By: John Lechuga
1. Introduction
The last five decades have witnessed a remarkable growth in the rise of public-private contracts and related disputes. On one hand, populist governments have attempted to push to further restrict the arbitration of public contracts. On the other hand, countries like the U.S. treat public private contracts as if they were private ones. A different doctrinal understanding of public private contracts has generated large controversies; this was the case in the well-known Commisa This was a unique case, that shows why Mexico’s petroleum company (Pemex) public private arbitration “PPA” framework was changed and it demonstrates issues that may arise if the PPA framework in other sectors remain unchanged. The Mexican and U.S. judicial rulings in Commisa illustrate how one nation’s public interest safeguards can result in different interpretations depending on the jurisdiction.
First, this article begins by discussing the history and current political state of Mexico’s energy sector. Second, the paper will evaluate the current legal framework of PPA’s in Mexico and the current issues that are faced due to this framework. Finally, the article concludes by analyzing the Commisa case and explaining how this case lead to understand where we are today and what are the dangers of not adapting Public Private Arbitration legislation.
2. Sector
Mexico’s economy is largely dependent on its energy sector. From 2012 to 2018, President Peña Nieto made energy overhaul the top economic priority of his administration; his goal was to boost the growth of one of the world’s largest economies.[1] Peña Nieto successfully passed a major energy reform, “the reform ended the decade-long monopoly enjoyed by Mexico’s two state-owned energy behemoths, national oil company Pemex and electricity utility CFE.”[2] Worldwide this was well received and perceived as opening new opportunities for investment across Mexico’s energy sector. International oil giants like ExxonMobil and Royal Dutch Shell immediately competed for the newly established development contracts and licenses. “From the get go a great period of investment came, the energy reform triggered substantial benefits, such as contracts that could yield over US$ 200 billion in investments.”[3] This honeymoon phase did not last long.
On July 1, 2018, Mexicans held presidential elections. Populist candidate López Obrador won overwhelmingly. President Lopez Obrador had built a significant following in the campaign trail by committing himself to strengthening the state’s role in the energy sector, “he argued that past market liberalization and privatization of other industries deepened chronic inequality in Mexico and encouraged corruption.”[4]
In 2019, immediately following the election, concerns over Lopez Obrador’s economic policies reduced new investment in Mexico this contributed to a slowdown that pushed the economy into a mild recession.[5] Some of the most concerned parties were companies from around the world that had pledged to invest billions of dollars in Mexico under the constitutional changes to open up the energy market, in particular for oil and gas, made by Lopez Obrador’s predecessor. Lopez Obrador began to put a halt on the liberalization process, saying it had not yielded results for Mexico. This change in policy has already brought many disputes, for example, one particular dispute focused on who has the right to operate a major offshore crude discovery in a reservoir straddling areas held by state oil firm Petroleos Mexicanos (Pemex) and a U.S.-led consortium of private investors.[6] Lopez Obrador also upset foreign investors and governments when he threatened to tear up about US$ 12 billion in contracts agreed under Peña Nieto for construction of a string of natural gas pipelines, arguing that those contracts had ripped off taxpayers.[7]
Lopez Obrador continues to push for a bigger government in Mexico’s Energy sector, this has continued to cause concerns for many investors. In fact, on March 9, 2020 the United States, the European Union, Canada and six European nations held joint talks on concerns over Mexico’s energy policy. The unusually broad diplomatic encounter is a measure of how the leftist Lopez Obrador’s break with the energy policy of the previous government is worrying economies that have traditionally been some of Mexico’s biggest foreign investors. U.S., Canadian and European officials privately voice concern that Mexico’s energy policy is eroding the legal foundations of contracts worth billions of dollars with the previous administration, in what they fear is a creeping squeeze-out of their interests. Mexico’s government continues to deny this, it claims that it is not undermining those deals, but says prior contracts were often damaging to the country, and has sought to renegotiate the terms of some.
All in all, the current uncertainty of Lopez Obrador’s break with the energy policy of the previous government is worrying both domestic and international investors who perceive Lopez Obrador’s actions as an erosion of the legal foundations of the contracts they entered into with the previous administration. Investors fear that Lopez Obrador’s actions are a creeping squeeze-out of their interests. These contracts are worth billions of dollars, and in the future may result in countless litigation, given that most of these contracts include arbitration clauses, today more than ever we must examine the framework and implication of Mexico’s public private arbitration and the future of Mexico’s energy sector.
