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International Arbitration Forum

CMSA B.V. v. United Mexican States

Case summary

At a glance

Parties
CMSA B.V. (Netherlands), on its own behalf and on behalf of Contecon Manzanillo, S.A. de C.V. (Mexico), v. United Mexican States
Forum and rules
Pre-arbitration notice under Article 8 of the BIT and Article Four(2) of its Appendix; no forum chosen yet
Treaty
Mexico–Netherlands BIT (APPRI), in force 1 October 1999
Sector
Port operations; container terminal (Port of Manzanillo)
Outcome
Notice of intent only. It opened a 90-day consultation period. The published documents do not show any later arbitration.
Amount
Damages claimed: amount redacted in the public version, plus costs and interest

The dispute

CMSA B.V., a Dutch company, owns 99.9% of Contecon Manzanillo, S.A. de C.V. Contecon won a public tender in 2009 and on 3 June 2010 signed a Partial Assignment of Rights and Obligations Contract with APIMAN, the State-owned port administrator, to build and operate a specialised container terminal (TEC II) at the Port of Manzanillo. Contecon began operating on 5 August 2013. CMSA alleges that APIMAN and the Ministry of Communications and Transport (SCT) changed the competitive conditions in the port without notice, tender or compensation. They are said to have favoured a competitor whose name is redacted: they gave it de facto exclusive use of common-use berths 10, 11 and 14, an enlarged terminal area, berthing and wharfage fees, and reduced fees payable to APIMAN. CMSA claims breaches of fair and equitable treatment, full protection and security, national and most-favoured-nation treatment (Article 3), and of the bar on expropriation without compensation (Article 5).

Key holdings

  1. This is not a decision. It is the investor's notice of intent, filed with Mexico's Dirección General de Consultoría Jurídica de Comercio Internacional. It asks that the 90-day consultation period under Article Four(2) of the BIT Appendix start to run. ¶¶ 66–67
  2. CMSA defines the investment as its shareholding in Contecon and Contecon's rights under the 3 June 2010 assignment contract with APIMAN. It relies on the BIT's definition of investment and on the OECD Benchmark Definition of Foreign Direct Investment. ¶ 6
  3. CMSA alleges that Contecon learned on 18 June 2018 that the competitor's two gantry cranes had been installed on common-use berths 10 and 11, and that the competitor was occupying berth 14. CMSA says this was done without modifying the Master Programme, without a tender, and without notifying or compensating Contecon. ¶¶ 30–39
  4. CMSA alleges that the Port Rules of 22 November 2016 were issued by an incompetent authority, the Director General of Ports. It also alleges that the SCT ruling of 22 March 2017, which granted the competitor an additional area and exclusive use of berth 14, breached the Ports Law and Article 134 of the Constitution. ¶¶ 41–48
  5. CMSA claims breaches of Article 3 (fair and equitable treatment, full protection and security, national treatment and MFN treatment) and Article 5 (expropriation). It seeks damages in an amount redacted in the public version, plus costs and pre- and post-award interest. ¶¶ 61–65

Procedural history

  1. 13 January 2009APIMAN publishes the call for tenders APl/MAN/TEC-II/01/09 for a new terminal at Manzanillo.
  2. 30 November 2009Contecon is declared the winner of the tender.
  3. 3 June 2010Contecon and APIMAN sign the Partial Assignment of Rights and Obligations Contract.
  4. 5 August 2013Contecon begins operating in the port.
  5. 22 March 2017The SCT, acting through the Director General of Ports, issues a ruling approving the competitor's terminal expansion and its exclusive use of berth 14.
  6. 18 June 2018Contecon learns that the competitor's gantry cranes have been installed on berths 10 and 11.
  7. 8 January 2019CMSA serves its Notice of Intent to submit a claim to arbitration under the Mexico–Netherlands BIT.

Tribunal, counsel and experts

For the claimant
SAI Derecho & Economía S.C.

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Keywords

Summary generated with AI from the published documents — refer to the award for the authoritative text.

Country
Treaty
Mexico - Netherlands BIT (1998)
Documents