GAMI INVESTMENTS, INC. - NAFTAClaims

allotted time. Of course, we will happy to respond to questions from the
Tribunal at any point.
It is not contested that GAMI is a U.S. investor that has
invested in GAM, a Mexican corporation. And this is perhaps a good point
to note that the similarity and acronyms of GAM and GAMI is purely a
coincidence.
GAMI Inc.'s name, in fact, derives from Great American
Management Investments Inc. and it has no relation to GAM, Grupo
Azucarero Mexico, other than, of course, the shares that are the object
of this procedure. There is no overlap in ownership between the two
companies, and there is no relation between them prior to GAMI's
investment in GAM.
So if in the process of our presentation, either chip or I
get confused between GAMI and GAM, we ask for your indulgence.
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 1116 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.
Finally, Mexico argued this morning that so long as domestic
proceedings initiated by GAM are pending, there is no damage to GAMI. As
Claimant has shown, these arguments are wrong, and we take them seriatim.
I will address Article 1116 and the domestic proceedings issue, and Chip
will deal with the scope and coverage of Chapter 11.
GAMI is entitled to bring a claim under Article 1116 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 1117. 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 1116 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 1116.
Article 1116 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."
Thus, on its face, Article 1116 of the NAFTA allows Claimant to submit a
claim that Mexico has breached its obligations under Section (a) of
Chapter 11, and that Claimant has suffered 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.S. has brought a claim under Article 1116
complaining that Mexico has breached its obligations under Section (a) of