|Américas I||One of the two high-end mixed-use skyscrapers planned under the Guadalajara Project to be built in the city of Guadalajara, State of Jalisco|
|Américas II||One of the two high-end mixed-use skyscrapers planned under the Guadalajara Project to be built in the city of Guadalajara, State of Jalisco|
|Arechederra||Witness statement of Jose Arechederra|
|Canada Submission||Non-Disputing Party Submission of the Government of Canada submitted on June 21, 2019|
|CM||Claimant's Memorial dated March 13, 2017|
|CR||Claimant's Reply on the Merits dated February 21, 2019|
|CPHB||Claimant's Post-Hearing Brief dated October 1, 2019|
|CC Jalisco||Civil Code of Jalisco|
|CC Nayarit||Civil Code of Nayarit|
|C&C Capital||C&C Capital, S.A. de C.V., a company owned or controlled by Sr. Cárdenas|
|C&C Ingeniería||C&C Ingeniería y Proyectos, S.A. de C.V., a company owned or controlled by Sr. Cárdenas|
|Clarion||Clarion Partners, L.P., a real estate investment management company founded in New York in 1982, which manages real estate investments for institutional investors|
|Commercial Code [of Mexico]||Commercial Code of Mexico of 1889, with amendments, as under exhibit Zamora I-3|
|Costs of the Proceeding||The fees and expenses of the members of the Tribunal and the expenses and charges of the Secretariat|
|CPC Jalisco||Civil Procedure Code of Jalisco|
|Credit Agreements||Three contracts signed by Lion with companies owned or controlled by Sr. Cárdenas in February, June and September 2007, making and governing the Loans|
|Debtors||Two Mexican companies, Inmobiliaria Bains, S.A. de C.V and C&C Capital, S.A. de C.V., the borrowing party in three loans made by Lion|
|Defense Expenses||The expenses incurred by the Parties in connection with the proceeding|
|First Loan||Loan, in the form of a "Credit Agreement", between Lion (as Lender), Inmobiliaria Bains (as Borrower) and C&C Ingeniería, another company of Sr. Cárdenas (as joint and several obligor). It was signed on February 27, 2007, for the amount of US $15,000,000 plus interest|
|First Note||Note issued by Inmobiliaria Bains in favor of Lion for US $15,000,000 on February 28, 2007|
|Juez de lo Civil||The 39th Civil Court in Mexico City, before which the Foreclosing Proceedings were initiated|
|Foreclosure Proceedings||Juicio Hipotecario; Foreclosure proceedings initiated on 3 April 2012 by Lion against the Debtors, to enforce the Nayarit Mortgage|
|Guadalajara Mortgage 1||Mortgage securing the Second Loan, granted by C&C Capital in favor of Lion over one of the properties pertaining to the Guadalajara Project on June 13, 2007|
|Guadalajara Mortgage 2||Mortgage securing the Third loan, granted by C&C Capital in favor of Lion over one of the properties pertaining to the Guadalajara Project on September 26, 2007|
|Guadalajara Project||Real estate project that consisted of two high-end mixed-use skyscrapers (Américas I and Américas II), which were to be built by Sr. Cárdenas's companies in Guadalajara, State of Jalisco|
|Guadalajara Properties||Real estate covered by the two Guadalajara Mortgages, where the Guadalajara Project was intended to be developed|
|Hearing||The hearing on the Merits held at the World Bank Headquarters in Washington D.C. on July 22-14, 2019|
|Hendricks||Witness statement of James Hendricks|
|HT||Transcripts of the Merits Hearing|
|ICSID||International Centre for Settlement of Investment Disputes|
|ICSID AF Rules||International Center for Settlement of Investment Disputes Additionally Facility Rules|
|Inmobilaria Bains||Inmobiliaria Bains, S.A. de C.V. a company owned or controlled by Cárdenas|
|Lion/ Claimant||Claimant. Lion Mexico Consolidated L.P. is a partnership constituted under the laws of Quebec (Canada), with its main place of business in Texas (USA)|
|H1||Lion's Opening Statement Presentation of July 22, 2019|
|Loans||Three loans that Lion made in 2007 to two Mexican companies owned or controlled by Sr. Cárdenas, for a principal amount of approximately US $32.8 million. The Loans were secured by the three Mortgages and the issue of three Notes|
|Mexico/ Respondent||United Mexican States|
|Mortgages||Mortgages that secured the three Loans given by Lion in 2007, signed before a public notary in the Spanish language and subject to Mexican Law, namely the laws of the States of Jalisco and Nayarit|
|NAFTA||North American Free Trade Agreement between the United States, Canada and Mexico, which entered into force in January 1, 1994|
|Nayarit Project||Real estate project to be developed by Sr. Cárdenas's companies in Bahía de Banderas, State of Nayarit, Mexico|
|Nayarit Property||Real estate covered by the Nayarit Mortgage, where the Nayarit Project was intended to be developed|
|Nayarit Mortgage||Mortgage granted by Inmobiliaria Bains in favor of Lion over the Nayarit Project property on April 2, 2008|
|Notes||Notes formalizing the three Loans made by Lion in 2007, issued under Mexican law, and submitted to the exclusive jurisdiction of the courts of Mexico D.F.|
|Paparinskis||M. Paparinskis, "The International Minimum Standard and Fair and Equitable Treatment", Oxford Monographies in International Law, 2013|
|Paulsson Lecture||J. Paulsson, "Issues Arising from Finding of Denial of Justice," Recueil des cours / Collected Courses 405 (2020): [i]-74.|
|Payne I||First witness statement of Onay Payne|
|Payne II||Second witness statement of Onay Payne|
|Parties||The Claimant and the Respondent together|
|Properties||The Nayarit Property and the Guadalajara Properties, together|
|RCM||Respondent's Counter Memorial dated October 26, 2018|
|RfA||Request for Arbitration submitted by Lion against Mexico and dated December 11, 2015|
