Access Business Group LLC v. United Mexican States

At a glance

Parties

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

Case no.

ICSID Case No. ARB/23/15

Forum and rules

ICSID Convention arbitration; ICSID Arbitration Rules in force from 1 July 2022; place of proceeding Washington, D.C.

Treaty

USMCA Annex 14-C (legacy investment claims), invoking NAFTA Chapter 11 (Articles 1102, 1105 and 1110)

Tribunal

Prof. Gabrielle Kaufmann-Kohler (President), Prof. Franco Ferrari, Ms. Loretta Malintoppi

Sector

Organic farming and food and supplement processing; agrarian land

Outcome

By majority, the Tribunal declined jurisdiction because the 2022 measures post-dated NAFTA's termination (21 November 2025). Franco Ferrari dissented.

Amount

Claimed: USD 2,700,384,482 plus prejudgment interest. Awarded: nothing. The Claimant bears its own costs (it claimed USD 3,458,619.08) and pays Mexico USD 250,000 for Mexico's advance on the arbitration costs plus USD 1,050,096.79 for legal representation and expert fees. Total arbitration costs were USD 691,466.02.

The dispute

Access Business Group LLC, a Michigan company, acquired the Mexican company Nutrilite S. de R.L. de C.V. from its parent Alticor Inc. in 2001. Nutrilite owned El Petacal, a 280-hectare organic farming estate in Jalisco. In July 2022 SEDATU served notices taking the estate on the basis of a 1939 Presidential Resolution, and on 12 July 2022 the National Agrarian Registry recorded that the land had been handed over to the communal landowners of San Isidro. Access claimed expropriation, denial of fair and equitable treatment and breach of national treatment under NAFTA Articles 1110, 1105 and 1102, relying on USMCA Annex 14-C. Mexico objected that NAFTA terminated on 1 July 2020, that its substantive obligations no longer bound Mexico in 2022, and that Access's waivers were defective.

Key holdings

1. Under its ordinary meaning, Annex 14-C extends for three years only the consent to arbitrate under Section B of NAFTA Chapter 11. Nothing in it extends the substantive obligations of Section A beyond NAFTA's termination. Footnote 20 ("for greater certainty") merely confirms that Section A applies to claims arising from measures that pre-date termination. Award ¶¶ 181–184
2. The context confirms this reading. Annex 14-C is procedural in character. Where the USMCA Parties wanted NAFTA provisions to survive, they said so expressly, as in Article 34.1(4) for NAFTA Chapter 19. Footnote 21 keeps its purpose even if only consent is extended. The concordant positions of Mexico, Canada and the United States, including their submissions as non-disputing parties under NAFTA Article 1128, must be taken into account under VCLT Article 31(3). Award ¶¶ 185–196
3. The measures post-date NAFTA's termination and therefore cannot breach NAFTA. The claims fall outside the consent in NAFTA Article 1116(1), so the Tribunal lacks jurisdiction. Award ¶ 201
4. The supplementary means of interpretation are inconclusive. The negotiating documents are mostly internal to one State, and references to "3-year grandfathering of ISDS" point to a procedural extension. The testimony of Mexico's former chief negotiator, Kenneth Smith Ramos, has limited probative value. The 2 March 2021 email of former US negotiator Lauren Mandell shows at most his own recollection of the US position, not the States' common intention. Award ¶¶ 204–208
5. The choice-of-law argument based on NAFTA Article 1131(1) fails. A choice of applicable law does not alter the temporal scope of the substantive rules chosen. The Tribunal relied on Feldman v. Mexico and TC Energy v. United States. For reasons of procedural economy, the Tribunal did not examine Mexico's objection to the waivers. Award ¶¶ 211–215
6. Costs follow the event. The Claimant pays Mexico USD 250,000 for Mexico's share of the arbitration costs and USD 1,050,096.79 for its legal and expert costs, which the Tribunal found reasonable. Award ¶¶ 220–224
7. Franco Ferrari dissented. In his view, Annex 14-C contains no requirement that the measures pre-date NAFTA's termination, and Article 1131(1) and Footnotes 20 and 21 carry Section A forward for the three-year period. He gave no weight to the States' litigation positions as subsequent practice and gave weight to the Mandell email and the Smith Ramos testimony. He would have upheld jurisdiction. Dissenting Opinion ¶¶ 107–108

Procedural history

1. 11 October 2022Notice of Intent submitted.
2. 13 April 2023Request for Arbitration filed. ICSID registers it on 15 May 2023.
3. 20 October 2023Tribunal constituted. Procedural Order No. 1 follows on 8 December 2023.
4. 23 May 2024Claimant files its Memorial on the Merits.
5. 15 August 2024Claimant withdraws its alternative claims under USMCA Annex 14-D.
6. 29 August 2024Procedural Order No. 3 gives reasons for the decision of 23 August 2024 to bifurcate the temporal and waiver objections.
7. 28 March 2025Canada and the United States file submissions under NAFTA Article 1128.
8. 14–15 April 2025Hearing on jurisdiction held by videoconference.
9. 21 November 2025Award: by majority, the Tribunal lacks jurisdiction; costs are awarded to Mexico. Franco Ferrari dissents.

Tribunal, counsel and experts

Decided by

• Gabrielle Kaufmann-Kohler President — appointed by the parties jointly
• Franco Ferrari Co-arbitrator — appointed by the claimant (dissented)
• Loretta Malintoppi Co-arbitrator — appointed by the respondent

For the claimant

Bryan Cave Leighton Paisner LLP · Alticor Inc./Access Business Group LLC (in-house)

For the respondent

Dirección General de Consultoría Jurídica de Comercio Internacional, Secretaría de Economía · Tereposky & DeRose LLP · Pillsbury Winthrop Shaw Pittman LLP

For other participants

Trade Law Bureau (Canada) · United States Department of State

Experts

Christoph Schreuer (claimant) · Olin L. Wethington (claimant) · José Ramón Cossío (claimant) · Raúl Mejía Garza (claimant) · Antonio L. Argiz (claimant) · Christian J. Tams (respondent)

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Keywords

• USMCA Annex 14-C
• legacy investment
• NAFTA termination
• ratione temporis
• sunset clause
• temporal scope of treaty obligations
• VCLT Article 70
• ILC Articles Article 13
• subsequent practice
• NAFTA Article 1128
• choice of law Article 1131
• travaux préparatoires
• TC Energy
• Nutrilite
• El Petacal
• agrarian expropriation
• organic farming
• dissenting opinion

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