GAMI INVESTMENTS, INC. - NAFTAClaims

MR. AGUILAR: I would just add that the point that the
parties, when they negotiated this agreement, wrote 260 pages of measures
they considered not to be in conformity with Chapter 11. Many of those
don't refer to "relate to" or even mention any investor or any investment
of an investor. A reading of Article 1101, as suggested by Mexico, would
simply render many of those 260 pages useless.
MR. PEREZCANO [Interpreted from Spanish]: Thank you, Mr.
President. The answer of the Government of Mexico is that the rules of
interpretation of treaties under customary international law and as
recognized in the Vienna Convention require that terms be given their
common meaning in context. The Mexican Government referred to the common
meaning, which is what we find in dictionary definitions, and I insist we
have looked at several dictionaries here, dictionaries of the Spanish
language, of the English language, and the Government of Mexico accepts
all of them. At the end of the day, they all lead us to the same place.
What is clear is that "relating to" means that there has to
be a connection, a relationship with or to, and if one reads the
definition of terms such as "affectar," it's a different meaning. This
is why we've said there has to be a sufficient nexus.
Translated into legal terms, because the Free Trade Agreement
is a legal instrument regulating the relationships among three states, we
have said that this translates into the need for a bond or a connection
that is legally relevant. It is not a question of drawing blind in one
place or another for the purposes of a given case. It's a question of
giving terms their meaning, beginning with the common meaning, and, of
course, seen in context.
In this regard, I would take issue with the opinion of my
colleagues and friends in that Article 1101 can be used as a filter, as a
machine for removing measures from the scope of application of the
Treaty. Well, it's precisely the opposite. Article 1101 defines the
scope of application of the chapter. It defines to what the subsequent
provisions apply. Mr. Aguilar referred, for example, to all the annexes
that establish measures that are not in conformity with the Treaty
provisions, measures which, as a matter of principle, have to do with the
question of investment; otherwise, they wouldn't have been included in
the annexes on investment. And as a matter of principle, their
provisions are applied, but there are points of inconformity that are
expressed in the terms of the reservations themselves.
So it's not a filter for excluding but, rather, beginning
with 1101, the Tribunal is to determine which measures come into it based
on the claim before it. I think it's a bit difficult for the Tribunal to
be able to say the expropriation decrees fall outside the investment
chapter. But if the measure called into question by the investor in the
circumstances of the particular case are or are not--do or do not have
that relationship or do or do not have that connection, which, as I say,
according to the government, must be legally relevant, with the investor
or with the investment, then it will be protected by the subsequent
provisions of Chapter 11. And if it is not so related or connected, then
the chapter doesn't cover it.
In many cases, in most cases, it will depend on the
particular circumstances of and the specific facts of the case, and how
the claim is put to the Tribunal.
PRESIDENT PAULSSON: I hope you won't take it as a criticism
if I say that that seems relatively abstract. Let me ask you a concrete
question to see how your submission would apply to a concrete case.
If one would imagine that one of the companies owning a mill
were entirely American, and the expropriation was of the mill, the land