INDEX

CONCURRING OPINION OF PANELISTS LUCIA REINA ANTUÑA AND
RODOLFO TERRAZAS SALGADO REGARDING THE APPLICATION OF THE
STANDARD OF REVIEW, THE POWERS OF THE PANEL AND GENERAL
PRINCIPLES OF LAW, CORRESPONDING TO PART III OF THE FINAL DECISION

1. Binational Panel’s Location in International Law



2. Alternative Dispute Settlement Mechanism



3. Powers of the Panel regarding the Standard of Review



4. Application of General Principles of Law

CONCURRING OPINION OF PANELISTS LUCIA REINA ANTUÑA AND RODOLFO TERRAZAS SALGADO REGARDING THE APPLICATION OF THE STANDARD OF REVIEW, THE POWERS OF THE PANEL AND GENERAL PRINCIPLES OF LAW, CORRESPONDING TO PART III OF THE FINAL DECISION

Certainly these are controversial issues, and it is necessary to pronounce upon this review procedure, in the following terms:

1.- Binational Panel’s Location in International Law

To begin, we accept the uniform criteria sustained by doctrine ¹, in the sense that when dealing with international dispute settlement there are two existing legal processes: arbitration and the procedure before an International Court of Justice.

We agree with the view that arbitration process is designed to settle international conflicts in which two States (or individuals) normally, submit their differences to a person (arbitrator) or several persons (arbitration commission) freely designated by them to arrive at a decision based on the Law or the rules previously agreed to by the parties ².

On the other hand, we notice that authors of treatises of the intellectual stature of César Sepúlveda³, affirm that while arbitration is in essence different from judicial tribunals, there is no support for this view, because arbitration entails a binding decision resulting of a voluntarily accepted compromise by the litigants. It is a procedure of a jurisdictional nature, because it implies settling a legal position between the parties.

We notice that there is a coincidence between the different authors ⁴, with respect to the general characteristics of international arbitration, both public and private, which are restated below in order to compare them with the particular situation confronting the Binational Panel in this case. Thus, we find that:

A) An arbitration body deciding the controversy is not a body with a formal jurisdictional character. It’s made up of decision makers selected by the contending parties;

B) The procedure is governed by legal rules established by the parties to the conflict;

C) The decision is based on legal rules and on the substance of the case that the parties have determined or that are applicable according to International Law;

D) To have a dispute submitted to arbitration, the consent of the parties to that effect is necessary;

E) Consent to submit a dispute to arbitration can be submitted in part or in whole;

F) The arbitration body can be composed of one or several persons, as determined by the parties that agree to submit a dispute to arbitration;

G) To submit a dispute to international arbitration, it is necessary to do so by treaty through an arbitration agreement, or for that matter, a compromisory clause that can cover controversies between States or between individuals, on the understanding that exceptions on issues that will not be submitted to arbitration can be established, and that in practice are called reservations;

H) Normally the parties agree on the following in bringing a dispute to arbitration:

a) The number of arbitrators;

b) The manner of their appointments;

c) The procedural rules to be followed, and

d) The rules applicable to the substance of the conflict to be resolved.

I) The arbitrators must not exceed the limits that have been set in the arbitration agreement, and

J) Among States, remedies are only allowed against the award if they have been agreed otherwise the award is final. Among individuals, they must recognize challenges to the awards when the arbitrators exceed their powers, subject to the applicable provisions of international treatises.

In accordance with the above, it is evident that a binational panel has many similar features to a sui generis arbitration body for the following reasons:

- It was established to settle a conflict between parties with respect to a specialized matter, even though its members are not all required to be jurists, whose mission consists of applying the law to a particular case and deciding whether the authorities acted within the law.⁵ Paragraphs 2 and 3 of NAFTA article 1904, categorically establish that with respect to a final determination review, a panel shall apply the legal provisions in the case, to the extent that a court of the importing Party would rely on such materials, as well as the respective standard of review and the general legal principles, that a court of the importing Party otherwise would apply. In other words, the NAFTA provisions recognize the jurisdictional nature to a binational panel’s function, which compel it to behave procedurally as a jurisdictional tribunal of the country where the investigation took place. In that regard, Gilbert R. Winham ⁶ states that the obligation of the Panel consists in studying the administrative record of the challenged case and deciding, in a general manner, if the administrative determination complies with the domestic law and has sufficient evidence and support it.

