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Access Business Group LLC v. United Mexican States (ICSID)

Why it matters

This case is significant because it clarifies the temporal scope of Annex 14-C of the USMCA, which governs legacy investment claims after NAFTA's replacement. The Tribunal's interpretation that Annex 14-C covers measures adopted during the three-year transition period (until 1 July 2023) sets an important precedent for other pending and future claims under the USMCA. The dissenting opinion by Prof. Ferrari further highlights the evidentiary value of testimony from former negotiators in treaty interpretation.

Summary

Access Business Group LLC, a US company, brought an investment treaty claim against Mexico under Annex 14-C of the USMCA, alleging expropriation and unfair treatment of its organic farming business in Mexico. The dispute arose from measures taken by Mexican authorities in 2022, after NAFTA was replaced by the USMCA on 1 July 2020. Mexico objected to the Tribunal's jurisdiction, arguing that Annex 14-C only allows claims for breaches of NAFTA that occurred before its termination, not for measures adopted afterwards. The Claimant argued that Annex 14-C covers measures adopted during the three-year transition period (until 1 July 2023) as long as the investment existed before NAFTA's termination. The Tribunal, by majority (President Kaufmann-Kohler and Arbitrator Malintoppi), upheld jurisdiction, interpreting Annex 14-C's text, context, and negotiating history to allow claims for measures adopted during the transition period. Arbitrator Ferrari dissented, arguing that the majority's interpretation was inconsistent with the plain text and that the evidence of negotiating history was insufficient to override the clear temporal limitation. The case is ongoing on the merits.

The detail

Parties: Access Business Group LLC v. United Mexican States

Case number: ICSID Case No. ARB/23/15

Outcome: The Tribunal upheld its jurisdiction over the claim, rejecting Mexico's objection that Annex 14-C of USMCA does not cover measures adopted after NAFTA's termination.

Applicable law: ICSID Convention, USMCA Annex 14-C, NAFTA, VCLT

Issues in play: The dispute centered on whether Annex 14-C of USMCA allows claims for breaches of NAFTA arising from measures adopted after NAFTA's termination (1 July 2020) but within the three-year transition period. Mexico argued that Annex 14-C only covers measures adopted before NAFTA's termination, while the Claimant contended it covers measures adopted during the transition period.

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