1 Waste Management, Inc. v. United Mexican States, Arbitral Award of 2 June 2000, 40 ILM 56 (2001); also in 15 ICSID Review- Foreign Investment Law Journal 211 (2000).

2 Award, § 31, 40 ILM 56 (2001), at pp. 69-70.

3 Award, § 5, 27, 40 ILM 56 (2001), at pp. 59, 67.

4 Award, § 5, 40 ILM 56 (2001), at p. 60.

5 Award, § 13, 40 ILM 56 (2001), at p. 62.

6 Award, § 14, 40 ILM 56 (2001), at p. 63.

7 Award, § 15, 40 ILM 56 (2001), at p. 63.

8 Award, § 16, 40 ILM 56 (2001), at p. 63

9 Award, § 18, 40 ILM 56 (2001), at p. 64.

10 Award, § 19, 40 ILM 56 (2001), at p. 64.

11 Award, § 23, 40 ILM 56 (2001), at p. 65.

12 Award, § 27, 40 ILM 56 (2001), at pp. 67-68.

13 Award, § 27, 40 ILM 56 (2001), at p. 68.

14 Award, § 27, 40 ILM 56 (2001), at pp. 67-68.

15 Ibid.

16 Award, § 28, 40 ILM 56 (2001), at p. 68.

17 Award, § 31, 40 ILM 56 (2001), at p. 70.

18 Ibid.

19 Dissent, para. 6, 40 ILM 56 (2001), at p. 71 (emphasis in original).

20 Dissent, para. 7, 40 ILM 56 (2001), at p. 72.

21 Dissent, para. 13, 40 ILM 56 (2001), at p. 73.

22 Dissent, para. 42, 40 ILM 56 (2001), at p. 78; cf. para. 47, 40 ILM 56 (2001), at p. 78.

23 Dissent, paras. 56-59, 40 ILM 56 (2001), at p. 80.

24 Dissent, para. 9,40 ILM 56 (2001), at p. 72, citing Southern Pacific Properties (Middle East) Ltd. v. Arab Republic of Egypt, Decision on Jurisdiction of 14 April 1988, 3 ICSID Reports 131 at p. 144, para. 63.

25 Dissent, para. 63, 40 ILM 56 (2001), at p. 81.

26 Award, § 27 a), 40 ILM 56 (2001), at p. 67.

27 Dissent, para. 63, 40 ILM 56 (2001), at p. 81.

28 Claimant's Memorial in the first proceedings, para. 4.18, as cited in Claimant's Response of 19 February 2002, p. 1.

29 As noted in Respondent's Additional Submission of 19 February 2002.

30 Ibid.

31 Methanex Corporation v. United States of America, Memorial on Jurisdiction and Admissibility of Respondent United States of America, 13 November 2000, p. 77.

32 Before the first Tribunal, Canada likewise argued that a conditional waiver such as that lodged by Waste Management did not meet the requirements of Article 1121: letter of 17 December 1999, referred to in Award, § 3, 40 ILM 56 (2001), at p. 58.

33 United Nations Treaty Series, vol. 1728, p. 298 (English translation).

34 United Nations Treaty Series, vol. 1819, p. 456. Article 11 (2) provides for recourse to the competent judicial or administrative bodies of the Contracting Party concerned.

35 NAFTA Article 1121(1) (emphasis added).

36 NAFTA Article 102(1 )(e); cf. Article 1115, referring to “due process before an impartial tribunal.“

37 Case concerning the Barcelona Traction, Light and Power Company, Ltd. (New Application: 1962), Belgium v. Spain, Preliminary Objections. ICJ Reports 1964, p. 6, at p. 26. See also Amoco International Finance Corporation v. Government of the Islamic Republic of Iran, (1987) 15 Iran-US CTR 189 at p. 196 (paras. 16-18); Islamic Republic of Iran v. United States of America, Cases Nos. A15 (IV) and A24, award of 28 December 1998, para. 75: “Settlement of a claim, by definition, requires its resolution on the merits.“

38 See e.g. Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (London, Sweet & Maxwell, 1953; repr. Grotius, Cambridge, 1987) pp. 336-372 and authorities there cited.

39 See Transcript in English of the hearing on jurisdiction of February 2, 2002, p. 33ff and p. 77ff.

40 (1905) Ralston's Report, p. 244 at p. 355, quoting Southern Pacific Railroad Co. v. United States, 168 Sup. Ct. Rep. 355 (1897), at p. 377.

41 (1905) Ralston's Report, p. 244 at p. 357.

42 In the Matter of the S.S. Newchang, Claim No. 21, reprinted in (1922) 16 AJIL 323 at p. 324.

43 PCIJ, Ser. B, No. 11 (1925) at pp. 28-30.

44 In the Trail Smelter arbitration, the proposition “that a decision merely denying jurisdiction can never constitute resjudicata as regards the merits of the case at issue” was described as undoubtedly correct: see 35 AJIL 684 at p. 702 (1941).

45 Amerasinghe, C.F., Local Remedies in International Law (Cambridge, Grotius, 1990), p. 354.Google Scholar

46 “In order to consider a claim dismissed … the judgment that concludes it [the proceeding] must be one that decides on the merits, dealing with the litis set out in the complaint, through the causes of action relied on and the defenses made to them, and in respect of which the law will not grant any ordinary recourse by virtue of which it can be modified or reversed, either imposing liability or dismissing the claims on the merits, as the case may be in such a way that the litis is definitively decided … [W]hen a judgment that puts an end to the proceedings dismisses the claims by reference to a preliminary or procedural defense … the judge or tribunal shall refrain from ruling on the merits, and should reserve the rights of the parties. Furthermore, the lack of integration of the procedural legal relation has only the effect of terminating the proceedings, that is, it leaves untouched the rights of the parties, because these defenses do not destroy the action, and have only a dilatory effect …“: Suprema Corte de Justicia de la Nation (Mexico), IUS 2001, Registro 189,629. Novena Epoca, Instancia: Tribunales Colegiados de Circuito, Fuente: Semanario Judicial de la Federation y su Gaceta; Tomo XIII, mayo de 2001; Tesis VII. 1°. C.72 Cpag. 1200.

47 DSV Silo- und Verwaltungsgesellschaft mbH v. Owners of the Sennar and thirteen other ships (The Sennar) [1985] 2 All ER 104.

48 Ibid., at pp. 110-111.

49 See e.g. Tradex Hellas SA v. Republic of Albania, decision on jurisdiction of 24 December 1996, 14 ICSID Review — Foreign Investment Law Journal 161 (1999).

50 But see the Second South West Africa cases, where the International Court went so far as to say that “a decision on a preliminary objection can never be preclusive of a matter appertaining to the merits“: ICJ Reports 1966, p. 6 at p. 37 (para. 59) (emphasis added).

51 Azinian v. United Mexican States, decision of 1 November 1999, 39 ILM 537 at p. 552 (para. 99).

52 Award, § 31, 40 ILM 56 (2001), at p. 70.

53 In its helpful submission of 19 February 2002, the Respondent agreed “that the doctrine of abuse of process could be applicable in appropriate circumstances, perhaps not as a general legal principle, but as an inherent authority of the tribunal to safeguard the process.” It noted also the prohibition in Mexican law against multiple claims in amparo: Law on Amparo, Article 73, sections III and IV.

54 Certain Phosphate Lands in Nauru, Nauru v. Australia, Preliminary Objections, ICJ Reports 1992, p. 240, at p. 255 (para. 38).