The Government of Mexico said that the Tribunal has to understand and state which are the rights that GAMI has under NAFTA as an investor of one of the parties and the rights of the investment, meaning the shares it has. These rights should not be mistaken with the rights that GAM has in connection with the mills, and these are not protected under the treaty in connection with property and ownership. The damages that it claims is the loss of value of its shares, as a result of the loss of the total value of GAM and GAMI needs to establish this in order to get the amount that corresponds to this shareholding, We could look at this graph here.
These are the mills that were the property of GAM. To say that Now GAM and the mills can claim these damages in connection with the whole of GAM and its related companies, because it is a damage that they suffered. GAMI is a minority shareholder, so therefore it cannot do this.
The universal principle of corporate law says that corporations have a legal personality that is different from the personality of shares, international court of justice in the Barcelona Traction case and we have actually referred to this in detail in our pleadings, stated that the concept and the structure of a company are based on a firm distinction between the separate personality of the company and the personality of its shareholders.
So each one of them has different legal interests. The fact that NAFTA and in general international law grant protection to shareholders regardless whether they are minority shareholders or majority shareholders, and they also protect companies at the same time, this does not mean that the interest of one and the other are one and the same. So the company actually promotes the interest of the shareholders' base. And the fact that the corporate decisions of the company are those, well, that is fine, but shareholders have no right to modify these decisions, and NAFTA does not modify these principles of corporate law.
This is a kind of corporate law that is common to all countries and international law recognizes these principles as principles that are virtually universal. Article of the treaty shows this. It is a principle of international common law that in economic matters the state cannot state that its own state has violated international law. And Article modifies, however, this rule to allow that an investor of one party that holds the property or control of a country that is an artificial person, that is an entity of another party submits to an arbitration proceeding based on an obligation that has to do with the breach of Chapter 11 and the company, I underline the company, has suffered losses or damages in connection with this breach.
Article requires that compensation be given to the company and not to the investor. Article does not confuse the different rights and legal rights that the company and the shareholder have. So it does not promote their own interest.
The shareholder does not promote his or her own interest as a majority or a controlling shareholder. Article acts representing the company and claims the composition of damages for the company. Article of the treaty does not go as far as Article 25 of ICSID, which considered that entities are parties of the contracting state, and they have a direct access to the international forum.
However, in of the treaty, the investor holding the property or the controlled company just as a vehicle, because the company, even if it is a foreign company or it is under the control of the foreign investor, the company cannot act by itself in the international arena. However, this claim may only be brought by GAM and the mills, as the case may be.
Both company and shareholders suffer a damage. However, this does not mean that both can claim compensation. So it cannot concluded that the same events that affected entities and that are different in nature cannot be claimed. So when the interests of the shareholder have been damaged by an act to the company, the shareholder has to go to the company for the company to take the necessary action. Perhaps two entities may have suffered the same claim. However, the rights of only one of them have been breached.
You are going to find this in one of our pleadings in paragraph number GAM and the mills are Mexican companies and they are owned by Mexican shareholders and they are under the control of Mexican shareholders but they cannot come to these proceedings saying that the measures claimed by GAMI caused them the damage that is claimed by GAM. But they have not done this in other fora. GAMI in paragraph number 48 of the Memorial states that the Government of Mexico flagrantly and systematically stopped enforcing the law.
But the mills did not challenge the alleged actions or missions by the Government of Mexico before Mexican courts. However, GAM has elected not to collect the compensation and to challenge the legality of the expropriation agreed with the idea of averting the expropriation. Now in these proceedings, GAM cannot state that it has suffered the damage that it says it has suffered.
What it really wants to do is to revert the expropriation and go back to the sugar business. And this takes me to the last point that I raised at the beginning of my presentation. By virtue of the strategies of GAM and its corporate decisions, the action that is the base of the claims of GAMI which is the core of the position of GAMI , the expropriation of the mills, is undergoing a process of challenging the validity of the decree, and that legal proceedings is still going on.
The Government of Mexico informed the Tribunal that the court that is hearing the claim in connection with the expropriation of the mills granted power to the mills. It actually held the decision in favor of the mills. And the party says that all the parties actually appealed the decision.
The proceedings are still going on and the reason is that GAM judicially opposed the expropriation decree. If the expropriation is reverted, the Government of Mexico will actually comply with the decision made by Mexican courts. The elements of the expropriation will be eliminated, but this Tribunal cannot presume that the government will not actually go ahead and do that. If GAM loses the empower proceedings, it will have a right to compensation that has decided not to actually applied but that right will still be valid.
The compensation will be paid to the person that has the right to it, and the expropriation will be paid at fair market value. The Tribunal cannot presume that the government will not actually comply with the law or comply with the provisions of the decree that it passed. In the rejoinder the government explained the anomalies that would arise from this idea of confusing legal interests of shareholders and company, including the right of the other government of having to have two different compensations.
So this illustrates the point that I am trying to raise here. So whatever remedy would take under domestic law would benefit Mexico also because it would be a shareholder of GAMI. GAMI says that if Mexico compensates GAM or gets back the mills to it, it can be assumed that you, this Tribunal, would take into account the degree of compensation in order to adjust the amount of damages accordingly. GAMI argues that the Tribunal would consider the degree of restitution or compensation granted by Mexico and would adjust the damages accordingly.
This means that if Mexico gets back the mills or pays a full compensation at a fair market value, then the adjustment that the Tribunal would have to do would have to bring the damage amount to zero. That is, there would not be any damage amount.
