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INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES

Espíritu Santo Holdings, LP and Libre Holding, LLC
Claimants

v.

United Mexican States
Respondent

(ICSID Case No. ARB/20/13)

PROCEDURAL ORDER NO. 2

Members of the Tribunal
Mr. Eduardo Zuleta Jaramillo, President of the Tribunal
Mr. Charles Poncet, Arbitrator
Mr. Raúl Emilio Vinuesa, Arbitrator

Secretary of the Tribunal
Mr. Francisco Abriani

March 7, 2022

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Introduction

On January 26, 2022, Espíritu Santo Holdings, LP (“ESH”) filed a letter “seeking the Tribunal’s agreement to have the claims of the Claimant’s wholly owned subsidiary, Libre Holding, LLC (“L1bre Holding”), heard together with those of [ESH] before this Tribunal”, indicating that it believed it had reached agreement with the Respondent in this regard, proposing a new procedural calendar, and requesting that the Tribunal: (i) accept the agreement reached by the parties to have Libre Holding’s claims heard as part of the present proceedings; (ii) provide an updated declaration, pursuant to Rule 6 of the ICSID Arbitration Rules, together with any disclosures necessary to give effect to the parties’ proposal to add Libre Holding as a party to these proceedings; and (iii) issue a revised procedural calendar reflecting the revised dates agreed by the parties.

On January 31, 2022, the United Mexican States (“Mexico”) informed the Tribunal that it had no objection to ESH’s proposal, subject to the Tribunal’s acceptance of the parties’ proposal and the Tribunal’s authorization of the proposed procedural calendar. In the same letter, Mexico stressed that its agreement did not amount to an acceptance of jurisdiction and admissibility of these cases, and the claimants’ claims. Mexico therefore reserved its right to bring objections as to jurisdiction and admissibility in due course.

On February 21, 2022, the Tribunal informed the parties how it proposed to proceed in order to implement the parties’ agreement, and circulated a draft procedural order on the addition of L1bre Holding as a claimant to this proceeding.

On March 1, 2022, L1bre Holding filed a letter consenting to having its claims heard together in this proceeding, confirming that it had no objections to the constitution of the Tribunal in this proceeding, and agreeing to adopt (i) all of the submissions made so far by ESH subject to its “Supplement to Claim Memorial” which the Tribunal understands was transmitted to Mexico on 28 January 2022, and (ii) all of the procedural steps taken in ICSID Case No. ARB/20/13.

On the same date, Libre Holding filed a letter with the Secretary-General on behalf of the parties to ICSID Case No. ARB/21/55, copying the Tribunal, notifying the parties’ agreement to discontinue ICSID Case No. ARB/21/55 upon dispatch of the present order adding Libre Holding as a claimant to ICSID Case No. ARB/20/13.

On March 1, 2022, Mexico informed the Tribunal that it did not have any comments on the draft Procedural Order No. 2.

On March 3, 2022, Mexico confirmed its agreement with the content of the submission made on March 1, 2022, by the representatives of Libre Holding and ESH in ICSID Case No. ARB/21/55.

On March 4, 6 and 7, 2022, the Members of the Tribunal signed their respective updated declarations pursuant to ICSID Arbitration Rule 6(2).

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Order

Further to the Parties’ agreement, the Tribunal orders as follows:

1. Addition of L1bre Holding as a Claimant to this proceeding

1.1. In the light of the agreement reached between ESH, Libre Holding and Mexico, as set out above, Espíritu Santo Holdings, LP and Libre Holding, LLC shall be the Claimants in ICSID Case No. ARB/20/13, and the United Mexican States shall be the Respondent.

1.2. Further to Libre Holding and Mexico’s agreement, as set out above, ICSID Case No. ARB/21/55 shall be discontinued by the Secretary-General pursuant to ICSID Arbitration Rule 43 upon dispatch of this Order.

1.3. The Tribunal accepts the Procedural Calendar agreed upon by the parties, as reflected in Annex A to this Order.

1.4. Procedural Order No. 1 shall continue to apply unchanged to this proceeding, subject to the provisions below and to the amended Procedural Calendar.

1.5. The Tribunal notes that Libre Holding accepts all procedural steps taken in ICSID Case No. ARB/20/13, as well as the submissions made by ESH, subject to the “Supplement to Claim Memorial” which the Tribunal understands was transmitted to Mexico on January 28, 2022 and is to be transmitted to the Tribunal upon dispatch of this Order.

2. Constitution of the Tribunal and Tribunal Members’ Declarations
Arbitration Rule 6

2.1. The Tribunal was constituted on January 27, 2021 in accordance with Article 1123 of NAFTA, the ICSID Convention and the ICSID Arbitration Rules. The parties confirmed that the Tribunal was properly constituted and that no party has any objection to the appointment of any Member of the Tribunal.

2.2. The parties agree to have Libre Holding’s claims heard by the Tribunal constituted in this proceeding on January 27, 2021.

2.3. The Members of the Tribunal timely submitted their signed declarations in accordance with ICSID Arbitration Rule 6(2). Copies of these declarations were distributed to the parties by the ICSID Secretariat on January 27, 2021. Further to the parties’ agreement to add Libre Holding as a claimant to this proceeding, the

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Members of the Tribunal submitted updated declarations under Rule 6(2), which were distributed to the parties by the ICSID Secretariat on March 7, 2022.

2.4. The parties have no objections to the addition of Libre Holding to this proceeding, or to the way that it has been implemented.

2.5. The Members of the Tribunal confirmed that they are and shall remain impartial and independent of the parties. Each of the Members of the Tribunal confirmed that he has disclosed, to the best of his knowledge, all circumstances likely to give rise to justifiable doubts as to his impartiality or independence and that he will without delay disclose any such circumstances that may arise in the future.

3. Apportionment of Costs and Advance Payments to ICSID
Convention Article 61(2); Administrative and Financial Regulation 14; Arbitration Rule 28

3.1. The parties agree that the costs of the proceeding, including those related to the implementation of the agreement to add L1bre Holding as a claimant to this proceeding, shall be covered with the advance payments made by the parties in ICSID Case No. ARB/20/13.

4. References to Annex B in Procedural Order No. 1 (paragraphs 14.1, 20.3, 23.1, 24.3, 25.1 and 25.3)
Arbitration Rules 13, 20(1)(c), 20(1)(e), 29 and 31

4.1. All of the references to Annex B in Procedural Order No. 1 shall be read as references to the modified Procedural Calendar jointly proposed by the parties on January 26, 2022, as reproduced in Annex A to this Order.

[Signed]

Mr. Eduardo Zuleta Jaramillo
President of the Tribunal
Date: March 7, 2022

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ANNEX A

PROCEDURAL CALENDAR

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* The tribunal considers that it needs no less than eight (8) weeks between the last pleadings and the hearing to prepare for the hearing. If the parties agree on modifications to the procedural calendar that affect the aforesaid eight-week term the Tribunal may, after consulting the parties, modify the date of the hearing.