GAMI INVESTMENTS, INC. - NAFTAClaims

did forget what we had decided in terms of procedure in that we have the
original procedure order number one which contemplated that there would
be a decision in May for the proposal of bifurcating the hearings on
jurisdiction. And if that decision were taken affirmatively as it has
been that the subsequent date would be vacated.
After that, we had further discussion. And in connection
with the discussion of the bifurcation, it was agreed that the defense on
the merits would come 30 days after the last date of the hearing and in
due course the dates would be filled in.
Now it is perfectly obvious to anyone who has experience of
international litigation that ultimately the point of having
jurisdictions determinations in a bifurcated way is to obviate briefing,
examining, preparing for issues that may not be heard. So it is somewhat
of a curiosity.
But as far as I can recall, this was part of--I hesitate to
say this--but it was part of a packaged response to the observations of
the parties, on the one side, the Claimant wanting to go ahead and not
wishing for the bifurcation, Mexico saying we prefer a bifurcation; we
assure you we are not attending to slow anything down. And so that
explains I believe why that decision was taken.
That being the case, the Tribunal now needs to consider how
we go forward, and I would like to hear your observations on that in
light of your understanding of where we are today on the side of the
Claimant.
MR. AGUILAR: Mr. Chairman, GAMI was working on the
assumption that procedural order two as issued would apply. The parties
have had that procedural order since May, and we have not heard any
complaint about having to file a response on the merits within 30 days of
today, and I would add that Mexico has had the statement of claim since
February.
MR. PEREZCANO [Interpreted from Spanish]: Thank you, Mr.
President.
As you had anticipated, it is a concern for Mexico,
particularly as the whole purpose of bifurcating the procedure was
proposed by Mexico initially, and the idea was to not have to get into
the merits if all or part of the merits issues could be dismissed, as
Mexico has proposed.
This has obvious complications which you already noted, which
could even be if the Tribunal admits one part of the Claimant or checks
another part, it could affect how we would present the brief.
Certainly, this is an issue we have not revisited, but I
think that this wipes out the purpose of the bifurcation. Our suggestion
and what we were seeking was that the time should begin to run once we
have the award, such that if the Tribunal decides to proceed, we could
structure our briefs accordingly. And I reiterate it is not obvious that
the Tribunal will dismiss or admit the claim in its full extent or in its
entirety.
And so as I say, this could complicate how we structure our
arguments in response.
PRESIDENT PAULSSON: In addition to the notion of an award, I
don't think that we have necessarily contemplated or promised that our
decision would take a particular form, and I don't we are required to do
under the UNICTRAL rules. Correct me if you have a different
understanding.
MR. PEREZCANO [Interpreted from Spanish]: I was referring to
the Tribunal's decision.
PRESIDENT PAULSSON: So it is conceivable--I am speaking now