TIAN: Well, the May 2012
12 was the point where the Claimant had knowledge of
13 its loss, absent further unconfirmed potential
14 renegotiation.
15 CO-ARBITRATOR MCLACHLIN:
16 Okay. I have your submission.
17 CO-ARBITRATOR GOTANDA: Just a
18 quick question on 59.
19 Do you equate cause with
20 incurred?
21 MR. TIAN: The language of the
22 treaty is incurred.
23 CO-ARBITRATOR GOTANDA: Right.
24 MR. TIAN: And it is when the
25 Claimant would have knowledge that it has suffered
[Page 1571]
1 loss.
2 CO-ARBITRATOR GOTANDA: No,
3 no, that's not what the treaty says; right. It's
4 knowledge that the investor has incurred damage or
5 loss.
6 MR. TIAN: So it has knowledge
7 that it has suffered loss. And that is when it
8 has knowledge where loss has been caused to it.
9 CO-ARBITRATOR GOTANDA: I am
10 not sure if cause is the same as incurred but you
11 say it is; right? That's your position?
12 MR. TIAN: Whether there is
13 loss that has been caused by a breach, that's a
14 question for damages.
15 All the Claimant needs to have
16 known, for purposes of limitation period, is
17 whether it has suffered loss.
18 CO-ARBITRATOR GOTANDA: An
19 actual loss? Or --
20 MR. TIAN: A loss that the
21 extent or quantification may be unclear but it has
22 to have knowledge that it would have suffered an
23 actual loss.
24 CO-ARBITRATOR GOTANDA: Yeah,
25 some actual loss.
[Page 1572]
1 MR. TIAN: Yeah.
2 CO-ARBITRATOR GOTANDA: You
3 may not know the actual amount but you actually
4 have to have suffered a loss.
5 MR. TIAN: Yes.
6 CO-ARBITRATOR GOTANDA: An
7 actual incurred damage or loss.
8 Okay. Thank you.
9 MR. TIAN: The Claimant claims
10 to have spent money to further developing its
11 project after the Windstream I Award.
12 However, none of this cost
13 arises within the limitation period. Only the CSR
14 studies may have occurred after the critical date.
15 Yet, the Claimant provides no proof of it ever
16 being paid.
17 My colleague Ms. Squires just
18 demonstrated that there is no loss in terms of
19 fees. The Claimant maintains -- for the Claimant
20 to maintain the 6 million letter of credit.
21 In any event, the Claimants
22 knew abundantly well, when it signed the FIT
23 Contract, on August 2010, that the letter of
24 credit constitutes a condition. It knew with
25 certainty the terms, the amount, and the
[Page 1573]
1 conditions of return.
2 And when it chose to keep it
3 after May 2012, it had knowledge that it could
4 only be returned upon the termination of the FIT
5 Contract, or otherwise, in accordance with its
6 terms.
7 I will close my arguments with
8 one final point.
9 The NAFTA parties intended for
10 1116(2) and 1117(2) to be a strict limitation
11 period. This is consistent with the very purpose
12 of limitation period provisions which provides
13 legal certainty and predictability, a point that
14 all three NAFTA parties have noted in this case.
15 It should definitely not be easily set aside.
16 Thank you.
17 PRESIDING ARBITRATOR MILES:
18 Just before you go, Mr. Tian.
19 You heard this morning
20 Ms. Sherkey's characterization that, in the
21 earlier Award, the Tribunal found that there was
22 additional value in the FIT Contract that could be
23 created if the parties renegotiated and
24 restructured their contract.
25 And she said the value that
[Page 1574]
1 would have been created but for Ontario's acts or
2 omissions after the first Award is the loss that
3 the Claimant is seeking in these proceedings in
4 respect of its FET claim.
5 That loss they can't have
6 known about in 2011; can they?
7 MR. TIAN: That's a
8 hypothetical loss because value has not been
9 created. The parties have not renegotiated.
10 PRESIDING ARBITRATOR MILES:
11 Well, Mr. Tian, every single commercial or
12 arbitration damages case is on the basis of a
13 hypothetical loss. That is what the but-for is.
14 It's always hypothetical.
15 So the Claimant's claim is
16 that the loss that they suffered but-for Ontario's
17 breach. Yes hypothetical. It always is.
18 That that value could only
19 have been created after the Award because --
20 perhaps because, in part, given the background
21 fact, maybe, of the Tribunal's finding that there
22 was additional value that could be created if the
23 parties renegotiated.
24 So if we take that background
25 fact, that additional value that would have been
[Page 1575]
1 created but for Ontario's breach in Claimant's
2 case can't have been known in 2011; can it?
3 MR. TIAN: That would have
4 been the exact same loss that it knew in
5 February -- in May 2012.
6 Because the value that is to
7 be created, in the Claimant's view, from the
8 renegotiation of the FIT Contract and, eventually,
9 the lifting of the moratorium is the value that is
10 to be derived from the FIT Contract. If the
11 steady revenue for a period of 20 years.
12 PRESIDING ARBITRATOR MILES:
13 The Claimant's case that you're needing to answer
14 is, in fact, that the Tribunal -- the Claimant
15 argued, in the first proceeding, that they had de
16 facto termination. We have lost the FIT.
17 They lost on that. The
18 Tribunal said no, you have not lost the FIT. You
19 have still got it. So there has been no taking.
20 There has been no expropriation because you still
21 have that asset. It's still yours.
22 Then, upon that finding, the
23 Tribunal then made the comment, which the Claimant
24 construes as a finding that there was additional
25 value that could be created if the parties
[Page 1576]
1 renegotiated and restructured.
2 How could they have known that
3 in 2011 or 2012?
4 MR. TIAN: Because it's the
5 same loss that they had thought they lost in
6 May 2012. We are talking about the same --
7 quantum wise, we are talking about the same
8 amount.
9 PRESIDING ARBITRATOR MILES:
10 Okay. All right.
11 MR. TIAN: Thank you.
12 PRESIDING ARBITRATOR MILES:
13 Can we take a brief break? Who is the boss?
14 Ms. Squires, you're in the chief seat.
15 Mr. Neufeld is reaching for his mic.
16 MR. NEUFELD: You are
17 wondering how long I have?
18 PRESIDING ARBITRATOR MILES:
19 Yeah.
20 MR. NEUFELD: How long would
21 you like me to have?
22 PRESIDING ARBITRATOR MILES:
23 Is it just you?
24 MR. NEUFELD: It's just me and
25 it's just the estoppel question, so I think more
[Page 1577]
1 depends on how interested you are in the estoppel
2 questions.
3 PRESIDING ARBITRATOR MILES:
4 Very.
5 MR. NEUFELD: I think, you
6 know, I have a few things I need to say but I
7 suspect that you will -- you will want to engage
8 on other points.
9 PRESIDING ARBITRATOR MILES:
10 All right. So shall we it's 3:23. Shall we
11 come back at 25 to, please. So shortish break and
12 then we will see how you go.
13 I was reflecting in the lunch
14 break and not just to release us all early on a
15 Friday afternoon. But I don't want you all to
16 give 15-minute closings for the sake of giving
17 15-minute closings.
18 And I am actually finding
19 myself thinking -- and we designed it this way so
20 I don't want to take it away and I am not taking
21 it away. But, if you don't want to use it, you
22 are free to release it.
23 MR. TERRY: On our side, we
24 were thinking just a couple of reply points,
25 perhaps, and using it that way.
[Page 1578]
1 MR. NEUFELD: Exactly the same
2 point I was going to make.
3 PRESIDING ARBITRATOR MILES:
4 Okay. Excellent.
5 All right. So let's come back
6 at 25 to for Mr. Neufeld. Thanks.
7 --- Upon recess at 3:24 p.m.
8 --- Upon resuming at 3:39 p.m.
9 PRESIDING ARBITRATOR MILES:
10 Okay, here we are.
11 CLOSING ARGUMENT BY MR. NEUFELD (Cont'd):
12 MR. NEUFELD: Hello again.
13 Okay. I am going to start,
14 actually, just by flashing up the FIT Contract
15 provision for force majeure, as there has been
16 some questions around it, and I would like for
17 everybody to walk away from this hearing with an
18 understanding of what is in the FIT Contract and
19 what force majeure means in these instances.
20 We are getting caught up on
21 who the parties are and, of course, in this case,
22 the parties are WWIS and the IESO.
23 Force majeure, you can see, at
24 10.3, for the purpose of this agreement, the term
25 force majeure means:
[Page 1579]
1 "Any act and cause or
2 condition that prevents a
3 party from performing its
4 obligations (other than
5 payment obligations)
6 hereunder, that is beyond
7 the affected party's
8 reasonable control and
9 shall include."[as read]
10 I need the next paragraph
11 because I don't have it in front of me. There it
12 is.
13 So:
14 "Any inability to obtain
15 or to secure the renewal
16 or amendment of any
17 permit, certificate,
18 license, approval."[as
19 read]
20 I pause on this because those
21 permits are all coming from Ontario, of course,
22 and that's where the delay is. We understand
23 that.
24 The reason they are in force
25 majeure and the reason being so granted the
[Page 1580]
1 request for force majeure is because, originally,
2 they couldn't get access to their site. It was a
3 government measure, government being a third party
4 to this contract, that caused them not to get
5 access to their site.
6 So the five-year time
7 limitation to bring a project into MCOD can be
8 paused in a situation like this but that doesn't
9 change the term of your contract. Your five-year
10 term will be pushed out from once that force
11 majeure event is remedied.
12 I hope that's all crystal
13 clear.
14 Okay. Now back to script.
15 Actually, not really
16 because -- well, it is but. Yeah, let's show up
17 the first slide of the regular slides there, Ryan,
18 that I was going to go to.
19 You have seen already -- it
20 seems to me you flipped through them, you have
21 been referring to them already, what my project
22 was last night and what I worked up into the late
23 hours doing. I just want to walk you through the
24 format first and then we can take up issues.
25 What the slide does is brings
[Page 1581]
1 you through the three-part test which the Claimant
2 and Canada agree on in terms of how to how we
3 know something is issue estoppel.
4 And what you see in the top
5 row decided by the Tribunal are quotes from the
6 Tribunal. We did not take those words and twist
7 them in any way, shape or form. So you can rest
8 assured that those are quotations.
9 Then what I did is dug out
10 where it was and by whom it was put in issue and
11 why its resolution was necessary for you to have
12 an understanding of why the Tribunal is estopped
13 from reopening the issue.
14 Now the bottom part is the fun
15 little part that you asked us to focus on what is
16 not covered.
17 So that's sort of my little
18 flourish, our little flourish on what the Tribunal
19 sort of didn't do or, you know, what doesn't bind
20 you effectively.
21 Now, before we get into this
22 particular slide -- well, actually, no. Let's
23 cover this slide first.
24 So the issue -- what was put
25 in issue -- and it's, of course, it's difficult to
[Page 1582]
1 compartmentalize these things and that's why, in
2 this case, I think it applies to three different
3 issues: It applies to the timing of the breach; it
4 applies to when the project becomes
5 non-financeable; it applies to the alleged promise
6 to freeze.
7 And, you know, the argument
8 that the Claimant raised in Windstream I was that,
9 as a result of the moratorium and the government's
10 refusal to insulate the Claimant against its
11 consequences, the project had become substantially
12 worthless and not financeable. We have all seen
13 that. We have dealt with that already.
14 The Claimant also argued that
15 the failure to carry out the promises to ensure
16 that Windstream's project was frozen and not
17 cancelled following the moratorium, which it could
18 have done by changing contractual deadlines,
19 amounted to a breach. And Ontario had
20 definitively refused to fulfil its promise to
21 ensure that the project was frozen and not
22 cancelled.
23 So that issue was definitely
24 before the Windstream I Tribunal. There is no
25 doubt about that.
[Page 1583]
1 Now, the findings of the
2 Tribunal are before you. I don't need to read
3 them out. We have referred to them so often in
4 the last few days.
5 What, you know, I can add as
6 our sort of interpretation beyond what the
7 Tribunal has said is that the Tribunal did not
8 determine that the breach continued beyond a
9 reasonable period of time. I have stressed that a
10 few times now.
11 Definitely not beyond the date
12 of the Award.
13 The Tribunal also, we
14 recognize, didn't use the word "freeze" or
15 "frozen".
16 Just that the FIT Contract had
17 not been amended and the Project was no longer
18 financeable due to the force majeure termination
19 right.
20 PRESIDING ARBITRATOR MILES:
21 Just so we are precise.
22 The Tribunal did use the word
23 "freeze" seven times and "frozen" 12 times but you
24 would say only in summarizing the parties'
25 respective positions, not in its reasoning and
[Page 1584]
1 analysis --
2 MR. NEUFELD: Disposition.
3 PRESIDING ARBITRATOR MILES:
4 Or just not in its disposition. Not in its reason
5 or analysis.
6 MR. NEUFELD: No -- yes,
7 because you'll find, from these slides, that I
8 will dig out factual findings. I dug out findings
9 of -- because, you know, an issue estoppel. We
10 are worried about issues of facts as well as
11 issues of law. And those findings are, you know,
12 are equally barred from being reopened.
13 Now I'd like to come to the
14 Claimant's Slide 78 that they showed this morning.
15 You will recall, in my
16 opening, I really stressed the change in the story
17 throughout the Windstream I pleadings. As we
18 know, things evolve. Our cases evolve as we go
19 along. And that's certainly what happened in
20 Windstream I.
21 So my point to you when I
22 opened today was that, throughout all of its
23 arguments, it cites to our counter-memorial. And
24 I had a little heart jump when I saw, oh, there is
25 a hearing here. That's not the counter-memorial.
[Page 1585]
1 What does that say? And this is a lesson in let's
2 make sure we have all the words before us.
3 So, Ryan, if you could pull up
4 the transcript from that day. And I think it's
5 worthwhile providing all the context, so we will
6 go to page 202. There, they are citing only
7 page 203 and 204.
8 This goes to your very
9 question, President Miles, about the temporary
10 nature and the argument that Canada was making
11 about the temporary nature of the
12 non-expropriation, I will call it that way.
13 Which is what I turn to on
14 page 202.
15 And then I say that the OPA
[Page 81]
Page 1598
1 them for doing it. You know, valid, valuable
2 work. Sure. But not in this context. Right and
3 so --
4 CO-ARBITRATOR GOTANDA: So
5 then you would live with the categories -- the
6 Tribunal lays it out in almost absolute terms and
7 Dr. Guillet says now, not quite right. My
8 thinking has evolved. And there's a spectrum
9 more.
10 But we are stuck, aren't we,
11 with those absolute. And so, if it doesn't fall
12 in late stage, as was raised earlier, then it has
13 to be then considered earlier stage or can you
14 somehow say know that's a little different at this
15 point.
16 MR. NEUFELD: No. I think
17 it's an early stage project. That's the one thing
18 that's abundantly clear from all this.
19 CO-ARBITRATOR GOTANDA: Okay.
20 Consistent.
21 MR. NEUFELD: Yeah, at least
22 that right. And that's why I said I try to give
23 you comfort on that point.
24 CO-ARBITRATOR GOTANDA: And we
25 will get to 72.
Page 1599
1 MR. NEUFELD: Okay.
2 PRESIDING ARBITRATOR MILES:
3 If I understood what you meant there, even if
4 the -- even if the elements of the stage is
5 changed, where this sits in early stage remains
6 the same. If anything, it's the line between
7 early and late might have become unclear.
8 MR. NEUFELD: Precisely.
9 PRESIDING ARBITRATOR MILES:
10 But this one is so far down the line, in your
11 submission, that it doesn't make any difference.
12 MR. NEUFELD: Precisely.
13 Exactly.
14 PRESIDING ARBITRATOR MILES:
15 It will make a difference to the calculation of a
16 multiplier on the base of a mean, though; won't
17 it?
18 MR. NEUFELD: Sure. Sure.
19 PRESIDING ARBITRATOR MILES:
20 Or median.
21 MR. NEUFELD: Sure. Sure.
22 That's what the damages boss
23 knows all about. Do you want me to get her back
24 up for you?
25 PRESIDING ARBITRATOR MILES:
Page 1600
1 And let you escape the numbers.
2 Just we have interrupted, can
3 we come back to 66. I was looking at that
4 paragraph 380 in its entirety. And thank you for
5 pointing us to that. That is indeed the
6 attribution paragraph and it's very interesting.
7 In my head, I was trying to
8 figure out what it would mean for your collateral
9 estoppel argument if it were the case that this
10 Tribunal concludes that the failure of the Ontario
11 government to take necessary measures, including,
12 when necessary, by way of directing the OPA within
13 a reasonable period of time after the Award to --
14 what's the characterization? To.
15 MR. NEUFELD: Bring clarity;
16 is that? Are you looking for those words?
17 PRESIDING ARBITRATOR MILES:
18 No, I am looking at the Claimant's
19 characterization for construction.
20 MR. NEUFELD: Unblock.
21 PRESIDING ARBITRATOR MILES:
22 To create, I suppose, additional value in the FIT
23 contract, as a consequence of renegotiating and
24 restructuring. Right.
25 If we were to find that
Page 1601
1 constitutes a breach of 1105, so just substituting
2 the not acting in a reasonable amount of time in
3 directing after moratorium.
4 But, instead, it's not, not
5 directing -- I don't know if it needs a reasonable
6 amount of time or not. But not directing after
7 the Award in relation to the creating value by
8 restructuring.
9 If we read on, then, in 380,
10 it was, indeed, the government that could have
11 made that direction as a consequence of the Award.
12 So it cannot be said that the
13 resulting regulatory and contractual limbo was a
14 result of the Claimant's own failure to negotiate.
15 The regulatory limbo Claimant
16 found itself in would follow the, rather than
17 imposition of moratorium, the omission which was a
18 result of the omission of the government and as --
19 Government of Ontario and, as such, is
20 attributable to the Respondent, Canada.
21 So, so the Tribunal,
22 therefore, need not consider whether the conduct
23 of the OPA during the relevant period, a source
24 that would be considered to be attributable to the
25 Respondent.
[Page 82]
Page 1602
1 Just take that leap with me.
2 MR. NEUFELD: Um-hmm, um-hmm.
3 PRESIDING ARBITRATOR MILES:
4 If we were to find that breach, as I now
5 understand it to be characterized on FET under
6 1105, it would be the same; wouldn't it? It's
7 still the direction of Ontario or the omission of
8 a direction.
9 MR. NEUFELD: Yeah.
10 PRESIDING ARBITRATOR MILES:
11 To the IESO.
12 So the fact that the IESO went
13 ahead and terminated or refused to negotiate,
14 doesn't matter if we find that the Government of
15 Ontario breached NAFTA by not.
16 MR. NEUFELD: Directing.
17 PRESIDING ARBITRATOR MILES:
18 Directing to create that additional value, I think
19 is the instruction.
20 MR. NEUFELD: I don't
21 disagree. Um-hmm, um-hmm.
22 PRESIDING ARBITRATOR MILES:
23 Okay. That's helpful. Thank you.
24 MR. NEUFELD: All right. We
25 were at, oh yeah, the DCF. That one we have dealt
Page 1603
1 with now. The FIT Contract has no value. You
2 have seen that in our pleadings. And that's
3 probably the clearest statement of all from the
4 Tribunal.
5 Likewise, the security
6 deposit, that one, you have seen before.
7 Site access, this one has come
8 up now the last couple of days.
9 So what was put at issue here
10 was the Claimant argued that the Ministry of
11 Natural Resources would grant -- it's a bit like
12 its argument now.
13 It would grant WWIS's Crown
14 land application, its AOR status in a timely
15 manner. It's all based on an assumption, on a
16 hypothetical. And it relied on that commitment
17 and that's why it invested in --
18 PRESIDING ARBITRATOR MILES:
19 Just in the box before in 69 -- sorry, two boxes
20 before, Slide 69, the Tribunal did not find the
21 FIT Contract would change in value between market
22 forces.
23 Equally, it didn't find that
24 it would not change in value. And it didn't find
25 anything about that. It just said, as at the date
Page 1604
1 of the Award, it has no value.
2 MR. NEUFELD: Right. Sure.
3 PRESIDING ARBITRATOR MILES:
4 And it said value could be created in
5 renegotiation, reactivation as to the question
6 could value be created in any other way --
7 MR. NEUFELD: Yeah. No
8 disagreement.
9 PRESIDING ARBITRATOR MILES:
10 No. Okay.
11 MR. NEUFELD: Okay. So back
12 to the site access.
13 Here, the Tribunal notes that,
14 while the Claimant did have a FIT Contract and
15 grid connection, it did not yet have site control,
16 of course.
17 And I think we are all
18 understood on that. But it raises the 3 o'clock
19 in the morning miss that I didn't put grid access
20 in here and there's an answer other than
21 sleepiness and I should have put it in.
22 But it is not having my cake
23 and eat -- actually, there is another saying that
24 I really like. It's having your -- having sold
25 your cow but wanting to --
Page 1605
1 CO-ARBITRATOR MCLACHLIN: Get
2 the meat.
3 MR. NEUFELD: Yeah. Have you
4 heard that one before, Justice McLachlin?
5 CO-ARBITRATOR MCLACHLIN: I
6 come from the west.
7 PRESIDING ARBITRATOR MILES:
8 We are both farm girls, so.
9 MR. NEUFELD: So the grid
10 access point is also referenced in 475, as I just
11 read out.
12 The question, I guess, for you
13 is do you read it in connection with -- is context
14 for 475 also paragraph 140 of the Award?
15 If I were in a treaty right
16 now, I would certainly argue it was.
17 We are not in a treaty and,
18 hey, you know what, I am going to argue that it is
19 too.
20 Paragraph 140 of the Award is,
21 again, the factual determination that the Tribunal
22 makes and, as Ms. Squires said this morning, they
23 touched on this ever so slightly, as compared to
24 AOR and site release, which I already walked
25 through. But, grid connection, they didn't nearly
[Page 83]
Page 1606
1 as much.
2 But they do find, at
3 paragraph 140, that, on November 8th, 2010, WWIS
4 received a notification of conditional approval
5 for connection.
6 So do you read 475, grid
7 connection, in connection with paragraph 140's
8 conditional approval for connection, because
9 that's the grid connection that they are talking
10 about? And I would argue that that is a proper
11 reading.