Once the judicial processes that GAM has decided to pursue, once these are concluded, the assumption is that Mexico is not going to give a full restitution or a full payment of damages. The Tribunal cannot assume all this. These are measures connected with GAM and with the mills. Second, the claims made by GAMI is damages to GAM and not an independent damage, and that the damages to GAM claimed by GAMI have not even occurred because GAM cannot obtain the full compensation at a full fair market value for two of the mills that it left aside at the empower proceedings and also the full restitution of three of the remaining mills or full compensation in connection with these mills.
If we go back to this diagram right here, this is the situation where the mills would be and what the fair market value would be. This situation is not defined. The Tribunal has to assume that the Government of Mexico is going to revert ownership of the mills or it will pay the full compensation if the Government of Mexico wins the empower proceedings. If this has not happened so far, it is because of the strategies that GAM has adopted and the corporate decisions that GAM has adopted.
The Tribunal has to understand that if there is a damage to a company, any compensation belongs to the company, assuming that that company has standing for it. This is because the company faces a number of obligations vis-a-vis its creditors. Because there is a distinction between the legal interests of the company and other shareholders, those obligations cannot be passed on to the shareholders.
Through these proceedings, GAMI wants to obtain a compensation, a compensation that is direct in nature in order to avoid the order of payments established by the law and also avoid the provisions of Article that has to do with payments of the company so that the company can actually meet its obligations.
This is really a delicate matter for a company like GAM because GAM is in a process of not paying its debts as they come due. This is the end of my presentation. Thank you so much for your attention. PRESIDENT PAULSSON: Since you invited us to ask questions at any time, with respect to your submissions about the conceivable effect of the pending court actions in Mexico, and you said that the circumstances are such that if the complaints about the expropriation measures succeed ultimately before the Mexican court--I think at one point you went so far as to say "no hai expropriacion" [ph]-- couldn't it be said against you that it is an unattractive paradox to find that the liability under NAFTA of the government depends on the alacrity of the victim of an unlawful expropriation in the sense that the government benefits if the victim is more energetic than if the victim is passive?
Let me put it this way. If we assume that a NAFTA government has engaged in a common law for expropriation, by definition in my question we cannot argue against it--this is something that NAFTA exists to prohibit--if we find ourselves in that situation, the paradox would be then that the--I use the word "victim" because that allows me to put to the side any discussion about direct and indirect in your Barcelona Traction problem-if the victim of the expropriation does nothing, presumably at some point in time, maybe immediately, the claim matures, and the government would be responsible, whereas if the government is lucky enough to have a victim which objects and brings a court action and succeeds, then there is no liability.
What would you say if that is argued against your position? Gary Sampliner from the U. Department of the Treasury. I wouldn't be disappointed if you chose to come back to this later. President, if we can ago back to the last overhead. The truth is there would be no difference, because the Government of Mexico, what is offered is full compensation which our law determines is at the fair market value of the property expropriated, in this case the sugar mills.
So it cannot be presumed--indeed, at this time one should presume that the measure would be lawful, and it cannot be presumed that in due course when this whole process concludes due to the decisions of the company that is not involved in that proceeding that the company will not make full restitution or will not make full compensation.
What we are saying is that the value of the sugar mills and the fair market value coincide. So the situation that you raise would be exactly the same. Had GAM opted to accept the validity of the decree and had gone to the window to collect the check for the fair market value, it would have been in terms of the offer of the Mexican Government a quite legal expropriation.
The Treaty does not regulate illegal expropriations. The Treaty recognizes the rights of states to expropriate and the Government of Mexico has exercised this right. It needs to change in this offer to pay this fair market value and, moreover, it has complied with all the other requirements. The situation was that before GAM held a series of sugar mills.
Today it has the benefit of either reversing the expropriation, and that is why I am saying there was an expropriation, the legal effects of expropriation would be at a nub or a right or an accounts receivable for the fair market value of the sugar mills. And tomorrow it will have one or the other. When would that process reach an ultimate solution. That would be the end of the day when a determination would have been made consummating the expropriation process. So we will reconvene precisely at President, a very quick question before kicking off.
We have now given to Secretary Douglas a copy of our slides, and those can be distributed to the members of the Tribunal. So the floor belongs to the Claimant's response. Chairman and members of the Tribunal. Good morning to opposing counsel and to the representatives of the U. We are glad to meet with the Tribunal in person and we will try to cooperate in every way that we can.
I have introduced our delegation. I will say that we have had ample opportunity to respond in writing to Mexico's jurisdictional objections. The statement just made appears to have been largely a reaffirmation of Mexico's own written statements. Therefore, the remarks that we have prepared and which essentially summarize some of the issues that have been touched upon this morning of our two rounds of Memorial can be, in fact, much more than our allotted time.
Of course, we will happy to respond to questions from the Tribunal at any point. GAMI Inc. Likewise, Mexico has not contested that the Claimant has met the various procedural steps and time limits to the extent that they are relevant, and I would simply direct the Tribunal to our Memorial, pages 6 to 12 of our first round, and 6 to 16 of the Rejoinder on this issue.
Mexico is basically making three arguments that in its view would oust jurisdiction of this Tribunal over the claims as they have been submitted by GAMI. Mexico is saying first that Claimant as a minority shareholder has no standing under Article to complain about loss or damage arising out of a breach that also harms and causes loss to GAM. And second, Mexico is saying that the measures that Claimant complains about are not within the scope of Chapter 11 unless they meet Mexico's notion of being related to Claimant, which Mexico argues to require that the measures actually refer to Claimant.
As Claimant has shown, these arguments are wrong, and we take them seriatim. I will address Article and the domestic proceedings issue, and Chip will deal with the scope and coverage of Chapter GAMI is entitled to bring a claim under Article and Mexico's attempt to narrow the scope of Chapter 11 should be dismissed.
