A. LEGISLATION AND RULES
A.1 Legislation
International arbitration in Mexico continues to be governed by the Code of Commerce, which incorporates the provisions of the UNCITRAL Model Law in its relevant section. The Code of Commerce was enacted in 1889, and its last amendment on arbitration took place in 2010.
Mexico is also a signatory to the New York and Panama Conventions on the enforcement of foreign arbitral awards.
Regarding investment arbitration, Mexico is a party to the ICSID Convention, welcoming foreign investments while allowing foreign investors from countries that are parties to the treaty to access dispute settlement mechanisms in cases of breaches of obligations.
The three-year period for investors to file claims under NAFTA elapsed on 1 July 2023, as Annex 14-C is no longer available for submitting arbitration claims. Therefore, investors can no longer bring claims under such an international treaty but can now do so under the USMCA, which entered into force on 1 July 2020. From 1 July 2023, only Mexican and US investors will have access to the new investor-state dispute settlement rules since Canada is no longer party to such rules.
According to the 2023 ICSID Caseload — Statistics, in five out of six ICSID cases registered in 2023, Mexico acted as the respondent party. All of these cases relate to NAFTA/USMCA, and an additional case was brought under the UNCITRAL Rules, administered by the ICSID Secretariat. Also, the United Nations Conference on Trade and Development’s Investment Policy Hub reported eight arbitration cases initiated in 2023, all of which relate to NAFTA/USMCA claims and whose outcomes are still pending, except for the discontinued case of Sepadeve v. Mexico.[1]
A.2 Institutions, rules and infrastructure
Some of the most prominent local arbitration institutions in Mexico are the Centro de Arbitraje de México (CAM) and the Cámara Nacional de Comercio de la Ciudad de México (CANACO). There is also a Mexican Chapter of the ICC in Mexico City. The arbitration rules of CANACO have been the same since 2013 for regular proceedings, and for expedited arbitrations, they have not changed since 2018. The rules of CAM recently changed on 1 December 2022 and included modifications that will benefit arbitral proceedings by adding a simplified arbitration proceeding (approximately USD 150,000, unless agreed otherwise), among other positive changes for the Mexican arbitration community.
Additionally, most of the major arbitration institutions operate in Mexico. The ICDR and the LCIA are better known and widely chosen. Mexican users and lawyers are familiar with these institutions and their rules. Each arbitration institution has its own infrastructure that is currently expanding to other major cities in the country, as arbitration is more commonly resorted to as an alternative means to resolve disputes.
A.3 2023 secondary legislation modifications
As part of the nationalization policies of natural resources promoted by the current Mexican government, in May 2023, various reforms were made to the Mining Law, the National Water Law, the General Law of Ecological Balance and Environmental Protection, and the General Law for the Prevention and Comprehensive Management of Waste.
The legislative reforms include changes in mining concessions, the mining workforce, the use and exploitation of water, and environmental impact and care for the environment. The modifications show trends that may limit investors’ rights, which could trigger investment arbitration disputes.
Mexico’s ICC, the Mexican Mining Chamber and the private sector lobby, the Business Coordinating Council, have warned against the economic impact of the reform. The ICC expressed its concern, stating that if Mexico revokes the concessions that have already been granted, it will have to pay compensation to its investors per the international treaties the country has signed.
B. CASES
B.1 Caisse de depot et placement du Québec y CDP Groupe Infrastructures v. United Mexican States [2]
On 27 November 2023, Caisse de dépôt et placement du Québec and CDP Groupe Infrastructures Inc., on their own initiative and on behalf of certain companies incorporated in Mexico, submitted a request for arbitration under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership before ICSID. On 15 December 2023, ICSID registered the arbitration under case number ICSID/ARB/23/53.
The conflict focuses on the generation of renewable energy derived from investment funds in solar and wind farms. The dispute reflects conflicts over the Mexican government’s preference for energy generation through the state company, compared with production from private companies and renewable sources.
On 20 December 2023, the Mexican Ministry of Economy reported that the parties decided to suspend the arbitration procedure to seek a satisfactory solution.
B.2 First Majestic Silver Corp. v. United Mexican States (II)[3]
First Majestic Silver Corp., a publicly traded mining company focused on silver production, has filed a second investment arbitration against Mexico before ICSID. First Majestic filed the first lawsuit against Mexico in March 2021.