12 Now back to our nits in
13 awards.
14 Is that grid connection or
15 isn't it? And we are stuck with the Award that we
16 have.
17 PRESIDING ARBITRATOR MILES:
18 And grid connection is used interchangeably with
19 grid access, as I said earlier in the week, in the
20 Tribunal's reasoning. And this is not unconnected
21 to Professor Gotanda's question earlier on the
22 stages of development.
23 MR. NEUFELD: Right.
24 PRESIDING ARBITRATOR MILES:
25 As defined by Dr. Guillet because the Tribunal
Page 1607
1 took those definitions.
2 MR. NEUFELD: Yeah.
3 PRESIDING ARBITRATOR MILES:
4 And treated grid connection on the basis as it
5 understood him to opine on that.
6 MR. NEUFELD: Yeah.
7 PRESIDING ARBITRATOR MILES:
8 And it seems like, with many of the four factors
9 for fully permitted, if, indeed, fully permitted
10 itself, this is a spectrum.
11 MR. NEUFELD: Right. Right.
12 And given that's all the Award
13 says, that's probably all I can say on that as
14 well.
15 The last point is the one
16 Professor Gotanda's been waiting for on
17 Dr. Guillet's confidential information.
18 But, I mean, I think we see
19 where we are going now. We are stuck with what we
20 have.
21 CO-ARBITRATOR GOTANDA: Well,
22 are we? Because -- and here is the push back and
23 tell me how you think this is wrong.
24 Collateral estoppel, you
25 actually have to decide the issue.
Page 1608
1 MR. NEUFELD: Um-hmm.
2 CO-ARBITRATOR GOTANDA: Right.
3 And, here, I am looking at 475
4 and 477 and there is no explicit sort of finding
5 to this as opposed to on the DCF and early stage.
6 You know, there, you have, in the -- it's very
7 clear. Explicitly clear by the language.
8 Here, you're almost doing it
9 by implication, from what I see. As opposed to
10 the Tribunal making a specific finding that it's
11 to be used.
12 So I am wondering if this is a
13 little bit of a stretch.
14 Also, too, I think we are
15 limited by the Award itself. In other words, the
16 fact that the Claimant may have argued something,
17 if it's not actually in the Award right in that
18 spot, it doesn't matter for purposes of collateral
19 estoppel.
20 Doesn't it actually have to be
21 in the Award itself?
22 MR. NEUFELD: It has to be
23 decided by the Tribunal so.
24 CO-ARBITRATOR GOTANDA: Right.
25 But we can't look to the transcripts as to what
Page 1609
1 the parties argued because we don't know what the
2 Tribunal actually took into account.
3 In other words, we have to
4 look to the four corners of the Award and not go
5 outside of that.
6 MR. NEUFELD: But one of those
7 -- you know, R-0951 is the Tribunal decision.
8 CO-ARBITRATOR GOTANDA: I am
9 looking at 49.
10 MR. NEUFELD: Sure. Sure.
11 That's just what the parties put in issue. I
12 agree 100 percent.
13 But 951 is the Tribunal
14 decision and the Award is a Tribunal decision.
15 CO-ARBITRATOR GOTANDA: Right.
16 And then we go back to the
17 Award at 475 and 477 and, there, the Tribunal
18 doesn't actually explicitly make that finding; do
19 they?
20 MR. NEUFELD: They use the
21 word "accepted".
22 CO-ARBITRATOR GOTANDA:
23 Accepted, though, is not the same as an explicit
24 finding; that that's something that we are bound
25 to follow.
[Page 84]
Page 1610
1 MR. NEUFELD: I am not sure I
2 agree on that.
3 It's very hard not to read the
4 word "I have accepted this" as not a commitment.
5 If you were entering an oral
6 contract and you say I accept that.
7 CO-ARBITRATOR MCLACHLIN: But
8 it's conditioned. Maybe it doesn't make any
9 difference:
10 "Accepted the evidence of
11 Dr. Guillet as the most
12 comprehensive evidence
13 relating to comparable
14 transactions,
15 methodology."[as read]
16 Which included undisclosed
17 confidential.
18 Anyway, it's a what did they
19 accept question.
20 MR. NEUFELD: Um-hmm.
21 CO-ARBITRATOR MCLACHLIN: They
22 said it was the most comprehensive. That is what
23 I take from that.
24 MR. NEUFELD: Um-hmm.
25 CO-ARBITRATOR GOTANDA: And
Page 1611
1 then they go on to say, though -- and it takes
2 this evidence as the starting point of the
3 analysis. That's different; isn't it, for, then
4 it is the ultimate --
5 MR. NEUFELD: Well, is the
6 Tribunal, in that instance, referring to we are
7 going to take that as a starting point to
8 determine what the whole pie is to take off the 6
9 million, you know --
10 CO-ARBITRATOR GOTANDA: Well,
11 but it's not clear, is it, at that point. And
12 it's got to be clear, I think, in order to apply.
13 MR. NEUFELD: A clear
14 determination.
15 CO-ARBITRATOR GOTANDA: Right.
16 MR. NEUFELD: I mean, I see
17 where the questions are coming from and I, I mean,
18 my position is that acceptance is a determination
19 but.
20 I think -- I don't think
21 anything more can be said. Again, we have the
22 Tribunal's words and that's what we have.
23 PRESIDING ARBITRATOR MILES:
24 It may be, if we get to it, that that change in
25 valuation date unravels all of this anyway.
Page 1612
1 Because once you change -- unusually --
2 unexpectedly, for me -- perhaps not for valuers --
3 that change in valuation date does, here, seem to
4 reopen the basis for the reasoning as to the
5 appropriate methodology to use in early stage
6 development because change of valuation date gives
7 you a lot more information.
8 MR. NEUFELD: Um-hmm, um-hmm.
9 PRESIDING ARBITRATOR MILES:
10 And, once you have more information, we have data
11 before us that -- without even going into the
12 confidential, we have more non-confidential data
13 available to us.
14 MR. NEUFELD: Right. Right.
15 PRESIDING ARBITRATOR MILES:
16 So, you know, we may not -- this may be a moot
17 point but it is, nevertheless, an interesting
18 point that, if a collateral issue is decided on
19 the basis of a procedure that subsequent
20 information tells you that basis is not legitimate
21 and that's not what we are suggesting here.
22 But, hypothetically, if that
23 were the case, are you bound by that issue
24 estoppel in international law.
25 MR. NEUFELD: On that point, I
Page 1613
1 haven't heard the argument from my friends at the
2 other table that it's -- there's new information
3 and there's a reason here. I haven't -- I haven't
4 been presented with a case either.
5 PRESIDING ARBITRATOR MILES:
6 To be fair, the new information was the
7 mathematical errors that were apparent on the face
8 of the additional confidential information, one
9 can't find mathematical errors if one doesn't have
10 the variables that you would need to conclude a
11 mathematical error because they are confidential.
12 So finding on the face
13 mathematical errors in the additional information
14 that we have because of the change of date in
15 valuation.
16 MR. NEUFELD: I should have
17 been more precise with my words.
18 I haven't heard invocation of
19 a specific exception in order to unravel or not
20 use this finding, is what I am trying to say.
21 PRESIDING ARBITRATOR MILES:
22 Right. You go ahead. We were going to say the
23 same thing.
24 CO-ARBITRATOR GOTANDA: To be
25 fair, though, you didn't raise this until today.
[Page 85]
Page 1614
1 MR. NEUFELD: It's in our
2 pleadings.
3 PRESIDING ARBITRATOR MILES:
4 Slide 72, the findings --
5 MR. NEUFELD: No, I am
6 responding to your question on estoppel for sure.
7 Sure, sure, sure.
8 PRESIDING ARBITRATOR MILES:
9 Right. Right.
10 So that we are estopped from
11 deciding that we can't use Dr. Guillet's
12 confidential information or we can't use the
13 Tribunal's conclusion using Dr. Guillet's
14 information, that's new.
15 MR. NEUFELD: Right. No
16 disagreement.
17 PRESIDING ARBITRATOR MILES:
18 And, if there's subsequent information that makes
19 it illegitimate for us to rely on Dr. Guillet's
20 confidential information -- I am not suggesting
21 there is but if, hypothetically, there were, then
22 that's a new argument.
23 MR. NEUFELD: Right.
24 PRESIDING ARBITRATOR MILES:
25 All right, sir.
Page 1615
1 MR. NEUFELD: Well, that's it.
2 Those are my estoppel points. I will sit down.
3 PRESIDING ARBITRATOR MILES:
4 Thank you. Thank you very much.
5 Mr. Terry, did you have any --
6 or Ms. Sherkey or Ms. Shelley. Anybody.
7 MR. TERRY: Each of us have a
8 couple of points. I think Ms. Sherkey will go
9 first.
10 PRESIDING ARBITRATOR MILES:
11 Okay.
12 REPLY CLOSING ARGUMENT BY MS. SHERKEY:
13 MS. SHERKEY: Just picking up
14 where we ended on that confidential point. I
15 don't have too much to add, but to say Mr. Neufeld
16 said I haven't heard my friend that they are
17 raising an exception.
18 I think, to be clear, our
19 primary submission is issue estoppel doesn't
20 apply. It was a finding that the Tribunal accepts
21 the evidence before it. We accept the evidence of
22 Mr. Guillet so that's not a binding principle upon
23 you.
24 PRESIDING ARBITRATOR MILES:
25 Got that.
Page 1616
1 If it does apply.
2 MS. SHERKEY: If it does
3 apply, there could be a question, then, of the
4 role of the fact that this is new evidence, the
5 issue of the mistakes within that evidence that's
6 before you.
7 But we haven't had an
8 opportunity to explore the cases. We don't think
9 that's very well developed in international law.
10 And whether there are exceptions to the
11 application of res judicata in those circumstances
12 is a brand new issue raised today and now before
13 you.
14 And then we note your point
15 that it could be moot.
16 So I have five targeted reply
17 points.
18 If we could pull up C-2474,
19 Exhibit 3.
20 Apparently, there are Zoom
21 issues to get the document up. So Canada's
22 counsel is going to helpfully put it up for us.
23 PRESIDING ARBITRATOR MILES:
24 Do you need to do this for all five points?
25 MS. SHERKEY: No. I was going
Page 1617
1 to say I could move on but if they have it.
2 PRESIDING ARBITRATOR MILES:
3 Is this the Superior Court of Justice? What page?
4 MS. SHERKEY: It's Exhibit 3.
5 It's the August 25th letter from the Ministry of
6 Natural Resources to Windstream that Ms. Squires
7 took you to. And the point is quite short and
8 simple for how long it will take to get it.
9 PRESIDING ARBITRATOR MILES:
10 Do you have a page number for the exhibit?
11 MS. SHERKEY: R-795 is another
12 version of it that might be simpler.
13 Oh, there it is.
14 If we scroll to the second
15 page and zoom in.
16 Ms. Squires took you to the
17 top paragraph of this where it was the letter back
18 to the project description report Windstream filed
19 in February.
20 MNR responds to this and
21 Windstream had provided a bunch of studies and
22 said:
23 "In your letter, you also
24 described the studies you
25 have carried out to date.
[Page 86]
Page 1618
1 The Ministry has not
2 published any final
3 guidelines or policies
4 specific to offshore
5 wind."[as read]
6 And it goes on to say so any
7 studies you carry out are entirely at your own
8 risk.
9 The point is not don't proceed
10 with the project. Don't take out a letter of
11 credit. Don't do anything here because you have
12 no project.
13 This was a specific letter
14 that said, if you do studies and submit them to us
15 as part of the REA, we can't guarantee that they
16 will be accepted.
17 So that's point one.
18 Point two.
19 You heard from Mr. Neufeld
20 about the letter of credit and he said that we,
21 the Claimants, haven't made submission on
22 delegated governmental authority. And that's
23 important because it's the IESO that holds on to
24 the letter of credit, not the Ontario government.
25 And I just want to emphasize
Page 1619
1 what the points are with the letter of credit
2 because, in my submission, that misses the point.
3 It is not an issue of delegated governmental
4 authority. It's no one said the IESO has breached
5 the NAFTA by holding on to it.
6 The point about the letter of
7 credit being held is twofold.
8 First, it comes up in
9 Windstream's expectations about the ability of the
10 project to proceed, the messages it was getting
11 from the government and what we say it was the
12 shared understanding that there was a contract and
13 a path forward, potentially, for the project.
14 And, if the government's view
15 was there was no such path, it should have
16 returned the letter of credit. The IESO, directed
17 by the government, we don't know. It's a
18 hypothetical because it didn't happen. But the
19 point is that informed Windstream's expectations.
20 As well as the second part,
21 that's why it was also an expense incurred. And
22 Mr. Terry's going to speak to you more about the
23 timing of the expenses so I will leave it at that.
24 But delegated governmental
25 authority has no role.
Page 1620
1 Ms. Dosman gave a note of
2 caution on what authorities to look at in
3 interpreting the FET standard. And she raised
4 that in response to the fact that I had taken you
5 to Lemire which sets out here is what
6 arbitrariness means.
7 And I just want the be clear.
8 The FET standard -- we didn't
9 go through this -- but Article 1105 sets out FETs
10 protected under the MST. We are all agreed
11 there's Waste Management.
12 Waste Management says you
13 can't have conduct that's arbitrary, grossly
14 unfair.
15 So what does arbitrary mean?
16 That's what we are interpreting. We are not now
17 back at the language of Article 1105 saying you
18 can't look at these other authorities.
19 There was a question of how
20 parties was used in the award and I just want to
21 take you to a few paragraphs of the award.
22 If we can pull up -- I don't
23 know who has control.
24 PRESIDING ARBITRATOR MILES: I
25 have word searched the award myself, and perhaps
Page 1621
1 Professor Gotanda and Justice McLachlin want you
2 to do this, but it's used consistently as parties
3 to the arbitration throughout the award. I can
4 see that from word search.
5 MS. SHERKEY: Yes.
6 And what I will also point
7 out, at paragraph 387, is there's a use of lower
8 case parties when talking about a different power
9 purchase agreement. Parties to that power
10 purchase agreement was used with a lower case P.
11 PRESIDING ARBITRATOR MILES: I
12 only saw a lower case P in quotes. Was that in
13 quotes?
14 MS. SHERKEY: No.
15 PRESIDING ARBITRATOR MILES:
16 Oh, okay.
17 That's another power purchase
18 agreement so it doesn't help you either way; does
19 it?
20 MS. SHERKEY: The point being
21 that, when they weren't talking about parties to
22 the arbitration, they used lower case.
23 PRESIDING ARBITRATOR MILES:
24 Also, when they weren't talking about parties to
25 the OPA and this -- this IT, they use a lower
[Page 87]
Page 1622
1 case, so it cuts both ways.
2 MS. SHERKEY: I think when you
3 see -- my submission would be you see that capital
4 P used consistently through the parties to the
5 arbitration, and then this is a lower case P when
6 talking about different parties.
7 PRESIDING ARBITRATOR MILES:
8 That would be persuasive if that was referring to
9 the parties to our FIT. It's not.
10 MS. SHERKEY: Yes.
11 PRESIDING ARBITRATOR MILES:
12 Right. Okay.
13 MS. SHERKEY: Lastly, Mr. Tian
14 said, whether there is a loss that has been caused
15 by a breach, that's a question for damages.
16 All the Claimant needs to have
17 known, for purposes of limitation period, is
18 whether it has suffered a loss.
19 So he distinguishes between
20 knowledge of suffering a loss for limitations and
21 whether there has been loss caused by a breach.
22 And I would submit that's not
23 right.
24 I'll refer you back to Slide 9
25 where we included the quote from Infinito that
Page 1623
1 says loss or damage must flow from the alleged
2 breach. They are tied together.
3 And those are my reply points
4 and it will be Mr. Terry now.
5 PRESIDING ARBITRATOR MILES:
6 Can I just follow you up on one point that I think
7 definitely was you.
8 The International Valuation
9 Standards, at C-2278, you took us to two
10 paragraphs. I had written them down as 30.7 and
11 20.3(j). The 20.3(j) must be wrong.
12 On the 30.7, to start, you
13 said one was general and one applied only to
14 comparables, market comparables methodology.
15 The 30.7 is clearly comparable
16 transactions which must mean the 20.3.
17 MS. SHERKEY: Ms. Shelley is
18 pulling up the reference to get that paragraph.
19 PRESIDING ARBITRATOR MILES:
20 My 20.3 only goes to (e) so I am not sure what the
21 (j) is but it was also the market approach.
22 MS. SHERKEY: I think it might
23 be in a different section. There are two 20.3s.
24 If it makes sense, Mr. Terry
25 could start while we just get that precise
Page 1624
1 pinpoint for you.
2 PRESIDING ARBITRATOR MILES:
3 Yeah. If you could get me the right reference.
4 If you could give me a page number to the
5 standards.
6 MS. SHERKEY: Sure.
7 PRESIDING ARBITRATOR MILES:
8 The proper page number for the document, the
9 numbers on the bottom, then at least I can look at
10 the right thing.
11 Because they did look to me --
12 and, Ms. Shelley, you can confirm -- they did look
13 to me that they both dealt with market
14 comparables, which probably doesn't matter at this
15 point but still.
16 Mr. Terry.
17 REPLY CLOSING ARGUMENT BY MR. TERRY:
18 MR. TERRY: This is really
19 just a point of clarification on interest paid on
20 the letter of credit. And some of the submissions
21 that Ms. Squires is making on that.
22 And, first of all, if we could
23 bring up, again, or you go to Slide 136 of our
24 slides from this morning and if I could -- if I
25 could have the "interest paid" line highlighted,
Page 1625
1 please. About ten lines down, sorry.
2 So you see this is -- there is
3 a line in the revised sunk costs that prorates the
4 various costs.
5 And you'll see, if you look in
6 the third column, that the interest cost that's
7 been counted here runs from June 1st, 2015, to
8 May 8th, 2017. And there's no further interest
9 being counted after that date, May 8th, 2017.
10 And then there's a pro rata
11 calculation that's made to reduce the interest of
12 3.962 million, in the last column, to just
13 1.249 million.
14 So that's all that's being
15 claimed in terms of interest payments on the
16 letter of credit in that chart.
17 And, in terms of where the
18 3.9 million comes from, there is, if I could bring
19 up, please, or you could turn to page 45 of the
20 presentation that Secretariat made.
21 And we won't have to, this
22 time of day, go through this in too much detail.
23 But you will see the reference to, at the bottom,
24 to Exhibit C-282 -- sorry, C-2082. My apologies.
25 I will just wait for Madam
[Page 88]
Page 1626
1 President to get hold of the report. At page 45.
2 This is the exhibit that was
3 used to do these calculations.
4 And you will see, if you look
5 at the top, they calculate the total interest
6 paid, and then they subtract the interest paid
7 amount in the Deloitte report, and that's how they
8 come up with the 3.9 million for that period, as
9 we saw on the Slide 136 of our slides this
10 morning. Going from the time that the Deloitte
11 report finishes its calculation June 1st, 2015, to
12 May 8th, 2017.
13 And this is also, if you want
14 to -- the reference and detail to see all this is
15 in Secretariat's first report, Schedule 3, note 8.
16 And that includes a reference, also, it's based on
17 Exhibit C-2082.
18 So that's where the interest
19 is in the letter of credit.
20 Now, we did hear about
21 interest after that amount that was accruing to
22 the investors. And you may recall, if you look at
23 Mr. Tobis' testimony -- we don't have to bring it
24 up or maybe it is up. Okay.
25 This is his testimony from day
Page 1627
1 3, I believe. It's page 287 -- or 271, sorry.
2 Since May of 2017, in
3 Secretariat's calculations, they haven't included
4 any of the continuing accruing interest.
5 And he says:
6 "In our case, we are
7 including only the fees
8 that were paid,
9 technically, since
10 May 2017."[as read]
11 Sorry.
12 "Since May 2017, they are
13 still accruing more fees
14 on this amount. We just
15 haven't included those as
16 well as we were trying to
17 be reasonable in
18 preparing the
19 schedule."[as read]
20 So those are accruing fees.
21 They have not been included.
22 So I just wanted to point that
23 out just so the evidence is very clear for you
24 with respect to the letter of credit of interest.
25 And that, unless there are any
Page 1628
1 questions, that completes our submissions for the
2 day.
3 PRESIDING ARBITRATOR MILES:
4 Thank you.
5 MS. SHELLEY: Madam President,
6 if I could just assist with the reference for you.
7 Under the general standards,
8 which is IVS 101, the same document, so C-2278, it
9 is 20.3(j) and you will find that on page 11 of
10 the document. Or it's page 16 if you're in the
11 PDF. But page 11 of the printed document.
12 PRESIDING ARBITRATOR MILES:
13 We could have a discussion, if we wanted, about
14 nature and sources. But not all the data. I see
15 what you mean.
16 Okay. Got it. Thank you for
17 that.
18 MS. SHELLEY: Thank you.
19 PRESIDING ARBITRATOR MILES:
20 Mr. Neufeld.
21 MR. NEUFELD: Again, I had
22 some points but I am not sure that we need to hear
23 them. I think we can probably call it a day and I
24 can use my time to thank the Tribunal for very
25 diligently reading all the materials. We felt
Page 1629
1 that personally. And, you never know. We have
2 dealt with other Tribunals. You are always left
3 questioning, right, what's understood and what
4 isn't. And the questions, I can say, are both
5 super helpful to know that you are engaged and
6 have understood and traumatizing all at the same
7 time.
8 So thanks for that.
9 Thank you, Lisa and
10 Mr. Aragón. It's been less arduous than the first
11 two-week hearing that we went through in this,
12 although arduous nonetheless.
13 So just shout out to the
14 absolute fabulous team that we rely on in Ottawa.
15 And a cordial thanks to the
16 Claimant's counsel.
17 And, in fact, I really enjoyed
18 meeting many of the Claimant's witnesses and I
19 remember we had some really good chats. In fact,
20 Mr. Baines offered for my son to get in touch
21 about engineering at Queens. It's very touching.
22 Thank you very much.
23 MR. TERRY: If I may, if you
24 don't mind, I would like to make a similar thanks.
