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In February 2020, Koch brought a claim under Chapter 11 of NAFTA (which created a mechanism for investor-state dispute resolution) for more than US$30 million - representing amounts it spent purchasing emission allowances.
Ontario, Canadian or common law. The tribunal determined that the
emission allowances were not "property" under Ontario
law. In reaching this conclusion, the tribunal surveyed Ontario law,
international law, and analyzed the language of the Climate Change Mitigation and
Low-Carbon Economy Act. The parties’ experts disagreed on whether
there was a clear legal test for "property" established by
Ontario law. However, the tribunal confirmed that "exclusive control", enforceable against all others, is an essential attribute
of property under Ontario law. The tribunal further found that, while Ontario law does
not clearly establish the scope and extent of rights required
to satisfy exclusive control, if a statute grants discretionary powers to a governmental regulator that allow
it to interfere with or appropriate the assets at issue, this may indicate that the assets do not qualify as property.