PART I - OVERVIEW AND STATEMENT OF FACTS

Overview

1. The applicant Mexico proposes that this Court grant leave to hear an appeal from a judgment of the Court of Appeal for Ontario upholding a damages finding made by an expert arbitral tribunal appointed pursuant to Chapter 11 of the North American Free Trade Agreement (the "NAFTA").

2. The tribunal's damages finding, which reduced the claimed damages of Cargill, Incorporated (the "respondent" or "Cargill") from $124 million to $77.3 million, was a unanimous finding made following an arbitration that lasted over five years, involving comprehensive written and oral submissions on all issues, thousands of exhibits, numerous witness statements and expert reports, and viva voce witness and expert testimony. That damages finding was upheld by both Madam Justice Low of the Ontario Superior Court of Justice and by a unanimous panel of the Court of Appeal, each of which held that it was a finding of fact made within the tribunal's jurisdiction.

3. Mexico's application does not take issue with the standard of review – correctness applied by the Court of Appeal to determine whether this was a finding of fact made within the tribunal's jurisdiction. Nor does it question the settled NAFTA jurisdictional requirement - applied by the tribunal and the courts below, and agreed to by the parties - that an investor such as Cargill is entitled to be compensated only for "loss or damage by reason of, or arising out of' a breach of a NAFTA Chapter 11 obligation, i.e. that damages must be suffered by Cargill in its capacity as an investor with an investment in Mexico.