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International Centre for Settlement of Investment Disputes (ICSID): Tecnicas Medioambientales Tecmed S.A. v. United Mexican States (Mexico) (Additional Facility)*

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Judicial and Similar Proceedings
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International Legal Materials , Volume 43 , Issue 1 , January 2004 , pp. 133 - 195
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Copyright © American Society of International Law 2004

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This document was reproduced and reformatted from the text appearing at the ICSID Website (visited 1/13/04) <http://www.worldbank.org/icsid

References

Endnotes

1 Memorial, p. 84, note 109.

2 United Nations Conference! on the Law of Treaties, First and Second Sessions, Official Records-Documents of the Conference, A/CONF.39/1 l/Add.2, or 1155 U.N.T.S. 331.

3 In 109, p. 85 of its memorial, the Claimant misquotes Article 28 of the Vienna Convention, when in fact the correct reference, based on the text and content of such note, should have been to Article 18 of the Convention.

4 Counter-memorial, pp. 116-120; 414 etseq.

5 The text and case quoted on page 117, 418 of the counter-memorial and note 327, clearly evidence that the Respondent challenges the jurisdiction of the Arbitral Tribunal to the extent stated above.

6 See Decision on Jurisdiction in Tradex Hellas S.A. v. Republic of Albania, December 24, 1996, ICSID case No.Arb/94/2, <http:www.worldbank.org/icsid/cases/tradex_decision.pdf>, p. 186, “there does not seem to be a common terminology as to what is “retroactive” application, and also the solutions found in substantive and procedural national and international law in this regard seem to make it very difficult, if at all possible, to agree on a common denominator as to where “retroactive” application is permissible and where not”.

7 Award in Mondev International Ltd. v. United States of America, October 11, 2002, ICSID case No. ARB(AF)/99/2, p. 14, 43: <www.nafta.law.org>.

8 Counter-memorial, pp. 116-120, 414 et seq. Claimant's closing statement, pp. 93-97. Respondent's closing statement, pp. 4-6; 13et seq.

9 These events took place as follows: the first one on September 24, 1996 (note from INE to Cytrar informing that “it had been duly registered“), document A42, and the second one some time later, upon INE replacing the note by a new one on even date and with a substantially identical text, except that the new note evidences the granting of a new permit and notifies it to Cytrar (this permit, for a year and renewable, was dated November 11, 1996) as an annex, documents A43 and A44, Memorial, pp. 40-45; 107-109.Claimant's closing statement, pp. 30-38.

10 Claimant's closing statement, pp. 110-115.

11 Memorial, p. 42.

12 Memorial, p. 108.

13 Memorial, p. 109.

14 Memorial, pp. 44-45. This was later reaffirmed by the Claimant when referring to the authorization granted by INE for the operation of the landfill by Cytrar, of November 19, 1997: “At any rate, we shall reiterate what has already been stated regarding the sufficiency of both authorizations to make operation of the landfill lawful and the practical considerations that caused Cytrar S.A. de C.V. and Tecmed to refrain from expressly protesting such changes in the conditions. The landfill continued to be operational; its duration potential, which depended on its useful life, had not been altered; and the competent authorities had expressed no reservations with regard to the landfill or operation thereof, nor had they expressed any intention that might affect the extent or duration of such operation“: Memorial, pp. 47-48.

15 Memorial, p. 53.

16 Memorial, p. 103-104.

17 Memorial, p. 112.

18 Memorial, p. 122.

19 Memorial, p. 127.

20 Memorial, p. 139.

21 Memorial, p. 139.

22 Memorial, pp. 139-140.

23 Claimant's closing statement, p. 93.

24 Claimant's closing statement, p. 97.

25 Claimant's closing statement, p. 98.

26 Whether it be conduct that continues in time, or a complex act whose constituting elements are in a time period with different durations, it is only by observation as a whole or as a unit that it is possible to see to what extent a violation of a treaty or of international law rises or to what extent damage is caused: Crawford, J., The International Law Commission's Articles on State Responsibility (Cambridge University Press, 2002), pp. 136–137; 143.Google Scholar