3. Discussion
a. Introduction to Public Private Arbitration
In international arbitration, when public bodies are involved in commercial contracts, the traditional point of distinction has been whether the state operated jure imperii or jure gestionis.[8] The distinction has not always been clear and has been unsatisfactory to some, mainly because it fails to capture an increasingly growing middle ground, a middle ground that falls into what many practitioners consider to be Public-Private Arbitration.[9] Examples of PPA contracts typically include public big infrastructure and concession contracts, procurement contracts, “contracts for the provision of an essential public service (provision of energy and water) or contracts for the implementation of important governmental policies in sectors that are sensitive for the public, such as health, education, social welfare and immigration.”[10]
The last decades have witnessed a significant growth in the rise of public-private contracts. A combination of economic and ideological factors has led to increased interaction between public and private sectors and increased reliance on private actors to perform public functions in virtually every industrialized state.[11] The potential problem with public-private arbitration is that, while its outcomes may have far-reaching implications for the public interest, the resolution of these disputes may be conducted within private law frameworks. According to scholars, this raises an important question, whether the public interest is accounted for, and indeed protected, in public-private arbitrations.
Additionally, it is important to note that public private arbitration has different frameworks depending on jurisdiction, and that the distinctions are important. For example, French law recognizes the distinctive nature of public-private arbitrations, and “a number of French courts decisions have held that awards arising out of public-private arbitrations must be reviewed by administrative courts to ensure that the award is not contrary to French mandatory rules of public law.” [12]
By contrast in common law countries “partially because of the lack of a developed administrative law sphere or a separate body of administrate courts, American arbitration law has been exclusively developed around a private law paradigm, which treats all arbitrations (including those with public interest implications) as commercial.”[13] In addition, the American concept of public policy generally has been “narrowly construed”, and does not necessary encompass public law norms.
b. Mexico’s System
Mexico follows a similar framework to the French system discussed above, although Mexico’s framework continuous to evolve. Over the years, Mexico has developed a complex legal framework that varies across State Owned Enterprises (SOE), agencies, and sectors. Thus, there is not one general framework or law that safeguards the public interest in PPA across all contracts or industries. Nevertheless, some constitutional principles govern all public and private contracts.[14] For instance, Mexican public entities follow the principle of legality, which requires them to agree to arbitration only when a law expressly authorizes them to do so.
Mexico’s framework has establishes a dual system of public contracts: on the one hand are those contracts concluded with agencies; on the other hand, those private state contracts concluded with State Owned Enterprises and with agencies in the electric power industry.[15] The safeguards of public interest in Public Private Arbitration are different among contracts in this dual system. First, in Mexico there are two general safeguards of public interest restraining PPA arising out of public contracts. These safeguards embrace the doctrine of administrative contracts and the exclusion of acts of authority from the scope of arbitration. Depending on the law or sector, the acts of authority may excluded from arbitration things such as the administrative rescission or early termination of a contract. Importantly, these safeguards do not exist in PPA arising out of private contracts concluded with State Owned Enterprises, such as Pemex, this change came after the Commisa [16]
Mexico’s complex legal framework of varied safeguards is unique in the world. Safeguards similar to Mexico’s cannot be found in other Latin American countries; in fact according to Mexican practitioner Orlando Cabrera the rest of Latin American countries have even more complex systems. For instance, “Colombia includes procedural safeguards for the appointment of arbitrators and adds a special conflicts of interest list.”[17] Procedural safeguards aimed at restricting the actual arbitration procedure are not available in Mexico. In Mexico, arbitrators arbitrate PPAs as they would arbitrate any other arbitral proceeding because the lex arbitri applies equally to private and public arbitrations. Thus, no distinction exist between PPAs and any other arbitration.[18] Thus, the doctrine of administrative contracts remains as Mexico’s primary sources of protection for public private arbitrations.
