Almaden Minerals Ltd. and Almadex Minerals Ltd. v. United Mexican States

Case summary

At a glance

Parties: Almaden Minerals Ltd. and Almadex Minerals Ltd. (Canada, British Columbia) v. the United Mexican States
Case no.: ICSID Case No. ARB/24/23
Forum and rules: ICSID Convention arbitration; ICSID Arbitration Rules in force as of 1 July 2022, as modified by CPTPP Chapter 9, Section B; place of proceeding Washington, D.C.
Treaty: Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), Chapter 9
Tribunal: Prof. Luca G. Radicati di Brozolo (President), Mr. Oscar M. Garibaldi, Prof. Jorge E. Viñuales
Sector: Mining; mining concessions; environmental permitting
Outcome: Pending. The published documents are procedural only. The Tribunal refused to bifurcate Mexico's four jurisdictional objections, and the case continued to the merits. The hearing was postponed to July 2027.
Amount: Claimants' preliminary estimate (press release of 11 June 2024): damages of no less than US$200 million in the aggregate.

The dispute

Almaden Minerals Ltd. and Almadex Minerals Ltd. are Canadian companies. Through their Mexican subsidiaries, Minera Gavilán S.A. de C.V. and Minera Gorrión S.A. de C.V., they held the Cerro Grande and Cerro Grande 2 mining concessions for the Ixtaca Project. The claimants say Mexico unlawfully expropriated their investments and denied them fair and equitable treatment, national treatment and most-favoured-nation treatment under the CPTPP. They rely on four measures: the denial of the environmental impact statement (Manifestación de Impacto Ambiental) by SEMARNAT on 17 December 2020, a Mexican Supreme Court decision of February 2022, an alleged bad-faith campaign by SEMARNAT, and an Oficio issued by the Secretaría de Economía in February 2023. Mexico raised four jurisdictional objections. First, the Calvo-type declarations in the subsidiaries' bylaws make the claimants Mexican nationals for their investments and estop them from claiming as Canadians (ratione personae). Second, by those declarations the claimants waived arbitration (ratione voluntatis). Third, the claims rest on events before the CPTPP entered into force for Mexico on 30 December 2018 (ratione temporis). Fourth, the claims are time-barred under CPTPP Article 9.21.1.

Key holdings

Bifurcation refused. The Tribunal rejected Mexico's request to decide its four objections in a preliminary phase and reserved the costs of the request. PO3 ¶ 49
On a prima facie view, the Calvo-type declarations did not justify bifurcation. Mexican law required them for incorporating any company with foreign shareholders. They were signed in 1996 and 2011, before the CPTPP existed, so they could not be an informed waiver of treaty rights. Reading them as a waiver would deprive every foreign investor with a Mexican subsidiary of treaty protection. The Tribunal stressed that this does not prejudge the objections. PO3 ¶¶ 34–39
The temporal and limitation objections are too closely intertwined with the merits to be bifurcated. Deciding them requires identifying the measures, when they occurred, their effects, and when the claimants knew of the breach and the loss. That is a fact- and evidence-intensive inquiry that overlaps with liability. PO3 ¶¶ 43–48
PO1 sets no binding cap of 40 document requests. Documents that predate the CPTPP's entry into force or the 14 December 2020 critical date may still be relevant to the legality of later conduct, so the temporal limits on claims do not restrict document production. PO5 ¶¶ 11, 13
The Tribunal applied its own standard on privilege, without choosing between Mexican and Canadian law. Advice from external counsel is privileged, and sharing it with consultants who were integral to the advice does not waive privilege. On that basis the Tribunal refused production of the engagement letter, the other privileged documents and the redacted part of Exhibit C-635. The claimants must produce redacted transcripts or edited versions of the community video interviews to protect personal data. PO6 ¶¶ 32, 38–46
Mexico asked for three more weeks for its Rejoinder; the Tribunal allowed one week, to 4 September 2026. The request came late, the conflicts arose partly from Mexico's own scheduling, and a longer extension would breach equal treatment. The Tribunal refused native production of Exhibit C-930. It ordered the claimants to disclose the Economía draft Oficio with its covering e-mail, its authors, the transmitting official and the date of transmission. PO8, pp. 2–3