27 Vienna Convention, Article 28. Award in Mondev International Ltd. v. United States of America (ICSID Case No. ARB(AF)/99/2), 68, p. 22, <www.naftalaw.org>. Sinclair, I., The Vienna Convention on the Law of Treaties, 2 nd Edition (Manchester University Press, 1984), p. 85.Google Scholar

28 Italics in the quotations transcribed in paragraph 64 inserted by the Arbitral Tribunal.

29 Emphasis added by the Arbitral Tribunal.

30 Emphasis added by the Arbitral Tribunal.

31 Emphasis added by the Arbitral Tribunal.

32 Emphasis added by the Arbitral Tribunal.

33 Emphasis added by the Arbitral Tribunal.

34 Decision on Jurisdiction in Tradex Hellas S.A. v. Republic of Albania, December 24, 1996, ICSID case No.Arb/94/2, p. 191, <http:www.worldbank.org/icsid/cases/tradex_decision.pdf>.

35 Award in Mondev International Ltd. v. United States of America (ICSID Case No. ARB(AF)/99/2), 70, p. 23, <www.naftalaw.org>.

36 For instance, the Claimant chose not to make any claim in connection with the replacement of its operating permits in order not to damage its relationship with the Mexican authorities: see transcript of the Claimant's statements in paragraph 58. As pointed out by the arbitral tribunal in the case Kuwait and the American Independent Oil Company (Aminoil), 211.L.M. p. 976 et seq. (1982), 44, p. 1008: “In truth, the Company made a choice; disagreeable as certain demands might be, it considered that it was better to accede to them because it was still possible to live with them. The whole conduct of the Company shows that the pressure it was under was not of a kind to inhibit its freedom of choice. The absence of protest during the years following […], confirms the non-existence, or else the abandonment, of this ground of complaint.” See also Brownlie, I., Principles of International Law (5th Ed., Oxford University Press, 1998), p. 642–644.Google Scholar

37 ICSID Case No. ARB/97/7, decision on jurisdiction of January 25, 1999, <http://www.worldbank.org/icsid/cases/awards.htm>.

38 Ibid., Maffezini case, Decision on jurisdiction, p. 25-26, 62-63.

39 Regarding the importance of the principle of good faith within the framework of the law of treaties, including the period between signing and ratification, see R. Kolb, La bonne foi en droit international public, Presses Universitaires de France, 179-207 (2000). Article 18 of the Vienna Convention arises out of a general rule of international law based on good faith, which it expresses; it is therefore independent, and does not constitute an exception to the principle of non-retroactive application of treaties: Sinclair, I., The Vienna Convention on the Law of Treaties, p. 99, Manchester University Press (2nd Edition, 1984).Google Scholar

40 See comment at the International Law Commission (United Nations Conference on the Law of Treaties, Official Records, Documents of the Conference, United Nations Publication A/CONF.39/1 l/Add.2), p. 22.

41 It should be noted that the English version of this provision uses the expression “defeat the object”, which is not strictly equivalent to the notion of “frustrate” in English or “frustrar” in Spanish.

42 Brotóns, A. Remiro, Derecho International Público. 2 Derecho de los Tratados (Tecnos, Madrid, 1987), p. 246.Google Scholar

43 Annual Digest of Public International Law Cases (1927-1928) [A. Me Nair ' H. Lauterpacht Editors], Vol. 4 (1931), 272, p. 395.

44 McNair, Lord, The Law of Treaties (Clarendon Press, Oxford, 1961), p. 202.Google Scholar

45 Memorial, pp. 20-40. Claimant's closing statement, pp. 10-30.

46 Declaration of Javier Polanco Gómez Lavin, Hearing of May 20-24, 2002; transcription of May 20, 2002, pp. 31 overleaf/33.