Mexico's theory is that Claimant cannot make a claim for losses that it incurs as a result of Mexico's breaches, no matter how egregious this breach reaches if the harm and losses to Claimant also harm and cause losses to GAM.
Mexico is not merely asserting that claims on behalf of an enterprise can only be made under Article That much, of course, would be true. Rather Mexico is going much further. It is saying that violations of NAFTA, that harm and enterprise cannot also be subject to claims by an investor under Article for the losses that the investor incurs, and that arise out of the same breaches.
There is obviously no basis for this assertion in the text of Article Article states, and I quote paragraph 1, "An investor of a party may submit to arbitration under this section a claim that another party has breached an obligation under Section a and the investor has incurred loss or damage by reason of or arising out of that breach.
The Claimant has done just that. The Claimant undisputedly an investor of the U. Obviously, Claimant's claims are for breaches and losses with respect to Claimant and Claimant's investment. This is the first case yet under NAFTA Chapter 11 where a government has actually issued a federal expropriation decree.
Mexico has by its actions destroyed the value of Claimant's ownership interest in GAM. Even the U. It would thus be an extraordinary result, totally unwarranted by the NAFTA and obviously inconsistent with its object and purpose to promote investment, as Claimant was in the circumstances denied the right to an award on the merits of its claims. Claimant has also asserted violations of Article for discrimination against Claimant and its investment in GAM.
Claimant's claim is that Claimant in like circumstances was treated less favorably than Mexican investors and that Claimant's investment in like circumstances was treated less favorably than the investments of Mexican investors. Perhaps unintentionally even Mexico seems to concede that jurisdiction over a national treatment claim is possible under both Article and Article , and this would be at paragraph 43 of Mexico's second submission.
This is, by the way, exactly the situation that the Tribunal and CMS v. Argentina was confronted with, a minority investor with a claim for failure to provide fair and equitable treatment. As is evident from the supporting calculations in our evaluation report--and that would be at Exhibit Cthis amount would, of course, have been much, much higher if GAMI was bringing a claim for GAM. Claimant has not requested additional compensation for losses GAMI has incurred by reason of Mexico's violation of Articles and And that is because these losses would be duplicative of the losses already claimed and owed in connection with the violations of Article GAM, as I said earlier does not own shares in Claimant, and it is not and would not be entitled to any compensation that may be awarded to Claimant in this proceeding.
I would now like to address some of the arguments that Mexico has made this morning in support for its contention that, notwithstanding all of this, GAMI should not be protected under NAFTA Chapter Mexico has referred to Barcelona Traction.
Mexico has alleged certain risks or anomalies. It has invoked domestic law, and it has invoked the prospect of compensation to GAM under domestic procedures. Let's take Barcelona Traction first. Barcelona Traction on which Mexico so heavily relied in its first submission but then appeared to abandon in its second submission is totally in opposite for at least the following reasons.
First, the case does not stand for what Mexico purports. The central legal issue in Barcelona Traction has to do with the right to diplomatic protection of a corporate entity. The court followed the traditional customary international law rule that attributes the right of diplomatic protection to the state of incorporation, Canada, rather the state of nationality of its shareholders, Belgium.
Second, the ICJ specifically stated that it was not deciding whether shareholders could bring a claim for losses to their interest, since the only claim made was for losses to the enterprise. This would be at paragraph 16, footnote 9 of Claimant's first brief. In other words, Barcelona Traction did not examine whether international law provided an independent source of rights and protection for shareholders.
Third, as Barcelona Traction itself recognized, however, states can and have by treaty established different rules that supersede customary international law. The Tribunal was concerned not with the question of controlling majorities. Rather, the arbitrators were concerned with the possibility of protecting shareholders independently from the affected corporation.
Myers the Tribunal recalled the objectives of the NAFTA and the obligation of the parties to interpret and apply its provisions in light of its objectives, and it indicated, and I quote, "The Tribunal does not accept that an otherwise meritorious claim should fail solely by reason of the corporate structure adopted by the Claimant in order to organize the way in which it conducts its business affairs.
In Mondev, finally, in the Tribunal's view, and I quote, "It is certainly open to Mondev to show that it has suffered loss or damage by reason of the decisions it complains of even if loss or damage was also suffered by the enterprise itself. Now the CMS decision also cites with approval the decision Goetz v. Republic of Burundi where the Tribunal noted and observed that prior ICSID jurisprudence does not hold that only the legal persons directly concerned by the matters at issue have the capacity to act as Claimant.
Rather, the Tribunal noted it extends this capacity to the shareholders of these legal persons who are the real investors. In part, on the basis of the decision in Lanco v. Argentina and on the annulment decision in Vivendi, the CMS Tribunal concluded that Claimant in that matter has jus standi under the U. Alleged anomalies in Mexico's own term. Mexico raises primarily the specter of double-dipping. We have said in our submissions that this is a red herring.
Article , paragraph 3, provides for a consolidation of cases where a minority investor and a majority investor who is claiming on behalf of the enterprise brings claims arising out of the same event. Now even if the cases were not consolidated, the second Tribunal would have the authority to take into consideration the award of the first Tribunal. For instance, compensation of the enterprise under would reduce or eliminate claims for losses to an investor to the extent those losses were to its interest in the enterprise.
If Claimant is awarded compensation for the expropriation of its ownership interest in GAM, Mexico will be entitled to Claimant's interest, for which it will have paid full compensation. This Tribunal award could be so conditioned. Claimant has not chosen to be put in this position. Claimant has been put in this position by the acts of Mexico.
