GAMI INVESTMENTS, INC. - NAFTAClaims

MR. PEREZCANO [Interpreted from Spanish]: Mr. Chairman, very
briefly, I would say that we have given our answer to Professor Reisman,
and I'm satisfied with it. I would simply say, in connection with the
last comment that Mr. Roh made, that if the Treaty protects the parties
against expropriation, which is a permanent and definitive taking of
property for a period of two years, then I think then it's difficult,
because we're now talking about a full deprivation of property. The
passing of time has been so because GAM has decided to go to the local
courts and exercise its rights there.
PRESIDENT PAULSSON: So you have very brief comments.
[Laughter.]
MR. AGUILAR: All right. I would like to start out by saying
simply that we welcome acknowledgement by Mexico that had the shares in
GAM that GAMI owns been directly seized, GAMI would have a claim for
direct expropriation under Article 1110 that was not apparent in its
briefs or in its presentation before this afternoon.
Mexico has also given a number of examples of instances where
GAMI would also be entitled to bring a claim under Article 1116. Number
one, they said if GAMI shares were to be directly--shares in GAM were to
be directly expropriated. If Mexico were to prohibit investment in the
sugar sector, for example, if Mexico were to prohibit the transfer of
funds in hard currency as required by 1109, if Mexico restricts voting
rights or the rights to dividends, or I think the last example was--
PRESIDENT PAULSSON: Confiscatory taxation.
MR. PEREZCANO: Confiscatory taxation, exactly. That's all
fine. Now, we still have the "relating to" problem, and I am a little
bit confused as to what the position of Mexico is in that respect. If
you go back to Mexico's second round of submissions, for instance, and
they said that this afternoon as well, respecting "relating to" and
"referring to" are really synonyms, and this is in footnote 9 to their
second submission. In paragraph 10 they go on to say, los medidas [ph],
the measures that GAM is complaining about, the measures don't refer to
GAMI as a shareholder of GAM and the measures do not refer to GAMI as a
shareholder in GAM or to the shares GAMI holds. So the standard appears
to be "referring to", is written in Mexico's submission. So on top of
all these rights that Mexico has listed, it would appear that the
measures would in addition have to refer to GAMI for a right of action to
be available under Article 1116.
Mexico briefly referred also to the annexes in Chapter 11.
We still believe that the party stipulated in Article 1108 that they
would include in annexes all the measures that they would consider to be
nonconforming, and they did so in 260 pages, as Mr. Roh was saying. Many
of the reservations in those annexes, as we said this morning, do not
meet the test of "relating to" as defined by Mexico in its legal brief,
and if they don't, then there is no reason for the exception because that
measure would have been outside the scope of Chapter 11 anyway.
And finally, I would only note the clarification by Mexico
that it is not invoking corporate law either as grounds for its request
to oust jurisdiction for this Tribunal, nor as some sort of lex
mercatoria [ph] that would apply because it is the law applied in the
countries relevant in this dispute. I will conclude with that.
Do you have something else, Chip?
MR. ROH: No.
MR. AGUILAR: I think we will not burden the Tribunal any
further.
PRESIDENT PAULSSON: All right. Thank you very much. It
seems appropriate that the Respondent on the application has the last