Summary

Source: icsid.worldbank.org

AWARD

Table of Contents

I. INTRODUCTION
A. THE PARTIES AND THEIR REPRESENTATIVES
1. Claimants
2. Respondent
B. THE TRIBUNAL
II. PROCEDURAL HISTORY
A. THE INSTITUTION OF THE PROCEEDING ICSID CASE NO. ARB/20/13
B. THE CONSOLIDATION WITH ICSID CASE NO. ARB/21/55
C. THE WRITTEN PHASE OF THE PROCEEDING
D. THE HEARING ON JURISDICTION & THE MERITS
E. THE HEARING ON CLOSING SUBMISSIONS
III. FACTUAL BACKGROUND
A. THE ORIGINS OF THE L1BRE SYSTEM
B. THE NEGOTIATIONS BETWEEN LUSAD AND SEMOVI
C. THE AWARD OF THE 2016 CONCESSION DOCUMENT
1. The Declaration of Necessity Procedure
2. The 2016 Concession Document
3. The 2017 Amendment
4. The Authenticity of the 2016/2017 Concession Documents
D. THE PERFORMANCE OF THE CONCESSION TERMS
E. THE 2018 CONCESSION DOCUMENT
F. THE ALLEGED SUSPENSION OF THE CONCESSION
G. THE AMPARO PROCEEDINGS
H. THE CRIMINAL INVESTIGATIONS
IV. REQUESTED RELIEF
A. CLAIMANTS
1. Memorial
2. L1bre Holding Addendum:
3. Reply
B. RESPONDENT
1. Counter-Memorial
2. Rejoinder
V. JURISDICTION
A. CLAIMANTS' NATIONALITY
1. Respondent's position
2. Claimants' position
3. Tribunal's analysis
B. THE WAIVER IN LUSAD'S ARTICLES OF INCORPORATION
1. Respondent's position
2. Claimants' position
3. Tribunal's analysis
C. ESH'S OWNERSHIP OF THE INVESTMENT
1. Respondent's position
2. Claimants' position
3. Tribunal's analysis
D. LEGALITY REQUIREMENT IN NAFTA ARTICLE 1139
1. Respondent's position
2. Claimants' position
3. Tribunal's analysis
VI. MERITS
A. INDIRECT EXPROPRIATION: NAFTA ARTICLE 1110
1. Claimants' position
2. Respondent's position
B. MINIMUM STANDARD OF TREATMENT: NAFTA ARTICLE 1105
1. Claimants' position
2. Respondent's position
C. NATIONAL TREATMENT: NAFTA ARTICLE 1102
1. Claimants' position
2. Respondent's position
D. TRIBUNAL'S ANALYSIS
1. The suspension of the 2018 Concession
2. Mi Taxi
3. Conclusion
VII. COSTS
A. CLAIMANTS' COSTS STATEMENT
B. RESPONDENT'S COSTS STATEMENT
C. THE TRIBUNAL'S DECISION ON COSTS
VIII. DECISION

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III. FACTUAL BACKGROUND

131. In the section below, the Tribunal summarizes the relevant facts as presented by the Parties. If a fact is not mentioned or included in the summary, it does not mean that the Tribunal did not consider such fact in its analysis for deciding the Parties' claims.3

132. In summary, Claimants' case is that its Mexican subsidiary, Servicios Digitales Lusad, S.

de R.L. de C.V. ("Lusad"), was granted a concession in 2016 by the Secretary of Mobility of Mexico City ("Semovi") concerning the installation of proprietary digital taximeters and other technology in taxis operating within Mexico City, and the development of a mobile application allowing users to, among others, remotely request a taxi (the "L1bre System"). Claimants submit that, after complying with its obligations under that concession, and expending tens of millions of dollars, in 2018, Mexico suspended the concession as a result of the political change brought about by the new mayoral administration in Mexico City.4

133. Respondent's position is that Lusad was never granted a concession in 2016, but only a "draft concession" ("proyecto de concesión"), with a definitive concession title to be awarded upon Lusad's fulfilment of additional conditions. The definite concession was issued on 13 April 2018. The concession was never suspended but it was ultimately abandoned by Claimants, who had never managed to develop a system capable of complying with the conditions set forth in the concession.5

134. The Tribunal notes that the Parties have disputed key factual events and have accused each other of submitting and relying on altered or falsified documents to support their account of events. Where relevant, the section below indicates each Party's position on these contested facts and documents. For the sake of clarity, the Tribunal will refer to the three key disputed concession documents as the "2016 Concession Document", "2017 Amendment" and "2018 Concession Document", without making any determination as to the legal validity of these documents.

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VIII. DECISION

529. Based on the foregoing, the Tribunal:

(a) Dismisses all of Respondent's jurisdictional objections.

(b) Declares that it has jurisdiction over Claimants' claims.

(c) By a majority decision, dismisses Claimants' claims on the merits.

(d) Order each Party to bear its own legal fees and other expenses.

(e) Orders the Claimants to pay USD124,778.68 to the Respondent corresponding to the arbitration costs.

(f) Rejects all other claims and defenses.

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Dissenting opinion of arbitrator Charles Poncet

1. The carefully drafted award in this case (« the Award »), is a well-reasoned piece of writing, for which our presiding arbitrator Prof. Zuleta stands to be commanded. In particular, his analysis of the jurisdictional issues and other defenses raised by the Respondent in the arbitration is convincing and neither could one add much, if anything, to the developments in the Award reaching the conclusion that jurisdiction was to be accepted in this case.

2. Without prejudice to the foregoing, I am regrettably unable to join my esteemed colleagues in their disposition of the merits of the claim. The majority of the Arbitral Tribunal has concluded that the claim should be rejected; l, by contrast, would have upheld it without hesitation. The majority's reasoning on the merits is set out at SS 453 through 515 of the Award, and I am unable to concur with the views expressed there in their entirety. In the interest of brevity, I therefore confine myself below to the principal considerations that, in my view, demonstrate why the rejection of the claim is neither appropriate nor, indeed, sustainable.

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These are some of the points I wanted to make in respect of the majority opinion issued by my learned colleagues. I regret to be unable to joint them and the foregoing is an attempt to set forth some of the reasons for which I take the view that the claim should have been upheld and compensation awarded in a measure that I shall not discuss in this separate opinion, the purpose of which is simply to outline some of my areas of disagreement with the majority view.

Dr Charles Poncet
Geneva, January 31, 2026

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Footnotes omitted