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Waste Management v. Mexico

Type of decisionAward
Date of decision26 May 2000
Tribunal
Bernardo M. Cremades (President)
Eduardo Siqueiros T.
Keith Highet (dissenting)
Legal instrumentNorth American Free Trade Agreement
Related decision(s)
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Statements from this decision

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Description of dispute settlement procedure in NAFTA
The function of Article 1121 NAFTA is to avoid double compensation; thus the waiver required by Article 1121 NAFTA prohibits the claimant from pursuing domestic proceedings where both the domestic action and the arbitration would legally be based on the same measure.
A waiver is a unilateral act by which rights are voluntary abdicated; a waiver must be clear, explicit, and categorical.
Submission of a waiver under Article 1121 NAFTA must take place in conjunction with the submission of the notice mandated by Article 2 of the Additional Facility Arbitration Rules.
A waiver according to Article 1121 NAFTA implies a formal and material act; the formal requirements are outlined in Article 1121 NAFTA
As a material requirement, Article 1121 NAFTA calls for a show of intent by the issuing party regarding its waiver; this declaration of intent must assume concrete form and must be made manifest by means of a written text and specific conduct, thus requiring the tribunal to assess whether there is a divergence between the sentiments manifested and the conduct actually engaged in
Even in the case where a claim is denied, each of the disputing parties may be ordered to defray the respective costs occasioned by its own defence when there is no evidence of recklessness or bad faith on the claimant’s part.
Description of dispute settlement procedure in NAFTA
The function of Article 1121 NAFTA is to avoid double compensation; thus the waiver required by Article 1121 NAFTA prohibits the claimant from pursuing domestic proceedings where both the domestic action and the arbitration would legally be based on the same measure.
Article 1121 NAFTA lays down conditions for the submission of a claim to arbitration; if these conditions are not met, there is no consent and, thus, the arbitral tribunal has no legal mandate under Article 1122 NAFTA
The tribunal decides whether the consent and waiver were produced in accordance to Article 1121 NAFTA and, in evaluating the existence of a show of intent by the waving party, judges on the compliance with the waiver
A waiver is a unilateral act by which rights are voluntary abdicated; a waiver must be clear, explicit, and categorical.
Submission of a waiver under Article 1121 NAFTA must take place in conjunction with the submission of the notice mandated by Article 2 of the Additional Facility Arbitration Rules.
A waiver according to Article 1121 NAFTA implies a formal and material act; the formal requirements are outlined in Article 1121 NAFTA
As a material requirement, Article 1121 NAFTA calls for a show of intent by the issuing party regarding its waiver; this declaration of intent must assume concrete form and must be made manifest by means of a written text and specific conduct, thus requiring the tribunal to assess whether there is a divergence between the sentiments manifested and the conduct actually engaged in

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