THE LOEWEN GROUP, INC. and RAYMOND L. LOEWEN, v. THE ...

to certain alleged prejudices. The presumption under international law, however, runs in
precisely the opposite direction, as does all of the contemporaneous evidence in this case.
As is manifest from the record before the Tribunal, Loewen made a series of carefully
considered strategic choices at each step in its litigation with O'Keefe in the Mississippi courts.
It consciously chose to present certain evidence and testimony before the Mississippi jury, and
(consequently) not to object to the introduction of certain material by its adversaries. Loewen
decided to make certain representations before the Mississippi Supreme Court, yet, to gain
advantage in the wider court of public (investor) opinion, made other representations that ran
contrary to its claimed inability to post a bond. Loewen knew it had appellate or alternative
remedies available to it to challenge the jury verdict, yet it chose to settle and compromise the
case. In short, Loewen had access to highly developed and fundamentally fair judicial
mechanisms in both state and federal courts, but often acted to undermine its position, and,
ultimately, to fully compromise it. No provision of the NAFTA, nor any principle of
international law, could render the United States liable for any alleged injury to claimants under
these circumstances.
Given the alarming number of inaccuracies that form the basis of this claim, it is perhaps
fitting that one of the more fundamental of these appears on the very first page of the very first
Memorial in the case. There, The Loewen Group assured this Tribunal that "[t]his claim does not
seek direct or collateral review of the municipal-law issues addressed by the Mississippi courts in
the O'Keefe litigation." TLGI Mem. at 1. As claimants' Joint Reply starkly reveals, however,
this international claim is little more than a substitute for the appeal from the trial court's
judgment that Loewen elected to forgo in the Mississippi courts. This Tribunal should decline
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