47 Counter-memorial, pp. 24-31; N° 90 et seq.

48 Oral statement by the Claimant at the Hearing of May 20, 2002, transcript of May 24, 2002, pp. 27-28.

49 Document A23.

50 Document A24.

51 Document A25.

52 Document A26.

53 Emphasis in the original.

54 Document A33.

55 Document A31.

56 Deed of purchase and sale of March 27, 1996, fourth clause (Document A25).

57 Document Al 17.

58 Report by Fausto García y Asociados, p. 26.

59 Document A21.

60 Document A17.

61 Page 5, notarial deed of conveyance, document A25.

62 Second clause of the “promise-to-buy” contract (document A23); third clause of the Agreement (document A24).

63 Document A21, p. 4.

64 Declaration of Javier Polanco Gómez Lavín, transcript of the Hearing for the Production of Evidence of May 20-24, 2002, section on May 20, 2002, pp. 31-33.

65 Document A16, paragraph 6.

66 Document A25, notarial deed of March 27, 1996, fifth clause.

67 Counter-memorial, pp. 24-25, 95.

68 Document A41.

69 Emphasis in the original.

70 Document A17.

71 Administrative record of the winding-up of Confinamiento Controlado Parque Industrial de Hermosillo O.P.D. of August 31,1995, Point IV, Annex No. 15 (Document A13); donation contract between the Government of the State of Sonora and Promotora, evidencing transfer to Promotora of the personal property listed in the record, which in Point IV, Annex 15, includes a list of permits for operation of the Las Víboras landfill, including the authorization granted by INE on May 4, 1994 (Document A14, introductory paragraphs III and IV; third clause).

72 See paragraph 36 of this award.

73 Regardless of the way in which this commitment on the part of Promotora should be complied with, even if compliance was as suggested by the Respondent: Cytrar being hired by Promotora -the latter, as holder of the authorizations, licenses and permits for the operation of the Las Viboras landfill- for Cytrar to operate it under them (“Admissions and Denials”, pleading filed by the Respondent, p. 25).

74 Report of Fausto García y Asociados, p. 48.

75 Memorial, p. 53.

76 Counter-memorial, pp. 160-162, 550 ef seq. Respondent's closing statement, pp. 24-25, 56 et seq.

77 Document A59.

78 Document A62.

79 Official communication No. PFPA-DS-UJ-2625/99 issued by Profepa, December 16, 1999; document A61.

80 Profepa's official communication already cited, document A61, p. 16.

81 Official communication No. PFPA-DS-UJ-1105/99 dated May 25, 1999. Document A63.

82 Profepa's official communication already cited, page 55, paragraph (ah). Document A63.

83 Profepa's official communication already cited, paragraph A, page 50. Document A63.

84 Document A49.

85 Document A50.

86 Official Communication No. D00.800/005262, document A51.

87 Memorial, pp. 58-59.

88 Document A39.

89 Claimant's closing statement, p. 65 et seq.

90 Memorial, p. 62.

91 Counter-memorial, p. 78, 282; document D142.

92 Counter-memorial, p. 79, 287; document D146.

93 Counter-memorial, pp. 88-89, 315.

94 Memorial, pp. 72-74; Counter-memorial, p. 89, 315-316.

95 Document D64.

96 Official Communication DOO-800/000269 dated January 23, 1997; document D65.

97 Counter-memorial, pp. 43-44, 161 et. seq.; particularly 166.

98 Counter-memorial, pp. 48-52, 180 et. seq.

99 Counter-memorial, pp. 67-70, 240 et. seq.

100 Counter-memorial, pp. 51-52, 191 et. seq.

101 Article published in Hermosillo newspaper El Imparcial on November 23, 1997. Document D88.

102 Counter-memorial, p. 55, 203.

103 Counter-memorial, p. 56, 207.

104 Counter-memorial, pp. 57-59, 210 et. seq.

105 Counter-memorial, p. 63, 232.

106 Counter-memorial, p. 66, 237.

107 Counter-memorial, pp. 74-75, 265 et. seq.

108 Counter-memorial, p. 79, 285.

109 Article published in Hermosillo newspaper El Imparcial on October 26, 1998. Press dossier (I), annex A70.

110 Under annex A70.

111 Counter-memorial, pp. 63-65, 233 et. seq.

112 Counter-memorial, pp. 86-97, 311 et. seq.; note of the Mayor of the Municipality of Hermosillo to INE's President dated November 18, 1998, document D157.

