GAMI INVESTMENTS, INC. - NAFTAClaims

the application.
Are there any matters of housekeeping or any other
observations you wish to make before that? I turn to Mr. Perezcano as
the applicant.
MR. PEREZCANO [Interpreted from Spanish]: None. Thank you.
PRESIDENT PAULSSON [Interpreted from Spanish]: I would like
to say something for the Spanish speakers. It's not easy for me to speak
in Spanish because I'm afraid I would be very much ashamed of my many
mistakes. However, I do have the impression that I would be able to
understand what you have to say, but under one condition: Please speak
slowly so that I can listen to you directly without having need of
headphones. And I would be extremely grateful to you.
[In English] It's always a pleasure for a Tribunal to hear
people speak slowly and clearly so that we follow you.
[Interpreted from Spanish]: As we say in France, the word is
yours.
MR. PEREZCANO [Interpreted from Spanish]: Thank you very
much, Mr. President, and once again, good morning to the three members of
the Tribunal and to the delegation of the Claimant/Party, my colleagues,
and all of the teams here with us.
Now, the GAMI claim has two fundamental defects that mean
that this Tribunal cannot consider it. The first is that the measures
claimed by GAMI in this procedure, both the decree for expropriation of
September 2001 as well as what GAMI has referred to as the implementation
by Mexico of its measures and laws regarding the sugar industry and the
management of its sugar program, are measures that apply to GAM, the
company in which GAMI is a shareholder and the sugar mills of which GAMI
was owner. None of these measures apply to GAMI. None of these measures
are relevant to GAMI as an investor, as one party, nor of the actions of
GAMI. These measures, consequently, are outside of the scope of Chapter
11 of NAFTA and, consequently, would not fall under the jurisdiction of
the Tribunal.
GAMI has not identified a single measure applicable to GAMI
as a shareholder of GAM nor of the actions of GAM. That is, there has
not been the identification of a single measure to which Chapter 11 can
apply.
Second, the impact or the effect alleged by GAMI in regard to
its investment necessarily is derived from an impact or an effect on GAM,
or, that is to say, an impact that GAMI attributes to GAM and to the
sugar mills. Consequently, the harm claimed is no more than a proportion
of the harm that GAM argues it has suffered, either directly because of
expropriation or indirectly because of the management of the sugar
program.
But in order to establish that the measures claimed have
affected or have had an impact on GAMI's investment, it would be
necessary to establish, first of all, that GAM or the sugar mills,
whichever be the case, were affected or suffered the impact or the harm
attributed by GAMI. And this is something that only GAM or the sugar
mills can do.
In order to establish that the legal interest was affected,
what GAMI is attempting to do is to submit a claim that is derivative,
but it does not have the right of action per se. I insist this would
only be a right of action of GAM or the sugar mills because GAMI does not
have the procedural legitimacy to do so.
And, thirdly, we must not ignore that the expropriation
decree, the measure considered by GAMI to be the heart of its claim, is
still sub judice. It is under a legal process that was begun by GAM that