c. The Doctrine of Administrative Contracts
To understand the protections Mexico offers its residents regarding PPA, we must understand the doctrine of administrative contracts. The doctrine of administrative contracts has French origins and has influenced the current Mexican system. This explains why the doctrine is currently one of the main safeguards of PPA in Mexico. Administrative contracts traditionally depict six characteristics, importantly, when an agency notifies a party of the contract’s early termination or administrative rescission, the agency must take action and immediately take possession of the property.[19] This is an example of both an exorbitant clause and of the safeguards of public interest in PPA, this would not be the case in private law.
d. Mexico and the Principle of Legality
In Mexico, the principle of legality safeguards public interest by requiring an express provision in the law allowing agencies to agree to arbitration. Legislators have safeguarded public interest by limiting what can be arbitrated. Importantly, certain acts of authority, mainly the exorbitant clauses like early termination and administrative rescission, cannot be subject to arbitration. Thus, under the current law in the event of an early termination or administrative rescission’s notice, the agency must take immediate possession of the works.[20] This would not be permissible in a purely private contract.
e. Administrative Rescission
Under private law, a party who has performed the contract can claim the rescission from the breaching party before a judge or an arbitrator.[21] Under administrative law, an agency may rescind a contract, without going to court, by an administrative procedure that starts with a notice of breach. “The contractor may support his case with arguments and evidence within 15 working days. Thereafter, the agency must decide whether to rescind or not within 15 working days.”[22] The decision must conform with the principle of legality; otherwise, the contractor can set aside the decision.[23] As mentioned above, there are different laws governing the different sectors. For the purpose of this article, we will discuss the law in public works, public acquisitions and energy sectors.
f. Works Law and Acquisitions Law
A significantly important area is the Public works field and public acquisitions, which are governed by the Works Law and Acquisition law. The Acquisitions Law administers the public purchases, leases and related services. These laws allow for arbitration but the agency has to first specify that the matters are subject to arbitration. The Mexican Congress changed the law and now permits arbitration, but continues to exclude administrative rescission and early termination from arbitration.[24] If there is a dispute, the Federal Administrative Justice Court has jurisdiction to resolve disputes regarding the validity of the administrative rescission and early termination.[25] Notwithstanding this, an arbitral tribunal may still deal with damages and lost profits claims regarding the rescission or early termination since they are not expressly excluded from the arbitration’s scope.[26] Mexican law governs these contracts; foreign law can govern contracts concluded abroad.[27] If the performance takes place in Mexico, the contract is subject to Mexican law and the place of arbitration should be in Mexico. Normally, Mexico City is agreed as the seat of arbitration.[28] This can bring issues as we have seen in the Commisa.
g. The Energy Sector
As previously mentioned in 2013, Congress approved President Enrique Peña Nieto’s comprehensive energy reform. Under this reform, the energy field may be divided into the hydrocarbons and the electric power sectors.[29] The new reform included provisions enabling arbitration, and fixing some of issues that were seen in the Commisa.
h. Hydrocarbons Sector
The first sector is the hydrocarbons sector, the law allows arbitration of contracts for hydrocarbons and E&E, but excludes administrative rescission from the arbitration.[30] If a party wishes to challenge the rescission, the route would be an indirect amparo[31] A District Court may rule on the amparo action within six months. If a party remains unsatisfied then they may appeal the decision.[32] Damages and lost profits regarding administrative rescission are subject to the arbitration. This again creates potential long parallel proceedings and incompatible decisions. This possible problem can be seen through the Commisa case.
The current law requires for the arbitration to be conducted in Spanish and in accordance with the Mexican lex arbitri. Additionally, Mexican Federal Law must govern the contract. The award must strictly comply with the law.[33] For instance, the Model Production-Sharing Agreements for Oil Round 1 contains an arbitration clause under the UNCITRAL Rules. In this instance the “seat is The Hague, which represents a victory for contractors. As we will discuss in more detail below, after the Commisa case, they did not want to have Mexico City as the place of arbitration.”[34]
i. The Electric Power Market
The second sector is the Electric Power Industry, here the law allows arbitration for the occupation of land related to Transmission and Distribution of electricity. This law was established due to the principle of legality; it states that the Electric Power Market Rules must expressly permit arbitration.[35] In 2016, the Dispute Resolution Manual established the rules and procedures to solve controversies between the members of the Electric Power Industry. Members of the Market, Carriers, and Distributors can challenge any resolution of National Energy Control Centre (CENACE) through arbitration.[36] When the Members of the Market, Carriers and Distributors cannot agree to an agreement on dispute resolution, arbitration must proceed, as a default rule, under the International Centre for Dispute Resolution (ICDR) rules. Federal Mexican law will govern the merits.[37] No matters are excluded from the electric power market arbitration.[38] According to practitioners like Orlando Cabrera this is the correct path that legislators should take to improve the rule of law.