113 Hearing held from May 20 to May 24, 2002, transcript of the session of May 21, 2002, p. 82 overleaf.

114 Memorial, pp. 77-78.

115 Counter-memorial, p. 61, 228; document Dill.

116 Document A92; Memorial, pp. 78-79.

117 Counter-memorial, p. 67, 239.

118 Counter-memorial, p. 75, 270.

119 Document A51. This official communication makes reference to the relocation agreement and makes a proposal to Cytrar so that it”.. .contact the authorities of the State and Municipal Government to define the steps to be followed as to the landfill relocation.“

120 Document A89. Counter-memorial, pp. 84-85, 303 et seq. Memorial, pp. 80-81.

121 Document A90.

122 Document A55.

123 Document A54.

124 Counter-memorial, p. 96, 337.

125 Award dated August 30, 2000, in ICSID case No. ARB(AF)/97/l Metalclad v. United Mexican States, 16 Mealey's International Arbitration Report (2000), pp. A-l et seq.; p. A-13 (p. 33 of the award, 103): «Thus, expropriation […] includes not only open, deliberate and acknowledged takings of property, such as outright seizure or formal or obligatory transfer of title in favor of the host State, but also covert or incidental interference with the use of property which has the effect of depriving the owner, in whole or in significant part, of the use or reasonably-to-be expected economic benefit of property even if not necessarily to the obvious benefit of the host State. ».

126 G. Sacerdoti, Bilateral Treaties and Multilateral Instruments on Investment Protection, 269 Recueil des cours, Académie de droit international de La Haye, 255, 385-386 (1997). 127Ibid. p. 383.

128 R. Dolzer ' M.Stevens, Bilateral Investment Treaties, pp. 99-100 (1995).

129 Partial award in the case Pope Talbot Inc v. Government of Canada, 102-104, pp. 36-38, <www.naftalaw.org>; and II Restatement of the Law (Third) Restatement of the Foreign Relations Law of the United States, § 712, pp. 200-201; notes 6-7, pp. 211-212 (1987). 130Emphasis added by the Arbitral Tribunal.

131 R. Dolzer ' M. Stevens, Bilateral Investment Treaties, p. 100 (1995).

132 I. Brownlie, Principles of International Law (5th Edition, 1998) p.3: «These provisions […] represent the previous practice of arbitral tribunals, and Article 38 is generally regarded as a complete statement of the sources of international law ».

133 3Mondev International Ltd v. United States of America award, October 11, 2002, ICSID case No. ARB(AF)/99/2, p. 40, 116.

134 European Court of Human Rights, In the case ofMatos e Silva, Lda., and Others v. Portugal, judgment of September 16, 1996, 85, p. 18, <http://hudoc.echr.coe.int>.

135 See Iran-USA Claims Tribunal, Tippetts, Abbet,McCarthy, Stratton v.TAMS/Ajfa Consulting Engineers of Iran et al., decision of June 29, 1984; 6 Iran-United States Rep., p. 219 et seq.; p. 225 (1984-11); of the same Tribunal, Phelps Dodge Corp. et al.v.lran, 10 Iran-U.S.Cl. Trib. Rep. p. 121 et seq..; esp. 22, p.130 (1986-1).

136 Interamerican Court of Human Rights, Ivcher Bronstein Case (Baruch Ivcher Bronstein vs. Peru), judgment of February 6, 2001, 124, p. 56; <www.corteidh.or.cr>.

137 International Court of Justice, Elettronica Sicula s.p.a. (ELSI)( United States v. Italy) case, judgment dated July 20,1989, ICJ Reports, 1989,73. ICSID Case No.ARB(AF)/99/l, Marvin Feldman v. Mexico, award of December 16,2002, p.26,78,<www.naftalaw.org>.

138 Crawford, J., The International Law Commission's Articles on State Responsibility, p. 84 (Cambridge University Press, 2002).Google Scholar

139 Award: Compañía del Desarrollo de Santa Elena, S.A. v. Republic of Costa Rica, ICSID case No. ARB/96/1, 15 ICSID Review- Foreign Investment Law Journal, 72, p.192 (2000).