|RPHB||Respondent's Post-Hearing Brief dated October 1, 2019|
|RR||Respondent's Rejoinder dated June 3, 2019|
|Second Loan||Loan, in the form of a "Credit Agreement", between Lion (as Lender), C&C Capital (as Borrower) and Inmobiliaria Bains (as joint and several obligor). It was signed on June 13, 2007, for the amount of US $12,450,000 plus interest|
|Second Note||Noted issued by C&C Capital in favor of Lion for US $12,450,000 on June 14, 2007|
|Third Loan||Loan, in the form of a "Credit Agreement", between Lion (as Lender), C&C Capital (as Borrower) and Inmobiliaria Bains (as joint and several obligor). It was signed on September 26, 2007, for the amount of US $5,355,479 plus interest|
|Third Note||Note issued by C&C Capital in favor of Lion for US $5,355,479 on September 29, 2007|
|USA Submission||Non-Disputing Party Submission of the United States of America submitted on June 21, 2019|
|VCLT||Vienna Convention on the Law of Treaties, adopted on 23 May 1969 and opened for signature on 23 May 1969|
|Zamora Hearing Presentation||Claimant's expert report presentation by Mr. Rodrigo Zamora Etcharren at the Merits Hearing|
|Zamora I||Claimant's expert report prepared by Mr. Rodrigo Zamora Etcharren dated March 6, 2017|
|Zamora II||Claimant's expert report prepared by Mr. Rodrigo Zamora Etcharren dated October 23, 2017|
|Zamora III||Claimant's expert report prepared by Mr. Rodrigo Zamora Etcharren dated January 18, 2018|
|Zamora IV||Claimant's expert report prepared by Mr. Rodrigo Zamora Etcharren dated February 2, 2019|
|ADC||ADC Affiliate Limited and ADC & ADMC Management Limited v. The Republic of Hungary, ICSID Case No. ARB/03/16, Award (27 September 2006), Exhibit CLA-212|
|ADF||ADF Group Inc. v. United States of America, ICSID Case No. ARB (AF)/00/1, Award (9 January 2003)|
|Al-Bahloul||Mohammad Ammar Al-Bahloul v. The Republic of Tajikistan, SCC Case No. V (064/2008) , Partial Award on Jurisdiction and Liability (2 September 2009), Exhibit CLA-220|
|Ambatielos||The Ambatielos Claim (Greece, United Kingdom of Great Britain and Northern Ireland), Award (6 March 1956), 12 U.N.R.I.A.A. 83 at 119, Exhibit CLA-249|
|Ambiente Ufficio||Ambiente Ufficio S.p.A. and others v. Argentine Republic, ICSID Case No. ARB/08/9, Decision on Jurisdiction and Admissibility (8 February 2013), Exhibit CLA-291|
|Amco Asia II||Amco Asia Corporation and others v. Republic of Indonesia, ICSID Case No. ARB/81/1, Award (20 November 1984), Exhibit CLA-213|
|Apotex||Apotex Inc. v. United States of America, NAFTA/UNCITRAL, Award (June 14, 2013), Exhibit RL-061|
|ATA Construction||ATA Construction, Industrial and Trading Company v. The Hashemite Kingdom of Jordan, ICSID Case No. ARB/08/2, Award (18 May 2010)|
|Azinian||Robert Azinian, Kenneth Davitian, & Ellen Baca v. The United Mexican States, ICSID Case No. ARB (AF)/97/2, Award (1 November 1999), Exhibit CLA-187|
|Azurix||Azurix Corp. v. The Argentine Republic, ICSID Case No. ARB/01/12, Award (14 July 2006)|
|Ballistini||Ballistini case, French-Venezuelan Commission (1902), Award (1905), 10 U.N.RI.A.A. 18 at 20, Exhibit CLA-253 (Unofficial Translation from French)|
|Barcelona Traction||Case concerning the Barcelona Traction, Light and Power Company, Limited, Judgment (Merits) (5 February 1970), I.C.J. Reports 3 (1970); Exhibit CLA 235|
|Chattin||B. E. Chattin (United States.) v. United Mexican States, General Claims Commission, Award (23 July 1927), 4 U.N.R.I.A.A. 282, Exhibit CLA-250|
|Chemtura||Chemtura Corporation v. Government of Canada, UNCITRAL Award (2 August 2010), Exhibit CLA-139|
|Chevron I||Chevron Corporation (USA) and Texaco Petroleum Company (USA) v. The Republic of Ecuador, Partial Award on the Merits (30 March 2010), Exhibit CLA-279|
|Chevron II||Chevron Corporation and Texaco Petroleum Corporation v. Ecuador (II), Second Partial Award on Track II dated 30 August 2018|
|CMS||CMS Gas Transmission Company v. The Republic of Argentina, ICSID Case No. ARB/01/8, Award (12 May 2005)|
|Chorzów Factory||Case Concerning the Factory at Chorzów (claim for indemnity) (merits), Judgment (13 September 1928), P.C.I.J. Series A No. 17, Exhibit CLA-180|
|Churchill Mining||Churchill Mining PLC and Planet Mining Pty Ltd v. Republic of Indonesia, ICSID Case No. ARB/12/14 and 12/40, Award, 6 December 2016, Exhibit RL-100|
|Corona Materials||Corona Materials, LLC v Dominican Republic, ICSID Case No ARB(AF)/14/3, Award on the Respondent's Expedited Preliminary Objections in Accordance with Article 10.20.5 of the DR-CAFTA, 31 May 2016, Exhibit RL-067|
|Cotesworth & Powell||Award Pronounced in the case of Cotesworth and Powell, in H. La Fontaine, Pasicrisie Internationale: Historie Documentaire des Arbitrages Internationaux (1902), Exhibit CLA-239 and RL-103|
|Dan Cake||Dan Cake S.A. v. Hungary, ICSID Case No. ARB/12/9, Decision on Jurisdiction and Liability (24 August 2015), Exhibit CLA-597|
|Diallo||Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Judgment (Preliminary Objections) (24 May 2007), I.C.J. REPORTS 582 (2007) at p. 600, Exhibit CLA-285|
|Duke Energy||Duke Energy Electroquil Partners and Electroquil S.A. v. Republic of Ecuador, ICSID Case No. ARB/04/19, Award of 18 August 2008|
|El Oro Mining||El Oro Mining and Railway Company (Ltd.) (Great Britain) v. United Mexican States, Great-Britain and Mexico Claims Commission, Award (18 June 1931), 5 U.N.R.I.A.A. p. 191, Exhibit CLA-243|
|Eli Lilly||Eli Lilly and Company v. The Government of Canada, UNCITRAL, ICSID Case No. UNCT/14/2, Final Award (16 March 2017), Exhibit CLA-564|