j. CFE and PEMEX
In Mexico explicit laws governs certain productive companies of the State. For example, PEMEX Law and CFE Law govern all the acts, agreements, and securities, guarantees of PEMEX or CFE. PEMEX Law and CFE Law contain express provisions authorizing arbitration.[39] PEMEX, CFE, and their subsidiaries may agree to contracts governed by foreign law when the contracts have effects abroad, as well as to the jurisdiction of foreign courts in commercial matters.[40] These laws make no reference to administrative rescission or early termination, which reinforces the new commercial nature ascribed to the contract after Commisa.[41] The new commercial character of contracts aims to fix some of the issues we saw in the Commisa case, thus, no sections are excluded from arbitration under the new law. “Accordingly, these laws improve certainty and predictability, avoiding risks of parallel proceedings and providing an effective avenue for dispute resolution.”[42]
In short, the Mexican framework can be summarized to the following: the Works Law, Acquisitions Law, and Hydrocarbons Law, public interest safeguards mainly exist through the exclusion of acts of authority from arbitration. The Electric Power Industry Law, Pemex Law and CFE Law do not contain these safeguards. The same safeguards may not be applicable in international investments.
k. Investment Arbitration and Additional Protections
It appears that investment arbitration provides foreigner investors in Mexico with heightened protection. Although there are some acts that would not be allowed to be arbitrated these may be arbitrated in the international investment arena. For example, administrative rescission, revocation and other acts of authority fall within the jurisdiction of an investment tribunal. Investment tribunals will generally analyse those acts of authority as breaches to the treaty, but treatise does not generally exclude those acts from the scope of arbitration. On the contrary, the Acquisitions Law, Works Law, PPP Law and Hydrocarbons Law exclude acts of authority from contract based arbitration. Thus, it appears that under investment, treaty tribunals hold a wider jurisdiction and therefore investors hold greater protections.[43]
l. The Road from Commisa
Commisa is a unique case, it tells us why the public private arbitration framework was changed in Pemex law but also it tells us the issues with other areas remaining unchanged. First, parallel proceedings included commercial and investment arbitration, and litigation in Mexico, Luxemburg, and the U.S. Second, the dispute settlement lasted almost fifteen years. Third, laws and case law evolved over the fifteen years of the proceeding.[44] For instance, the law governing this dispute is no longer the same. Now, PEMEX contracts have a private nature, and PEMEX Law does not exclude administrative rescission from arbitration. However, Commisa’s precedents serves us to understand other disputes that may arise under the Works Law, the Acquisitions Law, and the Hydrocarbons Law.[45] According to practitioners like Orlando Cabrera, the Mexican and U.S. judicial rulings illustrate how one nation’s public interest safeguards can result in different interpretations depending on the jurisdiction.
The Commisa case according to the Commisa’s court summary was based on a Pemex contract which had a clause that gave Pemex (PEP) the unilateral right to “Administrative Rescission” if COMMISA breached the contract or abandoned its work; another clause required COMMISA to post performance bonds. In 2003 the parties had a conflict, the 2003 contract failed to resolve the parties’ differences, and the conflict reached climax in March 2004 when PEP, alleging that COMMISA had failed to meet contractual milestones and had abandoned the project, gave notice of its intent to administratively rescind the contract. PEP seized the oil platforms, which were 94 percent complete; ejected COMMISA from the work sites; and gave notice by letter of its intention to administratively rescind the contracts. After a fruitless conciliation effort, COMMISA filed a demand for arbitration with the International Chamber of Commerce in December 2004. When PEP informed COMMISA two weeks later that it was indeed effecting administrative rescission, COMMISA filed an amparo action in the District Court on Administrative Matters for the Federal District (“Mexican District Court”) challenging the constitutionality, appropriateness, and timeliness of PEP’s administrative rescission; COMMISA lost on all counts. During the pendency of the amparo action, arbitration proceedings began in Mexico City in May 2005, with the active participation of both parties. In November 2006, the arbitration panel issued its Preliminary Award, finding that it possessed jurisdiction over the dispute and enjoining PEP from attempting to collect on the performance bonds until the issuance of a final arbitral award authorizing collection. Prior to the issuance of the Preliminary Award, PEP’s arguments did not include a contention that its administrative rescission was an act of authority not subject to arbitration under Mexican law.