In the CMS award the Tribunal notes again with approval that Claimant has offered to surrender its shares. Conversely, if GAM is awarded compensation for the taking of the mills or, as Mexico argues, if the mills are returned to GAM, this Tribunal would be entitled to consider in its award the degree to which Mexico restores the value of Claimant's interest that was destroyed by Mexico's breaches of Chapter And I will come back later to an issue which is very important.
We are entitled to compensation under Article and whatever happens in the Mexican courts is dispositive of that issue. AGUILAR: Well, is a provision that would allow for a claim to be brought directly to the benefit of the enterprise, and applies to situations where because the investor, as in this case, does not control, its only recourse is to bring a claim under Article ROH: Excuse me.
Just to note that under an investor that, say, owns 51 percent of the enterprise can be a claim on behalf of the entire enterprise and, of course, he will have had to waive the rights of the enterprise as well. But that benefits the whole enterprise and in a way, of course, the minority shareholders, some of them who may be nationals of the company can benefit to the extent that the enterprise benefits.
And that certainly cannot be addressed under ROH: Yes. And it for the whole damage done to the enterprise. Aguilar, may I go back to something you said just before the Chairman posed the question, just to make sure I understood it. The reference now is to What I said is that the amparos in Mexico are proceedings to determine whether the expropriation of GAM's mills was done in accordance with domestic law.
The questions go also to Article , at least the Chairman's questions. Claimant's claims, GAMI 's claims do not circumvent the requirements of We have pointed out that Article is, in fact, an appropriate corollary to Article , and a controlling majority investor that makes a claim on behalf of the enterprise should not be personally awarded compensation intended for the entire company. That would, of course, be unfair to other shareholders. However, this in no way proves that a minority shareholder or a majority shareholder, for that matter, is prevented from bringing a claim for harm to its interest in the corporation under Creditors and other shareholders would not be deprived of any rights to compensation if compensation to Claimant is limited to losses suffered by Claimant by reason of or arising from Mexico's breaches of Chapter And Claimant's interpretation does not create an open-ended right either to bring claims under Mexico has argued in its written submissions that Claimant's interpretation would create an openended right for shareholders in GAMI and of shareholders in GAMI to bring claims.
This argument can, of course, be dismissed. The Claimant has an investment in Mexico. A non-controlling minority shareholder in Claimant, however, does not have an investment in Mexico, but rather has an investment in the United States since the Claimant is a U. The substantive obligations of Chapter 11 in addition create no liability with respect to such an investor.
For instance, Article on its face only creates liability for expropriation of investments in a party's territory and, of course, an investment in Claimant, GAMI , is not an investment in Mexico's territory. Mexico has also sought support for its position in corporate law, domestic corporate law and in dicta by the amparo judges in connection with the ability of shareholders to appear before a court under Mexican federal procedure rules.
That is the tool available to this Tribunal to resolve this dispute. The article is entitled "Governing Law," and it provides in paragraph 1 that a Tribunal established under this section shall decide the issues in dispute in accordance with this agreement and applicable rules of international law. Faced with a very similar factual situation, again the CMS Tribunal, in paragraph 42, dismissed application of Argentinean corporate law and decided that the matter was to be resolved under the BIT and the Washington Convention, and I quote, "however true the legal distinction between shareholders and corporation may be under Argentinean law.
Compensation under domestic proceedings. I will note first that as a matter of fact, GAMI disputes that Mexico has even offered compensation, and I note that two years have elapsed since the expropriation decree. In any event, our submission is that the domestic proceedings and compensation under the domestic proceedings is not relevant for purposes of our claim here with respect to what's being claimed in substance.
First, Chapter 11 does not require exhaustion of local remedies before a complaint can be instituted, and GAMI cannot be compelled to await the outcome of Mexican courts, adjudicating complaints under Mexican law over which GAMI has, as was rightly noted, no control.
As I said earlier, the amparos are proceedings to determine whether the expropriation of the mills conforms to Mexican law and in particular Mexican constitutional guarantees. These domestic proceedings are consequently not dispositive of the issue that GAMI has brought before this Tribunal, namely a breach of Articles , and Accordingly, the amparos proceedings are at least in that respect not relevant to the mandate of the Tribunal in this proceeding.
First, Article is not deprived of meaning by a reading of Article Allowing GAMI 's claims to proceed under would by no stretch of the imagination deprive of its reason to exist. The distinction is clear. Conversely, under an investor can only makes claims for its own losses that arise out of the breach and not for the losses to the whole enterprise. We noted earlier that in paragraph 3 in fact anticipates that minority shareholders and enterprises could make claims that arise under the same events, and it provides for consolidation of those claims.
Of course consolidation would have less utility if those claims, as Mexico argues, could not overlap. Let's pause on Article for a second, and this has been a matter of some debate in the written submissions of the parties.
We say that strongly supports the Claimant's view. Under Article both the controlling investor that is making a case under for loss or damage to its interest in the enterprise--remember, this is under and the enterprise itself, majority investor and enterprise must waive the right to initiate or continue domestic proceedings. Mexico contends that a shareholder has no standing under to complain about loss or damage that arises from a breach that also harms and causes loss to the enterprise.
This is Mexico's concept of a derivative claim. I would note two things. First, makes clear that the losses claimed by an investor under may be for loss or damage to an interest in an enterprise, which is precisely opposite of what Mexico is saying. And second, if, as argued by Mexico, no claim under is possible, that is derived from harm to the company, it would be utterly unfair to require the company to waive all its rights merely because its controlling shareholder is bringing a claim under Let's take an example.
Let's assume, for instance, that the State party restricts the transfer of funds in a manner that is inconsistent with Article Why should the enterprise waive its rights to recover losses for this breach merely because the controlling investor has brought a claim under for damage to its alleged nonconflicting direct right to track Mexico's concept, as Mexico would read Article , there is no reason for that waiver.