|ELSI||Elettronica Sicula s.p.a., (ELSI), (United States of America v. Italy), Judgment (20 July 1989), I.C.J. REPORTS (1989), at p. 47, Exhibit CLA-234|
|Fabiani||Case of Fabiani (France v. Venezuela), Award (30 December 1896), 5 MOORE'S HISTORY AND DIGEST OF THE ARBITRATIONS TO WHICH THE UNITED STATES HAS BEEN A PARTY 4878, Exhibit CLA-236.|
|Finnish Vessels||Claim of Finnish shipowners against Great Britain in respect of the use of certain Finnish vessels during the war, Award (9 May 1934), 3 U.N.R.I.A.A. 1479, Exhibit CLA-649|
|Flughafen||Flughafen Zürich A.G. and Gestión e Ingenería IDC S.A. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/10/19, Award (18 November 2014)|
|Gami||Gami Investments Inc. v. United Mexican States, Award (15 November 2004), Exhibit CLA-616|
|Glamis Gold||Glamis Gold, Ltd. v. The United States of America, (UNCITRAL) Award (8 June 2009), Exhibit CLA-142|
|Idler||Jacob Idler v. The United States of Venezuela, Claim No. 2, Award, 14 July 1890, United States and Venezuelan Commission, Opinions, at pp. 155-172, Exhibit CLA-255|
|Interhandel||Interhandel, Preliminary Objections, Judgment, I.C.J. Reports 1959|
|Jan de Nul||Jan de Nul N. V. v. Arab Republic of Egypt, ICSID Case No. ARB/04/13, Award (6 November 2008), Exhibit CLA-240|
|Krederi||Krederi Ltd. v. Ukraine, ICSID Case No. ARB/14/17, Excerpts of Award dated 2 July 2018|
|Loewen||Loewen Group, Inc. and Raymond L. Loewen v. United States of America, ICSID Case No. ARB(AF)/98/3, Award (23 June 2003), Exhibit CLA-168.|
|Merrill||Merrill & Ring Forestry L.P. v Canada, (UNCITRAL) Award (31 March 2010), Exhibit CLA-615|
|Metalclad||Metalclad Corporation v. The United Mexican States, ICSID Case No. ARB(AF)/97/1, Award (30 August 2000), Exhibit CLA-149|
|Middle East Cement||Middle Cement Middle East Cement Shipping and Handling Co v. Arab Republic of Egypt, ICSID Case No. ARB/99/6, Award (12 April 2012), Exhibit CLA-211|
|Mondev||Mondev International Ltd. v United States of America, ICSID Case No. ARB(AF)/99/2, Award (11 October 2002), Exhibit CLA-086|
|MTD v. Chile||MTD Equity Sdn. Bhd. and MTD Chile S.A. v. Republic of Chile, ICSID Case No. ARB/01/7, Award, 25 May 2004, Exhibit RL-085|
|Neer||L. Fay, H. Neer and Pauline Neer (USA) v. United Mexican States, RIAA, Volume IV pp. 60-66, 15 October 1926, Exhibit CLA-277|
|Norwegian Loans||Certain Norwegian Loans, Judgment, I.C.J. Reports 1957|
|OI||OI European Group B.V. v Bolivarian Republic of Venezuela, ICSID Case No ARB/11/25, Award, 10 March 2015, Exhibit RL-068|
|Oostergetel||Jan Oostergetel and Theodora Laurentius v. The Slovak Republic, UNCITRAL Final Award (23 April 2012), Exhibit CLA-260.|
|Pantechniki||Pantechniki S.A. Contractors & Engineers v. Republic of Albania, ICSID Case No. ARB/07/21, Award (30 July 2009), Exhibit CLA-276|
|Pey Casado||Victor Pey Casado and President Allende Foundation v. Republic of Chile, ICSID Case No. ARB/98/2, Final Award (8 May 2008), Exhibit CLA-202|
|Philip Morris v. Uruguay||Philip Morris Brands Salr, Philip Morris Products S.A. and ABAL Hermanos S.A. v. Oriental Republic of Uruguay, ICSID Case No. ARB/10/7, Award, 8 July 2016, Exhibit RL-066|
|Renée Rose Levy||Renée Rose Levy de Levi v. Republic of Peru, ICSID Case No. ARB/10/17, Award, 26 February 2014, Exhibit RL-101|
|Joseph F. Rihani||Joseph F. Rihani, American Mexican Claims Commission, Decision No. 27-C (1942), 1948AM. MEX. CLAIMS REP. 254, Exhibit CLA-251|
|Robert E. Brown||Robert E. Brown (United States) v. Great Britain, Award (23 November 1923), 6 U.N.R.I.A.A. 120 at 129, Exhibit CLA-294|
|Saluka||Saluka Investments B. V. v. The Czech Republic, UNCITRAL, Partial Award of 17 March 2006|
|Saipem||Saipem S.p.A. v. The People's Republic of Bangladesh, ICSID Case No. ARB/05/07, Award (30 June 2009), Exhibit CLA-185|
|Toto Construzioni||Toto Construzioni Generali S.p.A. v. The Republic of Lebanon, ICSID Case No. ARB/07/12, Decision on Jurisdiction (11 September 2009), Exhibit CLA-244|
|Vivendi||Compañía de Aguas del Aconquija S.A. and Vivendi Universal S.A. v. Argentine Republic, ICSID Case No. ARB/97/3, Award (20 August 2007), Exhibit CLA-310|
|Waste Management II||Waste Management v. Mexico, Case N° ARB(AF)/00/3, (30 April 2004), Exhibit CLA-200|
On December 11, 2015, the International Centre for Settlement of Investment Disputes ["ICSID"] received a request for arbitration [the "RfA"] submitted by Lion Mexico Consolidated L.P. ["Lion" or "Claimant"], a company constituted under the laws of Quebec, Canada, against the United Mexican States ["Mexico" or "Respondent"].
At the time of this Award, the Tribunal is composed of three following members:
Mr. Juan Fernández-Armesto
Chairman - Spanish national
Appointed by agreement of the Secretary-General on July 20, 2016.
Armesto & Asociados
General Pardiñas, 102
28006 Madrid, Spain
Tel.: +34 91 562 16 25
Mr. David J.A. Cairns
Co-Arbitrator - British/New Zealand national
Appointed by Claimant on March 10, 2016.
Int-Arb Arbitrators & Mediators
Tel.: +34 91 423 7200
Prof. Laurence Boisson de Chazournes
Co-Arbitrator - French/Swiss national
Appointed by Respondent on February 2, 2018.
University of Geneva, Faculty of Law
40, boulevard du Pont-d'Arve
1211 Geneva 4 (Switzerland)
Tel.: +41 (0) 22 379 85 44
On December 11, 2015, Lion submitted to the ICSID a RfA against Mexico pursuant to Art. 36 of the ICSID Convention and on the basis of the NAFTA, between the United States of America, Canada and the United Mexican States, which entered into force on January 1, 1994. On December 23, 2015, the Secretary-General of ICSID registered the RfA and approved access to the Additional Facility pursuant to Art. 4 of the ICSID AF Rules.
