I think one of the things, essentially, about the Loewen case is that it was brought to challenge the determination of a jury in a jury trial that held Loewen liable for this extravagant amount of money.
Under this mechanism you can actually review the decisions of courts, including the Supreme Court of Canada. There's no limit to the level of court that you can seek an arbitral tribunal hearing on. In fact, it happened in another case involving Canada going after a decision of a U.S. district court of appeal--so right up there. And that's problematic, in my view. Why would you entitle a private tribunal to sit in judgment on the determination made by a Canadian court and whether it was properly made? But that's permitted under this regime.
I'm not sure where the place of arbitration was in the Loewen case, but you wouldn't be back before a court in Mississippi; it would be whatever court in the United States has jurisdiction to review arbitral awards, probably a court of appeal at an appellate level. In Canada it's a superior court.
The Metalclad case, for example, was a dispute between a hazardous waste company in the United States and a small community in Mexico. Of course, it sued the Mexican government. When the decision was made against Mexico, Canada had been chosen as the place of arbitration--in fact, British Columbia. And so the only court that Mexico could turn to to set aside the award was the Supreme Court of British Columbia, and that's where it went. And the court upheld the award.
But here you have the spectre of a Mexican measure being challenged before an international tribunal, and then if Mexico wants to judicially review the decision, it has to go to a court in British Columbia. Ask yourself this: if it had been the United States, do you think U.S. lawmakers and Congress would put up with an outcome like that?