This document is the Claimants' Post-Hearing Brief on Jurisdiction in an ICSID arbitration initiated against the United Mexican States under the legacy investment provisions of the U.S.-Mexico-Canada Agreement (USMCA). The brief presents the Claimants' concluding arguments following a hearing on jurisdiction, responding to the Respondent's objections and aiming to establish the Tribunal's authority to hear the merits of the dispute, which arises from an alleged denial of justice by the Mexican judiciary concerning debt securities issued by TV Azteca.

Jurisdictional Arguments

The central jurisdictional issue addressed is the interpretation of USMCA Annex 14-C, which governs "legacy investments" made under the North American Free Trade Agreement (NAFTA). The Claimants argue that a plain reading of Annex 14-C, supported by its negotiating history and the principle of effet utile, extends both the substantive protections of NAFTA Chapter 11 and the consent to investor-state arbitration for a three-year transition period. This interpretation would allow claims for breaches occurring after NAFTA's termination but during the transition period. In support, the brief heavily relies on the testimony of Kenneth Smith, Mexico's former lead negotiator for the USMCA, who confirmed that the negotiating parties intended to "grandfather" the entirety of Chapter 11, including its substantive obligations.

The brief further contends that the Claimants, Cyrus Capital Partners and Contrarian Capital Management, qualify as protected "investors" under NAFTA Article 1139 by virtue of their direct control over the note-holding funds. It asserts that the debt securities constitute a qualifying "investment" based on the express definition in Article 1139, rendering the application of the more restrictive criteria from the Salini test unnecessary and inappropriate. The Claimants also maintain that the investment has a clear territorial nexus to Mexico, as the debt was issued by a prominent Mexican company operating almost exclusively within Mexico under government concessions.

Procedural and Admissibility Objections

The Claimants respond to Mexico's procedural objections, particularly the alleged failure to comply with the 90-day "cooling-off" period under NAFTA Article 1119. They argue that any technical non-compliance does not negate Mexico's consent to arbitrate and was necessitated by extraordinary circumstances, namely the secret ex parte injunction issued by a Mexican court which threatened to permanently foreclose their right to redress before the USMCA transition period expired. The brief also defends the validity of the waiver submitted under NAFTA Article 1121, asserting it complies with the treaty's requirements.

Finally, the Claimants address Mexico's inadmissibility objection, which posits that the denial of justice claim was not "ripe" due to ongoing domestic proceedings. The Claimants argue that Mexico waived this objection by failing to raise it in its initial memorial. They further contend that the objection is outside the scope of the bifurcated jurisdictional phase and is, in any event, substantively incorrect, as the harm from the denial of justice crystallized when the Mexican judiciary improperly issued the injunction without due process.

The Claimants request that the Tribunal dismiss all of Mexico's jurisdictional objections, affirm its jurisdiction over the claims, and hold the admissibility objection in abeyance for the merits phase. They also seek an order for the Respondent to bear the costs of the jurisdictional proceedings.