GAMI INVESTMENTS, INC. - NAFTAClaims

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 1135 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?
MR. PEREZCANO [Interpreted from Spanish]: Just one minute,
Mr. President.
PRESIDENT PAULSSON: If you want to come back to it later,
that is fine with me.
MR. AGUILAR: Let me perhaps just note for the record that we
have been joined by Adam Strochak, also a counsel to GAMI.
MS. TOOLE: Also for the record, another representative from
the United States is here, Mr. Gary Sampliner from the U.S. Department of
the Treasury. Thank you.
PRESIDENT PAULSSON: Thank you. I wouldn't be disappointed
if you chose to come back to this later.
MR. PEREZCANO [Interpreted from Spanish]: I would like to
say, Mr. 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