25 It's been a very, very --
[Page 89]
Page 1630
1 interesting week. I think all counsel really
2 appreciated the attention that the Tribunal's
3 given to this issue.
4 The challenging questions, the
5 very thoughtful questions. And I think it's
6 helped all of us, on this side as well, sort out
7 these issues as we have gone through this.
8 And, similarly, I would like
9 to thank José and Lisa very much for all the
10 efforts through the long days.
11 I also appreciate the cordial
12 nature all the way through in this proceeding. We
13 have had very cordial relations with Canada and,
14 of course, thanks for everyone else involved. Of
15 course for our team.
16 And the only thing I would, as
17 a little footnote, which might be worth mentioning
18 is one other thing that happened that, for now, is
19 probably res judicata from the first hearing, is
20 that is counsel on our side and counsel on
21 Canada's side that ended up meeting each other for
22 the first time that are now married and they have
23 a young child.
24 MS. SQUIRES: Not me, no.
25 PRESIDING ARBITRATOR MILES:
Page 1631
1 Okay. Because you have had a child, there have
2 been lots of Windstream babies.
3 Okay. Well, thank you all so
4 much. We are honoured to be given this
5 responsibility. It is a particularly tricky case
6 because of the earlier proceedings and the earlier
7 award.
8 It's important; right. It's
9 really important for states, in an energy
10 transition, for this to be considered very
11 carefully.
12 It's really important for
13 investors and developers in an energy transition.
14 It's important for all of us, including all those
15 babies, that we do everything we can and within
16 our capacity and expertise to get this energy
17 transition right.
18 So we appreciate your patience
19 with us. We care deeply about these issues.
20 We huge respect to every
21 single one of the advocates. It's been --
22 Mr. Tian, I understand that you're two years out
23 of law school. I mean, wow.
24 MR. TIAN: First year call.
25 PRESIDING ARBITRATOR MILES:
Page 1632
1 They never let me up on a first year call.
2 So extremely well done.
3 But wonderful to see the
4 diversity. Really, really respect that.
5 But just the today, in
6 particular, the level with which you engaged with
7 our questions, I would guess that none of you has
8 had much more than a couple hours sleep. So but
9 it showed in terms of the preparedness and focus.
10 So all the questions I had
11 yesterday are much, much clearer, to be honest,
12 are much, much clearer in my mind. So well done,
13 whatever the outcome. The teams were
14 extraordinary.
15 And admiration, also, to the
16 representatives of the government and
17 representatives of Windstream for getting along so
18 well when this has been such a long process for
19 all of you.
20 José Luis, you are my hero.
21 You know that.
22 And, Lisa, thank you.
23 And you can image how I feel
24 the privilege of having these two wings so it's
25 been a delightful week for me, personally, as
Page 1633
1 well. So thanks.
2 I did want to say one little
3 thing.
4 If we felt we got to it and we
5 needed anything on the law on the Slide 72 point,
6 I would like us to be able to ask, give the
7 parties an opportunity to send us law on that. At
8 this stage, we don't feel we need it.
9 But, if we were to reach a
10 point in the drafting, so we won't close the
11 proceeding but, otherwise, not anticipating any
12 written submissions or anything additional.
13 Okay, so thank you.
14 -- Whereupon matter adjourned at 4:42 p.m.
15
16
17
18
19
20
21
22
23
24
25
[Page 1635]
a.m 1290:11
1294:3 1338:20
1340:16
1367:20
1393:15,16
abandoned
1367:17
abandoning
1528:14
abandonment
1368:15
1536:25
ability 1333:25
1334:1 1351:13
1400:8 1409:21
1412:13
1440:23
1463:22 1547:9
1619:9 1634:6
able 1294:15
1312:13
1348:24
1422:19
1426:23
1441:20 1454:8
1461:6,9
1464:4 1474:14
1497:10
1596:17 1633:6
Aboriginal
1428:6
absent 1570:13
absolute 1508:22
1547:6 1598:6
1598:11
1629:14
absolutely
1379:10 1427:1
1473:15 1479:6
1479:9 1523:12
1546:4 1550:11
1591:15
abstain 1548:22
abstract 1299:13
abstracto
1591:13
abundantly
1572:22 1589:2
1589:17
1598:18
academic
1359:13
accent 1533:24
accept 1375:4
1382:19 1414:5
1463:2,12,16
1506:7 1507:5
1507:10,15
1543:20
1550:15
1559:15
1593:11 1610:6
1610:19
1615:21
acceptable
1374:5,17
acceptance
1463:7 1611:18
accepted 1306:18
1341:23
1382:20
1435:17 1449:4
1522:8 1526:3
1569:17
1592:18
1609:21,23
1610:4,10
1618:16
accepting
1390:19 1531:9
accepts 1447:14
1615:20
access 1301:11
1301:13 1311:7
1316:7 1509:15
1580:2,5
1603:7 1604:12
1604:19
1605:10
1606:19
account 1386:17
1467:4 1523:8
1609:2
accountant
1495:8
accounted
1449:10
accounting
1424:17,18
1495:6,9
accounts 1449:5
accrued 1501:24
accruing 1626:21
1627:4,13,20
accurately
1634:6
achieve 1316:18
1441:20
achieved 1443:21
acknowledge
1305:4 1346:3
1373:18 1460:7
1539:11
acknowledged
1546:14 1568:1
acquire 1324:2
1563:7
acquired 1563:3
acquisition
1567:1 1568:8
act 1300:18
1301:18
1310:12
1332:23 1335:7
1356:2 1357:15
1438:17
1540:18 1541:8
1579:1 1591:16
1591:17
acting 1498:15
1591:3,11
1601:2
action 1308:6
1328:2 1351:11
1353:17 1358:2
1362:1 1378:19
1387:1 1388:6
1389:10
1391:10
1398:15
1431:17,18
1432:5 1496:22
1499:23
1542:20
1549:15
1551:19,23,24
1552:4 1553:18
1554:25 1555:5
1557:11,14
1562:12
1563:22 1564:1
1564:3,7,9
1565:2,4,5
1566:19
actions 1295:10
1295:20 1305:8
1354:25
1355:15
1356:18
1390:18
1408:16 1473:6
1549:1,6
1568:2
active 1491:8
activity 1536:10
actor 1317:19
actors 1590:19
acts 1318:21,22
1475:3 1540:18
1574:1
actual 1330:22
1351:21,22
1353:20
1354:11
1358:25 1360:3
1362:5 1419:13
1422:15
1427:24
1429:10
1435:14 1436:9
1548:12,23
1559:20,23
1563:7 1566:8
1566:9 1571:19
1571:23,25
1572:3,7
acuteness 1535:8
add 1397:24
1427:4 1454:15
1460:5 1561:8
1562:1 1583:5
1615:15
added 1308:18
1316:16
1526:19 1561:6
adding 1318:3
1360:14
1521:19
addition 1368:21
1404:19,24
1454:5 1459:1
1501:5
additional
1296:18
1302:23
1308:18
1316:15 1353:4
1364:13 1365:1
1369:24 1370:8
1370:10,13
1392:23
1402:19 1422:5
1430:6 1445:16
1461:14 1474:4
1474:7 1481:19
1573:22
1574:22,25
1575:24 1593:4
1600:22
1602:18 1613:8
1613:13
1633:12
address 1296:10
1323:8 1324:10
1367:1 1369:5
1381:11 1383:6
1384:4 1409:25
1511:16
1528:20
[Page 1636]
1531:19 1548:5
1568:25
addressed
1461:20
1500:15 1533:1
addresses
1414:18
addressing
1323:20
1459:10
adjourned
1633:14
adjournment
1403:24
adjustments
1543:7
admiration
1632:15
admissibility
1314:23
admit 1461:21
1490:10
admitted
1455:24
adopted 1299:3
1307:7 1311:10
advance 1474:13
advertise
1426:15
advertised
1441:5
advised 1343:7
advisor 1311:12
advocates
1631:21
affairs 1292:6
1349:3 1401:7
affirmative
1402:13,18
1432:3 1540:18
1540:18
1541:14
1542:19
afraid 1355:11
afternoon
1433:12
1479:19,22
1529:11 1548:2
1577:15
1595:11
ago 1527:7
1552:2
agree 1312:12
1324:16,20
1361:24 1367:2
1370:16
1387:18
1433:21
1452:15
1464:21
1473:16 1509:6
1509:10
1518:12
1527:11 1535:1
1538:8 1549:20
1562:18 1581:2
1609:12 1610:2
agreed 1361:19
1362:4 1380:20
1387:10,11
1563:21
1620:10
agreeing 1416:22
agreement
1347:3,10
1396:2 1403:25
1578:24 1621:9
1621:10,18
agreements
1510:9
agrees 1473:15
1482:18
1507:18
1589:24
ah 1533:2
ahead 1304:12
1340:25 1415:1
1436:1 1437:22
1437:23 1491:6
1496:19
1602:13
1613:22
aim 1427:3
aired 1587:22
Alexandra
1291:3 1292:3
allegations
1338:3
allege 1492:15
alleged 1321:14
1324:2,5,13
1325:3,22,25
1326:19
1327:23
1328:13
1330:16 1332:4
1332:13
1333:11,12
1334:11,14,16
1335:23
1336:15,23
1337:6 1341:12
1341:15
1354:12,13
1360:3 1362:11
1366:3 1371:20
1379:13
1387:13
1436:13
1490:19 1548:6
1548:9,20
1552:23 1553:2
1553:11 1558:7
1559:20 1563:5
1566:21 1582:5
1623:1
allegedly 1333:7
alleges 1509:18
alleging 1336:6
1336:12
1379:11
1383:16
1389:23 1559:4
allow 1303:16
1319:20 1357:1
1394:6 1437:14
1449:23 1518:3
allowed 1376:5
1377:2 1437:22
1437:23 1596:8
allowing 1518:10
allows 1471:21
Alonso 1338:16
1466:18
1469:24
alternative
1469:4
altogether
1483:12
amalgam
1557:22
amazing 1590:10
ambiguity
1453:25
ambiguous
1304:14
ambiguously
1357:8
amend 1410:3
1441:1 1564:16
amended 1301:5
1350:24 1484:5
1491:6 1526:2
1526:3 1583:17
amending
1483:10
amendment
1579:16
amendments
1313:7 1404:17
1586:14
amount 1294:14
1305:4 1319:5
1319:8 1341:15
1472:5 1557:17
1558:1 1572:3
1572:25 1576:8
1601:2,6
1626:7,21
1627:14
amounted
1582:19
amounts 1310:2
1486:6
analysis 1333:6
1333:16,16
1432:8 1444:5
1444:10,13
1450:21,25
1451:6 1455:6
1503:23 1504:4
1504:21 1509:8
1511:13
1557:11 1584:1
1584:5 1611:3
analyze 1549:3
1557:24 1558:2
analyzed 1422:14
1548:7
ANDAS 1391:21
1391:23 1392:1
1392:9,11,13
Andrew 1292:12
1374:8 1538:12
Annex 1307:13
1368:25 1415:8
1416:13,16,22
1417:1 1419:5
1529:17 1530:9
answer 1319:16
1352:14 1357:6
1359:16
1364:10 1382:2
1384:10
1385:11 1389:1
1414:4 1436:16
1444:11
1477:20 1480:1
1492:9 1494:2
1496:2 1513:7
1533:18
1535:11 1536:3
1537:15 1548:3
1575:13
1595:20,20
1596:25
1604:20
answered 1322:8
1323:1 1324:7
answering
[Page 1637]
1350:12
1385:13
1435:25
1545:22
answers 1321:23
1322:25
1353:13
anticipate
1474:22
1475:10
anticipating
1475:17
1633:11
anticipation
1590:9
Anybody 1615:6
anymore 1408:7
1503:20
anyway 1424:23
1475:4 1610:18
1611:25
AOR 1304:5,9,24
1404:20
1413:23
1453:13,14,21
1454:6 1603:14
1605:24
apologies 1393:3
1625:24
apologize
1386:12
1459:11,16
Apotex 1391:11
1391:18
apparent 1613:7
Apparently
1616:20
appeal 1329:23
1331:22 1332:3
appear 1503:20
1549:20
APPEARANC...
1291:1 1292:1
appears 1482:11
applicability
1419:13
applicable
1315:18
1319:17,22
1320:14,20
1324:16
1416:16,21
1417:17 1419:1
1483:14
applicant
1301:13 1319:8
application
1299:25
1301:11 1321:2
1321:3 1330:21
1340:23
1354:21 1379:4
1379:15 1380:3
1380:6 1383:14
1391:20 1403:4
1415:7 1427:25
1428:8,10
1482:14
1509:17
1536:20 1537:1
1550:2 1603:14
1616:11
applications
1304:17
1404:20,21
1413:23
applied 1307:15
1308:2 1319:10
1340:24
1382:10
1396:24
1415:19 1416:8
1433:3 1467:9
1502:17 1511:7
1531:17
1623:13
applies 1297:17
1342:25
1503:14 1582:2
1582:3,4,5
apply 1320:17
1324:19 1329:1
1334:1 1380:18
1383:18
1414:15
1415:18,19
1417:23
1431:11
1455:23,24
1462:23 1468:9
1468:20,24
1469:17
1476:20
1482:19 1488:5
1499:1 1505:20
1558:9 1564:3
1611:12
1615:20 1616:1
1616:3
applying 1298:17
1337:4 1367:5
1436:4 1441:14
1454:13 1455:2
1460:23
1469:13
1493:12,17
1503:14 1587:8
appreciate
1444:22
1630:11
1631:18
appreciated
1380:23 1630:2
appreciation
1469:20 1470:6
1489:23 1501:2
1501:24
1502:17
1514:15
approach 1307:7
1332:11 1335:8
1382:24 1386:3
1423:14
1424:17,18,25
1424:25 1425:2
1443:11
1448:18
1451:20
1455:13
1462:12,13,18
1470:4,15,16
1504:6 1505:20
1507:7 1558:2
1558:6 1623:21
approached
1341:7
appropriate
1406:1 1435:11
1455:3,14
1474:3 1483:1
1483:8 1488:10
1488:20
1499:22 1543:6
1562:21 1612:5
approval 1316:5
1391:20
1579:18 1586:1
1606:4,8
approvals
1376:23
approve 1585:23
approved
1392:13
April 1536:22
Aragón 1290:19
1305:19
1322:15
1395:16
1629:10
arbitrariness
1397:7 1533:15
1620:6
arbitrary 1298:4
1300:5 1397:6
1397:12 1398:5
1413:9 1532:18
1532:22
1533:19 1534:9
1534:13
1535:21
1620:13,15
arbitration
1290:2,9,10,18
1290:24 1294:6
1327:17
1329:19 1362:2
1390:17
1405:10 1407:9
1407:17 1412:8
1419:10 1421:2
1481:4 1482:17
1489:18
1502:22
1509:16
1510:14 1511:5
1512:1 1515:22
1517:4,7,19
1537:2 1568:9
1574:12 1621:3
1621:22 1622:5
arbitrations
1507:23
Arbitrator
1290:16 1294:4
1309:6,10
1322:10,17
1328:14
1338:15,21
1340:19 1344:3
1345:7 1346:7
1348:14,19
1360:8,20
1361:3,18,23
1362:9,18,24
1363:9,13,20
1364:4 1365:3
1365:23 1366:7
1366:11,18
1368:1,14,18
1371:14
1372:11 1375:1
1375:12,16
1378:9,14,20
1378:24
1380:22 1381:3
1381:8 1384:12
1384:18
1385:14 1386:1
1386:8,14,22
1387:5 1390:22
[Page 1638]
1391:3 1393:1
1394:10,17,24
1395:3,23
1396:11 1401:9
1402:6,12,15
1402:21 1403:8
1403:16 1404:5
1414:22
1418:13,21
1419:2,23
1421:10
1422:22
1424:14
1425:21
1426:11,25
1428:13,21
1431:20 1432:2
1432:17 1433:5
1433:13
1434:11
1435:23
1436:12,20,24
1438:13 1439:5
1445:21 1446:7
1446:16
1451:18
1466:13,16,24
1469:8,23
1470:2 1478:4
1478:8,15
1487:9,17,23
1488:1 1492:23
1493:10,16,19
1493:23
1504:24 1505:6
1505:13
1506:11 1508:3
1508:9,15
1510:15,24
1511:9,20
1512:14,22
1513:2,15,19
1514:4,21
1516:2,12
1518:15 1519:6
1519:10,15,19
1521:18
1522:17 1523:3
1523:22 1524:7
1525:22 1526:8
1527:3,24
1529:1,5,24
1530:7,12,18
1530:24 1531:4
1533:8,14,23
1534:14,18,22
1535:10,16,22
1537:8,16
1542:25
1543:12,17,22
1544:1,5,20
1545:4 1546:5
1546:16,25
1547:4,11,19
1550:10,25
1551:21 1552:6
1558:12,25
1559:9,21
1561:24
1564:11
1565:21
1566:11,15
1567:7,19
1573:17
1574:10
1575:12 1576:9
1576:12,18,22
1577:3,9
1578:3,9
1583:20 1584:3
1590:4,8
1599:2,9,14,19
1599:25
1600:17,21
1602:3,10,17
1602:22
1603:18 1604:3
1604:9 1605:7
1606:17,24
1607:3,7
1611:23 1612:9
1612:15 1613:5
1613:21 1614:3
1614:8,17,24
1615:3,10,24
1616:23 1617:2
1617:9 1620:24
1621:11,15,23
1622:7,11
1623:5,19
1624:2,7
1628:3,12,19
1630:25
1631:25
arduous 1629:10
1629:12
area 1352:10
1428:17
1451:13
1461:22
1503:17
argue 1299:2
1353:6 1415:21
1475:8 1554:15
1605:16,18
1606:10
argued 1304:8
1311:24
1329:20
1342:11 1361:5
1361:14
1388:12,13
1392:19,20
1477:23
1481:10
1575:15
1582:14
1588:17,17
1603:10
1608:16 1609:1
argues 1311:14
1369:15 1379:2
1481:5 1482:13
1502:1
arguing 1369:20
1371:3 1381:13
1383:4 1389:25
1419:15
1593:15
argument 1293:3
1293:4,5,6,7,8
1293:9,10,11
1293:12
1294:24 1295:2
1300:8 1302:19
1304:3 1307:22
1309:1,13
1312:7 1314:7
1322:21
1323:17 1347:5
1349:17,24
1356:10
1361:10,13
1368:24
1390:21 1404:4
1414:6,24
1415:15 1418:5
1419:21 1420:3
1422:3,20
1430:5 1431:1
1431:7 1434:20
1437:5,16
1439:21
1462:24
1464:20 1465:9
1472:17 1473:3
1473:5,9
1474:22,23
1475:9,10
1476:15,19,25
1477:25
1479:18
1496:16
1498:15
1529:10
1539:25
1541:25
1547:20,25
1578:11 1582:7
1585:10
1592:23
1593:11
1596:19 1600:9
1603:12 1613:1
1614:22
1615:12
1624:17
arguments
1312:17,19
1313:2 1314:23
1342:24 1369:5
1388:9 1390:2
1390:5,7
1391:4 1415:9
1415:25
1418:15,22
1419:9 1513:5
1554:6 1573:7
1584:23
arisen 1480:8
1565:2
arises 1303:11
1349:24 1413:8
1484:18 1489:8
1491:16
1551:24 1560:4
1563:22 1564:1
1564:3 1572:13
arising 1306:24
1362:13
1379:18 1385:9
1482:20
1531:12
1557:14 1565:5
arose 1338:6
1353:17 1359:2
1365:2 1389:21
1389:22
1411:25
1414:13
1433:19
1484:10
1486:10
1536:10 1552:1
1552:5 1555:9
1564:10
1566:19
1567:13
arrive 1315:25
1520:22
[Page 1639]
arrived 1494:20
arrives 1504:4
arrow 1371:22
Article 1310:2
1380:2 1434:19
1480:19
1481:12
1482:12,24
1490:9,17
1491:24
1494:11
1515:15
1531:17 1536:7