140 European Court of Human Rights, In the case ofMatos e Silva, Lda., and Others v. Portugal, judgment of September 16, 1996, 92, 4. 19, <http://hudoc.echr.coe.int>.

141 European Court of Human Rights, In the case of Mellacher and Others v. Austria, judgment of December 19, 1989, 48, p. 24; In the case of Pressos Compania Naviera and Others v. Belgium, judgment of November 20,1995, 38, p. 19, <http://hudoc.echr.coe.int>.

142 It has been stated that: ”….on the whole […] notwithstanding compliance with the public interest requirement, the failure to pay fair compensation would render the deprivation of property inconsistent with the condition of proportionality”, Dinstein, Y., Deprivation of Property of Foreigners under International Law, 2 Liber Amicorum Judge Shigeru Oda, p. 849 et seq.; esp. p. 868 (2002).Google Scholar

143 European Court of Human Rights, In the case of James and Others, judgment of February 21, 1986, 50, pp.19-20, <http://hudoc.echr.coe.int>.

144 Ibid., 63, pp. 24.

145 Declaration of expert witness Alfonso Camacho Gómez, Hearing held from May 20 to May 24, 2002, transcript of May 22, 2002, p. 36-36 overleaf.

146 Note signed by Profepa and SEmarnap of December 18, 1997, 44, p. 21; document D93.

147 Document D101, p. 2.

148 Communication issued by the Municipality of Hermosillo dated March 26, 1998, document Dl 14; Declaration 300398 issued by the Commission of Public Health of the Municipality of Hermosillo dated April 1998, document Dl 16, Communication Forms of the Municipality of Hermosillo, document Dl 17.

149 Stenographic transcript of the declaration given by Julia Carabías Lillo in her appearance before the House of Representatives of the Federal Congress on September 10, 1999; pp. 10-11; document A69.

150 Document A92.

151 Oral allegation by the Respondent's counsel. Hearing held from May 20 to May 24, 2002. Transcript of the session of May 24, 2002, p. 37 overleaf.

152 Hearing held from May 20 to May 24, 2002. Transcript of the session of May 21, 2002, p. 78.

153 Document A51.

154 Document A50.

155 Hearing held from May 20 to May 24, 2002. Declaration of Dr. Cristina Cortinas Nava, transcript of the session of May 21, 2002. pp. 70 overleaf/71.

156 Note of November 18, 1998, of the Mayor of the Municipality of Hermosillo to INE's President, document Dl 57.

157 Hearing held from May 20 to May 24, 2002. Declaration of Dr. Cristina Cortinas Nava, transcript of the session of May 21, 2002. pp. 71, overleaf.

158 Ibid., p.80.

159 Ibid., p.82 overleaf.

160 Ibid., p.82 overleaf.

161 Ibid, p.90 overleaf. “Because our interest was to recover the infrastructure that had already been created, and, as I have always held and still believe today, those premises were necessary for this State, they were located at the right site and, with an environmentally safe handling of hazardous waste; it was a good option”.

162 Hearing held from May 20 to May 24, 2002. Declaration of Dr. Cristina Cortinas Nava, transcript of the session of May 21, 2002, pp. 72 overleaf-73, 75 overleaf-76.

163 Counter-memorial, pp. 44-45; 164 et. seq.

164 Ine's permit of January 23, 1997 for the transportation and discharge of waste from Alco Pacífico. Clause 11 (p. 3), (document D65) of this permit also allowed for the termination of the permit in the event of justified complaints or risk to the environment or to human life.

