GAMI INVESTMENTS, INC. - NAFTAClaims

mills, the value of the possibility of collecting on the totality of the
sugar mills, or getting full compensation, and the future situation in
which GAM would either have a check for compensation at fair market value
or sugar mills, or a combination of the two. So as regards value,
there's no difference.
Now, if there is full restitution of the sugar mills, then I
go back to a point that President Paulsson had focused on this morning,
where I said there was no expropriation. One of the measures as set
forth in the claim did not happen. The expropriation would be rolled
back and the effects would be annulled.
The next question or perhaps the final part of Professor
Reisman's question was: So what happens with this Tribunal? Assuming
that there's not full restitution or, under the other example, that
there's not full compensation, what would happen with this Tribunal?
Well, that's not a claim that's before this Tribunal today. As Professor
Reisman already indicated, this Tribunal cannot presume that the
Government of Mexico is not going to fully perform on its obligations.
To the contrary, it will presume that it will comply fully.
Now, in the extraordinary event that the Government of Mexico
were not to do so, then perhaps one could derive a claim for affected
interests as GAMI would have been deprived of its share as the corporate
assets of GAM would have been taken and there would be no possibility-that
is to say, if the Government of Mexico keeps the sugar mills and the
amount of compensation, then, in effect, it would have deprived the
enterprise of everything, and then one could establish direct harm to the
shareholders of the company as there would be no economic basis any
longer for their shares.
But that's not the situation we face today. That's not the
claim that is before this Tribunal, and the Tribunal cannot rule on
hypothetical cases. The only reason why we are not facing a situation of
full return of the sugar mills or, moreover, the only reason that we're
not yet in a situation in which full compensation has been paid to GAM is
because GAM opted not to collect compensation. GAM is litigating the
validity of the decree with a view to roll it back and get the sugar
mills back and continue its involvement in the sugar industry.
That is a decision that was made by GAM. Certainly it is a
right that it has, and it's a decision of the company as such to protect
its own interests.
So the harm that GAMI alleges it has suffered and which
refers to harm that it attributes to GAM has not yet happened because GAM
might well find itself in a position of recovering the sugar mills, at
least three of them, and getting compensation for two of them, or, as the
case may be, all of them if they do not prevail in the amparo proceeding.
Finally, I'd like to refer very briefly to the CMS v.
Argentina case. Mr. Aguilar referred several times to the CMS case this
morning. Before getting into the points, I would simply like to note
that President Paulsson's office participated in the claim in that case.
We don't consider the case to be applicable. We just want to make note
of that. Nor do we believe that there may be any conflict of interest,
but we do want to state it for the record, and we're certain that if
there could be any conflict of interest in this respect, the President
would so inform us.
Having said that, Mr. Aguilar touched on several points this
morning, one having to do with the application of municipal law,
municipal corporate law, noting that the CMS Tribunal discarded the
application of municipal law, according priority to the application of
the (?), the ICSID Convention and one other.