The Tribunal was constituted on July 27, 2016, in accordance with Art. 6(3) of the ICSID AF Rules and was originally composed of Juan Fernández-Armesto a national of Spain, President, appointed by the Secretary-General pursuant to agreement of the Parties; David J.A. Cairns, a national of Great Britain and New Zealand, appointed by the Claimant; and Ricardo Ramírez Hernández, a national of Mexico, appointed by the Respondent. The Tribunal was reconstituted on February 6, 2018, with the appointment of Laurence Boisson de Chazournes, following the resignation of Ricardo Ramírez Hernández.
In the course of the proceeding, the Tribunal issued a Decision on the Respondent's Preliminary Objection under Art. 45(6) of the ICSID AF Rules, dated December 12, 2016, a Decision on the Non-Disputing Party's Application, dated May 23, 2017, a Decision on Bifurcation, dated May 29, 2017, and a Decision on Jurisdiction, dated July 30, 2018. The full procedural history of this case is described in these decisions.
In accordance with section 17.1 of Procedural Order No. 1 ["PO 1"], Mexico submitted a document production schedule. Claimant filed its response and final version of the document production schedule containing both Parties' arguments, agreements and disagreements and requests the Tribunal to decide on the production of documents.
On January 3, 2019, the Tribunal issued Procedural Order No. 8 deciding on the Claimant's requests for production of documents. On January 8, 2019, the Claimant submitted a request for the Tribunal to reconsider one of the document requests which was ruled to be overbroad. On January 29, 2019, after receiving comments from Mexico, the Tribunal rejected the Claimant's request for reconsideration.
On June 5, 2019, the ICSID Secretariat transmitted to the Parties a draft Procedural Order No. 9 ["PO 9"] concerning the organization of the hearing and inviting the Parties to confer and agree on the items addressed therein. The Parties were also informed that a pre-hearing conference would take place on June 24, 2019.
|Prof. Juan Fernández-Armesto||President|
|Dr. David J.A. Cairns||Arbitrator|
|Prof. Laurence Boisson de Chazournes||Arbitrator|
|ASSISTANT TO THE TRIBUNAL|
|Mr. Luis Fernando Rodríguez|
|Ms. Catherine Kettlewell||Legal Counsel|
|Mr. Robert J. Kriss||Mayer Brown|
|Mr. Dany Khayat||Mayer Brown|
|Mr. Alejandro López Ortiz||Mayer Brown|
|Mr. José Caicedo||Mayer Brown|
|Ms. Patricia Ugalde||Mayer Brown|
|Mr. Emiliano Represa||Mayer Brown|
|Mr. Timothy J. Keeler||Mayer Brown|
|Ms. Elaine Liu||Mayer Brown|
|Ms. Onay Payne||Clarion Partners|
|Ms. Renee Castro||Clarion Partners|
|Ms. Onay Payne||Clarion Partners|
|Mr. James C. Hendricks||Clarion Partners|
|Mr. Rodrigo Zamora||Galicia Abogados|
|Mr. Richard Marchitelli||Cushman & Wakefield|
|Mr. Cory Savik||Cushman & Wakefield|
|Mr. Orlando Pérez Gárate||Secretaría de Economía|
|Ms. Cindy Rayo Zapata||Secretaría de Economía|
|Mr. Geovanni Hernández Salvador||Secretaría de Economía|
|Ms. Blanca del Carmen Martínez Mendoza||Secretaría de Economía|
|Mr. Aristeo López Sánchez||Secretaría de Economía|
|Ministro Gerardo Lameda Díaz Pérez||Secretaría de Economía|
|Mr. Pedro de la Rosa||Embajada de México|
|Mr. J. Cameron Mowatt||Tereposky & DeRose LLP|
|Ms. Jennifer Radford||Tereposky & DeRose LLP|
|Mr. Vincent DeRose||Tereposky & DeRose LLP|
|Mr. Alejandro Barragan||Tereposky & DeRose LLP|
|Ms. Ximena Iturriaga||Tereposky & DeRose LLP|
|Mr. Kun Hui||Tereposky & DeRose LLP|
|Mr. Stephan E. Becker||Pillsbury Winthrop Shaw Pittman LLP|
|Mr. Jorge Vera||Pillsbury Winthrop Shaw Pittman LLP|
|Mr. José Ovalle Favela||Legal Expert|
|Mr. Chris G. Maugeri||Damages Expert (CBRE)|
|Mr. Alfredo Rosas||Damages Expert (CBRE)|
|Ms. Nicole Thornton||U.S. Department of State|
|Mr. John Blanck||U.S. Department of State|
|Mr. Khalil Gharbieh||Office of the U.S. Trade Representative|
|Ms. Amanda Blunt||Office of the U.S. Trade Representative|
|Ms. Charles Roberts||English-Spanish Interpreter|
|Ms. Judith Letendre||English-Spanish Interpreter|
|Ms. Sonia Berah||English-Spanish Interpreter|
|Mr. Dante Rinaldi||Spanish Court Reporter|
|Mr. Dionisio Rinaldi||Spanish Court Reporter|
|Ms. Dawn Larson||English Court Reporter|
"- The granting of mortgages to Lion over the land acquired by Sr. Cárdenas and on the subsequent improvements made on that land24; and"
- The issuance of promissory notes as unconditional commitments to repay the money owed to Lion, with certain procedural privileges under Mexican law25.
"- He was the person who controlled the Debtors and the beneficiary of the cancellation of the Mortgages;"
"- The fraud purported to transfer jurisdiction over the Mortgages from the Courts of Mexico DF to the Courts of Jalisco, precisely where Sr. Cárdenas resided and was well-established;"
"- The scheme required the designation of a false address for the service of Lion, and the collaboration of a person at the false address; this role was fulfilled by a lawyer called Lic. José Isaac López Medina, who appeared to be an associate of Sr. Cárdenas;"
"- The fraudulent scheme eventually required the impersonation of a representative of Lion (Sr. José Javier Tovar Arechederra). This was achieved using a copy of Sr. Arechederra's driving licence on the same date that the driving licence was deposited with security at the venue of the meeting organized by Sr. Cárdenas;"
- The Tribunal finally notes that Mexico, while refusing to outright admit that fraud had indeed been perpetrated by the Debtors, argues that the "alleged multi-level fraud" was so complex and sophisticated that its judicial system could not withstand it59.
A) Por la DECLARACION JUDICIAL que se haga por parte de su Señoría en el sentido de que la demandada "LION MEXICO CONSOLIDATED, L.P." está obligada al CUMPLIMIENTO CABAL de todas las obligaciones que asumió y que dimanan a su cargo del documento base de la acción que las partes denominamos "TERMINOS PARA PAGO DE LOS CONTRATOS DE CREDITO"" [Emphasis added]
"8. Jurisdicción y Competencia Para la interpretación, cumplimiento y ejecución del presente convenio [...] las partes se someten [...] a los Tribunales del Primer Partido Judicial del Estado de Jalisco, renunciando a cualquier otro fuero o jurisdicción que por razón de convenio previo o domicilio actual o futuro pudiese corresponderles".