165 Document A76: Minutes executed by Profepa, Cytrar and Fomin on July 6, 1999. Provision 11.

166 Agreement dated November 19, 1996, p. 6, document D64.

167 Counter-memorial, 33, p. 9.

168 Note dated February 11, 1998. document D101.

169 Counter-memorial, 270, p. 75.

170 Opposition to the Landfill's relocation to Benjamín Hill, reportedly coming from the same groups that also opposed to the Las Viboras Landfill, continued even after the Resolution was issued, as shown by the journalistic evidence submitted: readers’ opinions and articles published in Hermosillo newspaper El Imparcial, dated March 30, April 23, and May 4, 1999; letter from an environmental activist, Francisco Pavlovich, published in El Imparcial on April 16, 1999, (Press Dossier (I) exhibit A70). The same happened in connection with other places or sites located in Sonora according to the press information submitted by Imades: note published in El Imparcial on March 25, 1999, about the towns of Carb6 and Guaymas; notes published in El Imparcial on March 4 and April 15, 1999, about the town of Carbó, article published in El Imparcial on November 6, 1998 about the Agua Blanca site located in Benjamín Hill) (Press Dossier (I) exhibit A70). The approval by the Municipality of Benjamín Hill and the Mayor of this Municipality to commence the studies related to the identification of the site and the preliminary contract of sale of «E1 Pinito», a plot located in this Municipality, occurred in April 1999, i.e. quite a long time after the date of the Resolution. Such actions continue to be preparatory acts that have apparently not been implemented through concrete decisions or relocation proposals made by the authorities: Counter-memorial, 337, p. 96. On the other hand, according to the article published in El Imparcial on May 4, 1999, mentioned above, as well as to the article published in such newspaper on April 15, 1999, related to the construction of a landfill in “El Pinito”, despite the resolutions of the authorities of Benjamín Hill, the community opposition to the relocation of the Landfill to that town continues and the issue does not seem to be definitively resolved. It is striking that as of February 22, 2000, almost a year later, the identification studies to determine whether that site would be definitely chosen by the authorities as a place fit for the relocation of the Landfill (letter of the Government of Sonora to Dra. Cristina Cortinas de Nava dated February 22, 2000, document D165) are still pending. In April 1999, Imades had referred to another site located in Benjamín Hill, called “El Tilico”. Imades had reportedly obtained the permit of the authorities of such Municipality to construct the landfill (article published in El Imparcial on April 16, 1999, Press Dossier (I), exhibit A70). However, it seems that the authorities never carried this out.

171 Document A50, 7.

172 Cytrar's note to INE dated November 16, 1998, 5, p. 2, document A54.

173 Counter-memorial, pp. 85, 304. Cytrar's note to the President of INE, dated November 9,1998, document D94; Tecmed's notes dated November 12, 1998 sent to the Governor of Sonora, document D149 and to the Minister of SemarnaP, Ms. Julia Carabías Lillo, document D150; Tecmed's note dated November 17, 1998 sent to the Director of INE, Ms. Cristina Cortinas Nava, document D154.

174 Counter-memorial, p. 96, 337.

175 Counter-memorial, p. 15, 54.

176 Hearing held from May 20 to May 24, 2002. Transcript of the session of May 20, 2002. Declaration of Javier Polanco Lavín, pp 33 overleaf, 35, 42-43; transcript of the session of May 21, 2002, declaration of Jose María Zapatero Vaquero, p. 57 overleaf.

177 E.g., see p. 127, 452, Counter-memorial.

178 Case Elettronica Sicula S.p.A (ELSI) (United States of America v. Italy), July 20, 1989, ICJ Reports, 1989.

179 Ibid. 30, pp. 21-22.

180 Ibid. 75, pp. 40-41.

181 Ibid. 17, p. 14.

182 Counter-memorial, 314 et. seq., pp. 87-93; 489, p.143.

183 Closing statement of the Respondent's counsel, 124-126, pp. 65-66.

184 Tecmed's tender offer, Sections 1.1.1; 1.1.2, document A17.

185 Document D21, 51, p. 33. Counter-memorial, 43, p. 13.

186 Counter-memorial, p. 2, 11.

187 Crawford, J., The International Law Commission's Articles on State Responsibility, 94–99 (Cambridge University Press, 2002).Google Scholar

188 According to the certificate of registration issued on August 28, 2002, by the ICSID Interim Secretary-General, the Claimant's notice to commence this arbitration was received by the ICSID Secretariat on August 7, 2000. The three-year term established in Title 11(5) of the Appendix to the Agreement, within which the Claimant became aware or should have become aware of the alleged violations of the Agreement on which its claims are based and of the related damage, is the period commencing on August 7, 1997, and ending on August 7, 2000.

