Reproduced from www.worldbank.org/icsid with permission of ICSID.
1. This case concerns a dispute submitted under the Agreement between the Government of the United Mexican States and the Government of the Republic of Singapore on the Promotion and Reciprocal Protection of Investments, which was signed on November 12, 2009 and entered into force on April 3, 2011 (the "BIT" or "Treaty") and under the Arbitration Rules of the United Nations Commission on International Trade Law ("UNCITRAL"), as revised in 2010 (the "UNCITRAL Rules"). By agreement of the Parties, the International Centre for Settlement of Investment Disputes ("ICSID" or the "Centre") serves as the administering authority for this proceeding.
2. The claimant is PACC Offshore Services Holding LTD ("POSH" or the "Claimant"), a company incorporated/organized under the laws of Singapore.
3. The Claimant brought the claims for itself, and, as provided for under Articles 11(2) and 11(3)(c) of the BIT, on behalf of the following Mexican enterprises: Servicios Marítimos GOSH, S.A.P.I de C.V. ("GOSH"), Servicios Marítimos POSH, S.A.P.I. de C.V. ("SMP"), POSH Honesto, S.A.P.I. de C.V. ("HONESTO"), POSH Hermosa, S.A.P.I. de C.V. ("HERMOSA"), Gosh Caballo Eclipse, S.A.P.I. de C.V. ("ECLIPSE") and POSH Fleet Services Mexico, S.A. de C.V. ("PFSM"), which the Claimant submits are its Mexican Subsidiaries ("POSH's Subsidiaries" or the "Subsidiaries").
4. The respondent is the United Mexican States ("Mexico" or the "Respondent").
5. The Claimant and the Respondent are collectively referred to as the "Parties." The Parties' representatives and their addresses are listed above on page (i).
6. The dispute related to the bareboat charter services that the Claimant provided to Oceanografía, S.A. de C.V ("OSA"), who in turn sub-chartered them to Petróleos Mexicanos ("PEMEX"), a Mexican state-owned oil and gas company. The dispute concerned a series of acts and omissions by the Mexican authorities (the "Measures") relating to the investment of the Claimant in Mexico (the "Investment") and addressing the Claimant or OSA.
7. On January 11, 2022, the Tribunal rendered its Award. Attached to the Award was a Concurring and Dissenting Opinion by arbitrator Professor W. Michael Reisman.
8. In the Award, the Tribunal decided by majority:
1) "That the Tribunal ha[d] jurisdiction ratione personae, ratione materiae and ratione temporis in respect of the Detention Order and the acts dated after May 4, 2014.
2) That the Respondent [had] breached its obligation to grant the Claimant fair and equitable treatment in breach of Article 4 of the Treaty on account of the detention of the Claimant's vessels.
3) To award the Claimant USD 6,712,226, such amount to be free of taxes, carry interest at LIBOR without any additional percentage points, compounded annually and accruing since May 16, 2014 until payment.
4) Each party shall bear its own costs and 50% of the costs of the Tribunal and the ICSID Secretariat.
5) All other claims and requests [were] dismissed."
II. THE CLAIMANT'S REQUEST
16. According to the Claimant, the Tribunal failed to carry out its mandate by acting infra petita and failing to decide claims over which it had jurisdiction:
"It has done so, first, by refusing jurisdiction over and therefore declining to decide all of Claimant's claims based on Mexico's measures other than the Diversion Order seizing the funds owed to the Invex Trust, the Detention Order seizing Claimant's vessels, and the Blocking Order preventing Claimant from doing business directly with PEMEX (Section III below).
Second, and of central importance to this Application, even as to those Three Measures ["the Three Measures"] over which it did accept jurisdiction, the Award did not decide two of Claimant's remaining FET claims nor all three of its FPS claims."2
17. The Claimant requests the Tribunal to rectify these omissions by making an Additional Award.
60. For the reasons forth above, the Tribunal by majority38 decides that:
a) the Request is rejected;
b) the Claimant shall bear the costs of the proceeding related to the Request, including the fees and expenses of the Tribunal, and ICSID's direct expenses, amounting to USD 30,744.00;
c) the Tribunal's decision under paragraph 283(3) of the Award, that the amount of damages would carry interest "at LIBOR without any additional percentage points, compounded annually and accruing since May 16, 2014 until payment", be supplemented by the Tribunal's additional decision that the LIBOR rate applied since May 2023 shall be in effect until the amount awarded is paid; and
d) the Award and this Decision be published.
Concurring and Dissenting Opinion of Professor W. Michael Reisman attached to the Decision on Claimant's Application for Additional Award and on the Applicable Interest Rate
1. As the Majority indicates, the Claimant presented four claims for an Additional Award: (A) on all its claims concerning the direct treatment of OSA by the Respondent; (B) on its FPS claim with respect to the Detention Order; (C) on its claimed breaches of FET and FPS arising out of the Diversion Order; and (D) on its claimed breaches of FET and FPS stemming from the Blocking Order. I concur with the Majority in rejecting the first and second claims. I believe that Majority errs when it rejects the third and fourth claims. The Claimant's requests, as I will explain, are a direct consequence of the Award's treatment of the BIT's distinct standards of treatment and its focus on what it takes to be general questions of arbitral policy rather than the facts and law of the dispute before it.
A. CLAIMANT'S FIRST AND SECOND REQUESTS: ADDITIONAL AWARD FOR CLAIMS ARISING FROM THE RESPONDENT'S TREATMENT OF OSA AND THE FPS CLAIM WITH RESPECT TO THE DETENTION ORDER
B. CLAIMANT'S THIRD REQUEST: ADDITIONAL AWARD FOR CLAIMED BREACHES OF FET AND FPS STEMMING FROM THE DIVERSION ORDER
C. CLAIMANT'S FOURTH REQUEST: ADDITIONAL AWARD FOR CLAIMED BREACHES OF FET AND FPS STEMMING FROM THE BLOCKING ORDER
13. In my Concurring and Dissenting Opinion I mentioned that the Blocking Order was hardly a treatment which was fair and equitable.50 Whether or not the Majority reaches the same conclusion with respect to the treatment of POSH concerning acts composing and surrounding the Blocking Order, the Claimant is entitled to have its claims of FET and FPS evaluated based on the FET and FPS standards rather than the standard of expropriation.
14. The task of an arbitral tribunal is to decide the dispute before it within the four corners of the investment protection treaty; it is not to redraft the treaty to suit what it deems to be broader questions of policy or a desired outcome. Nor should a tribunal dispense with subsequent requests by a claimant to correct a failure by the tribunal to decide its claims by refashioning the claims.
Accordingly, I concur in part and dissent in part to the Tribunal's rejection of the Claimant's application for an Additional Award.