"7. Domicilio para recibir notificaciones y autorizados [Lion] señala como domicilio para recibir cualquier tipo de comunicación relativa a la presente propuesta y notificaciones el de la finca marcada con el número 95 Despacho 7 de la calle Tomás V. Gómez, Colonia Ladrón de Guevara, en el municipio de Guadalajara, Jalisco y como autorizados para recibirlas y acusar recibo de las mismas a los Licenciados Emilio González de Castilla del Valle y Jose Isaac López Medina".
"- The Forged Agreement purports to have been signed by Lion's legal representative in Mexico, Mr. James Christian Hendricks67; Mr. Hendricks appeared as a witness in this procedure, and gave sworn evidence that he never signed the document and that the signature appended to the document (shown below) is false68;"
"- Lic. González de Castilla, the other lawyer allegedly designated by Lion as a person authorized to receive notifications in the Términos, and a well-known and highly respected professional, has declared in the presence of a Public Notary that: (i) he was not authorized by Lion or by any other company to receive any notification in Guadalajara; (ii) he did not know the said address nor the other person allegedly authorized; and (iii) he had no professional dealings in Guadalajara69;"
"- Since the very moment that Lion obtained knowledge of the existence of the Forged Agreement in mid-December 201270, it has consistently averred that the document is a forgery; Lion has repeated the averment in this procedure71;"
" - Lion has repeatedly tried to obtain a declaration from the Mexican civil Courts, confirming the forgery of the Términos72; although the Mexican civil Courts have never rendered a judgement confirming the existence of forgery, Claimant says that such refusal is improper and tainted by denial of justice;"
- Upon gaining knowledge of the Términos, Lion initiated criminal actions against Sr. Cárdenas73, some of which were ongoing at the time of the filing of Post-Hearing Briefs74.
"- The Forged Agreement purports to formalize a settlement, in which Lion agrees to cancel the Loans, the Notes and the Mortgages in exchange for a participation in Sr. Cárdenas's companies; there is no contemporary evidence proving that in the negotiations between Lion and Sr. Cárdenas such solution was ever discussed; to the contrary, the evidentiary record shows that Lion's intention during the negotiation was to obtain repayment of the Loans, and if the negotiation failed, to foreclose on the Mortgages75;"
"- It is unlikely that Lion, a well advised Canadian company, which had insisted that in its previous agreements with Sr. Cárdenas and his companies jurisdiction should lie with the Courts of Mexico City, would accept that the Términos, the settlement agreement finalizing the relationship, be subject to the jurisdiction of the Courts of Jalisco; it is even more unlikely that Lion additionally would have consented to designate an obscure lawyer in Jalisco, related to Cárdenas, and with whom Lion had never had relations, as its process agent, authorized to receive all types of notifications;"
- There is a final argument: confronted with Claimant's averment in the present arbitration that the Forged Settlement indeed is a forgery, Mexico has failed to dispute this statement76.
"- in the first stage, a person falsely alleging to be a legal representative of Lion would present a request for Amparo purporting to act on behalf of Lion; and"
- in the second, that person would abandon the Amparo.
[Two years later this Notary Public would be arrested on charges of fraud and forgery of documents, subsequently fined and suspended as a Notary Public and eventually permanently disbarred by the State of Jalisco93]
"- Sr. Arechederra corroborated by his sworn testimony at the Hearing that he never carried out any of the above actions100;"
"- Sr. Arechederra's stamp signature under the False Request for Copies contains a typographical mistake (Arrechedera instead of Arechederra)101 - it is unlikely that the real Sr. Arechederra would be using a stamp signature containing not one but two typos in his name;"
"- Mr. Arechederra has submitted a voucher from the airport102 confirming that it would have been physically impossible for him to file the request for the certified copy, obtain it, sign its receipt, and make it to the airport within an hour103;"
"- The False Amparo designated as domicile for notifications to Lion "los estrados del Juzgado que en turno conozca de la presente demanda104", i.e, the notice board of the competent Court which would judge the False Amparo; and not the address of Lion's lawyers, as was the case in the Loans105 when an address in Mexico was given for Lion;"
- Lastly, Mexico has not denied that the False Amparo was filed by someone else than the real Sr. Arechederra.
[The possibility of amending this procedural deficiency is noteworthy, as it contrasts with the treatment given to the real Lion, when it filed the proper Amparo: it was never granted an opportunity to cure an alleged defect in the power of attorney of the person signing an ampliación de demanda.]
"[L]o anterior para efectos de que dicha inscripción sirva como inmovilidad registral con la finalidad de que no se pueda verificarse (sic) en la finca hipotecada ningún embargo, toma de posesión, diligencia precautoria o cualquier otra que entorpezca el curso del juicio".
- the authorities who dictated, promulgated, published, ordered, executed or tried to execute the acto reclamado (autoridades responsables), and
- the affected party's counterparty in the procedure in which the challenged action was issued or executed (known as the tercero perjudicado)122.
"La falta de emplazamiento al quejoso y todas y cada una de las actuaciones y resoluciones relativas al juicio Ordinario Mercantil radicado ante el Juzgado Mercantil del Primer Partido Judicial del Estado de Jalisco"126.
"La falta de emplazamiento legal a la hoy quejosa [i.e. Lion] [...] debido a que el supuesto emplazamiento [...] se hizo en un domicilio que no es de la hoy quejosa [...]. Amén de que el supuesto domicilio donde de practicó dicho emplazamiento, fue señalado en un documento que no fue suscrito por mi mandante ni por persona alguna con facultades, ya que la firma que se advierte en el mismo es completamente falsa por no proceder del puño y letra a quien se atribuye." [Emphasis added]
- a graphological expert report to prove that the signature in the Forged Agreement did not belong to Mr. Hendricks, and
- emails between a broker retained by Lion and Sr. Cárdenas to demonstrate that, after the Forged Agreement was supposedly signed in November 2011, Lion and Cárdenas were still holding discussions on the terms of the repayment of the Loans.
"dichos actos ya fueron precisados desde el escrito inicial de demanda".
[This stands in stark contrast with the treatment granted to the complainants when the False Amparo was submitted without the requisite copies. In that instance, the Juez accorded the complainants the chance to cure the formalistic deficiency.]
