GAMI INVESTMENTS, INC. - NAFTAClaims

decree refers to the investor or the investor, "refers," then it is not
covered. And that leaves open the question of what happens to 1102 and
1105, and, again, there Mexico has said unless the expropriation decree
targets the Claimant under Chapter 11, he's out.
PRESIDENT PAULSSON: You have your rebuttal after lunch, so
note that as an item you might wish to come back to.
MR. LACARTE [Interpreted from Spanish]: When we introduce a
variant, let us suppose that Mr. Gallardo is not Mr. Gallardo but,
rather, his name is Mr. Brown and he lives in Montreal and he's a
Canadian. And for whatever reason, Mr. Brown follows the same policy of
GAM.
Now, under these conditions, that is to say, not making use
or not resorting to the Treaty but, rather, limiting himself to what is
established by Mexican justice, now this would be conceivable. Under
these conditions, in the judgment of Mexico does GAMI have a valid claim?
MR. PEREZCANO [Interpreted from Spanish]: Not in our
opinion, Professor Lacarte. That would be a corporate decision of the
company, and this is exactly one of the cases that we submitted in one of
our pleadings. I forget if it was the first or the second.
Now, the company may decide through its directing body--it
doesn't even require a majority of the shareholders--that it would be in
its best interest to not bring an international case before the Mexican
courts. But in doing so, it would be acting to promote the interests of
the enterprise and of the interests of its shareholders without knowing
who they are. And the measure being related to the enterprise and it
affecting the enterprise, the enterprise would then have the option of
following up in whatever forum it would feel would best promote its
interests as a corporate entity and, thus, also protecting the rights of
the shareholders as a whole. So this would not alter the circumstances
of the claim of other shareholders.
MR. LACARTE [Interpreted from Spanish]: Following up, would
it be conceivable for a minority investor, in this case GAMI, to differ
profoundly with the policies being pursued by Mr. Brown? Now, then,
according to the Mexican interpretation, the Treaty does not provide GAMI
with any possibility of seeking recourse under the Treaty in spite of the
content of Article 1116, as is indicated in the response.
MR. PEREZCANO [Interpreted from Spanish]: Well, once again,
it depends on what the effect of the measure has been and what the legal
interests affected are. It is not clear that harm--well, first, if a
minority shareholder dissents strongly against the decisions of the
majority shareholders, well, this is simply a fact of corporate life, and
it's found among the best of corporations. And the minority shareholders
would then have corporate rights or rights provided by legislation to the
minority shareholders and no more. And this doesn't mean that the Treaty
provides no protection to the minority shareholder. It offers the
shareholder all of the protections under the Treaty as to differing legal
rights.
If the legal rights differ, which is something contemplated
under the Treaty, then these rights are protected in a different manner.
And this does not go against the provisions of the Treaty.
MR. LACARTE [Interpreted from Spanish]: One more. Well,
then, there's a logical question that arises. What then are, according
to Mexico's interpretation--because we already know what GAMI's version
is--what are the rights of an investor, a minority investor, in terms of
the Treaty? We've had interpretations given by Mexico in its pleadings,
but we would like to hear these arguments. Once again, concrete case,
let us say in a company such as GAMI a minority investor under the