- There is a substantial difference in the procedure followed by a binational panel as compaired to ordinary arbitration, in that, while in the latter, the parties participate in the selection or elaboration of the procedural rules that must be applied, in the former such rules are established in advance by the NAFTA contracting parties. These rules reflect at least two different regulatory schemes: the international one, which is composed of the provisions contained in the agreement, and are related to multilateral rules such as those set out in GATT and its Codes of Conduct; and the domestic one, which affects the legal provisions according with uniform Trade practices, which must be followed by binational panels when issuing decisions. In this regards, we consider that NAFTA’s intentions are clear since ⁷ panels do not have powers to create independent laws, and, must act in accordance with those of the importing country. Therefore, while a dumping or subsidy determination can vary from one country to another, that decision will always be made by the issuing administrative authority in accordance with its domestic law. In this connection, it is relevant to note that under the binational panels rules, a very particular balancing of interest is achieved by virtue of the fact that the Investigating Authority is obliged to participate in the panel dispute settlement mechanism when the individual complainants selects it, but the latter does not participate in the selection of the rules since they were decided by the NAFTA contracting parties.

- It is evident the binational panel lacks powers to enforce their final decisions; however, that does not necessarily mean that it conforms to an arbitral body. The lack of power to enforce, can be a characteristic of any tribunal, which operates within the kind of powers the law confers to it, whether it is of simple annulment or full jurisdiction. In the case of a binational panel, paragraph ⁸ of NAFTA Article 1904 establishes that when issuing its final decision it may uphold the final determination or remand it for action not inconsistent with its decision. It is undoubted two very important legal aspects are being recognized with relation to a binational panel: a) that the panel’s decision is obligatory that is, that for the parties its compliance is imperative and unavoidable8, and b) that the panel has jurisdiction to annul in the sense that it has the power to determine the invalidity of the challenged act, for the purpose of having the investigating authority substitute a new action to replace its previous act, in accordance with the guidelines of the judicial decision. Basically as set out in paragraph 2 of the Agreement’s Article 1904, which provides that the Panel must review the final determination to determine whether it was or not in accordance with the antidumping or countervailing duty law of the importing party.

- The binational panel, due to its mixed character presents particular analytical difficulties. Mexico has a certain tradition regarding public and private arbitration, and, while, it has not been a stranger to the evolution of the alternative dispute settlement procedures, the incorporation of mechanisms between individuals and the State is recent. Other arbitration mixed tribunals such as the International Centre for the Settlement of Investment Disputes (ICSID) has a mixed character due to the participation of a State and an individual as parties in the procedure; this gives rise to problems of a particular nature regarding the way in which the mixed arbitration tribunals are established, the way in which they issue their decisions and the applicable law to solve the dispute, ⁹ as well as the character of the litigating parties that intervene before them. In the binational panel review, all individuals, domestic or foreign and States, which have a legal interest and have been affected by the imposition of antidumping or countervailing duties in a determination issued by the investigating authority may intervene. ¹⁰

2.- Alternative Dispute Settlement Mechanism

To define the alternative mechanism it is important to note that the procedure which takes place in the first instance before the investigating authority is a specialized administrative procedure, in virtue of which it should be recognized in the same a principle of deference. This procedure is within the competence of the Secretaría de Comercio y Fomento Industrial, and this competence is recognized by the panel. In other words, the procedure is of a technical character whose purpose is intended to investigate if the standards that resulted in the imposition of antidumping or countervailing duties have been met. Basically, the procedure followed in the second instance is a review before a panel in which the parties choose this the alternative mechanism of international trade dispute settlement. The object of which is established in paragraph 2 of NAFTA Article 1904.

Given the foregoing, we conclude that the procedure carried out before the investigating authority is purely administrative while the one carried out before the panel is materially jurisdictional.

Now, when determining which are the characteristics of the present procedure, we consider it important to understand completely the provisions set out in paragraph 2 of NAFTA Article 1904.

In Mexico, those who appear before the Federal Tax Court, do so in their defense of a legal interest that has been damaged by a typical authoritarian act. The work of Federal Tax Court not only studies tax issues, but also other contentious issues originated in the administrative activity of the State. Thus, a litigation in which one of the parties has imperium, is submitted before said instance, which means that under the character of public authority in the exercise of legal functions, it materialized one or several acts that injured the legal sphere of a private person that, consequently, appears before the jurisdictional instance to try to demonstrate that the acts of said authority transgressed certain legal regulations.