"[...] R E S U E L V E: ÚNICO. LA JUSTICIA DE LA UNIÓN NO AMPARA NI PROTEGE A LION MEXICO CONSOLIDATED, L.P., contra los actos que reclama del JUEZ Y DEL SECRETARIO EJECUTOR, AMBOS ADSCRITOS AL JUZGADO NOVENO DE LO MERCANTIL DEL PRIMER PARTIDO JUDICIAL DEL ESTADO DE JALISCO. [...]" [Capitals in the original]
"- For the last 16 months of Amparo proceeding no party and no prior court had ever referred to this admissibility issue150;"
"- The same Tribunal de Queja had also failed to raise the issue when it first intervened in these proceedings, to adjudicate the appeal against interlocutory decisions of the Juez de Distrito;"
"- The Tribunal de Queja decided sua sponte, and over a year into the recurso de revisión, to raise the existence of the False Amparo; the only reason given by the Tribunal de Queja to justify its decision was that an unidentified administrative official had informed the Court of the existence of the previous Amparo151.
"- Lion had filed an Amparo, but its recurring attempts that the scope of the procedure be extended to cover the forgery of the Settlement Agreement (a fact which Lion only learned after it had filed the Amparo) and that it be authorized to marshal evidence proving the forgery, had been repeatedly dismissed by the first instance Juez de Distrito and in second instance by the Tribunal de Queja, for a purely formalistic reason: the ampliación de la demanda had been signed on behalf of Lion by its attorney and not by its legal representative - a minor procedural defect Lion was never offered the opportunity to remedy;"
"- Unable to submit that the Settlement Agreement had been forged, Lion's Amparo had been dismissed by the first instance Juez de Distrito; in the Amparo Judgement the Juez de Distrito assumed the Settlement Agreement to be valid and binding and concluded that Lion's emplazamiento had been properly served on Lic. López Medina, Lion's process agent as identified in the Forged Settlement Agreement - an obscure attorney, with whom Lion had never had any relationship and who failed to inform Lion;"
"- On appeal against the Amparo Judgement, the second instance Tribunal de Queja, whom Lion had asked to review a further time the prohibition to argue the forgery issue, did not take up this question; instead the Tribunal de Queja, in an unexpected move, made sua sponte the decision to remand the procedure back to the first instance Judge, with a strictly limited remit: to review whether the Amparo had been properly admitted, in light of the existence of a previous Amparo (the False Amparo - a decoy procedure filed fraudulently by the Debtors to derail the admissibility of the real Amparo);"
- Upon the instructions of the Tribunal de Queja, the Juez de Distrito again denied Lion's request to expand the scope of the remand, so that the Amparo could encompass the forgery of the Settlement Agreement.
"- On the one hand, had Lion pursued the Remand Amparo, Mexico could have argued in this arbitration that Lion's expropriation claim under NAFTA Article 1110 would be inadmissible pursuant to NAFTA Article 1121(2), which sets a three-year time limit to bring claims158;"
"- On the other hand, the circumstances made it clear that further pursuit of Lion's claims, before the same court that had ruled against it before, on the basis on the same evidence admitted previously, and barring admission of other relevant evidence, was futile;"
- Additionally, the graphological evidence that was in fact admitted, with the experts opinions two-to-one in favour of the authenticity of the False Amparo, made it even less likely that the Remand Amparo would make a ruling in favour of Lion159.
"- A criminal action160 had been brought against Sr. Cárdenas in connection with the Forged Settlement Agreement and the false request for copy; the investigation phase had been completely exhausted; Sr. Cárdenas, in his defense, had initiated Amparos No. 610/2017 and No. 1518/2018; the criminal proceedings were halted until those Amparos were resolved161;"
"- A criminal action162 had been brought against Sr. Cárdenas concerning the False Amparo; at the time of the filing of the Post-Hearing Briefs, this proceeding was at the initial investigation phase, before the Prosecutor's Office in Jalisco; the Prosecutor was in the process of analyzing the matter to bring charges formally (the "imputación")163;"
"- A criminal164 action had been brought against Sr. Cárdenas for the sale of the Nayarit Property; at the time of the final Party submissions, the proceeding was at the initial investigation phase, before the Prosecutor's Office in Jalisco165.
"The Claimant respectfully request the Tribunal:
"a. To declare that Mexico has breached its obligations under Articles 1110 and 1105 of NAFTA and international law;"
"b. To order Mexico to pay the Claimant the amount of US$81,992,752 as compensation for the loss caused by the cancellation of the Mortgages with interest at the rate mentioned under (e) below;"
"c. To order Mexico to pay the Claimant the legal fees incurred in the Mexican court proceedings in a minimum amount of US$2,212,004.53 as a result of the cancellation of the Mortgages with interest at the rate mentioned under (e) below;"
"d. To order Mexico to pay the Claimant whatever amount is assessed against LMC by the Mexican courts (currently valued at US$14,853,013.73) as a result of the waiver of the Foreclosure Proceedings as per Article 1121 of NAFTA;"
e. To order Mexico to pay interest on the amounts under (b) to (c) at the Mexican Legal rate provided by Article 362 of the Mexican Commercial Code compounded monthly (i.e., 6%), through the date of full and effective payment of those amounts as from:
"(i) 31 March 2015 for the lost value of the Mortgages;"
"(ii) 31 December 2015 to reimburse LMC for the attorney's fees and costs it incurred in Mexican court proceedings;"
"f. To order Mexico to reimburse Claimants all their reasonable legal costs and fees in connection with this arbitration with interest as of the date of the award at the interest rate mentioned above at (e); and"
g. Any other remedies that the Tribunal consider appropriate in the circumstances given Mexico's breaches"
"For all of the foregoing reasons, the Respondent requests:
"• an Order dismissing the Claimant's Claim in its entirety;"
"• an Order that the Claimant indemnify the Respondent for its costs incurred in this arbitration, including its legal costs and the travel expenses occurred by its legal team, witnesses, and experts; and"
• such other relief as the Respondent may request and this Tribunal may deem appropriate.
635. In the alternative, in the unlikely event that the Tribunal concludes that the Respondent is internationally liable for a breach of its obligations under NAFTA Article 1110 and/or NAFTA Article 1105, the Respondent requests:
"• that the amount of damages be determined on the basis of the CBRE reports and Sanchez Devanny opinion, which put the value of the property, net of foreclosure fees and expenses, at USD $47,060,068.57;"
"• minus the deduction that the Tribunal finds appropriate to avoid double recovery and to account for the Claimant's contributory fault;"
"• plus an award of interest based on a relatively low and risk-free rate applicable to U.S. dollar denominated amounts, such as the U.S. Treasury Bill with annual compounding; and"
• any such other relief as the Respondent may request and this Tribunal may deem appropriate".
