Mr Joshua Dean Nelson and Mr Jorge Blanco v United Mexican States - ICSID Case No. UNCT/17/1 - Award of the Tribunal - English - 5 June 2020
Reproduced from www.worldbank.org/icsid with permission of ICSID.
INTRODUCTION AND PARTIES
1. This case concerns a dispute submitted pursuant to Articles 1116(1), 1117(1) and 1120(1)(c) of the North American Free Trade Agreement ("NAFTA") and the Arbitration Rules of the United Nations Commission on International Trade Law adopted by the United Nations General Assembly on 15 December 1976 (the "UNCITRAL Rules"). By agreement of the Parties, the International Centre for Settlement of Investment Disputes ("ICSID") serves as the administering authority for this proceeding.
2. The claims in this arbitration were initially brought by Mr. Joshua Dean Nelson ("Mr. Nelson" or "Claimant"), and Mr. Jorge Blanco ("Mr. Blanco"), both natural persons having the nationality of the United States of America. Mr. Blanco later withdrew from this arbitration as claimant.
3. Mr. Nelson brings his claims on his own behalf and on behalf of Tele Fácil México, S.A. de C.V. ("Tele Fácil"), a corporation organized under the laws of the United Mexican States, which Mr. Nelson alleges is majority owned and controlled by him.
4. The respondent is the United Mexican States ("Mexico" or "Respondent").
5. Claimant and Respondent are collectively referred to as the "Parties."
6. This dispute arises from an investment that Claimant alleges to have made in Mexico's telecommunications sector. Claimant alleges that a series of measures by Mexico's telecommunications regulator, the Federal Institute of Telecommunications ("IFT" for its acronym in Spanish), have destroyed Claimant's investment and all prospects of entering the Mexican telecommunications market, in violation of the protections afforded to U.S. investors under Chapter Eleven of NAFTA.
7. According to Claimant, the IFT measures that breached Chapter Eleven of NAFTA are three: (i) the confirmation of criteria proceedings initiated by the Compliance Unit of the IFT; (ii) Decree 77 issued by the IFT on 8 April 2015 ("Decree 77") and; (iii) Resolution 127 issued by the IFT as well, on 7 October 2015 ("Resolution 127").
8. Claimant further alleges that two decisions from the Mexican courts breached Chapter Eleven of NAFTA. Particularly, Claimant alleges that the Specialized Telecommunications Court that decided Tele Fácil's amparo action against Decree 77 acted with gross incompetence and that the Appellate Court unjustifiably denied Tele Fácil access to justice.
396. For the reasons set forth above, the Tribunal decides as follows:
(1) Denies Respondent's objection to jurisdiction based on NAFTA Article 1117;
(2) Denies Claimant's claim of unlawful expropriation based on NAFTA Article 1110;
(3) Denies Claimant's claim of unfair and inequitable treatment based on NAFTA Article 1105; (4) Determines Claimant to pay Respondent the amount of USD 2,054,199418 for arbitration costs.