189 Brownlie, I., Principles of Public International Law, Oxford, 5th. Edition (1989), p. 19.Google Scholar It is understood that the fair and equitable treatment principle included in international agreements for the protection of foreign investments expresses ”…the international law requirements of due process, economic rights, obligations of good faith and natural justice“: arbitration case S.D. Myers, Inc.v. Government of Canada, partial award of November 13, 2000; 134, p. 29; <www.naftalaw.org>.

190 ICSID Arbitration no. ARB(AF)/99/2, Mondev International Ltd v United States of America, p.40, 116, October 11,2002, <www.naftalaw.org>.

191 Neer v. Mexico case, (1926) R.I.A.A. iv. 60.

192 International Court of Justice Case: Elettronica Sicula S.p.A. (ELSI) (United States of America v. Italy), 128, p. 65, July 20, 1989, ICJ, General List No. 76.

193 Document A49. The relocation commitment project between the Mexican authorities and Cytrar referred to by the Respondent in the Counter-memorial, n. 324-329, pp. 93-94, which reportedly gives rise to a change in the allocation of obligations described above, has never been executed and was still subject to comments as of January 13, 1999. Therefore, such commitment cannot be taken into account to measure the allocation of the relocation obligations assumed by the parties in the stage prior to the issuance of the Resolution.

194 Hearing held from May 20 to May 24, 2002; transcript of the session of May 21, 2002, pp. 77-77 overleaf. 195Document A88.

195 Document A88.

196 Document A59.

197 Letter sent to Dr. Cristina Cortinas Nava, document A50.

198 Letter sent to Enrique Provencio, document A49.

199 Official communication no. DOO-800/005262 of October 23, 1998, document A51.

200 Cytrar's letter to Dr. Cristina Cortinas Nava, document A52.

201 Document D133.

202 Document A53.

203 Communication of the Mayor of the Municipality of Hermosillo, document Dl 13.

204 Communication sent to INE's President by the Mayor of the Municipality of Hermosillo on November 18, 1998, in which the Mayor requests “the execution of a landfill relocation agreement between the Federation, the State, the Municipality and the company. A detailed, signed, legal agreement containing a schedule and fixed dates.” Document D157.

205 Document A 91.

206 Hearing held from May 20 to May 24, 2002; transcript of the session held on May 21, 2002, p. 72.

207 D.F.Vagts, Coercion and Foreign Investment Rearrangements, 72. The American Journal of International Law, pp. 17 et seq., specially p. 28 (1978): ”the threat of cancellation of the right to do business might well be considered coercion.”.

208 Ibidem, pp. 68-68 overleaf.

209 Counter-memorial, 127, pp. 34-35.

210 Document D46.

211 Hearing held from May 20 to May 24, 2002. Transcript of the session of May 23, 2002, p. 57.

212 Emphasis added by the Arbitral Tribunal.

213 Document A42.

214 Documents A43 and A44.

215 Hearing held from May 20 to May 24, 2002. Declaration of Jorge Sanchez Gomez, transcript for the session of May 23, 2002, p. 53 overleaf.

216 Transcript of the session of May 23, 2002, p. 59 overleaf.

217 “Damage” is not limited to the economic loss or detriment and shall be interpreted in a broad sense (J. Crawford, The International Law Commission's Articles on State Responsibility, 29-31 (Cambridge University Press, 2002).

218 Claimant's post-hearing brief, pp. 104-126.

219 Memorial, p. 124.

220 Memorial, p. 26.

212 Memorial, p. 93.

222 Memorial, pp. 142 — 144.

223 Report by Fausto García y Asociados, p. 22.

224 Award of ICSID case No. ARB (AF)/97/l Metalclad Corporation v. United Mexican States, 16 Mealey's International Arbitration Report, p. A-l et. seq.\ pp. A-14/A-15, 119-122 (2000). Award in case Phelps Dodge Corp. and Overseas Private Investment Corp. v. The Islamic Republic of Iran, 10 Iran-U.S. Claims Tribunal Reps., p. 121 et. seq.; 30, pp. 132-133 (1986-1); award of ICSID case No. ARB/98/4, Wena Hotels v. Arab Republic of Egypt, 41 I.L.M. 896 (2002), 122-125, pp. 918-919, award of December 8, 2000.