Lion has brought this arbitration against Mexico to address Mexico's alleged:
"- judicial and administrative expropriation of Lion's investment under NAFTA Art. 1110172;"
- alternatively, Mexico's denial of justice as a failure to provide fair and equitable treatment under NAFTA Art. 1105, and
- alternatively, the failure to grant Lion's investment full protection and security under NAFTA Art. 1105.
- The USA states that174:
"Decisions of domestic courts acting in the role of neutral and independent arbiters of the legal rights of litigants do not give rise to a claim for expropriation under Article 1110(1). Moreover, the United States has not recognized the concept of "judicial takings" as a matter of domestic law [...]."
- Canada in turn asserts that175:
"A domestic court's bona fide adjudication as to whether a property right exists under domestic law cannot be recast as an expropriation of that property. A neutral and independent judicial determination that a property right is invalid under domestic law, unless it can be impugned as a denial of justice, does not give rise to separate claim of expropriation under customary international law. International tribunals have followed this approach."
This position is buttressed by the Loewen tribunal, which stated the following about a judicial expropriation claim presented as an alternative to denial of justice176:
"Claimant's reliance on Article 1110 adds nothing to the claim based on Article 1105. In the circumstances of this case, a claim alleging an appropriation in violation of Article 1110 can succeed only if Loewen established a denial of justice under 1105".
"[w]hile taking of property through the judicial process could be said to constitute expropriation, the rules and criteria to be applied for establishing the breach should come from denial of justice"177.
"Of course, where a judiciary is not separate from other organs of the State and those organs (executive or legislative) direct or otherwise interfere with a domestic court decision so as to cause an effective expropriation, these executive or legislative acts may form the basis of a separate claim under Article 1110, depending on the circumstances."
"- No proof has been marshalled as to the interference of the executive or legislative branches of Mexico's government in the course of the local proceedings;"
"- Even though Claimant has presented allegations of bias by Mexico's courts180, these are not substantiated by evidence; and"
- The decisions of the courts failed to benefit the Respondent State.
"A denial of justice, in a broad sense, occurs whenever a State, through any department or agency, fails to observe, with respect to an alien, any duty imposed by international law or by treaty with his country".
Nowhere in the NAFTA treaty do the words "denial of justice" appear. The same happens in most investment treaties. There is, however, unanimous agreement among the Parties (including the Non-Disputing Parties) that denial of justice is an international wrong which breaches the fair and equitable treatment ["FET"] standard. Case law and doctrine reach the same conclusion189.
"[T]he Free Trade Commission hereby adopts the following interpretations of Chapter Eleven in order to clarify and reaffirm the meaning of certain of its provisions: [...]
B. Minimum Standard of Treatment in Accordance with International Law
1. Article 1105(1) prescribes the customary international law minimum standard of treatment of aliens as the minimum standard of treatment to be afforded to investments of investors of another Party.
2. The concepts of "fair and equitable treatment" and "full protection and security" do not require treatment in addition to or beyond that which is required by the customary international law minimum standard of treatment of aliens." [Emphasis added]
- incurring unreasonable delay in administering justice190,
- refusing the investors access to justice191, and
- rendering manifestly unjust and erroneous decisions that a competent judge would not have taken192.
"A state is responsible if an injury to an alien results from a denial of justice. Denial of justice exists when there is
[i] a denial, unwarranted delay or obstruction of access to courts,
[ii] gross deficiency in the administration of judicial or remedial process,
[iii] failure to provide those guaranties which are generally considered indispensable to the proper administration of justice, or
[iv] a manifestly unjust judgment. An error of a national court which does not produce manifest injustice is not a denial of justice".
"in modern international law there is no place for substantive denial of justice [...] If a judgment is grossly unjust, it is because the victim has not been afforded fair treatment [...] Extreme cases should thus be dealt with on the footing that they are so unjustifiable that they could have been only the product of bias or some other violation of the right of due process202"
"[...] denial of justice is always procedural203."
""gross or notorious injustice - whatever the words used - is not a denial of justice merely because the conclusion appears to be demonstrably wrong in substance; it must impel the adjudicator to conclude that it could not have been reached by any impartial judicial body worthy of that name".
"The easiest case, accepted as uncontroversially wrongful under the Hague Conference, was a discriminatory denial of access to court, described in the Hague Texts as the situation where 'the foreigner has been hindered by the judicial authorities in the exercise of his right to pursue judicial remedies".
""whenever judicial action is taken without giving the alien a hearing or without properly notifying him in order to prepare a defense; whenever misconduct of the judge in withholding, hiding or destroying papers essential to the foreigner's cause is prejudicial in effect; whenever he has not been permitted to produce evidence or to summon valuable witnesses".
""Thus, when 'free access to the Courts' is covenanted by a State in favour of the subjects or citizens of another State, the covenant is that the foreigner shall enjoy full freedom to appear before the courts for the protection or defence of his rights, whether as plaintiff or defendant; to bring any action provided or authorized by law [...]" [Emphasis added].
"Still, a plain violation of the substance of natural justice, as, for example, refusing to hear the party interested, or to allow him opportunity to produce proofs, amounts to the same thing as an absolute denial of justice".
"Still, a plain violation of the substance of natural justice, as, for example, refusing to hear the party interested, or to allow him [an] opportunity to produce proofs, amounts to the same thing as an absolute denial of justice". [Emphasis added]
""the covenant is that the foreigner shall enjoy full freedom to [...] deliver any pleading by way of defence, set off or counterclaim; to engage Counsel; to adduce evidence, whether documentary or oral or of any other kind; to apply for bail; to lodge appeals and, in short, to use the Courts fully and to avail himself of any procedural remedies or guarantees provided by the law of the land in order that justice may be administered on a footing of equality with nationals of the country.".
"because the local authorities deprived Mr. Ballistini of the legal means of instituting before the competent tribunals the actions which the laws would authorize him in case he might improperly have been condemned to a criminal judgment.219"
""[I]n the face of the clear and indisputable evidence in the record to the contrary, more particularly in view of the fact that the, attention of the court had been drawn to such evidence by one of its members warrants the conclusion that the said court wilfully disregarded such evidence; that the decision of the court was lacking in good faith and that the same fell so far short of international standards as to amount to a denial of justice" [Emphasis added]
""There is not, under international law, a specific measure by which lapses of time may be condemned as excessive: the lapse is to be considered on a case-by-case basis, taking into account (i) the complexity of the matter; (ii) the need for celerity of decision; and (iii) the diligence of claimant in prosecuting its case."
"[b]ecause the local authorities deprived Ballistini of the legal means of instituting before the competent tribunals the actions which the laws would authorize him in case he might improperly have been condemned to a criminal judgment"244.
