Countermeasures defence rejected in NAFTA Chapter 11 arbitration | Practical Law
In Archer Daniels Midland Company and Tate & Lyle Ingredients Americas Inc v Mexico (ICSID Case No ARB (AF)/04/05), a tribunal has rejected a defence based upon the customary international law doctrine of countermeasures. The award was made in November 2007 but only recently published (in redacted form) on the ICSID website. The tribunal concluded that the defendant had failed to establish the customary international law defence of "countermeasures", and awarded damages to the claimants for breach of the NAFTA provisions relating to national treatment and performance standards.