We emphasize the procedure that must be followed before a binational panel because, if this procedure is chosen, its excludes the alternative provided by the Federal Tax Court. The objective pursued by the alternative dispute settlement mechanism expressed at paragraph 2 of NAFTA article 1904 regarding final determinations regarding antidumping and countervailing duties is that a binational panel, as an impartial third party decides if the investigating authority’s final determination was in conformance with the legal regulations governing the subject matter. This is a kind of legality control of an administrative act challenged for some cause of presumed normative breach.

The above helps to clarify why both before the Federal Tax Court and a binational panel, the complainants advance as error of law, the breaching of articles 14 and 16 of the Constitution, because said constitutional regulations safeguard the legality principle that must guarantee a Binational Panel, so every presumed breach consisting in procedural unlawfulness, in the noncompliance of the essential formalities of the procedure and in the lack of competence of the administrative authority, translates into the Mexican legal system, as standards of unlawfulness that if proved, result in a declaration of the nullity of the challenged acts by the Federal Tax Court, or an order for the remand of the administrative record to the competent authority by the binational panel in order to adopt an action not inconsistent with the panel’s decision, as provided for in paragraph 8 of NAFTA Article 1904.

Consequently, as sustained by the jurisprudencia of the Mexican Federal Judicial Branch, the Federal Tax Court has to deal with this kind of legal pleadings, without having in any case or for any reason, an assumption that it deals with constitutional issues, nor set itself as an amparo tribunal, because, the possible breaching of constitutional articles 14 and 16, when it may constitute an indirect breach of the Constitution, it is in fact a direct breaching of the secondary law provisions, whose observance must be safeguarded by the importing party tribunal and, consequently, by the Binational Panel that may eventually be established to know about these kind of statements.

In our view the above reasoning, may be applied in order to support the considerations stated above, the following jurisprudencia thesis states that it may be equally applied to a binational panel.

“FEDERAL TAX COURT. WHEN CAN IT HEAR ON THE UNCONSTITUTIONALITY OF AN ADMINISTRATIVE ACT”.- The litigiousadministrative jurisdiction adopted by the Mexican legal system by influence of foreign legal systems, basically the French, corresponds to the imperious demand of the contemporary State to preserve the lawfulness of the administrative acts, this is, the submission of the administrative authorities to the laws issued by the Legislative Power because they are the direct source of the validity and legitimacy of their acts. Because of this, the jurisdiction of the Federal Tax Court is of an ordinary nature and does not have as a fundamental purpose other than to safeguard and control the lawfulness of the administrative acts. Due to the fact that the lawfulness of administrative acts has been raised in our Country to the rank of an individual guarantee by effect of constitutional articles 14 and 16, it has been preached in several occasions, which can be explained, that the duty of the Fiscal Chambers is to know even about irregularities stated as violations to constitutional regulations. However, as it may be proved by the jurisprudencia thesis of the Second Chamber of the Supreme Court of Justice of the Nation which appears at number three hundred and twenty six of the Third Part of the last Appendix to the Semanario Judicial de la Federación under the heading of “FEDERAL TAX COURT, FACULTIES OF, TO EXAMINE THE CONSTITUTIONALITY OF AN ADMINISTRATIVE ACT”, and the precedents that gave origin to it, the unconstitutionality of the administrative acts which may be known to this Tribunal, is the one derived from the nonobservant of the essential formalities of the procedure referred to in constitutional articles 14 and 16, regarding the annulment standard provided for in subparagraph II of article 238 of the Tax Code in force. In short, the jurisdiction of the Tax Court in terms of the standards of annulment provided in the cited paragraph, is constrained to the subject matter of legality, even though this is reflected in every case as a violation of the above mentioned constitutional guarantees, there its jurisdiction may not be extended up to the point of obliging it to know about violations of another kind of Constitutional Guarantees, not even when such violations may be attributed not to a law but to an administrative act, because this would mean to invest it with faculties owned by the constitutionality control system, which of course it lacks as provided for in articles 103, 104 and 107 of the Constitution.

THIRD COLLEGIATE TRIBUNAL FOR ADMINISTRATIVE MATTERS OF THE FIRST CIRCUIT.