1552:23 1620:9
1620:17
Articles 1548:12
artificial 1493:1
ascertain 1363:4
aside 1349:14
1363:21
1439:20
1460:12
1485:12
1499:25
1573:15
asked 1313:12
1318:17
1338:25 1339:2
1339:21 1341:7
1353:7 1367:7
1368:3 1373:23
1388:22
1401:11 1405:3
1407:7 1408:1
1414:5 1456:4
1457:13 1469:3
1477:12,18
1480:7 1484:16
1484:23 1492:4
1492:7 1501:1
1501:23 1517:9
1519:20
1529:16 1531:8
1537:22
1581:15 1588:6
1593:10
asking 1368:15
1399:11
1401:18 1411:4
1425:5 1513:20
1516:23 1551:6
1586:20
asks 1311:12
aspects 1432:25
assertion
1390:13
1407:25
1459:24
asserts 1390:10
assess 1310:1
1333:3 1334:3
1382:7,15
1394:8 1435:11
1517:25
assessment
1295:18 1300:3
1303:24 1334:7
1423:9,11
1455:11 1463:9
1512:25
asset 1394:7
1575:21
assist 1628:6
associated
1549:1,6
assume 1440:16
1453:12 1454:4
1468:7 1491:4
1504:9 1513:21
assumed 1510:11
assumes 1510:23
assuming
1402:25
1482:18
1501:20
1510:21
assumption
1304:23 1316:9
1443:8 1455:10
1603:15
assumptions
1316:11,11
1435:4,10
1441:15 1444:2
1488:15,16
1489:4 1504:19
1509:19,23
1510:3
assured 1581:8
attached 1447:8
attempt 1311:23
1330:25 1374:3
1557:22
attempts 1557:13
attention
1494:10
1497:13 1630:2
Attorney 1292:8
attributable
1298:1 1601:20
1601:24
attribute 1519:4
attributed
1363:24
attribution
1546:21
1547:20 1600:6
audited 1495:16
auditor's
1456:15
August 1320:7
1497:23
1572:23 1617:5
authorities
1385:15
1419:20 1620:2
1620:18
authority 1482:2
1590:13 1591:4
1591:18,23
1592:5 1618:22
1619:4,25
automatic
1339:22
available 1315:7
1315:8,15
1317:4 1321:17
1394:6 1400:11
1428:7 1461:15
1461:16
1506:17,21
1518:22 1520:4
1594:19
1612:13
avenue 1516:19
average 1467:11
1467:14,17,20
1525:11
avoid 1315:14
1548:23
award 1295:10
1295:20,25
1296:7,24
1299:11
1300:25
1301:19
1309:20,20,23
1310:3,4
1312:9,10
1313:14
1314:20 1315:1
1341:6 1345:15
1346:10
1350:15
1367:13 1399:2
1404:14
1405:12 1407:6
1407:7 1409:1
1412:7 1413:20
1420:5,14
1429:12,21
1439:19
1470:11,23,24
1471:18,19
1480:8 1482:23
1487:19,22
1490:6 1491:21
1498:10 1499:3
1501:3,7,10,14
1501:19,22
1502:4,7
1505:19 1506:5
1511:24 1514:3
1514:11,16
1518:16,18
1530:20
1532:14 1536:8
1543:14 1544:9
1554:24
1556:12
1564:16
1572:11
1573:21 1574:2
1574:19
1583:12
1588:21
1592:11,13
1600:13 1601:7
1601:11 1604:1
1605:14,20
1606:15
1607:12
1608:15,17,21
1609:4,14,17
1620:20,21,25
1621:3 1631:7
awarded 1296:9
1349:8 1362:16
1364:16 1365:1
1370:13
1392:22
1408:15
1413:12
awarding
1345:20 1413:4
awards 1439:18
1594:6 1606:13
aware 1302:2
1384:19 1386:9
1406:14
1427:12
1456:12
1515:11
1563:13
awful 1362:25
1439:15
awfully 1483:23
Ayoub 1292:5
B
[Page 1640]
В 1414:10
1546:10,11
1564:15
babies 1631:2,15
back 1311:2
1316:12
1321:19 1322:5
1338:22 1344:4
1353:14
1362:10 1365:6
1365:14,21
1369:22 1371:5
1386:21 1391:7
1393:12,13
1401:8,12,14
1402:10,16
1404:1,10
1423:12 1434:9
1446:17
1448:14,22
1451:3 1457:8
1461:9 1470:1
1472:19 1474:3
1474:20 1475:1
1478:19,23
1479:14 1485:1
1486:13,22,25
1487:1 1488:6
1489:5 1496:2
1505:14 1510:5
1511:3,7
1515:2 1517:21
1518:23
1521:20
1532:13
1537:12
1542:23,23
1556:17 1557:4
1560:10
1561:12
1563:20 1565:9
1565:11 1568:3
1568:5 1570:4
1577:11 1578:5
1580:14
1590:22
1592:19 1594:2
1597:8 1599:23
1600:3 1604:11
1606:12
1607:22
1609:16
1617:17
1620:17
1622:24
background
1329:10 1332:8
1377:23
1414:12
1549:17,24
1550:1,9,14,18
1550:22,24
1551:2,7,13,16
1551:19,22
1552:1 1553:14
1553:19,24
1557:7 1559:13
1559:17,17
1560:14
1561:21
1562:10 1565:6
1574:20,24
backgrounds
1512:25
backs 1433:17
bad 1595:23
Baines 1291:8
1308:4 1374:18
1427:19
1588:24
1629:20
Baines' 1399:5
1405:1
Bakelaar 1292:5
balance 1443:14
1443:18
ball 1591:6
bank 1317:11
1485:2,3
1486:16,19,23
1487:13
bar 1503:14
barred 1314:9
1369:20 1371:3
1371:25
1584:12
base 1599:16
based 1377:5
1387:19 1388:7
1397:16 1421:4
1433:24 1504:6
1506:23
1507:16
1515:13
1520:20 1524:9
1603:15
1626:16
bases 1387:20
1533:15
basically 1335:3
1381:14
1495:15
1513:16
basis 1309:25
1312:11
1314:19 1328:6
1328:7,21
1329:15
1331:11,14
1346:22 1351:1
1351:6 1369:19
1376:6 1382:4
1386:10
1399:21
1403:20
1407:12 1419:5
1424:3 1450:21
1458:11,22,23
1462:5 1466:5
1476:9 1483:18
1491:14 1501:2
1502:16
1531:12
1549:14,22
1550:19,24
1551:13,17,18
1558:14
1574:12 1607:4
1612:4,19,20
Bay 1290:10,25
bearing 1409:6
beaten 1589:6
1594:21
beginning
1507:25
1523:21
1562:10,12
begun 1591:6
behalf 1318:21
behaviour
1310:1 1435:14
belabour
1456:22
belief 1399:3,7
believe 1303:1
1382:8 1391:6
1395:6,10
1443:6 1445:24
1457:16
1458:13
1464:10 1476:5
1514:1 1516:17
1519:13
1522:21
1528:18
1529:21
1536:11
1546:22
1547:16,20
1627:1
believes 1502:10
belongs 1495:3
1525:13
Benedetti
1311:11
1373:14
best 1318:23
1365:17 1442:9
1492:3 1634:5
better 1365:21
1464:23 1558:6
Beverley 1290:17
beyond 1349:7
1364:16
1370:13 1409:4
1413:12 1579:6
1583:6,8,11
big 1309:9
1452:8
Bilcon 1332:10
1334:13
1336:12
1558:11
1562:19
binary 1507:5
1524:1
bind 1581:19
binding 1615:22
bit 1328:17
1355:6 1395:20
1426:16
1439:25 1480:2
1480:11
1490:10
1492:25
1498:22
1506:20
1512:12,16,17
1514:12,19
1532:12,13
1537:11 1586:6
1590:3 1603:11
1608:13
bits 1535:23
Biwater 1439:15
1440:2
blah 1532:18,18
1532:19
blazer 1366:24
blending 1317:14
blockages 1305:7
blocking 1413:12
Blueprint 1495:4
boding 1595:10
boss 1321:25
1478:21
1576:13
1599:22
bothering
1352:14
[Page 1641]
1442:17
bottom 1560:11
1581:14 1589:9
1589:21 1624:9
1625:23
bound 1375:13
1381:21
1382:19,23,25
1383:2,3,6
1455:2,6
1459:24
1462:13,20
1463:8 1464:7
1513:11,12
1609:24
1612:23
box 1361:4,4
1603:19
boxes 1603:19
brain 1546:22
brand 1406:18
1412:24
1616:12
breach 1295:20
1298:20 1310:2
1311:16
1312:11
1315:14 1321:9
1324:2,5,13,24
1325:3,23
1326:4,5,10,19
1327:4,23
1328:13 1329:3
1330:16,22
1331:13 1332:4
1333:9 1333:18
1333:10 1334:7
1334:12,14
1336:10,15,17
1336:24,24
1337:6,21,22
1338:1 1341:12
1341:16,16
1343:22
1344:13,16,19
1345:11,15,17
1346:22,24
1347:2,8,10,13
1348:7 1354:8
1354:12,13
1355:2 1356:1
1358:12
1360:21
1362:11,21
1365:18 1366:3
1376:8,12
1377:7,24
1379:9,13,21
1380:5,8
1397:17 1398:24
1412:19
1413:25
1414:15 1422:9
1422:17 1426:7
1436:13
1437:6,9,25
1438:4,6,15,18
1438:19,21
1440:5
1446:25
1447:22 1480:9
1480:13,17
1481:9,11,15
1482:10,14,15
1482:20,25
1483:6,20
1484:4 1488:5
1488:25
1490:17
1506:24 1536:7
1540:8 1540:8
1541:4,19
1542:6 1548:10
1548:16,20
1550:20,24
1551:5,8
1552:24 1553:2
1553:11
1554:3 1557:19
1558:5,14,15
1558:18,19
1559:5,16,20
1559:23 1560:3
1560:12,18
1560:23 1561:5
1561:11,12
1561:17,18,20
1562:4 1563:6
1566:2,3,12,21
1571:13
1574:17 1575:1
1582:3,19
1583:8 1589:11
1601:1 1602:4
1622:15,21
breached
1295:10
1296:23 1300:6
1334:17
1336:7 1380:1
1554:17
1602:15 1619:4
breaches 1327:6
1331:13
1335:22 1336:3
1336:5 1480:12
1481:20
1558:10
breaching 1536:9
1566:25
break 1322:20
1332:12 1333:8
1333:9,13,18
1335:1,25
1341:25 1342:9
1378:14 1385:8
1387:7 1391:8
1393:10 1396:1
1449:6 1461:19
1462:18
1577:11,14
breakdown
1477:6
breaking 1558:7
brief 1390:23
1434:7 1453:17
1454:10
1458:15,16,20
1529:14
1536:16
1576:13
briefly 1295:2
1417:2 1435:2
bring 1310:10
1314:16
1331:13 1343:5
1356:7 1357:1
1358:24
1379:24
1417:23
1555:19 1580:7
1600:15
1624:23
1625:18
1626:23
brings 1500:21
1504:25
1580:25
broad 1417:19
1417:23
broader 1462:11
broadly 1306:17
brought 1304:18
1320:21
1337:14
1341:25
1342:17
1359:24 1369:8
1381:25 1403:4
1404:10,11
1404:1 1416:5
1416:7 1453:4
brow 1542:24
build 1452:8
1626:13,14
1553:24
built 1386:14
1405:3 1452:2
1504:15 1510:6
bullet 1428:4
bunch 1398:5
1617:21
burden 1314:15
1451:21
Bureau 1292:6
but-for 1295:16
1296:24
1303:21,23
1304:25
1308:17
1363:10,11,14
1363:23
1422:12 1426:8
1435:5,11,13
1435:20 1436:3
1436:9,16
1436:21
1440:15,19,21
1441:15 1448:1
1448:2,3,7,9,11
1450:15
1466:18
1480:13 1488:4
1490:14 1493:7
1574:13,16
but-fors 1483:17
button 1446:18
C
c 1367:17
1494:22
1546:11,11
1559:20
C-2020 1494:23
C-2076 1538:24
C-2082 1485:2
1485:19
1625:24
1626:17
C-2278 1393:24
1623:9 1628:8
C-2466 1517:9
C-2471 1538:22
[Page 1642]
C-2474 1616:18
C-282 1625:24
C-484 1373:10
Cai 1292:4
cake 1514:23,25
1604:22
calculate 1424:8
1470:14 1626:5
calculated
1470:10,22
1471:1
calculation
1469:5 1472:4
1599:15
1625:11
1626:11
calculations
1457:2 1468:11
1626:3 1627:3
call 1372:24,25
1373:9 1406:7
1442:15 1449:6
1467:2 1531:23
1585:12,18
1593:23
1628:23
1631:24 1632:1
called 1329:13
1372:17
1391:21
1423:20 1495:3
1561:11
calling 1327:17
calls 1494:16
1522:6
Canada 1290:7
1292:6 1297:3
1299:2 1303:5
1303:7 1307:14
1309:15,18
1310:20,22
1312:17,21
1314:13 1315:6
1329:20,22
1331:21
1337:17
1341:13
1342:11
1367:11
1369:15
1370:24
1372:14
1375:25 1379:2
1381:12
1383:12
1384:25
1389:23
1391:10
1396:25 1397:8
1398:8 1403:18
1407:16 1409:7
1413:5 1416:17
1416:18 1417:6
1419:15
1423:24 1427:6
1428:15
1438:15 1439:9
1441:25 1442:4
1442:13
1458:14,19
1462:10 1475:3
1475:21,23,24
1477:22 1478:7
1494:7 1503:10
1511:4 1520:4
1539:23
1554:16
1556:11 1564:5
1581:2 1585:10
1592:15
1601:20
1630:13
Canada's
1296:14 1313:3
1313:9,10
1314:7,22
1323:17
1341:22
1342:18,24
1369:5 1384:15
1407:3 1408:18
1410:5 1412:8
1416:1,24
1417:22 1419:5
1438:16,17
1457:25
1459:24
1474:22,23
1476:25
1529:21 1531:9
1531:20 1534:5
1546:23
1553:19 1554:6
1592:23
1616:21
1630:21
Canada-Costa
1325:16
Canadian 1329:9
1330:5 1396:13
1468:11
cancelled 1345:6
1390:1,12
1404:22 1468:4
1582:17,22
candid 1421:22
1508:24
candidly 1422:19
canvassed
1441:13
capable 1306:20
1326:13 1337:1
1337:11
capacity 1447:1
1631:16
capital 1306:25
1495:19
1543:13,19
1544:10,25
1622:3
capitalized
1472:2
Cardiel 1290:19
1305:19
1322:15
1395:16
care 1631:19
careful 1427:5
1433:22
1465:10 1532:1
1535:11
1537:15
carefully 1631:11
carried 1427:10
1427:15
1591:17
1617:25
carry 1300:21
1430:16
1582:15 1618:7
case 1290:1
1299:15 1300:4
1302:11,20
1305:15 1308:6
1308:24
1313:24 1314:3
1320:1 1325:6
1329:7,12,20
1331:1,20
1334:11,13
1335:10,22
1336:11,24
1344:17,20
1353:20
1358:22 1359:1
1371:4 1383:9
1383:17
1387:23 1389:4
1389:14 1397:3
1397:5,12,14
1406:2 1414:8
1414:9 1417:17
1417:23
1421:12,14,17
1422:20 1425:9
1426:3 1429:3
1430:25
1431:10 1434:9
1434:21 1437:6
1437:10,14
1442:4,8,19
1443:13 1446:1
1448:5 1450:3
1451:11 1460:9
1461:20 1463:6
1464:12
1468:25 1494:1
1494:2 1531:9
1531:23 1532:6
1535:13
1539:16
1542:14 1549:2
1549:23 1555:5
1564:6 1566:8
1567:2,4
1573:14
1574:12 1575:2
1575:13
1578:21 1582:2
1590:19
1591:24 1600:9
1612:23 1613:4
1621:8,10,12
1621:22 1622:1
1622:5 1627:6
1631:5
cases 1299:1
1319:21 1324:7
1324:9 1327:2
1327:5,7,12
1332:16
1376:20
1397:15
1405:21 1421:3
1445:12
1446:10 1447:7
1462:13 1477:4
1530:8 1532:1
1532:10
1584:18 1616:8
cash 1423:9,10
1424:23
1510:13,17
1511:4
catch 1496:12
1498:18
1541:11
catching 1419:3
categories
1398:20 1598:5
[Page 1643]
caught 1578:20
causation
1323:15
1436:17
1438:21 1439:2
1439:10,17,23
1440:7,11
1448:2 1449:6
1452:12 1472:9
1472:12 1473:4
1475:2 1480:5
1484:25
cause 1353:17
1358:2 1362:1
1378:19
1386:25
1389:10
1391:10 1432:4
1436:13
1437:12 1473:5
1473:6 1549:15
1551:19,23,23
1552:4 1553:18
1554:25 1555:4
1557:11,13
1562:12
1563:22 1564:1
1564:3,7,9
1565:2,4,5
1566:19
1570:19
1571:10 1579:1
caused 1321:15
1326:8 1333:4
1344:18
1473:20 1475:2
1480:9 1516:20
1571:8,13
1580:4 1622:14
1622:21
causes 1388:6
causing 1365:8
caution 1531:19
1533:7 1620:2
caveat 1434:6
1597:4
CBV 1454:17,21
ceased 1310:6
cells 1509:17
certain 1358:12
1375:6 1444:5
1445:17 1451:1
1456:25 1465:8
1509:9 1520:11
1523:1,1
1531:9 1558:9
certainly 1304:8
1351:5 1406:10
1416:5 1423:15
1439:19 1441:5
1443:23
1445:15
1446:14
1448:14
1450:12,18,18
1462:16
1464:19
1516:16,17,23
1520:7 1561:17
1584:19
1605:16
certainty 1321:8
1325:12 1401:6
1508:18
1572:25
1573:13
1594:15
certificate
1579:17
CERTIFY
1634:5
chain 1449:6
1495:3
challenge 1365:4
1383:23
1536:21 1554:7
1557:23
challenged
1327:14
1340:22
1536:12
1553:18 1563:8
challenges
1549:2 1550:8
1563:11
challenging
1330:1,19
1379:2 1389:6
1389:17 1538:2
1552:14 1630:4
chance 1383:22
1449:13,15
1462:16,17
change 1316:4
1330:5,10
1349:3 1411:14
1413:19 1425:7
1425:8 1450:16
1502:18
1506:15 1507:6
1525:14
1542:12 1580:9
1584:16
1592:17 1596:2
1596:8 1597:1
1603:21,24
1611:24 1612:1
1612:3,6
1613:14
changed 1314:8
1442:24
1490:10,12
1503:11
1505:25 1506:2
1506:3,5,6,9,14
1507:11,16
1508:2 1509:1
1509:5,10
1595:23 1596:9
1597:14 1599:5
changes 1490:5
1502:2 1596:2
1596:14
changing
1582:18
character 1308:7
1417:10
1430:23
characteristics
1507:24
characterization
1573:20
1600:14,19
characterize
1430:19
characterized
1369:8 1602:5
chart 1522:7
1526:2,10,12
1526:14,21
1528:7 1625:16
charts 1388:14
chase 1589:19
chats 1629:19
cheaper 1510:8
Checcini 1374:23
check 1380:20
1381:6 1418:14
1423:21 1457:5
1457:9 1465:22
1468:19
1519:14,16
checked 1461:9
1524:16
1527:25
checks 1455:17
chief 1406:8,13
1576:14
child 1630:23
1631:1
choice 1314:1
choose 1358:19
1421:3 1503:23
chooses 1447:10
choosing 1455:3
chose 1315:16
1442:5 1456:3
1573:2
chosen 1456:5
Chris 1291:11
1311:11
Christine 1292:5
chronologically
1412:5
circle 1364:12
1411:19
circles 1369:13
circling 1458:15
circular 1554:6
circularity
1341:19
circumstance
1430:19
1540:14
1541:10,14
circumstances
1301:23 1335:9
1335:21
1379:16
1382:11
1387:20
1407:15
1445:17
1463:11,15
1498:23 1500:9
1541:2 1554:12
1616:11
cite 1560:13
1561:12
cited 1327:14,16
1534:20
cites 1397:15
1584:23 1587:1
citing 1585:6
CL-188 1531:24
claim 1296:4,5
1305:1,23,25
1309:23
1314:16,19
1327:22 1328:6
1328:7,21
1329:21 1332:8
1333:12,20,24
1334:16,20
1335:24 1336:7
1336:8 1337:14
1341:23,24
1342:7,17
1343:6 1344:22
1345:2 1349:15
[Page 1644]
1349:16,19,22
1349:24 1350:3
1351:7 1355:20
1356:8 1357:1
1357:17
1358:13,13,25
1359:2,25
1365:2 1369:23
1372:3 1376:6
1376:21 1377:4
1387:18
1389:12,13
1391:25 1392:3
1408:12
1416:12
1433:23 1440:4
1490:23
1491:14 1497:2
1528:15
1549:22 1550:9
1551:14
1553:25 1554:8
1554:11 1555:8
1555:15,19
1556:19 1558:5
1558:8 1574:4
1574:15
1596:25 1597:5
Claimant 1290:5
1291:1 1298:3
1298:8,24
1303:19
1309:15
1310:20 1311:3
1311:14,18
1312:12,16
1313:1,5,12,23
1314:15 1315:9
1315:21 1316:2
1316:14,24
1317:4,5,18
1318:13
1319:10
1320:10
1321:13
1327:13,16
1328:11,22
1330:3,19
1331:3 1333:3
1344:18 1347:2
1347:9 1350:15
1350:17
1358:21
1359:22 1390:9
1425:9 1447:12
1451:22
1471:10 1481:2
1481:5 1482:13
1484:19
1486:18,23
1487:5 1488:16
1490:4,15
1491:13,22
1492:17 1494:9
1497:15,20
1498:25
1500:13 1501:6
1501:9,18,21
1502:1,10
1503:21
1504:10
1511:17 1512:3
1512:7 1514:18
1515:10
1518:23
1519:25
1533:11
1534:23
1535:13 1538:6
1538:15
1545:24
1548:22
1549:13 1550:8
1550:15 1554:5
1555:9 1557:13
1559:11 1563:2
1563:6,10,13
1565:3 1567:21
1569:3 1570:12
1570:25
1571:15 1572:9
1572:15,19,19
