GAMI INVESTMENTS, INC. - NAFTAClaims

MR. ROH: Absolutely. Partly also because in domestic law--I
mean this has been said over and over again by no end of Tribunals, that
in domestic law you're pursuing your domestic legal remedies, and in the
Treaty we will be pursuing our Treaty remedies. There was no condition
that says that you can't if--that this can't happen.
So we would see the duty of the Tribunal as being to decide
has there been a breach, and has there been loss or damage to the
investor or its investment, or its investment arising out of that, and if
so, how much? And the domestic Tribunal would pursue its side as well.
Then in a sense we're back to Professor Reisman's kind of example. They
can have effects. I don't think it's so difficult or unresolvable as it
sometimes seems, as Mexico tries to say.
There is, at the end there is also the comment of the CMS
Tribunal, and I don't think they're the only ones to have said this, that
when you've got multiple investment treaties and domestic laws and
possibilities for procedures, it may not be perfect in terms of a neat
and tidy package in which nothing falls between the gaps and nothing is
either overcompensated or undercompensated. Tribunals can certainly do
their best within the field they're working with.
Again, we don't see that though as a jurisdictional issue.
MR. REISMAN: Just to distinguish, the problem that I'm
grappling with, which may or may not be jurisdictional, and the problem
the Chairman raised, which you have just addressed. Certainly
international law is familiar with the fact that an alien is entitled to
different remedies than is a national, and so the same action visited on
both will produce differential results. That doesn't seem to be
problematic. The question that I was raising was, that aside, if this
issue is resolved in the sense that the expropriation is expunged, what
is the role of this Tribunal? And I understand Mr. Aguilar's observation
that there is still 1105 issues that have to be considered. I understand
that submission.
MR. ROH: Yes. And then we have asked for costs, and as Mr.
Aguilar was saying, it's the treaty law standard is what you apply. To
take a simpler one, suppose that Mexico had paid compensation to GAM the
company on the day after the expropriation. That surely would not
extinguish the right to come in and say that compensation does not meet
the standards of Article 1110, and it would be measured by the Treaty,
not by the fact that Mexico's law--even if Mexico's law is phrased in
exactly the same words as the Treaty, that does not necessarily mean it
will be Treaty standards.
MR. REISMAN: The only point that I would make is that that
has different jurisdictional consequences than does a complete removal of
the expropriation.
MR. ROH: Yes.
MR. REISMAN: At least as far as 1110 is concerned, not as
far as 1105 is concerned.
MR. ROH: It also raises an interesting issue, which troubles
courts and Tribunals, which is of course there's a temporal element here,
yes. After two years or two and a half years or whatever, the mills will
be returned in some form or another, raises the issue is compensation
owed for the two and a half years? Those observing the Mexican sugar
scene would say the sugar mills that didn't have the privilege of being
expropriated are doing very nicely indeed. So that's another aspect of
all this. So I don't think we see the claim as being extinguished, that
is, a merits issue.
PRESIDENT PAULSSON: Any comment from your side on those
matters?