Octava epoque:

Amparo directo 413/89. Hospital Santaelena, S.A. April 27, 1989. Unanimous Vote.
Amparo directo 513/89. Edificios y Estructuras, S.A. de C.V. May 23, 1989. Unanimous Vote.
Amparo directo 153/93. Video Bruguera, S.A. de C.V. February 11, 1993. Unanimous Vote.
Amparo directo 53/94. Industria Mexicana de Personal, S.A. de C.V. March 16, 1994. Unanimous Vote.
Amparo directo 23/94. Densímetros Robsan, S.A. de C.V. March 25, 1994. Unanimous Vote.

It follows from the above that, when solving disputes under the alternative dispute settlement mechanism, the panel must decide on the lawfulness or unlawfulness of administrative acts that have been claimed in accordance with the standard of review established on article 238 of the FFC.

3.- Powers of the Panel regarding the Standard of Review

We accept that the panel’s jurisdiction is legally limited by what is provided by NAFTA Article 1904, as well as by the Rules of Procedure that derive from such provision, which according to its item 2, have as their objective the application of the review procedure before the Panels and to assure that such review is carried out in a just, speedy and inexpensive manner.

Likewise, it is noted that paragraph 3 of NAFTA Article 1904, grants powers to a panel and, at the same time, imposes on the panel, an obligation to apply the standards of review set out in Annex 1911, which in the case of Mexico is article 238 of the Federal Tax Court, or any other law substituted it for, based solely on the record, ¹¹ as well as the general principles of law that otherwise a court of the importing party would apply to review the determination of the competent Investigating Authority.

Undoubtedly, the latter on its merit deserves to be divided into pieces:

On the issue of whether or not the standard of review should be limited exclusively to the standards provided by Article 238 of the Tax Code, or by any other law that substituted it for, we consider this to be the case, since upholding something different would mean to interpret a provision contained in an international treaty incorrectly, especially when the Vienna Convention on the Law of Treaties, in paragraph 1 of article 31, specifies that “A treaty must be interpreted in good faith according to the current sense that is attributable to the terms of the treaty in the context of such terms and bearing in mind its purpose and ends”. It follows that to intend to include within the standard of review other legal provisions not expressly foreseen in the norm of the mentioned treaty, would be to divert completely from the current sense that is of the manner in which NAFTA is drafted. Not being an impediment for the latter conclusion, the fact of asserting that the referred article 238 of the Tax Code, cannot be applied in isolation, since precisely, this was the purpose of the negotiating parties of the NAFTA, because it is a standard of “review” rather than of “determination”, this means, it is the standard based upon which the Panel must analyze the determination of the Investigating Authority, but it does not imply the standard that the Panel must use to decide the dispute. This latter consideration, is useful as well to challenge that articles 237 (that in fact refer to the requirements that the judgment issued by the Federal Tax Court must comply with) and 239 of such code, are indispensable for the Panel to precise the sense of its Final Decision. In effect, since what pertains to the first of them, putting it forth is unlawful since there is an express rule that processes the requirements that the Final Decision of a Panel must contain, ¹² while the second provision is inapplicable as well, since the same NAFTA Article 1904, provides in paragraph 8, what could be understood as “standard of determination” or rather, the possible senses in which a final decision can be issued, such as: the confirmation of the Final Determination (when there is no unlawfulness standard conformed) or its remand in order for the Investigating Authority to adopt measures that are not incompatible with the final decision (when a standard of unlawfulness is updated); provisions that are interpreted according to the current sense of the literal terms in which they where conceived, exclude the possibility of an express declaration of the panel of the absolute nullity of the challenged administrative determination, since in the case that the lawfulness of the corresponding determination is credited, the decision on remand implies that the authority has the discretionary power to determine the manner in which it will comply with the decision, when the adopted measures are not incompatible with it, because if these were the case, the affected party has the right to have the same Panel review the measures that the investigating authority has adopted as a result of the remand, and consequently, the issuance of a decision in this regard.

