Originally from World Arbitration And Mediation Review (WAMR)

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I. INTRODUCTION
Jose María Abascal is, in many ways, an example. From him, I
have learned important lessons involving arbitration, law and life.
I find no better way to honor him than to apply one of these
lessons: the importance of having an eye for detail, with respect to
the question raised by the title of this essay.
Recent investment arbitration decisions have been split on
this subtle yet consequential issue: what is the nature of the rights
of investors under investment treaties? The split exists not only
as between different tribunals, but as between arbitrators sitting
on the same tribunal.1
II. THE SPLIT
The Mexican fructose saga is notable for many reasons. Not
only are they the most important investment arbitration cases to
which Mexico has been a party, they are also part of a larger,
sensitive and politically charged problem between the parties to
the North American Free Trade Agreement (NAFTA). The
arbitrations deriving from this dispute are likely to produce
important case law on issues of international investment law and
State responsibility. Moreover, they promise to test the resolve
with which NAFTA members are committed to the international
rule of law.
Recently, three ICSID (Additional Facility) tribunals,
confronted with claims arising out of the Mexican fructose