"[T]he treatment of an alien, in order to constitute an international delinquency, should amount to an outrage, to bad faith, to wilful neglect of duty, or to an insufficiency of governmental action so far short of international standards that every reasonable and impartial man would readily recognize its insufficiency".
"the traditional Neer formula ... reflects the traditional, and not necessarily the contemporary, definition of the customary minimum standard, at least in certain non-investment fields".
"The Tribunal would stress that the word "surprises" does not occur in isolation. The test is not whether a particular result is surprising, but whether the shock or surprise occasioned to an impartial tribunal leads, on reflection, to justified concerns as to the judicial propriety of the outcome, bearing in mind on the one hand that international tribunals are not courts of appeal, and on the other hand that Chapter 11 of NAFTA (like other treaties for the protection of investments) is intended to provide a real measure of protection. In the end the question is whether, at an international level and having regard to generally accepted standards of the administration of justice, a tribunal can conclude in the light of all the available facts that the impugned decision was clearly improper and discreditable, with the result that the investment has been subjected to unfair and inequitable treatment. This is admittedly a somewhat open-ended standard, but it may be that in practice no more precise formula can be offered to cover the range of possibilities". [Emphasis added].
"To the modern eye, what is unfair or inequitable need not equate with the outrageous or the egregious. In particular, a State may treat a foreign investment unfairly and inequitably without necessarily acting in bad faith [...] the content of the minimum standard today cannot be limited to the content of customary international law as recognised in arbitral decisions in the 1920s".
"After all, we have held that judicial wrongs may in principle be brought home to the State Party under Chapter Eleven, and have criticised the Mississippi proceedings in the strongest terms. There was unfairness here towards the foreign investor".
"Neither State practice, the decisions of international tribunals nor the opinion of commentators support the view that bad faith or malicious intention is an essential element of unfair and inequitable treatment or denial of justice amounting to a breach of international justice".
"[...] a wilful disregard of due process of law, ... which shocks, or at least surprises, a sense of judicial propriety."
According to Mexico, the Mondev tribunal was not wrong in referring to arbitrariness as part of NAFTA's Art. 1105 minimum standard of treatment. What the tribunal in Mondev did was to hold the criterion of arbitrariness "useful in the context of denial of justice"270, while fully acknowledging the difference between the two.
"The threshold to establish denial of justice is very high - e.g. requiring a 'notoriously unjust' or 'egregious' administration of justice 'which offends a sense of judicial propriety'. It does not suffice to establish that domestic adjudicators have erred, or misapplied or misinterpreted domestic law".
"a refusal to entertain a suit or serious failure to adequately administer justice or if there has been a 'clear and malicious misapplication of the law' or if the judgment in question is so patently egregious that 'it is impossible for a third party to recognize how an impartial judge could have reached the result in question".279
"a wilful disregard of due process of law, an act which shocks, or at least surprises, a sense of juridical propriety".
"... the test is not whether a particular result is surprising, but whether the shock or surprise occasioned to an impartial tribunal leads, on reflection, to justified concerns as to the judicial propriety of the outcome..".
"In the end the question is whether, at an international level and having regard to generally accepted standards of the administration of justice, a tribunal can conclude in the light of all the available facts that the impugned decision was clearly improper and discreditable, with the result that the investment has been subjected to unfair and inequitable treatment".
"To the modern eye, what is unfair or inequitable need not equate with the outrageous or the egregious. In particular, a State may treat foreign investment unfairly and inequitably without necessarily acting in bad faith" [Emphasis added].
Other NAFTA tribunals have endorsed this view291. For instance, the Glamis Gold tribunal stated292:
"The Tribunal emphasizes that, although bad faith may often be present in such a determination and its presence certainly will be determinative of a violation, a finding of bad faith is not a requirement for a breach of Article 1105(1).
Loewen also endorsed the Mondev view that under contemporary international customary law, bad faith or malicious intent is not required for a denial of justice claim, framed within the Fair and Equitable Treatment of Article 1105(1) NAFTA294:
"Neither State practice, the decisions of international tribunals nor the opinion of commentators support the view that bad faith or malicious intention is an essential element of unfair and inequitable treatment or denial of justice amounting to a breach of international justice".
* * *
"- The complexity of the matter: Claimant maintains that the claim submitted to the Juez de Distrito and the Tribunal de Queja was not complex; given that the service was performed at the address and to the person mentioned in the Forged Settlement Agreement, there was only one issue to be decided by the Courts in order to determine whether Lion was properly served - was the Forged Settlement Agreement authentic?322 Claimant states that under normal circumstances, the authenticity of a document is a factual issue that is disposed of preliminarily as a procedural incident323."
"- The procedural diligence of the interested parties: Claimant did not cause any undue delay through its actions during the Real Amparo proceedings324; as soon as it learned of the existence of the Forged Settlement Agreement, it filed a petition to challenge its authenticity325."
- Whether celerity is especially warranted to avoid harm generated in the legal situation of the person involved in the process: Lion submits that celerity was essential because the Amparo claim, as a remedy to ultimately prevent the cancellation of the Mortgages, would become ineffective as time went by326.
"- The initial wrong would be the Debtors' fraudulent actions;"
- The denial of justice would be the breach of Lion's right to be heard by the Juez de lo Mercantil and
- What followed after the Cancellation Proceeding (i.e., the Amparo Proceeding, the Revision Appeal Proceeding and the Remanded Proceeding) is the exhaustion of local remedies, where the "system" failed to correct the initial miscarriage of justice335.
"- Lion's secured returns on its investments were declining every day and Lion would never be made whole because the Debtors' indebtedness continued to grow and exceeded the value of the collateral;"
- Pursuing the Remand Amparo would have been unreasonably inefficient and would likely have taken more than three additional years.
"- The actuario performed service at the address identified by the plaintiff; this service was directed at the legal representative of Lion, as confirmed by the actuario349."
"- On the first attempt of service, dated 3 April, 2012, the actuario left a citation with Lic. López Medina ordering the legal representative to be present at a specified date and time to facilitate service; given the legal representative's absence, the emplazamiento could be effectuated upon any individual present at the time - in this case, it was Lic. López Medina, who was also identified in the Settlement Agreement as authorized to receive notification on behalf of Claimant350.
"- First, the Amparo Proceedings took one year to complete, which constitutes an appropriate time given its multiple complexities365;"
"- Second, the proceedings before the Tribunal de Queja took 16 months to complete, which once again was a justifiable time given the extraordinary complexities involved in it366;"
- Third, the Juez de Distrito had only started analysing the Remand Amparo and cannot be blamed for not delivering a decision due to Claimant's premature withdrawal from the proceedings367.