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1、IN THE ARBITRATION UNDER CHAPTER 11 OF THE NORTH AMERICAN FREE TRADE AGREEMENT AND UNDER THE UNCITRAL ARBITRATION RULES BETWEEN METHANEX CORPORATION, Claimant/Investor, and THE UNITED STATES OF AMERICA, Respondent/Party. CLAIMANT METHANEX CORPORATIONS DRAFT AMENDED CLAIM Christopher F. Dugan James A
2、. Wilderotter Gregory G. Katsas Melissa D. Stear Tashena Middleton Moore JONES, DAY, REAVIS to that end, ADM makes large political contributions to both political parties in order to ensure that its interests are furthered. ADM is single-minded in pursuit of its corporate objectives, and its corpora
3、te behavior has been harshly condemned by the U.S. Court of Appeals for the Seventh Circuit in a case involving another of ADMs 1 As used herein, the term “intentional discrimination” has its usual and customary legal meaning. In this context, intentional discrimination means an intent to discrimina
4、te against imports of methanol and MTBE, to the benefit of the domestic ethanol industry. 2 products: “The facts involved in this case reflect an inexplicable lack of business ethics and an atmosphere of general lawlessness that infected the very heart of one of Americas leading corporate citizens.
5、Top executives at ADM and its Asian co-conspirators throughout the early 1990s spied on each other, fabricated aliases and front organizations to hide their activities, hired prostitutes to gather information from competitors, lied, cheated, embezzled, extorted and obstructed justice.” United States
6、 v. Andreas, 216 F.3d 645, 650 (7th Cir. 2000). Two weeks after the secret meeting at ADMs headquarters in Decatur, ADM made a $100,000 contribution to the Davis campaign, and it made another $55,000 in contributions over the next four months. Seven months after his initial meeting with ADM official
7、s, the Governor issued the executive order banning MTBE and indicating that ethanol would be the preferred replacement. Shortly thereafter, ADM made yet another $50,000 contribution to the Governor.2 Once the MTBE ban was announced, ADM moved into the California oxygenate market: it began selling it
8、s U.S. ethanol, and it has been reported that it will build an ethanol plant there. As set forth in previous submissions, these new allegations fully justify Methanexs request to amend its claim. B.Summary of Amendments The amended claim describes the actions of the U.S. ethanol industry and its pol
9、itical allies to expand ethanols protected status, and in particular their attempts to create a public perception that MTBE and methanol are dangerous foreign products whose use should be restricted. The amended claim shows that there are much better alternatives to the California MTBE ban, such as
10、fixing the leaking gasoline tanks, and that these alternatives, on balance, 2 Methanex is not alleging that Governor Davis or ADM in any way violated U.S. or California campaign contribution statutes or other relevant laws. The issue, however, is not whether Governor Davis and ADMs actions were lega
11、l in the United States, but whether they were so unfair, inequitable, and discriminatory that they violate NAFTA and international law. 3 protect the environment better than the MTBE ban (which does not, in fact, protect the environment). The amended claim asserts that the California measures violat
12、e the anti-discrimination provisions of NAFTA Article 1102. It also asserts that because of the U.S. ethanol industrys improper influence, the California measures were arbitrary, unreasonable, and not in good faith, and that the MTBE ban was not the least trade-restrictive method of solving the wate
13、r contamination problem. As such, the California measures violate Article 1105. The amended claim continues to include the allegations in the original claim that the California measures violate NAFTA Article 1105 and NAFTA Article 1110. As the amended claim makes clear, Californias decision to ban M
14、TBE was an arbitrary rush to judgment that was not based on a reasoned analysis of the evidence, nor on a reasoned assessment of the risks, costs, and benefits of the ban and its alternatives. Nonetheless, Californias decision, caused by the U.S. ethanol industrys lobbying, precipitated efforts to i
15、mpose similar bans throughout the U.S. In contrast, European regulatory authorities, who are not subject to any ethanol industry influence or pressure, have reached a much different judgment. After re-examining MTBE in light of the California ban, these authorities have concluded that MTBE is not a
16、danger to the environment, that it is not a carcinogen, and that there is no reason to ban its use. Had California not been improperly influenced by the U.S. ethanol industry, it would have reached the same conclusion. II.THE PARTIES The Claimant, Methanex, is a company originally incorporated under the laws of Alberta and now continuing under the Canadian Business Corporations Act. Methanex is the largest producer and marketer of methanol in the world, with production facilities l
