Category Archives: Oil & Gas

Competition Law and the Upstream Oil and Gas Industry

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Decision commented on: 321665 Alberta Ltd. v Husky Oil Operations Ltd, 2013 ABCA 221.

I suspect that there will be sighs of relief in the board rooms of downtown Calgary (or at least so soon as the occupants of those office towers are able to think about something other than the consequences of the current disastrous flooding) as a result of this decision in which the Alberta Court of Appeal unanimously allowed an appeal on a civil action based on sections 36 and 45 of the federal Competition Act, RSC 1985, c C-34 (as they stood at the relevant time) which had been successful at trial.

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The Role of the “Noble Savage” in Environmental Social Activism

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Context of discussion: Enbridge Northern Gateway Pipelines Project

This blog is to discuss what I call the “The Role of the Noble Savage” in the pursuit of environmental justice through social activism. I will use the Enbridge Northern Gateway Pipelines Project to provide context.

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From Regulatory Chill to Regulatory Concussion: NAFTA’s Prohibition on Domestic Performance Requirements and an Absurdly Narrow Interpretation of Country Specific Reservations

PDF version: From Regulatory Chill to Regulatory Concussion: NAFTA’s Prohibition on Domestic Performance Requirements and an Absurdly Narrow Interpretation of Country Specific Reservations

Award commented on: Mobil Investments Canada Inc. and Murphy Oil Corporation v Canada, ICSID Case No ARB(AF)/07/4. Decision on Liability and Principles of Quantum, dispatched to the parties, May 22, 2012, redacted version released in the fall of 2012. Both the majority award (206pp) and a partial dissenting award (Professor Philippe Sands QC) are available here.

Case commented on: Hibernia Management and Development Company Ltd. v Canada-Newfoundland and Labrador Offshore Petroleum Board, 2008 NLCA 46 (CanLII)

In this Award a NAFTA Tribunal (by a Majority) found that Canada was in breach of the prohibition on domestic performance requirements of Article 1106 of NAFTA when the Canada Newfoundland Offshore Petroleum Board (CNOPB or Board) established and imposed a research investment target (the 2004 Guidelines) on operators working on the Newfoundland continental shelf. In doing so the Majority of the Tribunal ruled that Canada could not rely upon its country specific reservation. While Canada’s reservation protected the performance requirements that were in place at the time that NAFTA was entered into it did not protect the 2004 Guidelines. In reaching this conclusion the Majority severely constrains the ability of the host state to adopt new subordinate measures (e.g. regulations, guidelines and policies) to give effect to a reserved power. In effect, the Majority has adopted a one-way ratchet in which any subordinate measure adopted by a state that does not fully exploit the entire space offered by the text of a reservation may make it impossible for the host state to recover the lost ground. This, as the Dissent lucidly demonstrates, is an unreasonably narrow construction of the power of each NAFTA state to take a reservation to its general commitment not to impose domestic performance requirements on investors.

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Time to Proclaim the Compulsory Unitization Provisions of the Oil and Gas Conservation Act

By: Nigel Bankes

PDF version: Time to Proclaim the Compulsory Unitization Provisions of the Oil and Gas Conservation Act

Decision Commented On: Butte Energy Inc Application for Special Oil Well Spacing, Chigwell Field, 2013 ABERCB 005

Regular readers of this blog will know that this is not the first time that I have used this forum to call for the proclamation of the compulsory unitization provisions of the Oil and Gas Conservation Act (OGCA) RSA 2000, c O-6 (see here) but the facts surrounding this decision of the Energy Resources Conservation Board (ERCB, or Board) present a particularly compelling case for compulsory unitization to deal with holdouts which might convince even the sceptics.

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