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Claimant investments made concurrent to Bolivian government change
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Bolivia raises abuse of process and legal reclamation of the smelters and mines
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At the time of claimant’s investment, it should have known that the new government was undertaking legislative and institutional changes
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Change of seat request denied
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Only one of Mexico’s two objections will be decided in the bifurcated proceedings
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Determining ‘dominant and effective nationality’ would require examination of facts central to merits case
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Tribunal adopts Glamis Gold three-part test for bifurcation
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Complex legal question of first impression is not manifestly without merits, but tribunal declines to declare at this stage that investments are protected
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Tribunal fixes Washington, D.C. as seat of arbitration, over Mexico’s objections that claimant is for all intents and purposes a U.S. business
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Claimants cite five imperiled rights
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Costa Rica tried to argue that Swiss claimants could not sue because their Mexican parent had already filed a notice of intent several years earlier under Mexico-CR treaty
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Discriminatory pricing for competitors
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Claims related to two further measures are struck out, as is unspecific umbrella clause claim
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Tribunal rejects contention that Mexico had exercised diplomatic protection
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Dispute does not pre-date the investment
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Resolutions of regulatory agency
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Tribunal rejects contention that investments were restructured by Mexican parent in order to gain treaty protection
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Divergence between arbitrators about criteria for striking out claims that are incapable of breaching treaty
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Costa Rica is successful in knocking out some claims due to their not being capable of breaching BIT (even if facts were true)
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Telefónica complains of burden posed by redaction, but dissenter says that burden should not justify total non-disclosure of documents
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Dissenter says that fears of “exacerbation” of dispute should be accompanied by some proof before such fears are used to block disclosure
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Majority rejects relevance of NAFTA and Mexico’s transparency law
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Majority concedes that BIT does not presume that key documents are confidential, but determines that they should be treated as such
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