And Mexico has not provided a response to this very fundamental question. Article again is an appropriate corollary. An investor that owns a partial interest of the enterprise should not be awarded or permitted to walk away with the entire value of the claim, particularly where the enterprise has been required to waive all its rights. In any event, nothing in 2 proves that a shareholder cannot otherwise bring a claim for harms to its own interest in a corporation, and again, creditors and shareholders are protected because Claimant would simply be compensated for its losses by reason of or arising out of a breach of section a of Chapter Object and purpose.
NAFTA was intended to protect investment, and in a way this case brings together two very different conceptions of Chapter 11 and what it's intended to do. In Mexico's view, despite the language of Chapter 11, certain categories of investors are not protected, certain categories of investments are not protected, and that depends on several factors, according to Mexico, whether claims are derivative or not, whether the measure at issue refers or not to the investor, and on the other hand, our view is that the text, as it is written, is broad in coverage and does not support the limitations that Mexico now advocates.
Mexico's argument in particular to truncate jurisdiction over claims by minority investors is not only inconsistent with the ordinary meaning of the relevant NAFTA provisions, it also flies in the face of the Treaty's own object and purpose. In addition, one of the main objectives of the NAFTA, under Article , is the objective of increasing, quote, "substantial investment opportunities in the territories of the parties," close quote.
The implication of Mexico's argument is that a minority investor has no redress for violations of Chapter 11 that harm its ownership interest, other than as Mexico has acknowledged, the right to vote if the shares are directly taken, the rights to dividends, or to proceeds of liquidation. So in Mexico's view, unless there is a majority investor in the enterprise who is able and willing to bring a claim under Article , there is no redress for the minority investor.
I repeat, nothing about the design or structure of Chapter 11 suggests any intent to create rights and protections for a minority investor without redress under Section B. Mexico would also like to convince this Tribunal that the scope of Chapter 11 is further restricted by , an issue that will be addressed by my colleague, Chip Roh. ROH: Thank you, Mr.
Chairman, Members of the Tribunal. Greetings and good morning to all. I have the disadvantage of being the speaker before the lunch break. So as Mr. Aguilar stated, I'm going to address the part of Mexico's argument that actually came first this morning in their presentation, that is, Mexico's argument that none of the measures of which GAMI has complained, not the expropriation, not the discrimination, not the treatment below international minimum standards, none of those measures fall within the scope of Chapter The basis of this argument does not appear to have changed.
Mexico relies essentially for this argument on a kind of a dictionary view, a rather curious dictionary view of Article of Chapter 11, and on the first jurisdictional award in the Methanex case. Mexico's argument is essentially as follows as we get it. It goes like this. Article says that Chapter 11 applies to, quote, "measures of a party" relating to, quote, "investors of another party or the investments of investors of another party. I don't think if you read our second submission, or our first submission, you'll see that is our argument at all.
We have a fundamentally different view of the effect of and the interpretation relating to, but indeed it is part of our argument that 1 is a rather broadly stated provision, not least in terms of using the terms measures. Anyway, Mexico bases its arguments on five points basically that I will take up. One is, as I said, the Methanex first jurisdictional award, and we considered it, quite frankly, as is evident in our second submission, that at least as interpreted by Mexico and maybe beyond that, it is not good law or authority for the interpretation of Second, we would say that even if the Methanex award were considered to be correct, Mexico tries to extrapolate from that award and take it places that is unjustifiable, even by the terms of the Methanex Tribunal itself.
Third, neither the Methanex Tribunal nor dictionaries provide any support for Mexico's notion that the scope of Chapter 11 depends on who is complaining. If you read Mexico's argument carefully, it seems to be that a measure is only within the scope of Chapter And lastly, and we went on at some length in our submission, all of which has been, I might add, completely ignored by Mexico, there is a huge amount of context that it simply cannot, in the form of other provisions of Chapter 11, other provisions of other chapters of the NAFTA that use the term "relating to" and the various annexes of the NAFTA, all of which are simply inexplicable, if indeed, as Mexico asserts, the "relating to" means that the measures must have some legally significant relationship beyond effect, or even worse, must refer to the investor.
Let me start with Methanex. The first point I would note is that that is a very distinguished Tribunal, no question, so part of the question here is why is it so different or why do we take issue with it? I think in part the Methanex Tribunal was dealing with a very different set of facts from that which is before this Tribunal. The issue there, as we understand it, was essentially that the investor in question was producing an input that it sold to the product that was being regulated in a way that was alleged caused damage to the investor, and this is in a way, it's a very different factual situation from what we're dealing with here, where GAMI --there's no question that what GAMI is interest is in, a company that owns sugar mills and those are what was taken.
It's the allegations that Mexico is making concern the indirection of GAMI 's ownership, not the question of a supplier of an input to a regulated product. In any event, as we see the Methanex award, it got off, it started off with the assumption that 1 , and this seems to be Mexico's assumption, that 1 simply has to be a significant gateway, kind of a jurisdictional threshold that will weed out measures from the scope of Chapter 11 that might otherwise contravene Chapter Otherwise, this has to be the case for Mexico because basically they've announced the expropriation decree was not within the scope of the Chapter 11 because, after all, it doesn't refer to GAMI.
It may refer to the mills and so forth. There really isn't any evidence for that proposition, and we would submit, in fact, that if you look at the various chapters of the NAFTA--and there are 22 of them--many of them have provisions similar to Article as the first article or second article of the chapter, and typically these articles announce what the chapter is about.
They deal with questions like in some cases whether there's a general exception that applies to coverage. They also often deal with the question of whether this chapter takes precedence over other chapters in the event of an inconsistency or whether the other chapters should take precedence. But I don't think there is any example of any of these provisions where the intent is in a positive statement of coverage such as 1 that this chapter applies to measures relating to investments or investors.
