The Investors’ Position. 250. It is the Investors’ position that there are two prerequisite conditions for the timing to commence on the three-year limitation period in NAFTA Article 1116(2). First, the investor must have acquired actual or constructive knowledge of the breach at issue. Secondly, the investor must have acquired knowledge that it has incurred loss or damage as a result of that breach. Only then does the period begin to run.292 251. The Investors assert that they suffered numerous continuous breaches with ongoing and direct effect until the ministerial decision on 17 December 2007.293 Those breaches include:
The Investors’ Position. 8. The Investors submit that Canada “mischaracterized the Tribunal’s directions in Procedural Order No. 22 as imposing some unlimited free-standing obligation to provide additional documents at this time, in addition to the specific sources and documents the Investors were directed to provide by the Tribunal.”3 While, pursuant to paragraph 30 of Procedural Order No. 22, reasonable supplementary requests for documents and information are acceptable, such requests would be more appropriately dealt with if delivered by Canada at once. The Investors argue, any delays or changes to the schedule, on grounds of supplementary requests for document production are not justifiable.4 In this regard, the Investors contest that Canada’s ability to prepare its Counter-Memorial depends on the Investors’ additional documentary production,5 and, in the interest of procedural efficiency, propose to respond to any further request by Canada within ten business days.6
The Investors’ Position. 17. According to the Investors, publishing its proprietary confidential information—including “detailed valuation, market information, expert reports, investigations and business plans”— would “immediately provide any current or potential competitor with all of the financial, business, scientific and other metrics needed for a complete bankable business plan and a comprehensive ‘how to’ package for the development of a quarry at White’s Point, and the shipping and marketing of the highly valuable aggregate located at that site”.5 The Investors argue that they have devoted “extensive effort, resources, time, planning and enormous financial expenditure to 1 Letter of May 10, 2017, p. 2. 2 Letter of May 10, 2017, p. 2. 3 Letter of May 10, 2017, p. 3. Letter of October 31, 2017, p. 1.
The Investors’ Position. 117. According to the Investors, the Tribunal has already decided that the federal and Nova Scotia Ministers, relying upon the Joint Review Panel Report (“JRP Report”), disapproved the Whites Point quarry and marine facility project (“Whites Point Project”) on the basis of “community core values”, which is beyond the scope of the reviewing mandate of the Joint Review Panel (“JRP”, and its reviewing process, “JRP Process”) under the Canadian Environmental Assessment Act (“CEAA”) and the Nova Scotia Environment Act (“NSEA”).55 As a result, despite the Tribunal’s ruling that “the Ministers could have denied approval of the [q]uarry independently from the JRP’s recommendation,”56 the Investors argue that the Respondent is now precluded from raising in this quantum phase the argument that “the Government decisions to reject the Whites Point
