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INVESTOR's REPLY (MERITS PHASE) ) REDACTED UPS Reply PUBLIC VERSION (Merits Phase)

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INVESTOR's REPLY (MERITS PHASE) ) REDACTED UPS Reply PUBLIC VERSION (Merits Phase) REDACTED PUBLIC VERSION IN THE MATTER OF AN ARBITRATION UNDER CHAPTER ELEVEN OF THE NORTH AMERICAN FREE TRADE AGREEMENT AND THE UNCITRAL ARBITRATION RULES BETWEEN: UNITED PARCEL SERVICE OF AMERICA, INC. Investor AND THE GOVERNMENT OF CANADA Party INVESTOR'S REPLY (MERITS PHASE) ) REDACTED UPS Reply PUBLIC VERSION (Merits Phase) TABLE OF CONTENTS PART ONE: OVERVIEW ............................................... Page -1- PART TWO: STATEMENT OF FACTS .................................. Page-11- I. THE CLAIMANT OWNS UPS CANADA ........................... Page -14- II. CANADA POST'S COMPETITION WITH UPS CANADA ............ Page -18- A. Canada Post's Own Documents Demonstrate Its Focus on Courier Services ......................................................... Page -18- B. Canada Post's Courier Services Are the Same As UPS Canada's ...... Page -22- C. Canada Has Admitted Purolator Is in Like Circumstances ........... Page -25- D. Economic Analysis of Competition Between Canada Post and UPS Canada ......................................................... Page -28- E. Competition for Import Services ............................... Page -31- 1. Canada Post's Partnership with the US Postal Service ........ Page -31- 2. Canada Post Divisions Dedicated to Postal Imports .......... Page -33- 3. Canada Post Marketing Initiatives and Partnerships with US Shippers ................................................... Page -35- 4. Canada Post Competes with UPS Canada for Delivery of US Imports ................................................... Page -37- III. THE USO DOES NOT JUSTIFY UNFAIR TREATMENT OF COMPETITORS ............................................................... Page -39- A. Canada Has Delegated Governmental Authority to Canada Post ...... Page -40- B. Canada's Reliance on the Universal Postal Union Is Misplaced ....... Page -43- C. The Universal Postal Union Does Not Define the USO ............. Page -46- REDACTED UPS Reply ) PUBLIC VERSION (Merits Phase) ) D. Canadian Law Does Not Implement the Universal Postal Convention or Otherwise Define the USO ................................... Page -51- E. The Content of Canada Post's USO, If Any, Is Meaningless Compared to Other Industrialized Countries ...................................... Page -52- F. Canada Post's USO, If Any, Is Not Burdensome .................. Page -54- G. The Burden of the USO, If Any, Does Not Justify Preferential Treatment of Courier Services ............................................ Page -54- IV. THE COMPETITIVE ADV ANT AGES OF CANADA POST'S NETWORK ............................................................... Page -58- A. Canada Post's Infrastructure Derives from Its Monopoly ............ Page -58- B. Canada Post's Competitive Services Benefit from the Monopoly Infrastructure ......................................................... Page -59- C. The Operation of Canada Post's Monopoly Infrastructure ........... Page -60- D. Purolator's Discriminatory Access to the Monopoly Infrastructure ......................................................... Page -62- E. Canada Post's Discriminatory Offer of Access to Interlining ......... Page -69- V. CANADA POST'S DISCRIMINATORY LEVERAGING OF THE NETWORK ............................................................... Page -71- A. The Issue Is Equal Treatment Not Cross-Subsidization ............. Page -73- B. Equal Treatment Reflects Widely-Accepted Economic Theory ....... Page -75- 1. The Economic Rationale for Equal Treatment .............. Page -75- 2. The Assumptions of Canada's Economists Contradict Its Stated Policy Objectives .......................................... Page -77- 3. Canada's Economists Mistakenly Assume Canada Post Maximizes Profit ................................................... Page -80- REDACTED UPS Reply PUBLIC VERSION (Merits Phase) 4. Canada's Economists Mistakenly Assume a Pure Price-Cap Regime ................................................... Page -82- 5. Canada's Economists Mistakenly Assume Canada Post's Network Is Efficient ............................................ Page -83- 6. Canada's Economists Have Repeatedly Mischaracterized Dr. Neels' Report .............................................. Page -84- C. Equal Treatment Is Consistent with Widely-Followed Regulatory Practice ......................................................... Page -84- D. Canada Post Does Not Even Meet Its Own Cross-Subsidy Tests ...... Page -85- 1. Canada Has Not Produced Reasonably Available Information Regarding Its Annual Cost Study ................................. Page -86- 2. The Methodology Used by Canada Post Does Not Accurately Measure Incremental Cost ..................................... Page -89- E. Canada's Failure to Ensure Equal Treatment Has Caused Harm to UPS ......................................................... Page -90- VI. LACK OF SUPERVISION OF CANADA POST'S DISCRIMINATORY CONDUCT ..................................................... Page -93- A. Canada's Lack of Supervision of Canada Post's Discriminatory Conduct Is Not Consistent with International Practices .......................... Page -93- B. Canada Has Repeatedly Ignored Its Own Independent Reviews of Canada Post ......................................................... Page -98- C. Cabinet Approval of Domestic Letter Mail Price Increases Does Not Prevent Unfair Competition ........................................ Page -101- D. The Competition Bureau Does Not Regulate Discriminatory Conduct ........................................................ Page -105- E. The Audit Opinion Is "Meaningless Window Dressing" ............ Page -109- F. Corporate Governance Is Not the Issue ......................... Page -111- REDACTED UPS Reply PUBLIC VDSlON (Merits Phase) VII. PREFERENTIAL CUSTOMS TREATMENT OF POSTAL IMPORTS .............................................................. Page -113- A. Customs Measures Apply To Canada Post and UPS Canada ........ Page -116- B. UPS Canada and Canada Post Are in Like Circumstances .......... Page -119- C. Canada Provides Treatment Less Favorable ..................... Page -122- 1. Canada Customs Charges UPS Canada Fees for Services Supplied to Canada Post for Free ................................. Page -122- 2. Canada Customs Pays Canada Post for "Services" That UPS Canada Must Supply for Free ...................................... Page -126- 3. Canada Customs Fails to Levy Fines, Penalties and Interest Against Canada Post ........................................ Page -128- 4. Canada's Exemption of Canada Post From Brokerage Requirements .................................................. Page -132- D. Canada's Failure to Properly Inspect Postal Imports ............... Page -134- E. The Nelems Study Demonstrates Canada's Systematic Failure To Enforce Customs Laws In The Postal Stream ........................... Page -144- 1. Allegation of Erroneous Application of Statistical Methodology .................................................. Page -144- 2. Alleged Misunderstanding of the Proper Tariff Classification .................................................. Page -146- 3. Alleged Restricted Purpose ofNelems Study .............. Page -147- 4. Alleged Seasonality Issues ............................. Page -148- 5. Alleged Irrelevance of Time Frame ofNelems Study ........ Page -148- VIII. PUBLICATIONS ASSISTANCE PROGRAM REQUIREMENTS FAVOR CANADA POST ................................................ Page -150- REDACTED UPS Reply PUBLIC VERSION (Merits Phase) A. Canada's Discriminatory Application of the Publications Assistance Program Has Harmed UPS ............................................. Page -152- PART THREE: THE LAW ............................................ Page-154- I. OVERVIEW OF LEGAL ARGUMENT ............................ Page -154- II. TREATY INTERPRETATION AND ADVERSE INFERENCES ....... Page-158- A. The Role of Other International Treaties ........................ Page -158- B. Canada's Failure to Provide Documents Permits This Tribunal to Make Adverse Inferences ................................................ Page -160- 1. Annual Cost Study . Page -162- 2. Purolator's Access to Infrastructure ...................... Page -165- 3. Canada Post's Courier Services' Access to Infrastructure ..... Page -166- 4. Supervision ........................................ Page -167- III. CANADA'S PRELIMINARY OBJECTIONS ARE GROUNDLESS .... Page-171- A. UPS Is an Investor from the United States ....................... Page -171- B. The Investor's Claim Is Within NAFTA's Time Limits ............ Page -171- 1. The Investor's Claims Arising from Canada's Continuing Acts Are Within NAFTA's Time Limits ................................ Page-171- 2. The Investor Only Became Aware of Several Breaches Within Three Years of Its Claim ................................... Page -178- a. Canada's Breach ofNAFTA Articles l 502(3)(a) and 1503(2) through its failure to take measures to ensure Canada Post did not act inconsistently with Canada's Chapter 11 obligations ............................................ Page -178- REDACTED UPS Reply PUBUC VERSION (Merits Phase) b. Canada's Breach ofNAFTA Articles 1102 and 1105 in Regard to Customs . ..................................... Page -180- C. The Investor Is Entitled to Bring Its Claim Under Article 1116 . Page -182- D. The Investor Has Established Harm ............................ Page -185- E. The Fritz Starber Claim Is Admissible ......................... Page -186- IV. CANADA BREACHED CHAPTER 11 THROUGH CANADA POST'S ACTIONS ....... _..........
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