This Procedural Order No. 3 memorializes the Tribunal's decision on the Claimants' application for provisional measures, filed pursuant to Article 47 of the ICSID Convention and NAFTA Article 1134. The application sought to enjoin a series of domestic criminal investigations and proceedings initiated by the United Mexican States against the Claimants' key corporate representatives and fact witnesses, Messrs. Zayas and León, including securing the release of Mr. Zayas from pre-trial detention.

The Claimants contended that the criminal actions were retaliatory, initiated in response to the filing of the arbitration, and constituted an abuse of process designed to intimidate witnesses, disrupt the Claimants' ability to present their case, and thereby irreparably harm the procedural integrity of the arbitration. The Respondent countered that the criminal proceedings were a legitimate and independent exercise of its sovereign authority to investigate and prosecute potential crimes, noting that certain actions were initiated by third-party complaints and predated the arbitration. Mexico argued that the Claimants failed to meet the exceptionally high threshold required to justify arbitral interference with domestic criminal law enforcement.

The Tribunal denied the Claimants' application, finding they had not met the stringent requirements for such relief. While acknowledging its general authority to order provisional measures, the Tribunal emphasized the high evidentiary burden required to interfere with a State's criminal jurisdiction. It determined that the Claimants had not satisfactorily established that the criminal actions were retaliatory or that they posed a risk of irreparable harm to their procedural rights. The Tribunal found plausible, non-retaliatory explanations for the investigations, including their timing and origin from third-party complaints. Consequently, the measures were not deemed necessary or urgent. Furthermore, the Tribunal held that the requested relief would be disproportionate, as it would unduly encroach upon Mexico's sovereignty and could affect the rights of third parties not party to the arbitration.

Notwithstanding the rejection of the application, the Tribunal issued a formal invitation to the Respondent to consider, in good faith, deferring extradition proceedings against Mr. León until the issuance of a final award. It also articulated its expectation that Mexico would take all appropriate steps to ensure Mr. Zayas can confidentially meet with counsel and provide testimony without fear of adverse consequences. The Tribunal reserved its decision on the allocation of costs.