Theodore D. Einarsson and others v. Canada

At a glance

Parties

Theodore David Einarsson, Harold Paul Einarsson, Russell John Einarsson and Geophysical Service Incorporated (GSI) v. Government of Canada

Case no.

ICSID Case No. UNCT/20/6

Forum and rules

NAFTA Chapter Eleven arbitration under the UNCITRAL Arbitration Rules (1976), administered by ICSID; place of arbitration Calgary, Alberta

Treaty

NAFTA (North American Free Trade Agreement), Chapter Eleven

Tribunal

Carita Wallgren-Lindholm (Presiding Arbitrator), Trey Gowdy, Toby Landau

Sector

Seismic data

Outcome

Pending on the published documents. These are procedural orders only (May 2022 to July 2024); they do not show a decision on jurisdiction or the merits.

The dispute

Three members of the Einarsson family and their company, Geophysical Service Incorporated (GSI), brought claims against Canada under NAFTA Chapter Eleven, partly on GSI's behalf under NAFTA Article 1117(1). The published orders do not set out the merits. They do show that the case concerns GSI's seismic data, including "Secondary Submissions", materials held at the Frontier Information Office and by the CNLOPB and CNSOPB, and the identity of those to whom Canada disclosed GSI's "Seismic Works", which the Claimants say bears on damages. Canada contests jurisdiction, including on the ground that the Claimants did not comply with the waiver requirement in NAFTA Article 1121.

Key holdings

1. Document production was ordered in large part. Where documents are publicly available, even if only after some search, the onus is on the requesting party to find them. Canada's legal privilege over legal opinions was upheld: a mere reference to the existence of a legal opinion does not waive privilege over its contents. PO 2, ¶¶ 5–6
2. Under the FTC 2001 Notes there is no general duty of confidentiality in NAFTA proceedings. The default is transparency, and the party seeking confidentiality (here the Claimants) bears the burden of proving that information falls within the Confidentiality Order. PO 3, ¶¶ 33–34, 39
3. Information is publicly available, and so not confidential, if the same substantive elements are public, whether or not in another form or context. Designations were upheld where they referred directly to Exhibit C-112, which both sides agreed was confidential. General conclusions drawn from the Claimants' financial records were in most cases not treated as disclosing Business Confidential Information. PO 3, ¶¶ 36–38
4. After Theodore David Einarsson died on 2 January 2024, the Tribunal declined to suspend the proceedings. It ordered evidence of Harold Paul Einarsson's authority to pursue the claims for the estate and for GSI, and of counsel's authorisation. PO 4, ¶¶ 9–11; PO 6, ¶¶ 30–31
5. The Claimants' Motion to Compel Documents was denied. Canada's production of tens of thousands of documents was a reasonable and diligent effort, and its privilege log was adequate. Documents need only be produced as they exist. The Claimants' long delay in objecting weighed against the motion, and document production must come to a close. Costs were reserved. PO 8, ¶¶ 27–35
6. On Canada's allegation that Harold Paul Einarsson used a confidential document from the arbitration to make an access-to-information request to the CNLOPB, the Tribunal held it could not decide on the material before it. It invited Canada to confirm whether it maintained its censure request and warned against any circumvention of the Confidentiality Order. PO 9, ¶¶ 7–10
7. Harold Paul Einarsson, as independent executor, has standing to represent the estate of Theodore David Einarsson, including his interests in GSI. The estate holds the deceased's rights as they existed at his death. Stikeman Elliott acts for all Claimants. Canada maintained its separate jurisdictional objection under NAFTA Article 1121. PO 10, ¶¶ 17–21

Procedural history

1. 18 April 2019Notice of Arbitration dated 18 April 2019; the Claimants later designated it as the Statement of Claim (notice of 9 March 2022).
2. 14 October 2020Initial procedural meeting: the parties agreed to ICSID administration, the 1976 UNCITRAL Rules and Calgary as the place of arbitration.
3. 10 May 2022Procedural Order No. 1 sets the procedural rules and calendar.
4. 13 June 2022Confidentiality Order, adopting a text agreed between the parties.
5. July 2023Procedural Order No. 2 rules on document production (cover dated 29 July 2023; signature page dated 27 July 2023).
6. 21 September 2023Procedural Order No. 3 decides the disputed confidentiality designations in Canada's Counter-Memorial.
7. 2 January 2024Claimant Theodore David Einarsson dies. The hearing set for 16–24 September 2024 is later postponed by agreement of the parties.
8. 9–26 February 2024Procedural Orders No. 4, 5 and 6 address succession to the deceased claimant, extend the deadline for the Reply (finally to 14 March 2024) and decline to suspend the proceedings. The orders themselves are dated 9 and 12 February 2024, although the database lists January dates for Nos. 4 and 5.
9. 6 March 2024 / 21 June 2024Procedural Order No. 7 denies the Motion to Compel Documents; Procedural Order No. 8 gives the reasons. Procedural Order No. 9 addresses the alleged breach of the Confidentiality Order.
10. 8 July 2024Procedural Order No. 10 confirms the executor's standing for the estate and Stikeman Elliott's authority to act for all Claimants.

Tribunal, counsel and experts

Decided by

• Carita Wallgren-Lindholm President
• Trey Gowdy Co-arbitrator
• Toby Landau Co-arbitrator

For the claimant

Borden Ladner Gervais LLP · Stikeman Elliott LLP · Vincent Lanctôt-Fortier

For the respondent

Trade Law Bureau, Global Affairs Canada

Experts

The Brattle Group (respondent)

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Keywords

• NAFTA Chapter Eleven
• seismic data
• Geophysical Service Incorporated
• GSI
• UNCITRAL Rules 1976
• Article 1121 waiver
• Article 1117
• death of claimant
• succession
• standing of estate
• document production
• motion to compel
• privilege log
• IBA Rules 2020
• confidentiality order
• transparency
• FTC Notes 2001
• CNLOPB

Summary generated with AI from the published documents — refer to the award for the authoritative text.