Procedural Background and Parties' Submissions

This procedural order addresses the Claimants' application for provisional measures pursuant to Article 47 of the ICSID Convention, ICSID Arbitration Rule 39, and Article 1134 of the NAFTA. The Claimants sought an order requiring the United Mexican States ("Mexico") to stay domestic criminal proceedings against their corporate representatives and fact witnesses, Messrs. Zayas and León, secure the release of Mr. Zayas from pre-trial detention, and refrain from any actions that could aggravate the dispute or impair the procedural integrity of the arbitration.

The Claimants contended that the criminal actions were a retaliatory abuse of Mexico's criminal justice system, initiated in response to the arbitration to intimidate key witnesses and undermine their due process rights. They argued that the measures were necessary to preserve their rights, the status quo, and the exclusivity of the ICSID proceedings. Conversely, Mexico argued that the criminal investigations were a legitimate exercise of its sovereign authority, initiated based on credible complaints, some of which predated the arbitration. Mexico asserted that granting the requested measures would improperly interfere with its domestic legal order, affect the rights of third-party victims, and that the Claimants had failed to meet the high evidentiary standard of necessity, urgency, and proportionality required for such relief.

The Tribunal's Analysis and Decision

The Tribunal acknowledged its broad authority to recommend provisional measures, even those concerning domestic criminal proceedings, but emphasized that an "exceptionally high threshold" must be met. The Tribunal's analysis focused on its competence to grant the specific relief sought and whether the Claimants had satisfied the established legal requirements.

The Tribunal found that it was not competent to grant measures that would affect the interests of third-party victims who had initiated some of the criminal complaints, as these individuals were not parties to the arbitration. Furthermore, the Tribunal was not satisfied that the Claimants had established a retaliatory motive. It noted that the timing of the criminal actions did not conclusively support the allegation of reprisal and that Mexico had provided plausible, non-retaliatory explanations for the investigations. Consequently, the Tribunal concluded that the Claimants had failed to demonstrate a sufficient connection between the criminal proceedings and the arbitration, or a clear risk of irreparable harm to the procedural integrity of the case. The requirements of necessity and urgency were therefore not met.

The Tribunal also found the requested measures to be disproportionate, as they would unduly encroach upon Mexico's sovereign right to investigate and prosecute crimes within its jurisdiction. Accordingly, the Tribunal rejected the Claimants' application for provisional measures. However, in the interest of maintaining the integrity of the proceedings, the Tribunal formally invited Mexico to consider in good faith deferring extradition proceedings against Mr. León and to ensure that Mr. Zayas, while in custody, could confidentially meet with counsel and provide testimony without fear of adverse consequences. The allocation of costs was reserved for the final award.