Two developments in Mexican law transpired while arbitration proceedings were ongoing. In December 2007, the Mexican Congress changed the available forum for claims that (like COMMISA’s) raise issues related to public contracts, and vested exclusive jurisdiction for such disputes in the Tax and Administrative Court. Not incidentally, the switch curtailed the applicable statute of limitations: previously, ten years for suits in the Mexican District Courts; afterward, for suits in the Tax and Administrative Court, 45 days. Second, in May 2009, the Mexican Congress enacted Section 98 of the Law of Public Works and Related Services (“Section 98”), which ended arbitration claims (such as those by COMMISA).
Promptly after the issuance of the Preliminary Award in November 2006‐‐ and before the enactment of Section 98‐‐PEP asked the arbitration tribunal to reconsider its Preliminary Award and‐‐for the first time‐‐contended that administrative rescission was categorically exempt from arbitration as an act of authority on behalf of the Mexican government. The tribunal rejected this argument in its December 2009 Final Award, and, in a voluminous decision, found that PEP breached the contracts and awarded COMMISA approximately US$ 300 million in damages. COMMISA raced to confirm the award in the Southern District, which ruled in COMMISA’s favor in August 2010. PEP appealed that judgment to this Court in the First Appeal and simultaneously challenged the arbitral award in Mexico by filing its own amparo action, which eventually made its way to the Eleventh Collegiate Court, the analog of the United States Court of Appeals for the District of Columbia Circuit. In September 2011, the Eleventh Collegiate Court held that PEP’s rescission was not arbitrable and ordered that the award be annulled; its analysis referenced the newly‐enacted Section 98.
The Mexican Court reasoned that the Tribunal disrupted the act of authority because the amparo judgment had ruled on that act of authority. COMMISA initiated the amparo and it was denied.
The Court insisted that PEP acted as an authority in the administrative rescission. A tribunal affects public policy, if it rules, modifies or alters the rescission. Additionally, Congress amended the Works Law excluding administrative rescission from arbitration to prevent this situation. The Court stressed that it was not retroactively applying the law, but using it as a guiding principle.
The Mexican court reasoned that res judicata is a public policy matter that provides certainty to the parties. A tribunal cannot modify a court’s final decision, when the decision has established the validity of an act of authority. Otherwise, this would violate public policy.
The Court ruled that the Tribunal lacked jurisdiction to decide on the facts and reasons causing the administrative rescission because they are not subject to arbitration. Additionally, COMMISA’s amparo was denied. No other claims could be subject to arbitration even when some parts were connected to the Contract’s performance. To file a claim related to the Contract’s performance or to determine the Contract’s breaching party, claimant had to revoke the administrative rescission. Therefore, the administrative court had to deal with COMMISA’s performance and non-payment, not the Tribunal.
The Court held that a federal administrative proceeding provided the proper venue for challenging the res judicataeffect, this estopped the Tribunal from rendering its award. The Eleventh Collegiate Court revoked the Fifth District Court’s judgment and granted PEP’s amparo which aimed to set aside the judgment and order the Fifth District Court to issue a new judgment annulling the award. In 2011, the Fifth District Court set aside the award. This was not the end, later the S. Second Circuit Court of Appeals held that the Southern District Court properly exercised its discretion in confirming the award because giving effect to the award’s nullification would run counter to U.S. public policy and would be ‘repugnant to fundamental notions of what is decent and just’ in the U.S., therefore confirming the Award which was nullified in the Mexican Courts in the seat of arbitration.
