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Investor's Memorial Archived Content Information identified as archived on the Web is for reference, research or recordkeeping purposes. It has not been altered or updated after the date of archiving. Web pages that are archived on the Web are not subject to the Government of Canada Web Standards. As per the Communications Policy of the Government of Canada, you can request alternate formats by contacting us. Contenu archivé L'information archivée sur le Web est disponible à des fins de consultation, de recherche ou de tenue de dossiers seulement. Elle n’a été ni modifiée ni mise à jour depuis sa date d’archivage. Les pages archivées sur le Web ne sont pas assujetties aux normes Web du gouvernement du Canada. Conformément à la Politique de communication du gouvernement du Canada, vous pouvez obtenir cette information dans un format de rechange en communiquant avec nous. 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 MEMORIAL (MERITS PHASE) Appleton & Associates International Lawyers 77 Bloor Street West, Suite 1800 Toronto, Ontario M5S 1M2 Tel: (416) 966-8800 Fax: (416) 966-8801 RESTRICTED ACCESSi UPS Memorial DISSEMINATION PROHIBITED (Merits Phase) Table of Contents PART ONE: OVERVIEW ............................................... Page -1- PART TWO: STATEMENT OF FACTS .................................. Page -12- Chapter I. THE PARTIES ............................................ Page -14- A. The Investor: UPS.......................................... Page -14- 1. Overview of UPS’ Global Business....................... Page -14- 2. Corporate Organization................................ Page -15- B. The Investments: UPS Canada and Fritz Starber................... Page -16- 1. Business Operations of UPS Canada...................... Page -16- 2. Fritz Starber......................................... Page -17- C. Canada Post Corporation..................................... Page -18- 1. Organization and Mandate.............................. Page -18- 2. Special Powers and Privileges........................... Page -20- a. Exclusive Privilege ............................. Page -21- b. Other Special Powers and Privileges................ Page -21- 3. Judicial Consideration of Canada Post’s Powers ............ Page -23- a. Canadian Daily Newspaper Assn. v. Canada Post Corp. ............................................. Page -24- b. Canadian Union of Postal Workers v. Canada Post..... Page -25- c. Re City of Nepean and Canada Post Corp. ........... Page -26- d. Rural Dignity of Canada v. Canada Post Corp ........ Page -27- 4. The Universal Service Obligation (“USO”) ................ Page -27- a. The Universal Postal Union....................... Page -28- b. Canada’s Failure to Provide a Definition of the USO . Page -29- 5. History of Canada Post ................................ Page -31- 6. Business Operations................................... Page -32- 7. Purolator Courier Ltd. ................................. Page -35- Chapter II. CANADA POST’S COMPETITION WITH UPS CANADA ...... Page -37- A. The Canadian Courier Market................................. Page -37- B. Economic Analysis of Competitive Services ...................... Page -39- C. Canada Post Services Which Compete Against UPS Canada......... Page -40- 1. Domestic Courier Services ............................. Page -40- 2. Courier Services to and from the United States.............. Page -41- 3. Courier Services to Other Countries ...................... Page -42- 4. Service Features ..................................... Page -44- 5. Documents Produced by the Parties ...................... Page -44- RESTRICTED ACCESSii UPS Memorial DISSEMINATION PROHIBITED (Merits Phase) Chapter III. CANADA POST’S DISCRIMINATORY USE OF ITS MONOPOLY INFRASTRUCTURE ...................................... Page -46- A. Canada Post’s Monopoly Infrastructure ......................... Page -47- B. Canada Post’s Courier Services’ Use of Canada Post’s Monopoly Infrastructure ......................................................... Page -49- 1. Collection .......................................... Page -51- a. Mail Boxes.................................... Page -51- b. Post Offices and Retail Outlets .................... Page -52- c. Stamps and Meters.............................. Page -54- 2. Processing .......................................... Page -54- 3. Transportation ....................................... Page -55- 4. Delivery............................................ Page -58- 5. Management, Administration and Marketing ............... Page -61- 6. Monopoly Services Revenue ............................ Page -62- C. Canada Post’s Courier Services Do Not Appropriately Pay to Use the Monopoly Infrastructure.............................................. Page -63- 1. Canada Post’s Courier Services Have Failed to Pay The Market Price of Access to the Monopoly Infrastructure .................... Page -65- 2. Canada Post’s Courier Services Have Not Paid The Incremental Cost of Using the Monopoly Infrastructure ....................... Page -67- D. Canada Post’s Aggressive Pricing Strategy....................... Page -69- E. Conclusion................................................ Page -71- Chapter IV. LACK OF REGULATORY SUPERVISION OF CANADA POST ......................................................... Page -73- A. Early Reviews of Canada Post’s Conduct ........................ Page -74- 1. Initial Failure to Establish A Regulator ................... Page -74- 2. Postal Services Review Committee ....................... Page -75- B. The Canada Post Mandate Review ............................. Page -79- C. Canada’s Decision to Ignore Its Own Mandate Review ............. Page -84- 1. The Minister’s Response ............................... Page -84- 2. Inappropriate Reliance on Canada Post to Police Itself........ Page -88- D. Inadequacies of General Framework Legislation .................. Page -89- 1. The Financial Administration Act ........................ Page -90- 2. Limits of The Competition Act .......................... Page -91- Chapter V. CANADA CUSTOMS’ PREFERENTIAL TREATMENT OF CANADA POST .................................................... Page -95- A. Customs Laws and Procedures ................................ Page -95- 1. Canada Customs...................................... Page -95- 2. Postal and Courier Streams ............................. Page -96- B. The Postal Imports Agreement ................................ Page -98- 1. Canada Customs Charges Cost Recovery Fees to UPS Canada, but Exempts Canada Post ............................... Page -100- 2. Canada Customs Charges UPS Canada for Computer Linkage Systems, but not Canada Post.................................. Page -102- RESTRICTED ACCESSiii UPS Memorial DISSEMINATION PROHIBITED (Merits Phase) 3. Canada Customs Provides Canada Post Customers with Valuable Brokerage Services Without Charge ..................... Page -104- 4. Canada Customs Improperly Delegates Important Duties to Canada Post Employees......................................... Page -105- 5. Canada Customs Pays Canada Post for “Services” that UPS Canada Must Supply for Free ..................................... Page -107- C. Canada’s Exemption of Canada Post From Other Customs Obligations ........................................................ Page -111- 1. Canada Customs Allows Canada Post Far More Time to Remit Duties and Taxes ............................................. Page -111- 2. Canada Customs Fails to Levy Fines, Penalties and Interest Against Canada Post........................................ Page -112- 3. Canada Post is Exempted from Posting Bonds ............ Page -113- 4. The $5.00 Fee Collected by Canada Post is Exempt from Canada’s Goods and Services Tax .................................... Page -114- D. Canada Post Fails to Collect Duties and Taxes .................. Page -115- E. Harm ................................................... Page -118- Chapter VI. CANADA'S EXEMPTION OF CANADA POST FROM LABOUR LAWS ........................................................ Page -119- A. Rural Route Contractors .................................... Page -119- B. Pensions................................................. Page -120- Chapter VII. PUBLICATIONS ASSISTANCE PROGRAM RESTRICTIONS ........................................................ Page -122- Chapter VIII. THE FRITZ STARBER BID .............................. Page -125- PART THREE: LEGAL ARGUMENT ................................... Page -127- Chapter I. OVERVIEW OF THE LEGAL ARGUMENT ................. Page -127- Chapter II. GOVERNING LAW, INTERPRETATION AND BURDEN OF PROOF ........................................................ Page -131- A. Relevant Provisions in NAFTA............................... Page -131- B. Principles to be Followed in Interpreting the NAFTA ............. Page -135- 1. The Vienna Convention ............................... Page -135- 2. Approach Taken by Prior NAFTA Tribunals .............. Page -135- 3. The Cumulative Principle ............................. Page -137- C. The Tribunal’s Power to Draw Adverse Inferences ............... Page -138- D. The Burden of Proof ....................................... Page -141- Chapter III. STATE RESPONSIBILITY ................................ Page -144- A. The Threshold for State Responsibility is Inconsistency ........... Page
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