Summary

Introduction

[1] The Applicants are investors in the Mexican companies defined below as Oro Negro. The Applicants have asserted claims under the North American Free Trade Agreement, 17 December 1992, Can TS 1994 No 2 (Canada, Mexico, and US) (the "NAFTA") alleging that the Respondent, the United Mexican States ("Mexico") drove Oro Negro out of business because, among other things, Oro Negro refused to participate in the bribery of Mexican officials.

[2] To pursue their claims, the Applicants commenced an arbitral proceeding which was administered by the International Centre for Settlement of Investment Disputes ("ICSID") pursuant to the Arbitration Rules of the United Nations Commission on International Trade Law, adopted by the United Nations General Assembly on December 15, 1976 (the "UNCITRAL Rules"), bearing ICSID Case No. ARB UNCT/18/4 (the "Arbitration").

[3] The Arbitration proceeded over four years before a three-member tribunal (the "Tribunal") who issued an award in August of 2024 (the "Award"). The Award, among other things, held that the Tribunal did not have jurisdiction over the matter because (i) two of the Applicants were dual nationals of both the United States of America (the "U.S.") and Mexico; and (ii) the losses claimed by the remaining Applicants were determined to be `indirect losses' not covered by Art. 1116 of the NAFTA.

[4] The Applicants now seek to set aside the Award on the basis that the Tribunal incorrectly determined both jurisdictional issues referenced above and on the basis that one of the members of the Tribunal has a reasonable apprehension of bias.

[5] Mexico disputes the relief sought.

[6] For the reasons set out below, the Application is granted.