Summary

Overview

[1] This application arises out of an international arbitration involving United States of America (“USA”) nationals and the United Mexican States (“Mexico”) and concerns the jurisdiction of the arbitral tribunal (the “Tribunal”).

[2] A dispute arose between the parties regarding an investment the USA nationals made in gaming businesses in Mexico. [3] Chapter 11 of the North America Free Trade Agreement Between the Government of Canada, the Government of Mexico and the Government of the United States, 17 December 1992, Can TS 1994 No 2 (entered into force 1 January 1994) (“NAFTA”) (now the United States - Mexico - Canada Agreement) between the USA, Mexico and Canada promotes the fostering of investment by NAFTA nationals in the territories of other NAFTA parties. Under this chapter, these investors are given the right to seek to enforce a NAFTA party’s commitments under the treaty by submitting claims for damages to arbitration. [4] Thirty-nine USA nationals (the “Respondents”) brought claims, individually and on behalf of seven Mexican companies, against Mexico (the “Applicant”). The Respondents alleged that they suffered USD$100 million in damages when the Applicant closed down the casinos the Respondents had been operating in Mexico. Attempts at settlement failed and the Respondents submitted their claims to arbitration. [5] Two of the three arbitrators that formed the Tribunal (the “Majority”) determined that the Tribunal had jurisdiction over all the claims made by the USA nationals and over the claims they submitted on behalf of all but one of the Mexican companies.[6] The Applicant brings this application to this court for a declaration that the Tribunal had no jurisdiction or had limited jurisdiction to decide the claims before it. It seeks to have the Tribunal’s Partial Award and Partial Dissenting Opinion, dated July 19, 2019 (the “Partial Award”), set aside on appeal. [7] For the reasons that follow, I decline to grant the Applicant’s application. I find that the Applicant has not discharged its burden of proof of establishing that the Tribunal was incorrect in its conclusion that it had jurisdiction over all but one of the claims before it.

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