Archer Daniels Midland Company and Tate & Lyle Ingredients Americas Inc. v. United Mexican States

Abstract

439Arbitration — Investor — State arbitration — NAFTA Chapter 11 — Applicable law — Characteristics of arbitration — Jurisdiction — Whether investor asserting rights distinct from those of State of nationality — Countermeasures — Argument that action against investor justified as countermeasure for act by State of nationality — Whether tribunal possessing jurisdiction to rule — Procedure — Application for consolidation of separate arbitrations — Assessment of damages — Interest — Costs — Requests for correction, interpretation and supplementary decision — ICSID Additional Facility Rules, Articles 55-7Economics, Trade and Finance — Investment — NAFTA Chapter 11 — Rights of investor — Expropriation — Right to non-discriminatory treatment — Whether investor and domestic producer in like circumstances — Investor producing different product in competition with product of domestic producer — High fructose corn syrup and sugar — Performance requirements — NAFTA Articles 1102, 1106 and 1110Expropriation — Indirect expropriation — Conditions — Investor retaining title to, and possession of, investment — Whether treatment capable of amounting to expropriationState responsibility — ILC Articles on State Responsibility — Whether authoritative statement of customary international law — Countermeasures — Conditions — Whether applicable to investor — State arbitration — Third parties — Principle that countermeasures do not affect rights of third parties — Host State taking countermeasures in response to alleged violation of international law by State of nationality of investor — Whether capable of affecting rights of the investorDamages — Principles for assessment of damages — NAFTA — Tribunal enjoying measure of discretion — Loss of profits — Requirement that profits be probable — Interest — Simple or compound interest