225 “2000 Annual Report of Actividades de Constructión y Servicios”, document A7, Annex 8.1 “Consolidated Information”, pp. 131- 132; 133.

226 Respondent's brief “Admissions and denials”, p. 4.

227 Respondent's brief “Admissions and denials”, p. 32.

228 Award in the case Kuwait and the American Independent Oil Company (Aminoil), 21 I.L.M., p. 976 et seq. (1982), 77-78 p.1016; specially No.78: “It is well known that any estimate in purely monetary terms of amounts intended to express the value of an asset, of an undertaking, of a contract, or of services rendered, must take equitable principles into account”. To the same effect, award in the case Himpurna California Energy Ltd. (Bermuda) v. PT (Persero) Perusahaan Listruik Negara (Indonesia), 14 Mealey's International Arbitration Report, A-l et seq. 441, p. 129 [A-44] (1999).

229 ICSID case ARB/84/3, Southern Pacific Properties (Middle East) Limited v Arab Republic of Egypt, 8 ICSID Law Review-Foreign Investment Law Journal, p. 389, 215 (1993).

230 American Appraisal report, p.2.

231 Respondent's closing statement, 167, p. 76. Declaration of expert witness Christianson, hearing held from May 20 to May 24, 2002; transcript for the session of May 22, p. 50. Expert witness report of Fausto García y Asociados, p. 23.

232 Philips Petroleum Co. Iran v. Iran, 21 Iran-U.S. Claims Tribunal Reports, p. 79 et seq., specially 135, p. 133 (1989-1).

233 Report of Fausto García y Asociados, p. 26.

234 Respondent's brief “Admissions and Denials”, p. 12.

235 Counter-memorial, 598, p. 171.

236 The Arbitral Tribunal finds that the Claimant has made its compensation claim in U.S. dollars (memorial, p. 146), and that such claim has not been challenged by the Respondent, who also uses such currency in its allegations to denominate the amounts to which it resorts to challenge the Claimant's claims. The expert witnesses for both parties also translate into such currency the figures they use for their analyses. Therefore, the Arbitral Tribunal makes its determination in U.S. dollars.

237 Hearing held from May 20 to May 24, 2003; transcript for the session of May 23, pp. 7 overleaf /8.

238 Respondent's closing statement added by expert witness Lars Christianson, taken into account by the Arbitral Tribunal as a part of such closing statement according to the Arbitral Tribunal's decision of August 12, 2002, p. 8.

239 P.C.I.J, Chorzów Factory case, (1938) P.C.I.J., Ser. A, 17, p. 29, 47.

240 Memorial, p. 146.

241 A ward in ICSID case ARB/99/6 Middle East Cement Shipping and Handling Co. S.Av Arab Republic of Egypt, April 12, 2002, 174, p. 42, <http://www.worldbank.org/icsid/cases/awards.htm>. See also: award of December 8, 2000, in ICSID case ARB/98/4, Wena Hotels Ltd. v Arab Republic of Egypt, 41 I.L.M. 896 (2002), specially 128-129, p. 919; award in ICSID case No. ARB/96/1 Compahia del Desarrollo de Santa Elena S.A. v Republic of Costa Rica, 15 ICSID Law Review-Foreign Investment Law Journal, p. 167; specially 96-106, p. 200-202 (2000); award in ICSID case no. ARB(AF)/97/l Metalclad Corporation v United Mexican States, 16 Mealey's International Arbitration Report, A-l; specially 128, pp. 41-42 (A-16) (2000).

242 Award in ICSID case No. ARB/84/3 Southern Pacific Properties (Middle East) Limited v Arab Republic of Egypt, 8 Foreign Investment Law Journal-ICSID Law Review, p 328, specially 234-235, p. 393 (1993).

243 Memorial, pp. 141-142.