4. Implications
The road from Commisa explains why the Pemex’s public private arbitration framework was changed but also explains the issues with other areas remaining unchanged. For example, an arbitral award in the Works Law or hydrocarbons sector can continue to be challenged. The Mexican and U.S. judicial rulings illustrate how one nation’s public interest safeguards can result in different interpretations depending on the jurisdiction. Mexican courts saw the administrative recession safeguard as reason enough to vacate the award but the U.S. did not. In fact, some of the experts used by Pemex in the case later claimed that the U.S. courts decided the case wrongly primarily due to their lack of understanding of administrative civil law. The changes made to the Pemex law after Commisa demonstrate an intent to attract future investment and look more neutral. For example, many public private arbitration contracts in Mexico now allow the seat to be The Hague and not Mexico City. All in all the current protections demonstrate that Mexico is moving forward in the right direction notwithstanding the current threats to the energy sector from Mexico’s populist president.
Footnotes:
[1] Carlos Pascual et al, Will Mexican energy reform survive political transition? Brookings (2018), https://www.brookings.edu/research/will-mexican-energy-reform-survive-political-transition/#footnote-2.
[2] Id.
[3] Press Release, Secretaría de Energía, “Con los proyectos en este año las inversiones totales comprometidas con la Reforma Energética rebasarán los 200 mil millones de dólares: PJC” Gobierno de México (Feb. 8, 2018), https://www.gob.mx/sener/prensa/con-los-proyectos-a-realizar-en-este-ano-lasinversiones-totales-comprometidas-con-la-reforma-energetica-van-a-rebasar-los-200-mil-millones-de-dolares-pjc.
[4] Carlos Pascual et al, Will Mexican energy reform survive political transition? Brookings (2018), https://www.brookings.edu/research/will-mexican-energy-reform-survive-political-transition/#footnote-2.
[5] Dave Graham, Exclusive: U.S., Canada, European nations meet to discuss concern over Mexico energy policy Reuters(2020),https://www.reuters.com/article/us-mexico-energy-diplomacy-exclusive/exclusive-u-s-canada-european-nations-meet-to-discuss-concern-overmexico.
[6] Id.
[7] Id.
[8] Stavros Brekoulakis, The Protection of the Public Interest in Public Private Arbitrations’ Kluwer Arbitration Blog (May 8, 2017), http://arbitrationblog.kluwerarbitration.com/2017/05/08/the-protection-of-the-public-interest-in-public-private-arbitrations/.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Orlando Federico Cabrera Colorado and Andrea Orta González Sicilia, The Dual System of Public and Private Contracts Safeguarding Public Interest in Mexican Public-Private Arbitration and Its Evolution Since the Pre-NAFTA Years (unpublished article).
[15] Id.
[16] Id.
[17] In Colombia, the administrative court has jurisdiction to set aside an award where an agency is involved. For all other matters, the Colombian civil chamber has jurisdiction to vacate awards.
[18] See Cabrera, The Dual System of Public and Private Contracts Safeguarding Public Interest in Mexican Public-Private Arbitration and Its Evolution Since the Pre-NAFTA Years (unpublished article).
[19] First, contracting parties include (a) a state entity and (b) a private or public person. Second, inequality exists among the contracting parties. The law restrains the private person’s will to negotiate. The bidding guidelines and the contractual terms are not subject to negotiation. Likewise, the contractor seeks the business; instead, the government seeks the ordre public and the satisfaction of a collective public necessity. Third, administrative contracts are flexible. A state entity may seek a third party to continue the contract’s performance when the original contractor failed to perform. Fourth, the principle of legality applies to these contracts. Fifth, traditionally, administrative courts resolve administrative contracts’ disputes. Additionally, ‘cláusulas exorbitantes’ (exorbitant clauses) that may be considered abusive under private law contracts may be valid in these contracts because they ensure the constant operation of necessary public services.
[20] Works Law, art. 62, DOF publication date 4-01-2000, latest revision DOF 28-05-2009 (Mex.).
[21] Federal Civil Code, Art 1949, DOF publication date 14-05-1928, latest revision DOF 24-12-2013 (Mex.).