1574:3 1575:14
1575:23 1581:1
1582:8,10,14
1586:3,13,22
1587:1,5,15
1588:6,16
1589:2,24
1591:5 1592:8
1592:16
1593:15
1601:15
1603:10
1604:14
1608:16
1622:16
Claimant's
1310:25 1311:6
1311:11,21
1314:1,12
1317:16
1318:16
1320:24 1321:1
1329:8 1330:13
1330:18 1331:1
1356:20 1481:3
1489:1 1490:18
1492:5 1494:15
1495:14
1498:13
1501:16 1502:4
1502:18,23
1504:3,8
1529:16 1530:1
1533:18 1548:9
1552:13 1557:6
1557:22 1559:3
1564:6 1566:9
1566:19,22
1567:2,25
1568:7 1574:15
1575:1,7,13
1584:14
1585:20
1600:18
1601:14
1629:16,18
Claimants
1311:17
1412:16
1492:15 1518:5
1555:25
1572:21
1618:21
claimed 1333:22
1472:12
[Page 1646]| 1467:17 1503:1 | 1491:25 | concern 1325:11 | 1413:19,21 | 1386:13 |
| 1524:17,21 | 1494:21 | 1387:18 | 1481:9,11,23 | 1410:11 1451:3 |
| 1610:13 | complaint | concerned | 1482:8 1533:19 | 1624:12 |
| 1623:15 | 1311:23 1314:8 | 1395:10 1431:1 | 1534:6,10 | confirmation |
| comparables | 1518:4 1557:6 | concerns 1364:11 | 1563:11,14 | 1407:10 |
| 1295:16 | complaints | 1517:20 1569:1 | 1601:22 | confirmed |
| 1303:21 1363:8 | 1314:17 | conclude 1341:19 | 1620:13 | 1373:1 1471:22 |
| 1380:21 1381:1 | 1388:14 | 1352:3 1390:11 | conducted | conflate 1318:16 |
| 1382:15,16 | complete 1452:7 | 1613:10 | 1441:11 | conflating |
| 1384:7 1386:16 | completed | concluded | conference | 1341:14 |
| 1395:2 1421:5 | 1332:24 1333:1 | 1355:16 | 1372:24 | confused 1528:13 |
| 1421:14,20 | 1373:3 1412:14 | 1524:11,14,17 | 1585:17 | 1551:9 1554:22 |
| 1423:7 1436:4 | completely | concludes | confidential | 1569:1 |
| 1443:3,19 | 1306:5,6 | 1349:13 | 1338:14,18,20 | confusing |
| 1444:10 | 1409:8,10 | 1600:10 | 1340:15,16,18 | 1487:13 |
| 1446:11 | 1421:22 1462:6 | conclusion | 1381:18,22 | confusion |
| 1447:13 1455:3 | completes 1628:1 | 1453:11 | 1382:14,20 | 1294:20 1426:3 |
| 1458:15,20,23 | completing | 1463:23 | 1385:1 1386:2 | 1552:21 |
| 1459:8,19 | 1483:6 1488:9 | 1614:13 | 1393:20 1411:9 | conjecture |
| 1460:15 | 1488:19 | concreto 1591:14 | 1457:6,9 | 1435:12,17 |
| 1465:25 | completion | CONDENSED | 1458:2,3 | conjure 1314:16 |
| 1503:22 1504:4 | 1333:4 | 1290:14 | 1459:8,19 | connect 1355:5 |
| 1504:6,20 | complex 1424:22 | condition | 1460:1,17 | 1355:21 |
| 1510:12 | complicated | 1572:24 1579:2 | 1461:10 1462:3 | connection |
| 1524:15,18 | 1343:15 | conditional | 1462:19 1463:7 | 1438:1,1,5 |
| 1527:16 | 1512:12,17,18 | 1296:21 | 1463:13,17 | 1504:13 1512:8 |
| 1623:14,14 | 1512:20 | 1316:16 | 1464:12 | 1512:16 |
| 1624:14 | complying | 1504:13 1606:4 | 1466:10,19,20 | 1513:11,21,22 |
| compare 1388:12 | 1431:15 | 1606:8 | 1466:22 | 1513:25 |
| compared | components | conditioned | 1467:24 | 1514:12 |
| 1605:23 | 1548:5 1549:12 | 1610:8 | 1469:22,25 | 1604:15 |
| compartmenta... | 1562:23 | conditions | 1511:18,19 | 1605:13,25 |
| 1582:1 | 1563:23 | 1379:17 1573:1 | 1515:8,16 | 1606:5,7,7,8,9 |
| compensate | composite | conduct 1295:14 | 1516:25 | 1606:14,18 |
| 1490:3 | 1334:20 | 1296:6 1298:1 | 1518:21 | 1607:4 |
| compensated | 1335:24 1548:6 | 1298:4 1300:5 | 1528:16 | connotes 1560:22 |
| 1306:9 1350:22 | 1557:14,17,19 | 1300:24 | 1607:17 | consensus |
| 1369:17,19 | 1558:1,4,7 | 1302:14 | 1610:17 | 1297:14 |
| 1399:16 | comprehensive | 1337:25 | 1612:12 1613:8 | consequence |
| 1400:13 1401:3 | 1381:15,15 | 1341:15 | 1613:11 | 1312:3 1337:24 |
| 1402:2 1475:6 | 1454:21 | 1361:20 1362:6 | 1614:12,20 | 1356:20 |
| compensating | 1610:12,22 | 1364:21 1365:8 | 1615:14 | 1402:22,24 |
| 1363:5 | comprise | 1371:25 | confidentiality | 1600:23 |
| compensation | 1423:17 | 1379:15 1397:6 | 1385:20,21 | 1601:11 |
| 1369:11 | Concepts | 1397:9 1398:5 | 1386:9,17 | consequences |
| 1434:23 | 1292:14 | 1411:20,24 | confirm 1338:18 | 1346:9,9,13 |
[Page 1647]
| 1568:2 1582:11 | 1311:15 1561:5 | 1481:8 | 1343:24 | 1485:6,8 |
| consider 1332:7 | constitutes | continued | 1344:15 | 1488:12,24 |
| 1428:25 | 1307:2 1572:24 | 1340:23 | 1345:23 1346:2 | 1490:8 1491:1 |
| 1439:21 1459:8 | 1601:1 | 1353:11 | 1346:4,6,16,17 | 1491:2,7 |
| 1463:6 1525:10 | construct | 1379:15 1380:6 | 1346:19 | 1499:17 1500:6 |
| 1543:6 1550:13 | 1354:10 | 1404:14 | 1347:15,23,24 | 1504:16,16 |
| 1559:12 | construction | 1414:15 | 1348:6,11,25 | 1523:9,10,13 |
| 1561:17,19 | 1451:25 | 1482:14 1497:3 | 1349:1,6,11 | 1538:11 |
| 1601:22 | 1600:19 | 1550:2 1583:8 | 1350:23 | 1542:23,23 |
| consideration | constructive | 1593:2 | 1351:20 | 1543:8,11,23 |
| 1388:17 | 1548:13 1563:7 | continues | 1354:19 | 1544:16 |
| 1455:10 | 1565:4 | 1311:16 1348:4 | 1356:10 1361:1 | 1545:10,12,12 |
| 1456:14 | construes | 1404:12,15 | 1361:6,6,15 | 1545:14,17 |
| 1550:20 | 1575:24 | 1413:25 | 1362:3,6,14 | 1546:1,10,24 |
| 1562:25 | consultants/lob... | continuing | 1363:15,18,23 | 1547:14 1550:6 |
| considered | 1406:24 | 1296:25 1310:5 | 1365:12,13 | 1554:14 1555:1 |
| 1312:8 1347:20 | cont'd 1293:6,10 | 1311:16 | 1369:18,25 | 1555:16 1556:9 |
| 1443:24,24 | 1414:24 | 1481:10 | 1370:2 1371:2 | 1556:13,20 |
| 1453:23 | 1578:11 | 1483:21 1484:5 | 1371:9 1372:8 | 1566:25 1567:6 |
| 1455:18 1459:3 | contains 1319:2 | 1497:5 1565:23 | 1373:21 | 1567:24 |
| 1598:13 | contentious | 1565:25 1566:2 | 1374:12 | 1568:11,14 |
| 1601:24 | 1396:12 | 1566:12,13 | 1379:17 1380:8 | 1569:5,7 |
| 1631:10 | 1588:16 | 1627:4 | 1387:24 1389:5 | 1570:6 1572:23 |
| considering | contents 1417:1 | continuum | 1389:10,25 | 1573:5,22,24 |
| 1496:10 | 1511:17 | 1509:13 | 1390:17 | 1575:8,10 |
| 1549:17 | context 1305:2 | contract 1295:25 | 1398:10,18 | 1578:14,18 |
| considers | 1334:23 1345:5 | 1296:13,18 | 1399:22 1400:1 | 1580:4,9 |
| 1469:16 1503:7 | 1345:6 1365:17 | 1297:8 1300:19 | 1400:7,19 | 1583:16 |
| consistent | 1365:21 1422:2 | 1301:1 1302:23 | 1401:4 1404:9 | 1585:17 |
| 1296:14 | 1422:7,13,16 | 1303:8,15 | 1405:20 | 1586:14,16 |
| 1332:15 | 1426:6 1440:19 | 1306:3,4,5,20 | 1409:17 1410:3 | 1592:2,4,20 |
| 1367:24 1417:5 | 1445:11 1461:3 | 1308:15 | 1411:4,19 | 1593:12,21 |
| 1417:15 | 1461:23 1462:1 | 1310:18 1312:6 | 1412:12 | 1600:23 1603:1 |
| 1454:22 | 1464:2 1468:25 | 1313:6,6 | 1414:14,17 | 1603:21 |
| 1455:19 | 1477:24 | 1315:10,12,18 | 1418:9,10 | 1604:14 1610:6 |
| 1507:22 1514:7 | 1511:11 1542:4 | 1316:3,4,12,15 | 1437:13,13 | 1619:12 |
| 1522:14 1558:7 | 1546:19 | 1316:22 1317:1 | 1438:10,10 | contract's |
| 1573:11 | 1559:12 1585:5 | 1317:24 1318:1 | 1440:23 1441:1 | 1555:11 |
| 1592:11 | 1598:2 1605:13 | 1318:4,11,25 | 1446:12 1448:4 | contracting |
| 1598:20 | contingent | 1319:1,1,6,17 | 1448:8,24,25 | 1545:8,24 |
| consistently | 1424:20 | 1319:20 | 1449:8,12 | 1546:1 |
| 1621:2 1622:4 | 1455:10 | 1320:19,24 | 1450:2,16,18 | contracts 1302:8 |
| constitute 1330:9 | 1456:14 | 1336:18 1337:9 | 1451:7 1453:12 | 1401:1 |
| 1527:14 1554:3 | continue 1356:16 | 1337:15,19,23 | 1474:6,12 | contractual |
| constituted | 1430:16 | 1341:10,17 | 1482:16 1483:9 | 1296:11,25 |
| 1310:11 | 1476:11 1479:2 | 1342:7,14,21 | 1483:13 1484:7 | 1300:12 |
[Page 1648]
| 1301:18 | 1427:21 | 1422:21 1423:3 | counterfactual | 1579:21 |
| 1304:15 1310:5 | 1428:20 | 1423:14,20 | 1440:21 | 1581:25 |
| 1348:22 | 1432:10 1434:8 | 1424:3,19,20 | 1465:18 | 1588:20 |
| 1360:15,18,21 | 1436:19 | 1424:20 1425:2 | 1482:19 1483:1 | 1604:16 |
| 1361:21 1362:7 | 1446:10 1465:6 | 1430:8 1433:17 | 1489:5 1490:24 | 1630:14,15 |
| 1365:9 1389:18 | 1473:1 1487:16 | 1433:23,25 | counterparties | court 1290:2,18 |
| 1398:11 | 1487:25 | 1434:3 1468:20 | 1409:11 | 1290:21 1321:3 |
| 1400:20 | 1495:13 1500:6 | 1468:22,25 | 1542:11 | 1329:22 |
| 1405:25 | 1502:16 1507:8 | 1470:22 1471:1 | counterparty | 1331:21 |
| 1409:11,17 | 1516:1 1518:13 | 1471:10,13,16 | 1410:24 | 1337:17 1402:9 |
| 1410:9,23,24 | 1519:22,22 | 1472:1,2,4 | 1538:18 | 1556:5 1617:3 |
| 1413:15 1450:6 | 1530:11 1531:3 | 1473:12 | 1539:15 1546:1 | Court's 1329:23 |
| 1536:6 1537:6 | 1560:5 1566:6 | 1474:11 | couple 1295:17 | courts 1329:9 |
| 1538:18 | corrected 1467:9 | 1475:16 1476:2 | 1327:12 | 1331:24 |
| 1539:15 1542:9 | 1467:10 | 1476:11 1477:6 | 1464:25 | 1504:18 |
| 1542:11,20 | 1485:24 | 1485:11 | 1511:16 | cover 1295:6 |
| 1582:18 | correction | 1490:12 | 1512:24 1515:7 | 1548:12 |
| 1601:13 | 1515:24 | 1491:15,23 | 1577:24 1588:9 | 1581:23 |
| Contractually | corrections | 1492:2,6,11 | 1603:8 1615:8 | covered 1581:16 |
| 1400:10 1410:2 | 1516:10 | 1493:4,20,20 | 1632:8 | covering 1415:1 |
| contrary 1399:20 | correctly | 1493:21 1494:8 | course 1295:23 | cow 1604:25 |
| contrast 1309:1 | 1358:14 | 1495:10,10,19 | 1296:5,8 | create 1302:22 |
| control 1335:13 | 1495:12 | 1496:20 1499:5 | 1301:2 1305:13 | 1303:3,16 |
| 1504:11 1512:4 | 1496:16 | 1499:7 1625:3 | 1307:9,19 | 1316:20,23 |
| 1512:17 | 1545:20 1549:5 | 1625:4 | 1311:9 1320:18 | 1346:2 1347:16 |
| 1513:13 1514:9 | correctness | counsel 1291:2,2 | 1320:23 | 1347:25 |
| 1514:13,14,19 | 1299:21 | 1291:3,3,4 | 1328:19 | 1348:11 |
| 1545:16,18 | corrects 1447:18 | 1292:2,2,3,4,8 | 1331:23 1332:7 | 1363:18 |
| 1579:8 1604:15 | correspondence | 1311:17 1317:9 | 1345:21,24 | 1364:25 1374:4 |
| 1620:23 | 1520:6 | 1567:25 | 1347:14 | 1422:6,17 |
| controversial | cost 1320:4 | 1616:22 | 1356:17 1379:5 | 1472:23 |
| 1324:1 | 1420:24 | 1629:16 1630:1 | 1400:2 1417:3 | 1499:13 |
| conversation | 1423:18 1424:7 | 1630:20,20 | 1426:3 1434:22 | 1527:12 |
| 1365:21 | 1472:12 | counsel's 1314:1 | 1437:16 | 1541:23 |
| 1377:13 | 1473:17,20 | count 1588:5 | 1438:11 1442:4 | 1544:10 |
| 1538:14 | 1484:19 1496:7 | counted 1494:21 | 1443:25 1444:7 | 1600:22 |
| conversations | 1500:12 | 1625:7,9 | 1444:12 | 1602:18 |
| 1375:6 | 1572:12 1625:6 | counter 1541:25 | 1447:18 | created 1295:14 |
| copied 1406:20 | costs 1296:2 | 1541:25 | 1449:18 | 1295:25 |
| cordial 1629:15 | 1308:20,21 | counter-memo... | 1453:13 1466:3 | 1296:19 |
| 1630:11,13 | 1310:22 1320:2 | 1312:19 | 1474:5 1476:19 | 1300:13 1303:5 |
| core 1292:14 | 1370:8 1372:5 | 1368:22 | 1481:11 1494:5 | 1345:18 |
| 1313:23,23 | 1372:9 1402:3 | 1412:10 1416:1 | 1499:23 1544:2 | 1348:22 |
| 1314:3,3,4 | 1420:7,11,13 | 1478:7 1529:23 | 1548:21 | 1360:15,21 |
| corners 1609:4 | 1420:23,24 | 1533:4 1584:23 | 1549:16 | 1364:14 |
| correct 1340:2 | 1421:3,19 | 1584:25 | 1578:21 | 1369:25 |
[Page 1649]
| 1371:21 | 1627:24 | 1417:3 1419:16 | 1420:23 1421:1 | 1507:6,9,12,14 |
| 1379:16 1380:1 | criteria 1307:10 | 1532:9 | 1421:4,12,14 | 1527:8 1536:5 |
| 1398:13 | critical 1536:4 | cut 1367:4 | 1421:18 | 1537:24 |
| 1402:20 1420:5 | 1549:13,18 | 1387:3 | 1434:14,25 | 1549:13,18 |
| 1422:5 1474:4 | 1557:9 1562:15 | cut-off 1334:15 | 1435:9 1436:10 | 1552:14,18 |
| 1474:8 1554:13 | 1563:4,9,21 | 1334:18,25 | 1436:14 | 1557:9 1563:4 |
| 1573:23 1574:1 | 1566:20 | cutoff 1327:7 | 1442:10 | 1563:9 1565:7 |
| 1574:9,19,22 | 1572:14 | 1336:12,13 | 1443:16 1444:6 | 1566:5,20 |
| 1575:1,7,25 | 1596:22 | 1357:9 | 1445:13,22 | 1568:24 |
| 1604:4,6 | cross 1522:8 | cuts 1622:1 | 1449:15 | 1572:14 |
| creating 1346:5,8 | 1545:9,9 | CVS 1395:8,10 | 1469:16 | 1583:11 |
| 1362:6 1412:22 | cross-examinat... | cycle 1409:15 | 1470:15 | 1603:25 |
| 1601:7 | 1423:16 | 1477:10 | 1611:25 1612:3 | |
| creation 1349:4 | 1424:11 | D | 1501:13,16 | 1612:6 1613:14 |
| 1351:13 1360:5 | 1456:23 1516:6 | D 1564:15 | 1571:14 | 1617:25 1625:9 |
| 1370:11 | 1516:24 1517:6 | damage 1326:18 | 1574:12 | dated 1497:23 |
| 1371:24 1413:3 | 1525:5 1528:2 | 1343:20 | 1594:24 | dates 1564:13,15 |
| 1420:18 | cross-examinat... | 1345:22 | 1599:22 | 1564:19 1565:7 |
| credible 1407:12 | 1494:6 | 1349:14 1350:5 | 1622:15 | 1589:3 |
| credit 1301:2,3 | cross-examine | 1362:16,22 | Darian 1292:5 | dating 1517:21 |
| 1311:1 1318:6 | 1442:5 1461:6 | 1363:1 1366:3 | data 1382:20 | David 1291:7 |
| 1370:6,25 | cross-examined | 1455:20 | 1447:19 1457:6 | 1538:21 |
| 1371:10 1400:3 | 1410:19 | 1552:25 1553:7 | 1462:3 1515:23 | dawned 1472:8 |
| 1413:23 1434:3 | 1427:19 | 1555:6,22 | 1519:11 | day 1294:6 |
| 1470:12 | Crown 1587:7 | 1556:1,3 | 1520:18 1525:1 | 1311:9 1364:8 |
| 1472:22,24 | 1603:13 | 1566:23 1567:2 | 1612:10,12 | 1380:23 1393:5 |
| 1474:13,25 | crystal 1580:12 | 1567:3 1568:8 | 1628:14 | 1398:1 1404:15 |
| 1484:20,24 | crystallize | 1571:4 1572:7 | date 1303:20 | 1420:13 |
| 1485:3,3,9,21 | 1334:21 1356:1 | 1623:1 | 1320:25 1327:7 | 1470:24,25 |
| 1486:3,8,12,16 | crystallized | damages 1295:3 | 1334:15,18,25 | 1479:1 1491:5 |
| 1486:20,25 | 1501:17 | 1295:11,12,21 | 1337:10 1341:1 | 1505:11 |
| 1487:7,15 | CSR 1572:13 | 1295:23 1296:9 | 1380:7 1386:4 | 1509:12 1585:4 |
| 1496:3,15 | 1634:12 | 1303:17,19 | 1420:14 1422:8 | 1625:22 |
| 1497:4 1498:3 | current 1390:14 | 1308:11 | 1438:12 1456:5 | 1626:25 1628:2 |
| 1498:4,16 | curtain 1546:12 | 1310:21 1311:1 | 1460:14 | 1628:23 |
| 1499:24 1500:1 | CUSMA 1307:14 | 1314:21 1315:6 | 1470:23,25 | days 1295:17 |
| 1500:5,11,12 | 1307:20 1415:7 | 1321:12,15,25 | 1471:17,18 | 1366:24 1467:6 |
| 1537:23 1539:9 | 1415:8,16 | 1323:14,14 | 1487:3,4,8,19 | 1486:9 1583:4 |
| 1540:16 1541:3 | 1416:4,6,8,14 | 1345:15,20,21 | 1487:22 | 1603:8 1630:10 |
| 1541:9 1542:5 | 1416:22 | 1346:10 | 1489:20 1490:2 | DCF 1380:12,19 |
| 1572:20,24 | 1417:16,23 | 1347:13 | 1490:7 1491:19 | 1381:5 1394:18 |
| 1618:11,20,24 | 1419:5,12,15 | 1376:25 | 1491:20 1501:3 | 1421:5,14,20 |
| 1619:1,7,16 | 1431:11,22 | 1380:16 1382:1 | 1501:4,6,9,12 | 1436:4 1442:25 |
| 1624:20 | 1529:17 1530:9 | 1385:24 | 1501:14,16,18 | 1443:19 |
| 1625:16 | customary | 1395:22 1401:5 | 1502:6 1506:5 | 1447:15,16 |
| 1626:19 | 1415:17 1417:1 | 1415:1 1420:10 | 1506:6,13,16 | 1448:15 |
[Page 1650]
| 1465:21,22 | 1464:10 | decisions 1330:8 | delay 1302:13 | 1319:5,21 |
| 1503:14,21 | 1520:10 | 1397:16 | 1376:22 | 1603:6 |
| 1504:22 | 1556:18 | 1542:15 | 1411:20 | deposited |
| 1594:18 | 1559:10 | decisis 1297:15 | 1579:22 | 1486:16 |
| 1602:25 1608:5 | 1564:24 | decisive 1307:10 | delays 1376:23 | deprivation |
| de 1345:6 1361:6 | 1607:25 | decree 1335:15 | 1376:25 | 1308:12 1371:2 |
| 1361:15 1362:2 | decided 1301:16 | deduct 1492:15 | delegated | 1371:4 1432:16 |
| 1362:4,13 | 1302:6 1382:4 | deducted 1315:5 | 1590:13 1591:3 | deprived 1306:7 |
| 1389:25 | 1388:24 | 1503:7 | 1591:12,18 | 1306:12 |
| 1575:15 | 1392:14 | deemed 1339:11 | 1618:22 1619:3 | 1364:18 |
| deadlines | 1405:11 1409:1 | deeply 1631:19 | 1619:24 | 1371:12 |
| 1582:18 | 1498:9 1515:13 | defended | delegation | Deputy 1292:3 |
| deal 1307:17 | 1581:5 1608:23 | 1403:19 | 1592:2,4 | derived 1503:2 |
| 1321:25 1322:1 | 1612:18 | deferral 1593:22 | delegations | 1568:14 |