That is used as a weeding-out tool, to take measures out of the scope of the chapter that otherwise might infringe the chapter. The Tribunal also, in Methanex, also said that their decision that "relating to" must be given some sort of legally significant meaning or must require some legally significant relationship beyond effect, advanced the object and purpose.
It's hard for me to see where that comes. The object and purpose of the agreement, as we've discussed, is to encourage the free flow of investment by protecting investment. And there is nothing that we see in the object and purpose that is about sort of minimizing the responsibility of states for their violations by excluding measures. The Tribunal also in Methanex said that the fact that awards are supposed to be enforceable under the New York Convention was a supporting point for them, and that the 1 had to be given a rigorous or restrictive interpretation in order to make awards enforceable under the New York Convention.
But that's surely wrong. I don't know whether this was pointed out, but Article , well, the NAFTA Chapter 11 as a whole is very similar to bilateral investment treaties as all of you gentlemen know extremely well. It is built like the typical BIT in most ways, except that it's got a different feature in having an ; there is no Article in other bilateral investment treaties of the United States or Mexico.
There may be similar provisions to that in NAFTA clone free trade agreements that they do that include an investment chapter, but the bilateral investment treaties don't have an , and so far as we're aware, the lack of an has never interfered with enforcement of awards in terms of the New York Convention.
And last of all, and I don't know to what extent this was even before the Methanex Tribunal, there's a tremendous amount of context that we have gone into and which doesn't support that interpretation. But let me revert to the point that even if you took--I don't know if you really have to deal with the Methanex award or not, because Mexico would be wrong even if you assumed that the Methanex Tribunal were right.
Nothing in the Methanex Tribunal says "relating to" means "referring to. The Methanex Tribunal also specifically rejected interpreting "relating to foreign investors" as requiring that the measure be, quote, "primarily directed at the foreign investors. And I would refer you--and I think Mexico repeated it this morning-to paragraph 12 of the second Mexican Jurisdictional Submission.
What they said--I have in front of me, by no coincidence--is that regulations governing the sugar sector only apply to mills and sugar cane growers, they do not even apply to GAM as a holding company, so if GAM were wholly-owned by an American company, it would have no, be Mexico's lights, the sugar regulations that have so deteriorated the conduct of the sugar regulations, that has so reduced the value of the enterprise and of GAMI 's shares.
That would be outside the scope of Chapter 11, untouchable. I guess it would be within the scope of Chapter 11, since Mexico has this view that the scope of Chapter 11 depends on who's complaining, that if perhaps a direct personal owner of a sugar mill brought the complaint, then I guess it would be within the scope.
And then they also say that the expropriation decree applies, it is within the scope, but only for shareholders in the mills, i. Now, this is a little bit inconsistent of course with what we've been hearing under and , and it's certainly inconsistent with the protection that NAFTA affords to investors, whether they invest directly or indirectly. But this just gives you a feel for the scope of their argument.
On the context, first, my colleague suggested that we should just say a word further on structure and why we have cited the examples we have. It's got, I think it was pages of annexes. It sometimes seems like more than that when you're trying to read it.
And most of those, the way the agreement is structured--and obviously Chapter 11 is just one of the 22 chapters--the annexes contain--and this is said specifically in the case of Article nonconforming measures. The annexes deal with measures of parties. Usually they're particular to a party that are not in conformity with the basic obligations that are laid out in the mother text. So in short, you don't put a measure into an annex unless you need to, because otherwise you would have to get rid of it, and the annex contains the terms of your reservation.
Sometimes it's time limited. Sometimes a party, as these annexes were all negotiated, sometimes a party would insist on maintaining a reservation but agree to some improvement in the measure that would be reflected in the terms of the annex. We've provided just a host of examples of provisions of the NAFTA and of the annexes that simply make no sense, that would have no point if in fact measures were excluded from the scope of Chapter 11 or similar chapters that have the same "relating to" kind of language.
If they were excluded from the scope, there would be no need to take a reservation, and yet you have all of these provisions that simply can't be explained on Mexico's theory of "relating to. For example, in paragraph 4 of , the very article that contains the "relating to" language, there is an exception that says, "Nothing in this chapter shall be construed to prevent a party from providing a service or performing a function such as law enforcement, correctional services, income security or insurance, Social Security," et cetera.
I won't read it all. These measures are not going to refer to foreign investors or their investment, and so the exception wouldn't be necessary, or you could say, well, maybe there would be a few. But any state with even half a brain of course could write its measures n a way that didn't refer to the investors or didn't have any relationship to them other than effect.
I'm sure Mr. Liebentritt can tell you that a relationship of effect can be dramatic indeed, even without the optics of intent or a stated animus. Article , the Transfers Provision, is another example we've cited. Transfers, the prohibition of restricting transfers, this is a provision that is in very many BITs. It's all familiar to you. You've probably written about it and know it far better than I. It's one of those obligations in a BIT that doesn't depend on whether there is discrimination.
There is simply a requirement not to interfere in transfers by an investor, a foreign investor, regardless of whether there is an interference with transfers of domestic investors. Now, that point, of course, is going to be wholly lost in the Mexican view because a measure that interfered with all transfers by anyone would not refer to foreign investors.
It would simply restrict them in the same way it restricted everyone else. It would have no relationship to foreign investors other than effect. And yet by the Mexican view, Article , even as an affirmative obligation, simply gets reduced to--or at least even a state that is half-clever, and reduce it to simply a ban of discriminatory transfers. Then it goes on, and there are two exceptions provided in in paragraphs 4 and 5 to the rule against limiting transfers.