[22] See Cabrera, The Dual System of Public and Private Contracts Safeguarding Public Interest in Mexican Public-Private Arbitration and Its Evolution Since the Pre-NAFTA Years (unpublished article).
[23] Acquisitions Law, Leasing and Public Services, art. 54, DOF Publication Date 10-11-2014; Works Law, art 61. DOF publication date 4-01-2000, latest revision DOF 28-05-2009 (Mex.); Federal Law on Administrative Procedure, Arts 60, 3.V, 5-6.
[24] Works Law, art 98, DOF publication date 4-01-2000, latest revision DOF 28-05-2009 (Mex.); Acquisitions Law, Acquisitions Law, Leasing and Public Services, art. 80, DOF Publication Date 10-11-2014.
[25] See (n 53); Organic Law of the Federal Administrative Justice Court, Art 3.VII, DOF publication date 18-07-2016 (Mex).
[26] Acquisitions Law, Leasing and Public Services, aArt. 85, DOF Publication Date 10-11-2014; Works Law, aArt. 103. DOF publication date 4-01-2000, latest revision DOF 28-05-2009 (Mex.), Wöss, Herfried, Arbitraje, Medios Alternativos de Solución de Controversias y Compras del Sector Público en México, RLMA (2009); José María Abascal, ‘Mexico’ in The International Arbitration Review, J.H. Carter (ed.) (5th ed. LBR Ltd UK 2014) 386.
[27] Works Law and Acquisitions Law, Arts 15-16, DOF publication date 4-01-2000, latest revision DOF 28-05-2009 (Mex.).
[28] Id. Wöss [2009] (n 3) 128.
[29] See Cabrera, The Dual System of Public and Private Contracts Safeguarding Public Interest in Mexican Public-Private Arbitration and Its Evolution Since the Pre-NAFTA Years (unpublished article).
[30] Id.
[31] Ley de los Órganos Reguladores Coordinados en Materia Energética, Art 27, Diario Oficial de la Federación DOF 11-08-2014 (Mex.).
[32] Amparo Law, Art 81.I.e, DOF publication date 02-04-2018, latest revision DOF 15-06-2018 (Mex.).
[33] Hydrocarbons Law, Art 21, DOF publication date 11-08-2014, latest revision DOF 15-11-2016 (Mex.).
[34] See Cabrera, The Dual System of Public and Private Contracts Safeguarding Public Interest in Mexican Public-Private Arbitration and Its Evolution Since the Pre-NAFTA Years (unpublished article).
[35] Electric Power Industry Law, Arts 74.VIII, 96, DOF publication date 11-08-2014.
[36] CENACE will control the National Electric System. Electric Power Industry Law, art. 3.2.6, DOF publication date 11-08-2014.
[37] Electric Power Industry Law, art. 3.5, DOF publication date 11-08-2014 Art.
[38] See Cabrera, The Dual System of Public and Private Contracts Safeguarding Public Interest in Mexican Public-Private Arbitration and Its Evolution Since the Pre-NAFTA Years (unpublished article).
[39] Id.
[40] PEMEX Law, Art 115, DOF publication date 11-08-2014; CFE Law, Art 118, DOF publication date 11-08-2014.
[41] Herfried Wöss et al, El contrato administrativo, inarbitrabilidad y el reconocimeinto de laudos anulados en el país de origen. El Caso Commisa, Lima Arbitration 77-106 (2014).
[42] See Cabrera, The Dual System of Public and Private Contracts Safeguarding Public Interest in Mexican Public-Private Arbitration and Its Evolution Since the Pre-NAFTA Years (unpublished article).
[43] “For instance, In Gemplus, the tribunal examined two requisitions and a concession’s revocation. The tribunal found these acts were manifestly irrational, arbitrary perverse, and conducted in bad faith towards Claimants. The tribunal held that Mexico unlawfully expropriated the Claimants investments, indirectly through the requisition and directly by the concession’s revocation.” See Orlando Federico Cabrera Colorado and Andrea Orta González Sicilia, The Dual System of Public and Private Contracts Safeguarding Public Interest in Mexican Public-Private Arbitration and Its Evolution Since the Pre-NAFTA Years (unpublished article).
[44] Id.
[45] Id.