| 1323:2 1350:24 | decides 1463:12 | 1593:23 | 1591:22 | 1575:10 |
| 1351:4 1369:1 | 1463:16 | deferred 1491:2 | deliberate | describe 1453:2 |
| 1410:2 1420:15 | deciding 1307:11 | define 1490:16 | 1300:14,17 | 1561:12 |
| 1462:7 1475:24 | 1314:14 | 1490:19 | 1398:15 | described |
| 1483:15 | 1614:11 | 1511:10 | deliberations | 1437:12 |
| 1545:25 | decision 1300:15 | defined 1503:5 | 1451:14 | 1450:23 1468:8 |
| dealing 1320:15 | 1300:17 | 1513:25 | delightful | 1500:25 |
| 1338:3 1347:11 | 1307:19 | 1543:13,23 | 1632:25 | 1617:24 |
| 1364:2 1390:24 | 1320:23 1321:6 | 1595:25 | Deloitte 1470:25 | describing |
| 1416:11 1454:1 | 1339:4,4,5,7 | 1606:25 | 1471:18 | 1299:7 1430:4 |
| 1460:13 | 1340:4 1351:14 | definite 1508:20 | 1524:17 1626:7 | 1468:16 1476:3 |
| 1463:25 | 1352:20,24 | definitely | 1626:10 | description |
| dealings 1406:16 | 1356:18 1379:8 | 1573:15 | delta 1489:23 | 1299:19,23 |
| deals 1296:6 | 1398:15 | 1582:23 | demonstrated | 1397:14 |
| 1336:22 | 1400:19 | 1583:11 | 1487:6 1492:1 | 1427:17,24 |
| 1368:25 | 1403:14,25 | 1589:20,20 | 1572:18 | 1428:5 1497:18 |
| dealt 1304:7 | 1404:1 1405:17 | 1623:7 | demonstrates | 1558:22 |
| 1325:14 | 1408:13 1409:6 | definition | 1485:20 | 1617:18 |
| 1365:15,17 | 1414:16 1418:9 | 1431:12 1441:4 | denial 1327:15 | designed 1509:16 |
| 1392:1 1415:22 | 1432:20 | 1441:15 | denied 1329:23 | 1577:19 |
| 1475:18 1567:9 | 1445:22,23 | 1521:22 1522:1 | 1331:21 | desperately |
| 1582:13 | 1446:6,8 | 1522:19 | 1337:18 | 1499:9 |
| 1602:25 | 1453:20 1465:2 | 1524:12,20 | depend 1299:14 | despite 1300:9 |
| 1624:13 1629:2 | 1476:6 1481:24 | 1535:17 | 1326:11 | 1398:7,8,10 |
| death 1426:12 | 1505:19 | definitions | 1359:14 | 1460:3 1474:15 |
| 1589:6 | 1506:23 | 1306:24 1607:1 | 1513:24 | 1520:8 |
| December | 1536:21 1538:3 | definitive | depending | destruction |
| 1356:5 1536:5 | 1540:21 1542:4 | 1539:12 | 1558:19,20 | 1362:3,5,14 |
| 1538:22 | 1555:15 | definitively | depends 1335:9 | 1363:15 |
| decide 1406:15 | 1591:20 1592:1 | 1387:14 | 1577:1 | detail 1300:8 |
| 1438:18,20 | 1592:3 1594:24 | 1582:20 | deposit 1315:4 | 1302:18 |
| 1445:14 | 1609:7,14,14 | degree 1325:11 | 1317:3,11,13 | 1307:17 |
[Page 1651]
| 1325:15 | 1310:16 | 1430:3 1433:11 | 1419:13 | disclosed 1394:3 |
| 1341:25 | 1313:19 | 1438:23 | 1430:11 1439:1 | 1394:23 |
| 1367:13 1372:5 | 1348:24 | 1445:10,14 | 1439:3,9 | 1494:13 |
| 1432:14 | 1360:25 | 1448:1,17 | 1520:1 1539:6 | disconnect |
| 1625:22 | 1481:21 1509:7 | 1452:24 | 1540:23,24 | 1552:13 |
| 1626:14 | 1568:4 1569:4 | 1460:14,14 | 1547:12,15 | discount 1448:16 |
| detailed 1411:17 | 1569:20 1593:5 | 1463:22 1464:1 | 1550:4 | 1448:19 1511:6 |
| 1481:19 1593:4 | 1616:9 | 1464:1 1467:18 | directed 1308:7 | discounted |
| determination | developer | 1471:16 | 1341:2 1438:7 | 1423:8,10 |
| 1297:12 | 1453:12 | 1483:17 | 1438:9 1440:9 | 1424:23 |
| 1371:13 | developers | 1493:12,17 | 1440:25 | 1510:13,17 |
| 1375:13 | 1631:13 | 1498:4 1505:25 | 1445:16 1450:1 | 1511:4 |
| 1388:19 | developing | 1506:16,20,21 | 1545:12 | discounting |
| 1420:11 | 1572:10 | 1507:12 | 1619:16 | 1449:3,14 |
| 1432:24 1433:3 | development | 1508:16,18 | directing | 1450:21 |
| 1444:25 | 1379:25 | 1518:2,10 | 1600:12 1601:3 | 1451:20 |
| 1460:16,25 | 1411:22 | 1520:18 | 1601:5,6 | discounts 1511:7 |
| 1461:16,25 | 1446:21 1447:1 | 1524:10 1527:4 | 1602:16,18 | discretion 1389:7 |
| 1463:18,19 | 1456:24 | 1527:7,8 | direction | 1397:16 |
| 1464:8 1591:4 | 1495:10 1503:5 | 1532:11 1552:9 | 1302:15 1320:7 | discriminatory |
| 1605:21 | 1505:1,18 | 1555:21 1582:2 | 1411:23 1482:1 | 1298:7 1532:18 |
| 1611:14,18 | 1506:10 1508:1 | 1595:15 | 1499:20 | discuss 1384:9 |
| determinations | 1508:2,7 | 1596:24 1597:4 | 1541:15 1570:3 | 1385:12 |
| 1432:13 1455:5 | 1509:3,5,20,24 | 1598:14 1611:3 | 1591:11 | 1485:15 |
| 1464:5 1588:18 | 1521:23,25 | 1621:8 1622:6 | 1601:11 1602:7 | 1528:21 |
| determine | 1522:7 1523:23 | 1623:23 | 1602:8 | 1594:21 |
| 1328:12,21 | 1524:13 1525:2 | differential | directions 1446:5 | discussed |
| 1332:13 1378:1 | 1525:7 1526:14 | 1436:8,16 | 1546:7 1552:9 | 1294:10 1296:2 |
| 1471:17 | 1527:5 1528:7 | 1470:12 | 1591:11 | 1296:22 1326:9 |
| 1489:19 1493:6 | 1593:3 1595:3 | differently | directive 1410:8 | 1415:4 1460:8 |
| 1500:24 | 1606:22 1612:6 | 1315:21 | 1547:8 | 1466:4 1491:11 |
| 1501:23 | diagram 1508:1 | 1596:24 | directives 1401:1 | 1515:11 |
| 1540:13 1564:9 | dialogue 1406:23 | difficult 1444:1 | 1405:21 | 1589:14 |
| 1583:8 1611:8 | dibs 1428:18 | 1581:25 | directly 1339:2 | discussing |
| determined | difference 1305:2 | dig 1584:8 | 1353:8 1475:2 | 1365:22 |
| 1328:8 1363:7 | 1396:13 1422:1 | digest 1489:11 | 1492:11 | 1459:13,15 |
| 1380:14 | 1470:6,22 | diligently | Director 1292:3 | 1628:25 |
| 1387:13 | 1491:12 | 1532:2 | directs 1444:12 | discussion |
| determining | 1590:19 | diminish 1597:25 | disagree 1387:9 | 1384:8 1388:5 |
| 1429:2 1435:19 | 1599:11,15 | 1597:25 | 1447:6 1596:5 | 1431:6 1447:7 |
| 1502:17 | 1610:9 | diminishing | 1597:11 | 1455:12 |
| develop 1312:13 | different 1309:16 | 1597:19 | 1602:21 | 1514:11,12 |
| 1394:6 1497:5 | 1334:10 1371:6 | direct 1302:7 | disagreed | 1628:13 |
| 1567:4,22,23 | 1388:19 | 1312:2,2 | 1330:24 | discussions |
| 1568:6 1596:17 | 1397:19 | 1368:9 1408:13 | disagreement | 1301:22 |
| developed | 1421:23 1423:2 | 1408:19 1414:4 | 1604:8 1614:16 | 1354:23 |
[Page 1652]
| 1367:18 | 1616:21 1624:8 | 1539:10,19,22 | 1358:10,24 | 1518:17 |
| 1405:16 1406:2 | 1628:8,10,11 | 1540:2,7,11 | 1590:6 | 1521:21 1524:8 |
| 1406:11 | documentary | 1541:5,17 | drafters 1431:16 | 1525:12 |
| 1408:17 1409:3 | 1401:11 | 1542:3 1543:10 | drafting 1357:5 | 1530:20 1556:6 |
| disposition | documents | 1543:15,20,25 | 1358:21 | 1560:13 |
| 1584:2,4 | 1399:25 1408:1 | 1544:17,22 | 1416:21 | 1573:21 |
| 1592:25 | 1495:15 | 1546:4,13,18 | 1633:10 | 1586:20 |
| dispute 1309:21 | 1497:19,19 | 1547:2,9,16,22 | dramatic 1330:5 | 1589:15 |
| 1314:15 | Dogs 1452:22,23 | 1589:15 1620:1 | 1330:10 | 1598:12,13 |
| 1316:19 | 1452:25 1453:5 | dot 1545:8 | draw 1497:7,8,12 | 1606:19,21 |
| 1392:19 | doing 1294:14 | dots 1355:6 | drawing 1520:5 | 1631:6,6 |
| 1428:22 1439:8 | 1301:24 1320:6 | double 1494:20 | drawn 1317:12 | earliest 1456:6 |
| 1439:23 1495:8 | 1330:20 1341:8 | double-check | dreaming 1529:6 | 1597:17 |
| 1565:7 1589:25 | 1389:23 | 1391:6,7 | drew 1494:9 | early 1342:19 |
| 1590:15 | 1399:17 | 1418:19 | drop 1452:7 | 1343:3 1401:13 |
| disputed 1440:3 | 1407:24 1408:7 | doubt 1582:25 | dropping | 1401:24 |
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| 1397:20 | 1482:25 | 1381:13 1395:6 | due 1298:11 | 1459:2 1467:11 |
| dissent 1439:19 | 1493:11 | 1426:12 | 1383:22 | 1478:25 |
| distinct 1363:1 | 1520:21 1528:7 | 1446:21 | 1390:18 1397:9 | 1503:12 |
| 1388:6 1431:9 | 1529:9 1566:2 | 1447:10 1453:2 | 1397:20 | 1507:25 |
| 1562:23 | 1566:3,5 | 1455:22 | 1453:13 | 1509:24 |
| distinction | 1580:23 | 1458:20 1459:4 | 1464:14 | 1521:23,25 |
| 1553:14 | 1591:21 1598:1 | 1461:7 1463:24 | 1465:10 1490:5 | 1523:23 1524:5 |
| distinctively | 1608:8 | 1467:8 1503:5 | 1583:18 | 1524:13,20,21 |
| 1392:8 | dollars 1468:11 | 1503:24 1504:1 | dug 1581:9 | 1525:1,13,13 |
| distinguishes | Dolly 1497:14 | 1505:18,21,22 | 1584:8 | 1527:14 1554:7 |
| 1622:19 | domestic 1321:1 | 1506:19 1507:5 | duplicate | 1577:14 |
| distinguishing | 1383:10,11,21 | 1507:22 1509:8 | 1428:18 | 1594:18 1595:3 |
| 1371:16 | 1460:11 | 1511:18 1515:7 | duties 1414:1 | 1595:10,25 |
| 1487:10 1551:4 | 1536:20,25 | 1515:16 1517:5 | duty 1498:25 | 1596:21 |
| diversity 1632:4 | domestically | 1517:7,9,11,18 | 1597:13 | |
| divided 1321:21 | 1536:21 | 1517:21 | E | 1598:17 1599:5 |
| 1526:20 1549:7 | Dosman 1292:3 | 1518:19 1520:3 | e 1292:3 1564:15 | 1599:7 1608:5 |
| divorced 1341:16 | 1293:8 1322:1 | 1520:11 1521:5 | 1623:20 | 1612:5 |
| doctrine 1306:15 | 1427:20,21 | 1522:5,19 | EA 1376:23 | earned 1472:13 |
| 1329:14 1330:2 | 1511:15 1515:6 | 1524:2,3,15 | earlier 1327:14 | easier 1385:16 |
| 1330:4,14,21 | 1529:10,11 | 1525:6 1526:3 | 1327:16 1332:7 | easily 1573:15 |
| 1415:20 | 1530:3,11,15 | 1527:6 1595:7 | 1359:2 1360:9 | easy 1594:1 |
| 1417:24 | 1530:21 1531:3 | 1598:7 1606:25 | 1384:21 1452:4 | eat 1514:23 |
| 1503:13 | 1531:6 1533:13 | 1607:17 | 1458:5 1462:25 | 1604:23 |
| document | 1533:22 1534:2 | 1610:11 | 1471:5 1475:18 | eating 1299:9,18 |
| 1339:18 1408:3 | 1534:16,20,25 | 1614:11,13,19 | 1475:25 | 1398:2 |
| 1497:22 | 1535:15,20,24 | draft 1428:4 | 1508:10 | echoed 1562:20 |
| 1518:24 | 1537:10,18 | drafted 1357:12 | 1511:22,24 | Econ 1445:22 |
[Page 1653]
| economic | elements 1324:13 | ENDS 1340:16 | entitled 1306:8 | 1591:15 |
| 1307:10 | 1334:5 1348:13 | 1469:25 | 1347:18 | essentially |
| 1417:13 | 1356:15 | energies 1408:22 | 1371:24 | 1307:18 |
| Edward 1291:10 | 1397:13 1432:4 | energy 1290:4 | Environment | 1387:16 |
| effect 1375:5,9 | 1508:11 | 1320:7 1407:19 | 1428:4 | 1411:15 1414:9 |
| 1376:19 | 1531:11,13 | 1409:6 1483:12 | environmental | 1432:11 |
| 1460:25 1509:2 | 1535:1 1559:13 | 1497:15,24 | 1504:12 | 1450:10 |
| 1515:19 | 1559:24 1560:3 | 1538:21 1631:9 | envisage 1404:13 | 1536:14 |
| 1557:19 | 1561:4,18,20 | 1631:13,16 | 1593:3 | 1555:15,16 |
| effective 1556:20 | 1563:25 1599:4 | engage 1406:22 | equal 1522:22 | establish 1416:25 |
| 1570:9 | elements/comp... | 1458:10 1577:7 | equally 1342:25 | 1431:10 |
| effectively | 1567:12 | engaged 1629:5 | 1584:12 | 1436:18 1440:6 |
| 1312:4 1417:21 | Eli 1329:5,17 | 1632:6 | 1603:23 | 1498:6 1541:2 |
| 1581:20 | 1337:16 | engagement | equals 1491:23 | established |
| effects 1297:5 | 1339:10 | 1348:2 | equate 1570:19 | 1443:18 1455:7 |
| 1307:6 1313:25 | eligible 1301:9 | engaging 1384:9 | equation 1447:4 | 1539:8 |
| 1415:5,20 | 1562:24 | engineering | equitable 1296:4 | establishing |
| 1417:9,13,13 | eliminated | 1629:21 | 1296:24 | 1483:7 1488:10 |
| 1432:12 | 1361:20 | enhancement | 1297:10,21 | 1488:20 1541:9 |
| effort 1471:16 | eloquently | 1368:21 | 1299:8,13 | estate 1306:25 |
| efforts 1318:16 | 1437:17 | enjoin 1354:21 | 1303:11 | estimate 1435:9 |
| 1370:6 1372:6 | 1439:22 | enjoyed 1629:17 | 1305:22 | estopped 1433:8 |
| 1476:2 1630:10 | email 1406:20 | enlighten | 1344:16,19,22 | 1528:24 |
| egregious 1299:1 | emails 1494:17 | 1458:17 | 1345:2,4,12 | 1581:12 |
| 1534:6 | Emily 1291:2 | ensure 1374:15 | 1346:25 1362:1 | 1614:10 |
| eight 1526:20 | emphasis | 1395:21 | 1362:12 1365:5 | estoppel 1295:5 |
| 1527:7 1529:9 | 1535:20 | 1414:17 1491:1 | 1371:17 1413:8 | 1367:1,7 |
| either 1315:9 | emphasize | 1582:15,21 | 1422:2 1437:2 | 1368:24 1369:5 |
| 1362:17 | 1311:20 1327:1 | ensuring 1494:20 | 1437:3 1532:6 | 1375:4 1376:2 |
| 1371:17 1421:4 | 1441:24 | entails 1325:10 | error 1383:3 | 1378:19 |
| 1433:11 | 1618:25 | 1435:12,17 | 1613:11 | 1381:23 |
| 1448:17 1449:3 | emphasized | enter 1366:4 | errors 1457:2,6 | 1383:15 |
| 1483:6 1513:10 | 1311:19 | 1527:5 1560:4 | 1457:12 1461:5 | 1384:24 1385:6 |
| 1516:3 1521:6 | emphasizes | entered 1317:24 | 1461:12 | 1387:1 1388:2 |
| 1588:7 1613:4 | 1417:9 | 1317:25 | 1516:20,22 | 1415:13 |
| 1621:18 | emphasizing | 1507:20 | 1517:4,17 | 1418:23 1419:6 |
| elaborate | 1442:25 | entering 1537:22 | 1613:7,9,13 | 1433:7 1505:16 |
| 1308:10 | encapsulate | 1610:5 | escape 1600:1 | 1512:3 1528:15 |
| 1459:23 | 1492:6 | entire 1407:2 | especially 1502:3 | 1528:22,25 |
| element 1333:19 | encompasses | 1432:7 1448:16 | 1503:19 | 1576:25 1577:1 |
| 1350:12 | 1323:14 | 1541:13 | essence 1314:8 | 1581:3 1584:9 |
| 1397:11 | ended 1393:19 | entirely 1448:1 | 1344:10 1550:8 | 1593:8 1596:1 |
| 1529:19 | 1615:14 | 1517:24 1596:2 | 1554:11 1557:5 | 1600:9 1607:24 |
| 1558:18,23 | 1630:21 | 1596:15 1618:7 | 1557:11 1564:6 | 1608:19 |
| 1559:22 | endorsement | entirety 1558:15 | 1567:2,3 | 1612:24 1614:6 |
| 1560:22,24 | 1535:7 | 1600:4 | essential 1314:7 | 1615:2,19 |
[Page 1654]
| euros 1520:22,25 | 1441:22 1442:9 | 1452:14 | 1616:10 | 1485:19,20 |
| 1521:2,15 | 1443:6 1444:1 | 1457:19 1494:4 | excerpt 1327:25 | 1494:23 1497:7 |
| evaluated | 1444:14,17,24 | 1513:18 | 1373:14 1390:4 | 1497:9,13 |
| 1489:17 | 1445:1,2,15,17 | 1521:15 | 1397:7 1412:7 | 1517:9 1538:22 |
| event 1376:11 | 1450:24 | 1524:24 1528:8 | 1481:2 | 1538:23 |
| 1387:21 | 1452:21 1453:7 | 1578:1 1599:13 | excerpted | 1616:19 1617:4 |
| 1391:12,13 | 1453:7 1454:14 | examination | 1325:13 1339:8 | 1617:10 |
| 1428:12,25 | 1461:25 | 1434:7 | 1410:13,21 | 1625:24 1626:2 |
| 1458:21 | 1463:24 1464:6 | examined 1468:2 | 1547:14 | 1626:17 |
| 1572:21 | 1465:17 1467:3 | example 1296:1 | excerpts 1373:5 | exist 1310:6 |
| 1580:11 | 1467:5,23 | 1307:20 | 1412:10 | 1359:19 |
| events 1327:14 | 1468:19 | 1328:25 1329:4 | 1453:19 | 1375:21 |
| 1327:17 | 1469:12,16 | 1333:23 | exchange | 1508:10 |
| 1330:10 1332:7 | 1475:21 1476:4 | 1376:14 | 1335:13 | existed 1316:17 |
| 1412:5 1560:14 | 1477:12 | 1383:16,17 | exclude 1381:19 | 1408:9 1489:20 |
| 1562:23 | 1487:21 | 1400:17 | 1447:10 | 1491:18,20 |
| eventually | 1500:11 | 1405:22 1416:6 | 1458:22 | 1492:16 1493:8 |
| 1304:20 | 1505:21 | 1433:23 | 1483:11 1484:6 | existence 1346:4 |
| 1486:21 | 1508:12 1513:3 | 1442:11 1443:2 | excluded 1458:11 | 1365:6 1436:15 |
| 1568:22 | 1515:7,14 | 1451:6 1471:24 | 1526:14 | existing 1303:4,4 |
| 1569:20 1575:8 | 1516:19,22 | 1474:12 1492:3 | excluding 1462:5 | 1346:20 |
| everybody | 1517:4 1518:3 | 1532:12 | 1522:10 | 1347:15,23 |
| 1294:5 1447:14 | 1518:14,20,21 | 1538:12 | excused 1306:14 | 1356:11 |
| 1507:18 | 1519:4 1520:3 | examples | exemption | exists 1346:6 |
| 1568:21 | 1520:12 1566:8 | 1307:21 | 1308:9 1417:20 | 1503:8 1509:13 |
| 1578:17 | 1610:10,12 | 1317:21 | exercise 1338:7 | expect 1452:3 |
| evidence 1300:15 | 1611:2 1615:21 | 1327:12 | 1339:17,23 | 1539:2 |
| 1301:6,21 | 1615:21 1616:4 | 1400:15,24 | 1344:1 1351:9 | expectation |
| 1302:2,9 | 1616:5 1627:23 | 1410:16,21 | 1352:18,22 | 1399:3 1429:1 |
| 1304:16 | evidentiary | 1411:2 1420:6 | 1353:1 1389:6 | 1429:18,24 |
| 1305:12,15 | 1451:21 | 1429:4 1434:5 | 1389:18 1403:1 | 1433:17,19 |
| 1307:1 1308:3 | 1500:14 | 1445:12,19 | 1403:6,7 | 1476:21 |
| 1381:13,16 | evolve 1584:18 | 1446:14 | 1436:8 1458:10 | expectations |
| 1382:7,16 | 1584:18 | 1477:10,25 | 1493:1 1518:24 | 1307:16 1308:3 |
| 1394:9 1399:6 | evolved 1313:2 | 1547:14,14 | 1522:15 | 1405:6 1429:6 |
| 1399:21 | 1435:13 1595:3 | excellent 1395:4 | 1524:25 1536:6 | 1429:9,15 |
| 1401:10 | 1596:16 1598:8 | 1530:3 1578:4 | 1537:7 | 1430:3 1433:15 |
