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Published online by Cambridge University Press: 27 February 2017
This document was reproduced and reformatted from the text provided in hard copy by Professor Jack J. Coe, Jr. of the Pepperdine University School of Law.
* Branislav A. Marić is Assistant Editor of Publications at the American Society of International Law. This abstract originally appeared in the Society's International Law In Brief, which is archived at http://www.asil.org.
1 Under NAFTA, Article 1120(l)(b), a disputing investor may submit its claim to arbitration under the Additional Facility Rules of ICSID provided that either the disputing Party whose measure is alleged to be a breach referred to in Article 1117 (in this case, Mexico) or the Party of the investor (in this case, the United States of America), but not both, is a party to the ICSID Convention. The United States of America is a party to the ICSID Convention; Mexico is not. Hence that Additional Facility Rules of ICSID appropriately govern the administration of these proceedings.
2 At the first session of the Tribunal, of July 15, 1997, the Parties agreed that the President of the Tribunal should have the power to determine procedural matters.
3 SEDUE is the predecessor organization to SEMARNAP.
4 The question of turning to NAFTA before exhausting local remedies was examined by the parties. However, Mexico does not insist that local remedies must be exhausted. Mexico's position is correct in light of NAFTA Article 1121(2)(b) which provides that a disputing investor may submit a claim under NAFTA Article 1117 if both the investor and the enterprise waive their rights to initiate or continue before any administrative tribunal or court under the law of any Party any proceedings with respect to the measure of the disputing Party that is alleged to be a breach referred to in NAFTA Article 1117.
