italaw180920 - ES Holdings and L1bre v. Mexico (I), Dissenting Opinion of Arbitrator Charles Poncet, January 31, 2026

31 Jan 2026
Espíritu Santo Holdings, LP and L1bre Holding, LLC v. United Mexican States (I), ICSID Case No. ARB/20/13 , ICSID Case No. ARB/20/13 , ICSID Case No. ARB/20/13, ICSID Case No. ARB/21/55
Document Summary: 

This document is the dissenting opinion of Arbitrator Charles Poncet, issued in disagreement with the majority's award which rejected the claims on the merits. While concurring with the majority's finding on jurisdiction, Arbitrator Poncet fundamentally diverges on the assessment of the merits, arguing that the claim should have been upheld and compensation awarded. The dissent's central thesis is that the majority failed to properly contextualize the dispute within the political environment in which it arose. Specifically, the dissenter emphasizes the publicly stated intention of the then-mayoral candidate for Mexico City, Claudia Sheinbaum, to cancel the Claimant's concession for the "L1bre" taxi system. He posits that this pre-announced political objective should have been the primary framework for interpreting the Respondent's subsequent actions, which the majority treated as a routine contractual disagreement. Arbitrator Poncet criticizes the majority's evidentiary analysis on several grounds. He argues that the majority should have drawn adverse inferences from the Respondent's "conspicuous absence of witness testimony," particularly from key officials who signed disputed documents. Conversely, he found the Claimant's witnesses to be credible. The dissent also addresses mutual allegations of document forgery, suggesting the majority did not approach the Respondent's allegations with sufficient caution given the circumstances. A significant portion of the dissent is dedicated to refuting the majority's conclusion that the Claimant's L1bre system was not operationally ready. Arbitrator Poncet contends that the majority improperly substituted its own judgment for that of the Claimant's highly qualified technical expert, Joshua Mitchell of Kroll. He deems the majority's critique of the expert report "methodologically unsound" and points to substantial corroborating evidence of the system's readiness, including supplier agreements, hardware inventory, successful pilot testing, and the hiring of an experienced management team. Ultimately, Arbitrator Poncet concludes that the Respondent's conduct, culminating in the development of its own competing "Mi-Taxi" application, was inconsistent with the Fair and Equitable Treatment standard and constituted a measure tantamount to expropriation. He asserts that the majority's reasoning is unpersuasive and that the claim should have succeeded.