| 1405:24 1406:4 | ex 1386:3 | exception | exercised | 1433:20 |
| 1407:20 | 1506:20 | 1383:19,21 | 1302:13 1340:8 | 1472:21 |
| 1408:23 1409:5 | ex-ante 1386:3 | 1462:22,22 | 1379:19 1403:5 | 1529:19 1530:9 |
| 1410:10 | 1506:16,20,21 | 1613:19 | 1403:23 | 1535:3,14 |
| 1416:24 1417:6 | exact 1575:4 | 1615:17 | 1537:25 | 1619:9,19 |
| 1424:12 | exactly 1316:11 | exceptional | exhausted | expenditures |
| 1427:11 | 1352:6 1353:17 | 1410:15 | 1376:13 1377:9 | 1420:18 |
| 1428:20 1429:4 | 1383:1 1427:23 | exceptions | exhibit 1319:6 | expense 1619:21 |
| 1430:12 1441:7 | 1440:11 | 1383:14 | 1396:8 1485:2 | expenses 1496:25 |
[Page 1655]
| 1499:4 1619:23 | 1546:22 | 1490:23 | 1330:12 | 1508:16,20 |
| expert 1291:10 | explore 1616:8 | 1491:14 1554:8 | 1337:12 | 1509:3 1521:22 |
| 1292:10,13 | exporting | 1554:23 1555:5 | 1344:20 1354:6 | 1521:25 |
| 1396:3 1410:14 | 1335:12 | 1555:8 1556:13 | 1355:10 1368:5 | 1522:23 |
| 1442:6 1443:5 | exposes 1298:8 | 1556:17,19 | 1373:11 1375:7 | 1523:25 |
| 1447:13 1453:3 | expressed 1306:1 | 1575:20 | 1375:14,21,22 | 1524:12,19 |
| 1453:4 1460:16 | expro 1372:3 | 1589:14 | 1375:23 1376:5 | 1607:8 |
| 1463:10 1464:7 | 1395:22 1415:1 | expropriation's | 1376:7,24 | facts 1299:14 |
| 1494:15 | 1415:2 1418:4 | 1429:2 | 1377:5,13,24 | 1300:1 1302:17 |
| 1505:21 1596:7 | 1422:20 | expropriatory | 1389:17 | 1325:24 1326:8 |
| 1597:19,19 | expropriated | 1308:6 1417:12 | 1391:24 1392:2 | 1326:13 1327:2 |
| expert's 1595:2 | 1422:10 | 1430:24 1431:2 | 1406:5 1407:10 | 1327:10 1329:2 |
| 1595:22 | 1554:18 | 1431:7 | 1408:3 1411:1 | 1329:11 |
| expertise | 1593:13 | extend 1588:25 | 1414:12 | 1331:23 |
| 1461:22 | expropriation | extension 1588:6 | 1434:22 1480:4 | 1334:15 1335:9 |
| 1631:16 | 1295:21 | 1588:8 | 1496:9 1498:8 | 1336:13 1337:1 |
| experts 1304:23 | 1305:25 | extent 1324:12 | 1502:9 1509:15 | 1337:11 |
| 1305:11 | 1306:11,21 | 1350:5 1405:8 | 1515:20 1519:2 | 1338:11 1341:3 |
| 1380:24 | 1307:8,12 | 1418:8 1431:11 | 1523:6 1540:22 | 1341:9,14 |
| 1436:14 1442:1 | 1308:16,23 | 1444:23 | 1547:13 1550:1 | 1342:25 |
| 1442:2,9,10,11 | 1321:9 1323:13 | 1474:14 1475:5 | 1550:3,24 | 1352:20 1353:7 |
| 1442:15 | 1333:11,16,18 | 1530:4 1549:11 | 1553:6 1556:15 | 1355:8 1359:15 |
| 1443:23,24 | 1333:20 1337:7 | 1557:8 1571:21 | 1557:7 1565:6 | 1359:17 1365:6 |
| 1444:4,13,18 | 1337:8,14 | extra 1411:4,8 | 1574:21,25 | 1365:10,11 |
| 1446:20 1448:6 | 1342:11,15,22 | 1484:20 | 1575:14 | 1372:15 1375:6 |
| 1451:3 1452:22 | 1344:8,11,23 | extraordinary | 1593:20 | 1375:17 1376:9 |
| 1454:4 1457:20 | 1347:5 1349:15 | 1632:14 | 1595:22 1596:1 | 1376:10 1377:8 |
| 1466:5 1470:5 | 1349:16,19 | extremely 1632:2 | 1597:12,13 | 1387:20 |
| 1473:16 1492:5 | 1358:25 1361:9 | 1602:12 | 1390:11 1398:3 | |
| 1494:6 1495:14 | 1361:10 | F | 1608:16 1616:4 | 1398:23 1402:8 |
| 1504:8 1597:25 | 1368:25 | F 1564:15 | 1620:4 1629:17 | 1509:1,2 |
| experts' 1440:15 | 1371:16 | 1565:16 | 1629:19 | 1537:20 1548:8 |
| 1527:13 | 1389:24 1390:5 | 1566:10,12 | fact-specific | 1549:18,24 |
| expiry 1438:12 | 1390:8,25 | fabulous 1629:14 | 1300:2 1339:17 | 1550:9,14,18 |
| explain 1295:9 | 1391:1 1417:20 | face 1356:9 | facto 1345:6 | 1551:2,7,13,16 |
| 1327:8,25 | 1418:7,8 | 1365:4 1613:7 | 1361:6,15 | 1551:20,22 |
| 1503:25 | 1419:1 1420:3 | 1613:12 | 1362:2,5,13 | 1552:1 1553:1 |
| explained 1372:4 | 1421:17,18 | faced 1309:23 | 1389:25 | 1553:15,19,24 |
| explaining | 1422:8,13 | 1558:4 | 1575:16 | 1554:2 1559:14 |
| 1440:19,20 | 1425:3 1426:4 | facilities 1301:8 | factor 1463:5 | 1559:17,18 |
| explains 1410:14 | 1431:24 1432:5 | fact 1291:8 | 1469:9 1591:5 | 1560:15 |
| explicit 1608:4 | 1432:7,25 | 1292:11 | factored 1452:9 | 1561:21 |
| 1609:23 | 1434:21 | 1301:13 | 1452:11 | 1562:10 1566:7 |
| explicitly 1608:7 | 1472:18 | 1304:10 1314:8 | factors 1446:25 | 1570:2 1584:10 |
| 1609:18 | 1473:21,24 | 1317:9,20 | 1447:3 1460:19 | 1588:14 |
| exploding | 1474:1 1477:24 | 1326:12 | 1460:22 1505:4 | factual 1314:19 |
[Page 1656]
| 1327:22 1328:4 | 1601:14 | famous 1529:14 | felt 1406:1 | 1618:2 |
| 1328:24,25 | fair 1294:14 | fancy 1388:14 | 1628:25 1633:4 | finality 1309:21 |
| 1332:8 1350:11 | 1296:4,24 | far 1361:24 | FET 1295:10 | 1594:14 |
| 1350:13 | 1297:9,20 | 1418:19 | 1296:5 1300:6 | finalized 1405:2 |
| 1351:16 | 1299:8,12 | 1422:19 | 1303:17 1309:1 | 1429:13,23 |
| 1367:12 | 1303:11 | 1599:10 | 1323:12 | 1586:2 |
| 1368:12 1373:8 | 1305:22 | farm 1605:8 | 1333:12,21,22 | finalizing 1407:8 |
| 1376:5,11 | 1344:16,19,22 | farther 1504:10 | 1333:24 | finally 1417:18 |
| 1387:19 | 1345:2,4,11 | fast 1483:23 | 1337:21 | 1470:17 1477:2 |
| 1401:10 | 1346:25 | faster 1510:7 | 1344:13 1345:9 | 1480:14 |
| 1512:12,25 | 1347:11 | fault 1322:18 | 1345:16,17,21 | 1587:10 |
| 1549:21 | 1357:23 | feasibility | 1346:5,8,21,22 | finals 1392:2 |
| 1560:18,21 | 1358:11 | 1441:19 | 1348:2,7 | finance 1312:13 |
| 1561:13 1584:8 | 1361:25 | 1452:21 | 1349:22 | financeable |
| 1588:15,18 | 1362:11 1364:5 | features 1522:9 | 1350:16 1359:1 | 1313:18 1349:7 |
| 1605:21 | 1365:5 1371:16 | 1522:20 1525:3 | 1360:18,22 | 1474:6 1482:6 |
| Factually | 1382:8 1413:8 | February | 1361:13,25 | 1568:5 1582:12 |
| 1414:13 | 1422:1 1424:5 | 1290:11 1294:2 | 1365:18 1366:5 | 1583:18 1588:1 |
| fail 1314:23 | 1437:1,3 | 1297:7 1311:4 | 1368:6 1371:20 | financial 1495:17 |
| 1585:21 | 1455:11 1470:9 | 1321:7,8 | 1371:22 1376:9 | 1495:20,24 |
| failed 1313:11,16 | 1489:24 1490:1 | 1339:4,8 | 1379:21 1391:4 | 1527:6 |
| 1314:21 | 1491:17,19,25 | 1406:6 1470:10 | 1395:21 | financing |
| 1321:13 | 1492:14,15 | 1484:7 1489:21 | 1396:16 1397:2 | 1587:18 |
| 1367:22 | 1493:7,9 | 1493:3,8 | 1408:11 1414:4 | find 1312:11 |
| 1432:19 | 1495:12 1502:5 | 1503:9,12 | 1414:7,9,21 | 1313:21 |
| 1481:12 1482:4 | 1502:12,22 | 1536:18 | 1426:6,7 | 1314:24 |
| failing 1297:1 | 1503:2 1506:3 | 1538:23 1575:5 | 1438:16 | 1316:25 |
| failure 1296:10 | 1529:25 1532:6 | 1588:24 | 1439:10 1440:4 | 1317:17 |
| 1300:20,21 | 1546:13 | 1617:19 | 1448:5 1478:1 | 1330:16 1344:7 |
| 1310:8 1312:4 | 1596:15 1613:6 | fee 1485:25 | 1574:4 1602:5 | 1344:16 1345:5 |
| 1314:12 | 1613:25 | 1486:20,25 | 1620:3,8 | 1345:10,11,19 |
| 1350:14 | fairly 1303:14 | 1487:15 | FETs 1620:9 | 1372:18 1418:8 |
| 1351:21 | 1507:5 1537:5 | feel 1426:19 | fifth 1294:5 | 1434:10 1439:8 |
| 1354:14,14,16 | fairness 1296:6 | 1514:22 | 1417:18 | 1461:9 1513:21 |
| 1360:4 1368:9 | faith 1414:2 | 1546:21 | 1418:15,25 | 1565:2 1584:7 |
| 1379:3,15,21 | fall 1308:8 | 1564:12 | figure 1499:17 | 1589:9 1591:22 |
| 1398:17,17 | 1364:12 | 1632:23 1633:8 | 1525:21 1600:8 | 1594:6,6,7 |
| 1408:12 1412:1 | 1503:17 | fees 1472:2 | figures 1443:20 | 1600:25 1602:4 |
| 1413:14,20 | 1531:10 | 1486:2,2,4 | filed 1428:5 | 1602:14 |
| 1437:10 | 1564:17 | 1487:11,19,22 | 1536:25 | 1603:20,23,24 |
| 1438:21 1439:9 | 1598:11 | 1487:24 | 1617:18 | 1606:2 1613:9 |
| 1549:25 1550:4 | falling 1314:10 | 1494:25 1495:4 | final 1294:6 | 1628:9 |
| 1563:11 | 1549:3 | 1495:6,9 | 1380:10 | finding 1300:11 |
| 1564:16 | familiar 1434:16 | 1572:19 1627:7 | 1391:24,25 | 1342:14,21 |
| 1582:15 | 1434:18 | 1627:13,20 | 1392:13 1414:3 | 1345:3,9 |
| 1600:10 | 1521:11 | Feldman 1562:22 | 1525:3 1573:8 | 1346:5,8,9,15 |
[Page 1657]
| 1346:21 | 1324:1 1332:22 | 1619:8 1624:22 | 1381:18 | 1563:3 1585:25 |
| 1362:16 1368:6 | 1346:10 1349:8 | 1626:15 | 1387:24 1389:5 | 1588:5 1616:16 |
| 1368:9 1370:24 | 1349:17 | 1629:10 | 1389:10 1398:9 | 1616:24 |
| 1373:4,8 | 1350:13 1362:2 | 1630:19,22 | 1399:22 1400:1 | five-year 1580:6 |
| 1375:5 1377:24 | 1367:1 1376:21 | 1631:24 1632:1 | 1411:4,19 | 1580:9 |
| 1379:7,10,21 | 1391:13 | fish 1389:8 | 1414:17 1418:9 | flag 1531:25 |
| 1380:6 1381:20 | 1394:21,21 | fit 1295:25 | 1418:10 1434:4 | flagging 1369:2 |
| 1392:15 | 1398:25 | 1296:13,18 | 1437:13 | flashing 1578:14 |
| 1398:10 | 1403:22 | 1297:7 1300:19 | 1440:23 1441:1 | flawed 1504:7 |
| 1413:18 | 1409:14 | 1300:25 1302:8 | 1446:12 | flexibility |
| 1502:25 1512:2 | 1415:11 | 1302:23 1306:4 | 1447:24 | 1435:15 |
| 1512:7 1513:12 | 1418:16 1419:6 | 1306:20 | 1453:12 1474:6 | 1444:18 |
| 1513:13,24 | 1419:9 1421:13 | 1308:14 | 1482:16 1483:9 | flip 1334:8 |
| 1521:21 1558:6 | 1423:19 1428:9 | 1310:18 1312:6 | 1483:13 1484:6 | 1336:21 |
| 1562:20 | 1432:20,23 | 1315:11,18 | 1485:6,8 | 1370:23 |
| 1574:21 | 1440:22 | 1316:12,14,22 | 1488:12,24 | 1406:17 1595:6 |
| 1575:22,24 | 1446:19 | 1317:1,23 | 1490:8,25 | flipped 1580:20 |
| 1577:18 | 1454:12,19 | 1318:1,3,25 | 1491:1,6 | floating 1456:19 |
| 1587:25 | 1458:5 1460:15 | 1319:17 1320:9 | 1500:6 1504:16 | floor 1521:16 |
| 1591:25 1592:3 | 1461:13,13 | 1320:24 | 1504:16 1523:9 | flourish 1581:18 |
| 1593:1 1608:4 | 1467:7,10 | 1336:17 1337:9 | 1523:10 1543:8 | 1581:18 1589:8 |
| 1608:10 | 1470:24 1471:9 | 1337:15,19,22 | 1550:5 1554:14 | flow 1315:2 |
| 1609:18,24 | 1475:21 1480:8 | 1341:10,17 | 1555:11 1567:5 | 1326:19 |
| 1613:12,20 | 1480:18,23 | 1342:7,14,21 | 1567:24 | 1343:19,21 |
| 1615:20 | 1483:16 1484:9 | 1343:24 | 1568:11,14 | 1423:9,10 |
| findings 1367:24 | 1484:15 1486:3 | 1344:14 | 1569:5,6 | 1424:23 1465:9 |
| 1368:12 1432:3 | 1488:18 | 1345:23 1346:2 | 1572:22 1573:4 | 1479:8 1510:13 |
| 1583:1 1584:8 | 1498:24 1501:3 | 1346:4,5,15,17 | 1573:22 1575:8 | 1510:17 1511:4 |
| 1584:8,11 | 1501:6 1502:21 | 1346:19 1347:4 | 1575:10,16,18 | 1623:1 |
| 1588:15 1591:8 | 1505:19 | 1347:5,15,23 | 1578:14,18 | flowing 1345:21 |
| 1614:4 | 1507:23 | 1347:24 1348:6 | 1583:16 1592:3 | 1362:21 |
| finds 1376:24 | 1510:14,18 | 1348:15,25 | 1592:19 | flows 1326:23 |
| 1551:22 | 1516:22 1517:3 | 1349:1,11 | 1593:12,20 | 1365:19 1538:1 |
| 1592:24 | 1520:14,19 | 1351:20 | 1600:22 1603:1 | flush 1364:7 |
| fine 1353:15 | 1523:1 1526:4 | 1354:19 | 1603:21 | focus 1354:1,7 |
| 1395:24 | 1538:21 1548:4 | 1355:20 | 1604:14 1622:9 | 1355:19 1379:6 |
| 1425:19 1427:2 | 1552:8 1556:12 | 1360:10,25 | fits 1306:23 | 1387:14 |
| 1540:6 1542:12 | 1556:23 | 1361:6,6,15,20 | five 1305:18,19 | 1417:12 1462:2 |
| finger 1446:18 | 1562:10 1563:7 | 1362:3,6,14 | 1352:21 1369:9 | 1520:19 |
| finishes 1626:11 | 1566:25 1568:8 | 1363:14,18,23 | 1378:13 | 1581:15 1632:9 |
| fired 1539:22 | 1568:21 1574:2 | 1365:7,7,9,13 | 1393:13 1415:9 | focused 1401:16 |
| 1547:23 | 1575:15 | 1369:18,25 | 1419:4,7,8,17 | 1423:15 1440:2 |
| first 1295:6,9 | 1580:17,24 | 1370:2 1371:1 | 1419:19 | 1466:1 |
| 1296:3 1305:13 | 1581:23 | 1371:9 1372:8 | 1426:13 1459:2 | focusing 1431:13 |
| 1317:24 1318:8 | 1592:15 1594:8 | 1373:20 | 1504:15 1509:9 | 1465:19 |
| 1322:6 1323:10 | 1597:8 1615:9 | 1374:12 1380:8 | 1522:5 1559:24 | 1555:25 |
[Page 1658]
| focussed 1394:20 | 1581:7 | 1369:17,18,22 | 1316:5 1339:20 | frozen 1296:15 |
| focussing 1541:8 | formal 1428:8 | 1372:22,23,25 | 1404:8,12 | 1297:5 1311:13 |
| folks' 1436:10 | 1438:9 1479:25 | 1375:17,19,21 | 1483:8 1488:11 | 1312:20,24 |
| follow 1465:6 | format 1580:24 | 1376:8 1377:19 | 1488:21 1586:1 | 1390:17 |
| 1522:16 1551:5 | formed 1332:5 | 1379:6 1381:14 | 1587:10 | 1412:13 1491:2 |
| 1601:16 | forms 1354:18 | 1388:7,11,18 | 1592:21 1593:2 | 1582:16,21 |
| 1609:25 1623:6 | forward 1347:23 | 1388:20 | framework's | 1583:15,23 |
| followed 1311:15 | 1352:8 1364:17 | 1391:21 1392:5 | 1412:17 | 1586:16 |
| following 1320:6 | 1370:7 1372:7 | 1397:12 | frankly 1421:22 | fruitful 1384:8 |
| 1358:6 1429:25 | 1373:2 1380:16 | 1404:14 | 1425:25 | frustrated |
| 1473:8,22 | 1382:11 | 1413:17 | fraud 1383:17,18 | 1334:1,2 |
| 1481:18 1482:9 | 1397:19 1399:4 | 1431:24 | free 1577:22 | frustrating |
| 1492:22 | 1399:17,23 | 1468:22 | freedom 1408:3 | 1594:10 |
| 1511:22 | 1400:14 | 1477:11 1481:9 | freeze 1297:5 | fulfil 1329:15 |
| 1582:17 | 1401:17,22 | 1481:11,15,18 | 1300:9 1311:19 | 1582:20 |
| footing 1568:22 | 1405:7 1406:13 | 1482:8 1483:20 | 1311:22 1312:4 | fulfilling 1303:6 |
| footnote 1469:10 | 1410:11 | 1484:4 1508:24 | 1312:12 1313:5 | full 1345:22 |
| 1518:16,17 | 1412:17 | 1541:18 1542:7 | 1313:21,24 | 1362:22 |
| 1630:17 | 1416:24 | 1551:7 1568:21 | 1314:25 | 1367:13 |
| force 1296:13 | 1418:16 1424:2 | 1573:21 | 1328:24 | 1369:11 |
| 1306:5 1311:6 | 1424:6 1441:25 | 1595:24 | 1372:14,19 | 1392:20 1421:4 |
| 1320:18 | 1443:20 | 1601:16 | 1398:7 1412:2 | 1431:25 1449:9 |
| 1342:14,22 | 1450:13 1463:4 | foundation | 1550:5 1582:6 | 1463:22 |
| 1345:24 1374:2 | 1465:23 | 1553:25 | 1583:14,23 | 1522:24 |
| 1400:1 1401:4 | 1476:12 1486:7 | 1594:24 | fresh 1347:19 | 1527:19 |
| 1404:10 | 1492:4 1496:18 | founded 1533:15 | 1393:23 1479:1 | 1530:23 |
| 1414:14 | 1496:23 | four 1398:19 | Friday 1290:11 | fully 1350:22 |
| 1507:20 | 1499:10 1511:5 | 1419:7,8,17 | 1294:2 1535:25 | 1369:16 |
| 1555:17 | 1536:5 1539:5 | 1466:1 1486:5 | 1577:15 | 1399:16 |
| 1568:19 | 1555:10 | 1486:9 1502:13 | friend 1294:10 | 1400:13 1401:3 |
| 1569:10,17 | 1568:22 | 1505:4 1508:11 | 1332:10 | 1402:2 1505:5 |
| 1578:15,19,23 | 1587:19 | 1508:16 | 1388:21 1517:8 | 1508:11 |
| 1578:25 | 1592:12 | 1521:22,25 | 1548:14 | 1513:17 |
| 1579:24 1580:1 | 1594:13 | 1522:5,8,20,23 | 1615:16 | 1522:20 1536:8 |
| 1580:10 | 1597:23 | 1522:23 | friend's 1341:20 | 1607:9,9 |
| 1583:18 | 1619:13 | 1523:25 | 1352:14 1388:9 | fun 1581:14 |
| 1593:12 | found 1296:12,17 | 1524:12,19 | 1388:10 1538:2 | fundamentally |
| forces 1603:22 | 1306:4 1313:14 | 1525:3 1526:21 | 1542:14 | 1464:15 |
| Ford 1408:6 | 1317:3 1325:17 | 1528:6 1559:24 | friends 1294:18 | 1509:11 |
| foregoing 1634:7 | 1332:18 | 1560:12 | 1304:1 1324:25 | furrowed |
| forgive 1437:7 | 1342:14 1347:7 | 1565:19 1595:9 | 1338:4,4 | 1542:24 |
| forgiven 1318:17 | 1347:8 1348:16 | 1607:8 1609:4 | 1340:11 1432:9 | further 1290:13 |
| form 1328:23 | 1348:17 | fourth 1302:12 | 1433:11 | 1319:13 |
| 1376:6,11 | 1360:10,13,17 | 1417:7 | 1458:13 1613:1 | 1347:16 |
| 1488:16 | 1360:23 | framework | front 1445:2 | 1360:13 |
| 1549:14 1551:2 | 1364:23 | 1301:9 1304:12 | 1579:11 | 1368:21 |
[Page 1659]
| 1369:16,20 | 1358:6 1376:23 | giving 1402:9 | 1499:10 1510:5 | 1339:3,13 |
| 1371:11 | 1433:4 1444:8 | 1499:19 | 1513:3 1518:6 | 1340:25 |
| 1398:15 | 1459:12 1526:5 | 1577:16 | 1519:3 1520:14 | 1341:11 |
| 1405:12 | 1578:20 | glad 1519:16 | 1520:21 | 1347:22 1351:9 |
| 1407:10 | 1619:10 | Glamis 1327:13 | 1522:23 | 1352:4,17 |
| 1408:15 1409:2 | 1632:17 | 1330:17 | 1540:20 | 1353:1,8 |
| 1409:3 1413:11 | Giraffe 1518:22 | 1549:19 1551:1 | 1542:22,23 | 1354:24 |
| 1453:18 1477:6 | girls 1605:8 | 1551:11 | 1557:4 1563:19 | 1355:13 |
| 1477:14 | gist 1342:2 | 1559:16 1560:6 | 1564:18 | 1364:11 |