Because it's shorter, I'll read paragraph 5 , which is--it says paragraph 3 , which is one of the restrictions, "shall not be construed to prevent a party from imposing any measure through the equitable, nondiscriminatory, and good-faith application of its laws relating to the matters set out in paragraph 4 ," which are things like bankruptcy, trading, and securities.
Well, again, I ask the question. This paragraph simply makes no sense if these measures are not within the scope of Chapter 11 anyway. So there's no need to make another exception for them, and Mexico referred this morning to the principle of effectiveness. Part of the principle of effectiveness, as I recall--I hesitate to say this in front of people who teach, but it is that you can't reduce whole clauses or whole phrases of a treaty to a nullity or to give them no point.
And yet this would give no point to these exceptions. We've provided a lot of other examples. I don't think I need to go on with them. As I say, we will be very happy to answer questions you have about the examples we've provided and any others you might have in mind. Let me close where Mr. Aguilar closed this morning. Mexico's interpretation of Article and the "relating to" standard would really rip a very large hole in NAFTA's protection.
One of the trends of modern states--and I used to work for a big modern--well, sort of modern government. Governments--and this is certainly something that Mr. Lacarte will have experienced in the WTO. Governments are pretty good about writing their regulations in a way that can be highly restrictive, interfering, and so forth, without saying I'm trying to get the foreigners, I'm trying to get the foreign investors, I'm trying to get the foreign products, what have you.
And one of the developments of international law over time is that Tribunals and the WTO Panels and so forth have no patience for the exercise that says, you know, this tax is non-discriminatory, anybody who produces shochu liquor will benefit from this tax break and it's just a coincidence that 99 percent of the production is Japanese and so forth. The fact is if you take away--if you apply a standard like "relating to" here, you will invite states to embark on a great course of restriction of investment.
And while it may feel good when a state is defending its conduct in a particular dispute, where, after all, it's under tremendous pressure to try to avoid liability, it actually defeats the whole purpose for which the state engaged in the negotiation in the first place. There's a kind of an irony for governments. You go out and negotiate these treaties because you want to encourage investment, and that this is one way to encourage investment by protecting it.
Well, then you go into the individual cases where you have to defend yourself, and you try to adopt positions that will only result in discouraging investment in the long run. I'd be happy to take any questions, Mr.
That concludes these remarks. LACARTE [Interpreted from Spanish]: There are a series of questions one could ask, and the way of beginning is quite arbitrary, but perhaps we could begin with the expression "relating to. So we need to see exactly what is the meaning of and what is the scope of those words, "relating to.
We have had different versions of these words. Here I have legal bond, which is Mexico's position. If there's not a legal bond, then the provision is not applicable. Some previous Tribunal has said a mere effect is not sufficient. I believe that the United States has spoken of a proximate effect, or words such as these. And also "primarily directed" was cited. So we must see exactly what it is that we have in our hands. The general provisions of the Treaty establish a purpose of promoting investment, as GAMI said just a moment ago.
And one can't lose sight of this because that is part of the context of what we're considering. So we have a wide array of possible interpretations of these words. My question is--and perhaps the parties can go into more depth than they already have--is: Must the Tribunal interpret that "relating to" requires a clear legal bond? And here various considerations come into play.
GAM is a holding company. In this case, it's a holding company. Were it not the owner, then obviously the investment wouldn't have been made. So we have here an effect, and of what order? Well, there's also an expropriation, and GAMI tells us that it is tantamount to their case. GAMI 's shares weren't directly expropriated, of course, but with the expropriation of the sugar mills, they're saying that their investment loses all its value.
So specifying the meaning of "related to," is it as broad as GAMI proposes? Or is it as restrictive as Mexico proposes? Or should the Tribunal situate itself at an intermediate position? Now, you see, I'm not making statements. I'm simply asking questions. And I would ask the parties if they have anything further to say in addition to what they've already said on this particular point. ROH: Well, for the moment, I only wanted to say that I don't know that the Tribunal has to draw a firm line for all cases as to what "relating to" means.
We've expressed the doubt that really was intended to be a filter in terms of tossing out any measures. But you don't have to decide that either, but we have a lot of doubt--we certainly think it's not something that depends on who is complaining because it's impossible to reconcile that.
But the reason we've suggested that if it's a filter at all--and we doubt that--it's a very broad one, is all the context we have provided. But I should say that we would be content if you simply said wherever the line draws, the measures that GAMI has brought before the Tribunal sure fall on the correct side of it.
AGUILAR: I would just add that the point that the parties, when they negotiated this agreement, wrote pages of measures they considered not to be in conformity with Chapter Many of those don't refer to "relate to" or even mention any investor or any investment of an investor. A reading of Article , as suggested by Mexico, would simply render many of those pages useless.
Economic sector and subsector This refers to the economic sector to which the investment at issue allegedly belongs. This includes discontinuance as a result of non-payment of arbitration fees, in order to pursue litigation in another forum, or for any other reason including for unknown reasons. A case remains pending if any of the following elements remain to be decided: jurisdiction, liability merits , compensation.
The case remains pending, for instance, if a State is found to have breached one or more IIA obligations liability but no award on damages has been issued yet. In treaty-based cases that are simultaneously contract-based or based on national investment law "mixed" disputes , a case is deemed concluded for purposes of the Navigator if the tribunal dismissed the case on jurisdiction or finds no breach of the IIA, even if it proceeds to adjudicate the contract- or statutory-based claims.
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Discontinuance orders and settlement agreements are also recorded if such information is available. Not included are any other supplementary arbitral decisions, e. Similarly, procedural orders issued by arbitral tribunals are not included. Amounts claimed and awarded Amount claimed refers to the amount of monetary compensation claimed by the investor, not including interest, legal costs or costs of arbitration.