At the end of September 2020, First Majestic announced that a Mexican court rejected a 2012 advance pricing agreement granted to its subsidiary Primero Empresa Minera S.A. de C.V., aggravating a tax dispute with the Mexican tax organism (SAT). First Majestic considered that Mexico’s actions were contrary to the terms of the advance pricing agreement, which established the methodology to determine the income and taxes of its subsidiary Primero Empresa Minera for the fiscal years from 2010 to 2014.
The outcome of the proceedings is yet to be resolved as of writing.[4]
B.3 Silver Bull v. United Mexican States [5]
The Canadian mining company announced on 2 March 2023 that it had filed a notice of intent to initiate a legacy NAFTA claim under Annex 14-C of the USMCA to recover economic damages resulting from the blockade of its Sierra Mojada project. Silver Bull has been unable to access the project since the blockade commenced in September 2019. Despite numerous demands and requests for action by the company, Mexican governmental agencies have allowed this behavior to continue and, as such, failed to protect Silver Bull’s investment.
Silver Bull is seeking to recover no less than USD 178 million in damages that it has suffered due to Mexico’s breach of its NAFTA obligations.
The resolution of the proceeding is still pending.
B.4 Bacanora Lithium[6]
The Chinese company Bacanora Lithium, a subsidiary of the Chinese mining company Ganfeng Lithium, which operates the Sonora lithium deposit, has expressed its intention to defend its rights judicially and go to international arbitration to protect the ownership of its licenses after the Mexican government canceled its licenses to exploit lithium in September 2023.
In September, the Mexican General Mining Organization canceled nine lithium exploitation concessions granted to Ganfeng Lithium, among others, for failing to comply with minimum investment levels. The companies informed their investors that the Ministry of Economy notified them of this decision in August 2023.
The company would be evaluating starting the process under the protection granted by the Trans-Pacific Partnership Treaty through the investment chapter. The company would have decided to begin the process after having tried negotiating with the federal government to recover the concessions and not receiving a response.[7]
B.5 Cadence Minerals Plc and REM Mexico Limited v. United Mexican States [8]
The Mexican federal government revoked mining concessions so that the state had exclusivity in the exploitation of lithium. Following the Mexican government’s decision to cancel nine lithium concessions in Sonora, arguing that the companies failed to meet minimum investment requirements, Cadence Minerals, through REM Mexico Limited, issued a request for consultations and negotiations under the BIT between the United Kingdom and Mexico.[9]
[1] Sepadeve International LLC v. United Mexican States (ICSID Case No. ARB/23/6).
[2] Secretaría de Economía. (20 December 2023). La Secretaría de Economía, CDPQ Y CDP Groupe Infrastructures Inc. Acuerdan Suspender Temporalmente UN Procedimiento arbitral. gob.mx. https://www.gob.mx/se/prensa/la-secretaria-de-economia-cdpq-y-cdp-groupe-infrastructures-inc-acuerdan-suspender-temporalmente-un-procedimiento-arbitral
[3] First Majestic Silver Corp. v. United Mexican States (ICSID Case No. ARB/23/28).
[4] CIAR Global. (24 July 2023). First Majestic presenta segundo arbitraje contra México y el de Silver Bull es una realidad. Ciar Global. https://ciarglobal.com/first-majestic-presenta-segundo-arbitraje-contra-mexico-en-ciadi/
[5] Silver Bull Resources, Inc. (2 March 2023). Silver Bull Announces Commencement of Legacy NAFTA Claim Against Mexico. https://silverbullresources.com/news/silver-bull-announces-commencement-of-legacy-nafta-claim-against-mexico/
[6] CIAR Global. (27 October 2023). Bacanora Lithium dispuesta a acudir a arbitraje contra México por concesión de litio. Ciar Global. https://ciarglobal.com/bacanora-lithium-dispuesta-a-acudir-a-arbitraje-contra-mexico-por-concesion-de-litio/
[7] Nava, D. (16 January 2024). Bacanora Lithium prepara un arbitraje por la cancelación de sus concesiones. Expansión. https://expansion.mx/empresas/2024/01/16/bacanora-lithium-prepara-arbitraje-cancelacion-concesiones
[8] Jus Mundi. Cadence Minerals v. Mexico. https://jusmundi.com/en/document/decision/en-cadence-minerals-plc-and-rem-mexico-limited-v-united-mexican-states-party-representatives
[9] Oil, Gas & Energy Law. (16 November 2023). Cadence Minerals Plc Press Release — Sonora Lithium Investment Update — Request for treaty negotiations with Mexico. Oil, Gas & Energy Law. https://www.ogel.org/legal-and-regulatory-detail.asp?key=34122