| 1497:25 | give 1327:3 | 1560:10 | 1565:11 | 1365:14,18 |
| 1499:25 | 1353:21 1380:7 | 1561:13 | 1568:22 | 1366:16,25 |
| 1504:25 | 1387:21 | Global 1292:6 | 1573:18 | 1367:3,4 |
| 1509:20 | 1393:22 1411:7 | globally 1502:2 | 1577:12 | 1369:1 1370:18 |
| 1528:10 1543:7 | 1427:5 1454:24 | go 1294:11 | 1580:18 | 1374:3,13 |
| 1563:11,14 | 1462:17 | 1301:12 | 1584:18 1585:6 | 1377:4 1378:11 |
| 1568:13 | 1474:24 | 1304:12 | 1592:11 1594:2 | 1378:13 |
| 1570:13 | 1478:25 | 1321:23 | 1595:7 1597:7 | 1382:11 |
| 1572:10 1586:6 | 1479:22 | 1324:18 1332:9 | 1597:23 1609:4 | 1384:14 1397:4 |
| 1590:21 | 1517:25 1520:9 | 1333:16,17 | 1609:16 1611:1 | 1398:23 |
| 1594:22 1625:8 | 1521:9 1526:25 | 1341:21 1343:2 | 1613:22 1615:8 | 1403:20 |
| future 1315:14 | 1527:9 1537:15 | 1343:16 1344:4 | 1620:9 1624:23 | 1405:13,14 |
| 1331:13,18 | 1542:18 1546:7 | 1345:19 | 1625:22 | 1406:13,16 |
| 1444:3 1535:12 | 1559:14 | 1350:20,24 | goal 1497:5 | 1410:3 1411:11 |
| 1548:16 | 1577:16 | 1352:8 1353:13 | goes 1326:17 | 1425:4,10,12 |
| 1598:22 1624:4 | 1356:6 1364:17 | 1332:6 1333:10 | 1426:9 1436:21 | |
| G | 1633:6 | 1366:19 | 1351:4 1354:10 | 1439:16 1449:8 |
| gain 1334:4 | given 1318:15 | 1371:22 1373:2 | 1355:25 1371:5 | 1463:16 |
| game 1432:18 | 1332:23 1344:6 | 1376:18,25 | 1375:21 1427:9 | 1472:15,19,22 |
| 1479:13 | 1349:17 1397:7 | 1378:21 | 1484:15 | 1474:20,21 |
| 1530:22 1546:8 | 1397:13 | 1387:17 1390:9 | 1505:15 | 1476:1 1478:23 |
| gap 1359:5,18 | 1405:21 1408:4 | 1390:15 | 1527:13 1564:1 | 1479:25 1480:4 |
| Gauff 1439:15 | 1444:6 1490:10 | 1396:15 1399:9 | 1565:22 1585:8 | 1480:5 1483:15 |
| 1440:2 | 1496:8 1498:10 | 1410:24 | 1618:6 1623:20 | 1483:16,23 |
| general 1292:8 | 1499:11 | 1419:25 | going 1295:2,5 | 1485:18 1488:5 |
| 1383:7 1394:21 | 1503:10 | 1422:20 | 1295:19 1300:7 | 1490:13 |
| 1394:23 | 1520:11 1524:9 | 1429:10 | 1300:22 | 1496:17,23 |
| 1420:23 1431:3 | 1524:10 | 1430:12 | 1302:18 | 1497:12 |
| 1431:18 | 1541:13 | 1432:24 | 1321:22 | 1498:12 1501:8 |
| 1433:22 | 1574:20 | 1434:25 1435:6 | 1322:19,25 | 1502:11 |
| 1443:17 | 1607:12 1630:3 | 1435:19 | 1323:1,6,7,11 | 1503:25 1517:2 |
| 1476:18 | 1631:4 | 1437:22,23 | 1323:12,19,24 | 1519:1 1520:8 |
| 1623:13 1628:7 | gives 1376:11 | 1441:17 | 1324:8,10,18 | 1520:17 |
| generally | 1388:3 1449:12 | 1444:24 | 1327:1 1332:17 | 1521:19 1529:6 |
| 1392:10 | 1478:21 1525:8 | 1453:15 1457:8 | 1332:19 | 1532:13 1538:9 |
| 1454:22 | 1527:20 | 1465:14 1466:7 | 1335:22 | 1538:10 1539:5 |
| getting 1355:11 | 1597:12 1612:6 | 1466:18 | 1336:19 1337:5 | 1539:6 1545:2 |
[Page 1660]
| 1546:2,6,7 | 1359:11 | 1606:21 | 1600:11 | Griffin 1290:20 |
| 1560:22 | 1377:10,16,20 | 1607:16 | 1601:10,18,19 | gross 1398:6 |
| 1561:12 1564:8 | 1378:2,6 | gotten 1401:7 | 1602:14 | 1533:9 |
| 1567:15 1578:2 | 1381:10 | 1405:24 | 1618:24 | grossly 1298:5 |
| 1578:13 | 1382:21 1384:2 | governing | 1619:11,17 | 1397:6 1533:19 |
| 1580:18 1587:6 | 1429:7 1430:20 | 1481:20 1593:4 | 1632:16 | 1533:20 |
| 1588:2 1594:6 | 1446:9,15 | government | government's | 1620:13 |
| 1594:7 1597:5 | 1457:24 | 1290:7 1292:8 | 1308:5 1318:7 | ground 1550:3 |
| 1605:18 | 1459:22 1462:9 | 1302:6,14 | 1408:5 1411:20 | group 1326:12 |
| 1607:19 1611:7 | 1464:9 1465:4 | 1304:11 1309:1 | 1412:15 | guarantee |
| 1612:11 | 1472:7 1473:2 | 1310:8 1311:11 | 1474:15 1482:8 | 1618:15 |
| 1613:22 | 1473:14,19 | 1313:4 1316:17 | 1582:9 1585:22 | guaranteed |
| 1616:22,25 | 1474:19 | 1317:19,24,25 | 1587:3 1619:14 | 1504:14 |
| 1619:22 | 1476:16,22 | 1318:3,5,9,18 | governmental | guess 1321:20 |
| 1626:10 | 1484:16,23 | 1318:21 1341:7 | 1590:13 1591:4 | 1349:10 |
| gold 1327:13 | 1492:21 | 1341:8 1348:3 | 1591:18,23 | 1382:22 |
| 1330:17 | 1495:11,21 | 1348:9,23 | 1592:4 1618:22 | 1451:10 |
| 1333:25 | 1496:1 1498:2 | 1350:18,20 | 1619:3,24 | 1457:21 1464:3 |
| 1335:12,16 | 1499:8 1500:16 | 1351:5,16 | Goyette 1497:15 | 1496:9 1498:21 |
| 1336:9 1376:15 | 1500:19 | 1352:4 1353:11 | Grand 1562:22 | 1513:23 |
| 1377:1 1549:19 | 1506:25 | 1354:17 1355:3 | grant 1569:7 | 1538:25 1542:3 |
| 1551:2,11 | 1517:23 1519:5 | 1355:8 1356:19 | 1586:23 | 1594:5,12 |
| 1559:16 | 1519:8 1528:12 | 1360:16,22 | 1603:11,13 | 1595:19 |
| 1560:11 | 1528:23 | 1372:25 | granted 1431:21 | 1596:12 |
| 1561:13 | 1537:21 1539:3 | 1400:12,18 | 1509:22 | 1605:12 1632:7 |
| good 1294:5,25 | 1539:17,20,24 | 1401:25 1402:1 | 1579:25 | guidance |
| 1309:5,8 | 1540:5,9,12 | 1405:4 1406:12 | Graphic 1292:13 | 1482:23 |
| 1366:12 | 1541:7,20 | 1406:19,22 | grappling | guidelines 1618:3 |
| 1384:13 1385:1 | 1552:19 | 1408:6,16,24 | 1564:22 | Guillet 1292:10 |
| 1387:7 1395:24 | 1553:12,16,21 | 1410:7 1411:21 | Great 1436:25 | 1305:12 1395:6 |
| 1414:2,23 | 1554:21 | 1411:23,25 | Green 1518:22 | 1446:21 |
| 1479:19 1481:7 | 1555:13 | 1413:1 1422:16 | greenfield | 1447:10 1453:2 |
| 1489:12 | 1570:17,23 | 1429:22 | 1400:23 | 1455:22 |
| 1514:14 1529:2 | 1571:2,9,18,24 | 1430:11 | 1405:23 | 1458:20 1459:4 |
| 1529:11 | 1572:2,6 | 1431:13 | grey 1361:4 | 1461:7 1503:5 |
| 1535:23 1547:2 | 1595:1,14,18 | 1437:11 1439:4 | grid 1301:11,13 | 1503:24 1504:1 |
| 1547:3,22 | 1596:11 1597:6 | 1440:8,9 | 1504:13 | 1505:22 |
| 1548:2 1552:7 | 1598:4,19,24 | 1441:11 | 1509:16 1512:8 | 1506:19 |
| 1567:20 1590:9 | 1607:21 1608:2 | 1449:21 | 1512:16,25 | 1507:22 1517:5 |
| 1595:11 | 1608:24 1609:8 | 1450:14 1454:7 | 1513:11,21,22 | 1517:7,9,11 |
| 1629:19 | 1609:15,22 | 1475:22,24 | 1513:25 | 1521:5 1524:2 |
| Gotanda 1290:17 | 1610:25 | 1481:22,25 | 1514:11,19 | 1524:3,15 |
| 1349:9 1350:10 | 1611:10,15 | 1483:3 1496:21 | 1604:15,19 | 1526:3 1527:6 |
| 1353:24 1354:5 | 1613:24 1621:1 | 1535:11 | 1605:9,25 | 1598:7 1606:25 |
| 1355:4 1356:22 | Gotanda's | 1539:23 1558:9 | 1606:6,9,14,18 | 1610:11 |
| 1358:15 1359:4 | 1358:9 1590:25 | 1580:3,3 | 1606:19 1607:4 | 1615:22 |
[Page 1661]
| Guillet's 1381:13 | 1344:2 1347:17 | 1312:15 | 1578:12 | 1624:25 |
| 1463:24 1467:8 | 1351:22 1355:2 | 1315:24 1316:8 | help 1344:13 | highlighting |
| 1505:18,21 | 1360:3 1368:12 | 1339:6 1352:18 | 1350:5 1355:5 | 1408:20 |
| 1507:5 1509:8 | 1372:24 | 1367:16 | 1355:15,21 | highly 1391:11 |
| 1511:18 1515:7 | 1373:11 | 1388:12 1389:3 | 1357:6 1472:15 | hindsight |
| 1515:16 | 1376:24 | 1396:23 1420:6 | 1474:21 1567:8 | 1382:13 |
| 1517:18,21 | 1391:12 | 1422:3 1424:10 | 1621:18 | 1385:25 1386:2 |
| 1518:19 1520:3 | 1584:19 | 1434:2 1437:2 | helped 1630:6 | 1455:5,6,25 |
| 1520:11 1522:5 | 1630:18 | 1437:16 | helpful 1328:16 | hold 1491:2 |
| 1522:19 1525:6 | happening | 1441:12 1446:2 | 1366:14 | 1568:20 |
| 1595:7 1607:17 | 1407:11 | 1453:1 1454:14 | 1372:12 1393:7 | 1569:18 1626:1 |
| 1614:11,13,19 | 1482:25 | 1462:25 1463:2 | 1394:11 1396:5 | holding 1317:7 |
| guillotine 1452:7 | happens 1327:8 | 1465:22 | 1419:24 | 1317:10 |
| GW 1467:17 | 1339:3,12 | 1490:11 1496:4 | 1425:25 | 1413:22 1591:2 |
| 1343:6 1348:6 | 1502:9 1536:11 | 1426:17 1445:4 | 1619:5 | |
| H | 1349:20 1356:7 | 1540:8 1573:19 | 1482:23 | holdings 1332:15 |
| haircut 1448:19 | happy 1343:13 | 1585:18 1605:4 | 1508:23 | holds 1618:23 |
| 1448:20 1449:4 | 1461:18 | 1613:1,18 | 1530:13 1590:5 | Hon 1290:17 |
| 1452:2 1510:17 | 1478:21 | 1615:16 | 1602:23 1629:5 | honest 1632:11 |
| half 1322:16 | 1534:19,24 | 1618:19 | helpfully 1616:22 | honoured 1631:4 |
| 1479:3,5 | 1535:7 1590:16 | hearing 1374:19 | helps 1359:19 | hook 1389:8 |
| hammered | 1594:22 | 1374:24 1412:4 | 1529:25 | hope 1370:17 |
| 1592:8 | hard 1422:1 | 1412:11 | hereunder | 1414:18 |
| hand 1390:24 | 1463:17 1610:3 | 1420:14 | 1579:6 | 1580:12 |
| 1543:5 1554:15 | harder 1514:19 | 1430:10 | hero 1632:20 | 1589:12 |
| 1554:19 | harm 1344:18 | 1441:25 1461:4 | hesitate 1443:5 | hoping 1425:5 |
| 1558:14 | harmful 1298:2 | 1461:13 1516:9 | hey 1405:18 | horse 1589:5 |
| 1559:10 | HAUSER | 1578:17 | 1605:18 | 1594:21 |
| hands 1309:5 | 1338:17,23 | 1584:25 | high 1398:22 | hospital 1444:22 |
| handwriting | 1340:17 | 1629:11 | 1411:13 1449:4 | host 1298:21 |
| 1497:11 | 1466:22 1470:1 | 1630:19 | 1451:21 | hot 1366:24 |
| happen 1325:4 | head 1319:4,13 | hears 1404:10 | higher 1447:8 | hour 1319:9 |
| 1325:10 1327:3 | 1321:23 | 1414:10,15 | 1452:3 1502:5 | 1395:17 |
| 1331:9 1354:20 | 1528:20 1600:7 | 1505:15 | 1527:21 | hours 1479:4,5 |
| 1359:25 | headed 1494:4 | 1584:24 | highest 1450:4 | 1479:10 |
| 1375:25 1444:2 | hear 1317:5 | hearted 1535:6 | 1526:23 1528:1 | 1580:23 1632:8 |
| 1444:15,15 | 1380:15 | Heather 1292:2 | highlight | house 1423:4,5 |
| 1450:15 | 1407:10 1516:3 | held 1290:10 | 1325:19 | housekeeping |
| 1475:18 1588:8 | 1516:3,13 | 1310:8 1317:11 | 1332:17 | 1294:8,10 |
| 1588:10 | 1590:17 | 1317:13 1370:5 | 1485:23 | 1322:23 |
| 1619:18 | 1626:20 | 1404:12 | highlighted | huge 1351:6 |
| happened 1304:9 | 1628:22 | 1501:11 | 1327:11 | 1631:20 |
| 1331:5,19,22 | heard 1295:17 | 1502:22 1549:6 | 1369:21 | hurdle 1432:19 |
| 1331:25 1332:1 | 1301:11 | 1549:20 1619:7 | 1396:22 1399:5 | hurdles 1432:21 |
| 1336:15,16,17 | 1304:16 1308:3 | Helen 1290:20 | 1406:3 1412:6 | hypothetical |
| 1341:6 1343:23 | 1311:20 | Hello 1529:12 | 1526:18 | 1331:15 1389:1 |
[Page 1662]
| 1403:4 1574:8 | 1404:9 1409:9 | 1398:14 | imposing | including | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1574:13,14,17 | 1409:10,16,18 | immediately | 1379:23 | 1302:15 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1603:16 | 1409:19,20 | 1301:17 | imposition | 1346:15 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1619:18 | 1410:1 1437:12 | 1342:17 | 1481:18 | 1362:13 1374:1 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| hypothetically | 1438:6,8,22 | 1350:15,17 | 1482:10 | 1383:15 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1612:22 | 1439:1,3,10 | 1399:9,10 | 1601:17 | 1397:15 1512:2 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1614:21 | 1440:8,22,25 | 1405:11 | impossible | 1528:5,16 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1450:1 1482:15 | imminent | 1587:20 | 1532:16 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| I | 1484:9 1496:10 | 1403:11,14 | impression | 1541:14 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| i.e 1306:12 | 1498:8 1499:15 | impact 1307:10 | 1463:20 | 1600:11 1627:7 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1417:10 | 1536:12,17 | 1365:8 1409:22 | impugned | 1631:14 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Ian 1374:18 | 1537:7 1538:3 | 1414:12 | 1591:24 | inclusive 1418:15 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| ІВА 1515:14 | 1538:17,17 | 1447:15 1449:5 | impute 1331:17 | income 1423:9 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| idea 1384:13 | 1539:6,14,25 | 1569:11 | 1340:7 1548:15 | 1423:11 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1545:1 | 1540:2,20,20 | impacts 1414:7 | imputed 1548:21 | 1424:25 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| identified 1422:4 | 1540:24 1543:3 | impair 1532:17 | imputing | 1470:16 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| identifies | 1545:7,11,18 | impediment | 1359:22,24 | 1568:13 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1471:15 | 1546:6 1547:13 | 1451:23 | 1360:5 | incomplete | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| identify 1332:22 | 1550:5 1552:17 | impediments | inability 1567:4 | 1495:18 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1428:6 | 1566:25 | 1413:1 | 1567:22 1568:6 | inconsistencies | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| identity 1391:10 | 1578:22 | impermissible | 1579:14 | 1456:25 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1392:17 | 1588:21 | 1504:22 | inappropriate | incorrect 1555:3 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| idiosyncratic | 1590:20 | implement | 1504:23 | increase 1467:14 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1298:6 | 1602:11,12 | 1297:1 1354:15 | include 1363:14 | 1467:18,19 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| IESO 1301:2 | 1618:23 1619:4 | 1412:1,21 | 1420:22 | 1490:4 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1302:7,12 | 1619:16 | implemented | 1456:14 | increased 1331:7 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1315:15 | IESO's 1318:8 | 1400:21 | 1526:11 | 1331:8,8,16 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1317:12,14,20 | 1351:8 1354:25 | implication | 1551:25 1579:9 | 1335:12 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1318:17,22 | 1389:6,17 | 1569:19 1608:9 | included 1308:22 | increases | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1319:1,14,25 | 1409:23 | implicit 1386:17 | 1381:17 | 1502:11 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1320:1,3 | 1411:18 | implied 1521:10 | 1392:12 | incredibly | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1338:7 1339:2 | ignore 1390:10 | importance | 1420:24 | 1393:7 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1339:7,12,16 | 1597:5 | 1590:18 | 1453:18 | incremental | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1340:8 1341:2 | ignores 1548:17 | important | 1454:10 | 1490:4 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1344:1 1350:20 | 1554:10 | 1318:24 1345:4 | 1455:11 | incur 1402:3 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1350:24 1351:5 | ignoring 1522:18 | 1345:14 | 1456:15 | 1476:11 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1351:14 | II 1294:6 | 1391:17 | 1489:13 1530:6 | incurred 1324:3 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1352:17,19,22 | 1313:22 1314:5 | 1441:24 | 1610:16 | 1324:6 1343:21 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1352:24 1353:1 | 1388:13 | 1449:19 1457:3 | 1622:25 1627:3 | 1359:23 1370:8 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1353:3,7 | III 1391:11,18 | 1461:3 1618:23 | 1627:15,21 | 1372:6,9 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1354:2,6,23 | illegitimate | 1631:8,9,12,14 | includes 1307:15 | 1420:7,11 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1355:17 1356:6 | 1614:19 | importantly | 1456:17 | 1424:19 1430:8 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1356:12,17 | illogical 1502:14 | 1499:2 1504:14 | 1466:11 | 1433:17 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1370:5 1399:15 | image 1632:23 | imported | 1474:10 | 1468:20,23,25 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1402:9,25 | immediate | 1504:20 | 1475:16 1525:4 | 1471:13 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| 1403:4,1
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