Cargill, Incorporated v. United Mexican States

Abstract

Jurisdiction — Investment — Foreign investor — NAFTA, Article 1101 — Whether measures relating to trade in goods may also be related to investors or investments

Investment — NAFTA, Article 1139 — Whether actual or potential market share was an investment — Whether business income of a subsidiary qualified as an investment

National treatment — NAFTA, Article 1102 — Like circumstances — Whether nationals were in like circumstances to the investor — Whether the range of products, level of regulation or economic circumstances of nationals relevantly distinguished their circumstances — Whether treatment of the investor was less favourable on the basis of nationality

Most-favoured-nation treatment — NAFTA, Article 1103 — Whether the investor had identified a comparable investor or investment of a NAFTA party or non-party in the territory of the host State

Fair and equitable treatment — Minimum standard of treatment — NAFTA, Article 1105 — Customary international law — Legal stability — Legitimate expectation — Transparency — Arbitrariness — Whether the minimum standard of treatment had evolved through State practice — Whether the standard required the host State to provide a stable and predictable environment in which reasonable expectations were upheld — Whether the standard required transparency — Whether arbitrariness may constitute a breach of the standard — Whether an import measure targeting an investor for the purpose of resolving a trade dispute with its home State breached the minimum standard — Whether circumstances of the host State were relevant — Whether an exempted tax measure may nevertheless assist in understanding the context to challenged measures

Performance requirements — NAFTA, Article 1106 — Whether a tax advantage conditional on domestic production was connected to an investment

Expropriation — NAFTA, Article 1110 — Customary international law — Whether measures resulted in radical deprivation of the investment — Whether temporary loss of business income was an expropriation

Defence — Countermeasures — ILC Articles on State Responsibility, Article 22 — Customary international law — NAFTA — Whether countermeasures between States may be invoked as a circumstance precluding the wrongfulness of measures otherwise in breach of investor rights — Whether investor rights were of a substantive or procedural nature

Jurisdiction — Countermeasures — Whether an investment tribunal had jurisdiction to determine the validity of countermeasures

Remedies — Damages — Whether an investor may claim damages for losses incurred from measures determined to be illegal by another international tribunal — Whether an investor may claim for loss of profits due to the inability to sell goods to its local subsidiary

Remedies — Damages — Mitigation — Whether the damages claim was mitigated by the investor’s share of import quotas — Whether the damages claim was mitigated by the treatment and profitability of a distinct investment of the investor