GAMI INVESTMENTS, INC. - NAFTAClaims

the company, I underline the company, has suffered losses or damages in
connection with this breach.
Article 1135 requires that compensation be given to the
company and not to the investor. Article 1117 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 1117 acts representing the company and claims the
composition of damages for the company. Article 1117 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 1117 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.
GAMI claims that the expropriation and the claims and the
sugar-related policy damaged GAM and the mills. However, this claim may
only be brought by GAM and the mills, as the case may be.
The International Court of Justice in the Barcelona Traction
case stated as follows, and I am going to quote. "Notwithstanding the
different legal personality, a damage to the company causes a damage to
its shareholders. 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."
This is the end of the quote. You are going to find this in
one of our pleadings in paragraph number 24. 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.
In connection the facts that GAMI has stated in these
proceedings, the position of GAM and the mills is different from the
position stated by GAMI here, and their interests are opposed. 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. GAMI also claims that the Government of
Mexico expropriated GAM's mills and has paid no compensation. 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