AbitibiBowater Says Government Took Assets Illegally
April 23, 2009 (Press Release) - AbitibiBowater today filed a Notice of Intent to Submit a Claim to Arbitration under the North American Free Trade Agreement ("NAFTA") with regards to the expropriation of its assets and rights in Newfoundland and Labrador, Canada. It is the Company's position that the passing of Bill 75, which expropriates the Company's provincial assets and contractual rights to natural resources, by the provincial government was arbitrary, discriminatory and illegal. AbitibiBowater is seeking in excess of CDN$300 million in direct compensation for the fair market value of the expropriated rights and assets, plus additional costs and further relief as the Arbitral Tribunal may deem just and appropriate.
In early December 2008, AbitibiBowater announced various capacity-reduction measures, including the permanent closure of its Grand Falls mill, as a result of the economic downturn and decline in product demand. In retaliation, the province hastily passed Bill 75, without any attempt to consult with the Company and without holding any public hearings.
The Company has asserted in the Notice of Intent that Bill 75 unquestionably breaches Canada's NAFTA obligations on a number of grounds, including among others:
- Basis of Expropriation: NAFTA explicitly details the grounds under
which government expropriation can occur. The criteria for
expropriation are not met in Bill 75.
- Fair Compensation: AbitibiBowater is entitled to immediate, full and
fair compensation. Bill 75 does not ensure payment for the fair market
value of the expropriated rights and assets.
- Denial of Justice: Bill 75 purports to strip AbitibiBowater of any
rights to access the courts, which is independently a violation of
- Discrimination: AbitibiBowater should be afforded the same rights and
privileges as all other domestic and foreign investors. Bill 75 is
retaliatory in nature and discriminates against the Company.
"AbitibiBowater has been operating in Newfoundland and Labrador for more than a century, contributing significantly to the region's economic, social and sustainable development," stated David J. Paterson, President and Chief Executive Officer. "The nationalization of our assets was unexpected and an unnecessary course of action. It came despite our proactive outreach to form a joint working group to address and resolve all issues related to our rights and assets in the province. The Company remains open to seeking a collaborative resolution with the federal and provincial governments."
The expropriation relates to a broad range of AbitibiBowater's rights in Newfoundland and Labrador, including land rights, timber rights, water use rights and various other related rights and business partnerships, and these rights can be traced back in part to grants by the provincial government and its predecessors, as well as to other third-party transactions. In addition to the substantial sums it expended to acquire these rights, the Company has invested hundreds of millions of dollars in the province over the last century, ranging from capital investments in mill operations to road projects that have helped build rural Newfoundland.
Since the Company is incorporated in the state of Delaware and carries out business activities in the United States, the expropriation of rights and assets represents a breach of Canada's obligations to a U.S. investor under Chapter Eleven of NAFTA. The Company has filed this notice as part of the dispute resolution mechanism available under NAFTA and will submit the claim to arbitration in three months, pursuant to the relevant NAFTA provisions, should this matter not be resolved by that date.
"It is our obligation to defend the interests of our shareholders and ensure we receive compensation for the fair market value of the expropriated assets, plus additional damages. With this notice, we have taken the first step in pursuing legal actions," added David Paterson.
Media should take note that copies of the Notice of Intent under Chapter Eleven of NAFTA are available upon request. The following paragraphs may be of interest:
NAFTA Provisions Breached: Paragraphs 6-7
Underlying Facts: Paragraphs 8-11
About AbitibiBowater: Paragraphs 12-17
AbitibiBowater's History and Rights in the Province: Paragraphs 18-29
Additional Investments: Paragraphs 30-33
The Hydro Assets: Paragraphs 34-41
The Grand Falls Mill Closure Plan: Paragraphs 42-51
The Province's Ultimatum: Paragraphs 52-54
The Province's "Justifications": Paragraphs 55-58
Expropriation: Paragraphs 59-67
Denial of Justice: Paragraphs 68-69
Lack of Compensation: Paragraphs 70-71
NAFTA Violations: Paragraphs 72-86
Relief Sought: Paragraph 87
SOURCE: AbitibiBowater Inc.