Ruby River Capital LLC v. Canada

Case summary

At a glance

Parties: Ruby River Capital LLC v. Canada
Case no.: ICSID Case No. ARB/23/5
Forum and rules: ICSID Convention arbitration. Procedural Order No. 1 applies the ICSID Arbitration Rules in force as of 1 July 2022, as modified by NAFTA Chapter 11, Section B; Procedural Orders Nos. 4 and 5 refer to the 2006 ICSID Arbitration Rules. Place of proceeding: Washington, D.C. Languages: English and French.
Treaty: NAFTA Chapter 11, with consent under Annex 14-C of the USMCA
Tribunal: Ms. Carole Malinvaud (President), Mr. Barton Legum, Prof. Zachary Douglas KC
Sector: Natural gas; GNL Québec / Énergie Saguenay project
Outcome: Pending. The published documents are procedural orders up to 20 May 2025 and do not show any decision on jurisdiction, merits or damages.

The dispute

Ruby River Capital LLC brought NAFTA claims against Canada over the refusal of the GNL Québec (Énergie Saguenay) project by the governments of Québec and Canada. The orders refer to three approval criteria announced by the Québec Minister of the Environment, Mr. Charette, at a press conference on 24 March 2021: social acceptability, fostering the energy transition and contributing to global greenhouse gas reductions. The Claimant alleges that the refusal was illegal and arbitrary, in breach of NAFTA Article 1105, and discriminatory, in breach of Articles 1102 and 1103. It says the stated criteria were a pretext for political reasons and were not applied to comparable projects in the same way. Canada denies that the decisions were arbitrary or discriminatory. It also objects to jurisdiction on the ground that the consent in Annex 14-C of the USMCA does not extend, ratione temporis, to measures taken after NAFTA was terminated.

Key holdings

The Tribunal refused Canada's request to exclude Exhibits C-280 and C-281, documents said to relate to Cabinet decisions, which the Claimant had obtained through an Access to Information Act request. The request came a year late, and there was no evidence that the documents were obtained in breach of any law. The documents appeared relevant to the reasons for denying the permit. The Claimant had guessed the password to C-280, but this conduct was not so egregious as to justify exclusion. PO4 ¶¶ 22–29
Québec's application to file a non-disputing party submission was rejected. Its position on the ratione temporis scope of Annex 14-C was similar in content and aim to Canada's jurisdictional objection. More fundamentally, Québec was not an independent non-disputing party: it had an agreement with Canada on managing the arbitration, attended procedural sessions, had access to all case materials, and some of Canada's witnesses held or had held positions in its government. PO6 ¶¶ 41–45
The Centre québécois du droit de l'environnement (CQDE) was granted leave to file an amicus curiae memorial on the precautionary principle. The parties had addressed that principle only briefly, and the submission was limited in scope and would not disrupt the proceeding. PO7 ¶¶ 23–27
Cabinet confidentiality under Article 9.2(f) of the IBA Rules is a legitimate and compelling interest. It must be balanced against the Claimant's interest in documents at the core of its arbitrariness and discrimination case. In that balance the Tribunal distinguishes documents prepared to inform Cabinet deliberations from documents reflecting those deliberations, relying on Merrill & Ring v. Canada and section 39 of the Canada Evidence Act. It also asks whether the Claimant has other evidence. Production was ordered by 31 January 2025. PO9 ¶¶ 42–61, 66
Canada stated that it would not produce documents withheld for political sensitivity even if ordered to. The Tribunal held that the decision on production remained its own, and noted that the Claimant intends to seek adverse inferences. It kept privilege for documents on quantum and financial viability (Requests 31–35), because the Claimant has other means of proof. It ordered production of documents described with Canada's new generic wording, which appeared to be preparatory documents, subject to case-by-case exceptions. PO10 ¶¶ 49–51, 66–68, 78–83
Accountants' professional secrecy can be invoked but is weaker than lawyers' privilege. It was upheld for the RCGT fee estimate and service contract (PRIV000798, PRIV000799). It was refused for an email between officials (PRIV000797). It was held waived for a draft report (PRIV000859) because Canada had filed the final report. The confidentiality clause in the Bechtel contract permits disclosure under the regime of Procedural Order No. 2, so the redacted passages must be produced to Canada. PO11 ¶¶ 69, 93–100
The Claimant's second Secretariat expert report made a valuation based on a past financing round 25% of the claimed damages, where it had been only accessory before. The Tribunal ordered the Claimant to produce Exhibit C-12 in full, with its amendments and the fourth-round subscription agreements for 2019 to 2021, by 4 June 2025. It gave Canada a three-week extension for its Rejoinder on the Merits only, to 19 July 2025, and declined to reserve extra hearing days. PO12 ¶¶ 17–23