Amount awarded refers to the amount of monetary compensation awarded by the arbitral tribunal to the claimant, not including interest, legal costs or costs of arbitration. For proceedings that end in a settlement, the amount of compensation that the State agreed to pay to the claimant under the terms of settlement if known is recorded in this section.
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Investment Dispute Settlement Navigator. Concluded original arbitration proceedings:. Decided in favour of State Decided in favour of investor Decided in favour of neither party liability found but no damages awarded Settled Discontinued. Sources of information and frequency of updating The information included in the Navigator is collected from publicly available sources.
Methodological notes for the recording of data Full case name The full case name is recorded as it appears in the official case documents and as it is registered at the administering institution if applicable listing the claimants in alphabetical order.
GAMI v. United Mexican States. Applicable IIA. NAFTA Nationality of the parties. Respondent State s Mexico. Home State s of investor United States of America. Summary of matters at issue. Details of investment Minority shareholding in a Mexican holding company, owner of five sugar mills.
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The market catered mostly to English content in stationeries. The limited Arabic content that was available was also not as pretty in comparison, said the founder. She delighted at the start of every term, merely because she got to shop.
She was always fascinated by gift-wrapping paper and the patterns on them. Whenever she visited a gift-wrapping shop, she pledged to open her own shop in the future. While completing a training program at a company, Khogeer received the news that her mother had suffered an accident. Unable to find a suitable get-well card, she designed one herself. Khogeer chose the latter, and when her mother saw the card she was elated and told her daughter to start selling them. Khogeer then went around small gift stores and stationers with her design, while running an Instagram account to publicize her brand.
She was also looking into collaboration with stationers in Kuwait and, when they encouraged her, she expanded into the Gulf region. What makes Rawan Stationery different is its originality. It offers mainly Arabic stationery items, agendas, cards for every occasion and Rawan Stationery-designed wrapping paper, and has found a ready market.
Saudi troops participate in a military exercise with Egyptian forces in this file photo. Saudi Arabia has stepped up efforts to manufacture a substantial part of its military requirements. SPA photo. Updated 14 November Through this cooperation, the two parties will seek to guide licensed investors toward targeted fields in Saudi industrial cities. Follow arabnews. Saudi Arabia. Updated 24 November Local for local: Saudi businesses find inspiration close to home. New brands discover lively demand for clothes and stationery that draw on regional designs.
Rawan Khogeer , Owner of Rawan Stationery It was approximately three years ago that Sadu fabric became trendy, and Own Design wanted to take that design and introduce it into pullovers and then hoodies. International investment rulemaking is taking place at the bilateral, regional, interregional and multilateral levels.
It requires policymakers, negotiators, civil society and other stakeholders to be well informed about foreign direct investment, international investment agreements IIAs and their impact on sustainable development. For further information, please contact us via the online contact form. As some proceedings or certain aspects of proceedings remain confidential, the information contained in the Navigator cannot be deemed exhaustive.
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Proceedings may also be conducted without being administered by any institution. The summary of the dispute describes in very general terms the conduct allegedly in breach of IIA obligations as argued by the claimant non-exhaustive. Economic sector and subsector This refers to the economic sector to which the investment at issue allegedly belongs.
This includes discontinuance as a result of non-payment of arbitration fees, in order to pursue litigation in another forum, or for any other reason including for unknown reasons. A case remains pending if any of the following elements remain to be decided: jurisdiction, liability merits , compensation. The case remains pending, for instance, if a State is found to have breached one or more IIA obligations liability but no award on damages has been issued yet.
In treaty-based cases that are simultaneously contract-based or based on national investment law "mixed" disputes , a case is deemed concluded for purposes of the Navigator if the tribunal dismissed the case on jurisdiction or finds no breach of the IIA, even if it proceeds to adjudicate the contract- or statutory-based claims. ICSID annulment proceedings or domestic judicial review , are marked according to the outcome of the original arbitral proceeding i.
Arbitral decisions rendered These are decisions rendered by an arbitral tribunal. Included are those decisions that concern the substance of the case and affect the final outcome. Discontinuance orders and settlement agreements are also recorded if such information is available. Not included are any other supplementary arbitral decisions, e. Similarly, procedural orders issued by arbitral tribunals are not included. Amounts claimed and awarded Amount claimed refers to the amount of monetary compensation claimed by the investor, not including interest, legal costs or costs of arbitration.
Amount awarded refers to the amount of monetary compensation awarded by the arbitral tribunal to the claimant, not including interest, legal costs or costs of arbitration. For proceedings that end in a settlement, the amount of compensation that the State agreed to pay to the claimant under the terms of settlement if known is recorded in this section. To enable comparisons between cases, all amounts are also converted to US dollars.
For the purposes of such conversion, the OANDA Historical Currency Converter is being used; the date of conversion is the date of the document or other source from which the information was obtained e. Whenever possible, information about amounts claimed and awarded is obtained from primary sources such as the arbitration documents.
Otherwise, it is derived from other publicly available sources that are deemed reliable. As a general rule, a rounded figure to the nearest hundred thousand of the amount claimed or awarded is provided. If the claimant provides more than one valuation of damages claimed, the highest of these amounts is recorded.
When the relevant case documentation is not publicly available, information about breaches alleged may be obtained from other public sources that are deemed reliable. Information about breaches found is primarily derived from the arbitral decisions. When the relevant decision is not publicly available, information about breaches found may be obtained from other public sources that are deemed reliable. Composition of tribunal These are individuals who serve as members of the arbitral tribunal adjudicating the dispute arbitrators.
The disputing party i.
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