4.- Application of General Principles of Law

A fundamental aspect of paragraph 3 of Article 1904 of NAFTA is with regard to the authority it grants to a binational panel to apply not only the applicable standard of review, but also the General Principles of Law that otherwise a court of the importing party would apply to review a determination of the investigating authority; furthermore while the final decisions of previous Panels have not made an in-depth study of this issue, probably because of the difficulty of analyzing a matter so linked to legal philosophy and which has not been extensively studied in Mexico by legal authors nor by the jurisprudence. ¹³

Nevertheless, in our opinion, the clarification of this issue is a matter of utmost importance, because it establishes a substantial difference between the powers that a binational panel enjoys compared with those of other jurisdictional bodies in Mexico. The last paragraph of Article 14 of the Constitution ¹⁴ and on its interpretation both legal and jurisprudential, can only be referred in cases when there is an absence of an applicable legal provision. In other words, in the Mexican legal system, the general principles of law are only applicable when facing what is known as a legal vacuum, and through them the law is integrated but not interpreted, because only an existing legal provision can be interpreted.¹⁵

In the case of a binational panel, it should be kept in mind that the general principles of law referred to by paragraph 3 of Article 1904 NAFTA should not be considered a “second part” of the standard of review referred to in this paragraph and provided for in Annex 1911 of NAFTA. In other words, the standard of review has a unique character which must be treated as a whole supported in this concurring opinion, to attempt to include within this criteria other provisions or principles not specifically provided for in the referred Annex 1911, would result in a break from the common meaning granted to it by NAFTA. This would imply a breach to the rule of interpretation contained in paragraph 1 of Article 31 of the Vienna Convention on Law of the Treaties. That is, for panels that are constituted in Mexico, the only valid legal reference that can be applied as the standard of review is the one provided for in Article 238 of the Federal Tax Code. It is an exclusive provision which was intended by the NAFTA negotiating parties, because it is a standard of review but not a judgmental issue. This is, the basis on which a panel’s decision relating to the determination of the investigating authority must be analyzed.

Furthermore, a literal interpretation of paragraph 3 of Article 1904 NAFTA leaves no doubt that by using the conjunctive “y” (and) whose purpose is to join words or clauses in an affirmative statement and whose grammatical purpose is the same, ¹⁶ the intention was to include both concepts, the standard of review and the general principles of law even though they are different in substance.

Given the foregoing, in the opinion of the signatories, the inclusion of the general principles of law in the text of NAFTA flows from the elementary premise that the task is to judge and solve a specific controversy, does not solely involve making logical conclusions that begin from written legal standards. In other words, the application of law cannot be limited to the legal provisions that should be applied, because legal standards affect social behavior which is continuously changing and being transformed. Thus legal texts are never drafted with a limited view to particular time and place and judges find themselves applying the Law in a flexible manner reflecting the essential standards of justice and equity.

Had the negotiators of NAFTA wished to omit giving a binational panel power to apply the general principles of law, they would have made an inexcusable error, since many important instruments of international character have made reference to them, such as: The Bylaws of the Permanent Court of International Justice and the International Court of Justice of 1829 and 1945 respectively, the Universal Statement of Human Rights of 1948, the European Economic Community Incorporation Treaty and the Euratom Treaty both in 1957 and the International Agreement on Civil and Political Rights of 1966. ¹⁷

Therefore, in the opinion of several legal authors ¹⁸, the general principles in international law can be classified in three categories: a) those extracted from the idea of law itself (because legal standards must be reasonable); b) those implied by certain legal institutions (because all agreements imply a free acceptance with a legal purpose), and c) those generally contained in the internal positive law of sovereign nations (for example, good faith, unlawfulness profiting without cause, the authority of res judicata, the prohibition of abuse of a right, and the obligation to indemnify for the breach of legal obligations, among others).

Notwithstanding the above, the signatories consider that in order for the general principles of law to be applied in the international area, it is necessary that three requirements be met: a) that they are agreed to in domestic law of civilized nations; b) that they are accepted by the international community; and c) that they are common to all the member states regardless of the legal system to which they belong. ¹⁹

In this context, in our judgment, reference to the general principles of law contained in paragraph 3 of Article 1904 NAFTA can not be minimized, to give them a lesser value and put, in jeopardy, the entire concept of the basis for the administration of justice. If this was not the case there would be no point in mentioning them in Article 1911²⁰ NAFTA.

For us it is not unusual that a panel formed in Mexico to deal with the traditional conception of the general principles of law in which their application is only allowed in the absence of a specific legal statue. Nevertheless, we consider important to highlight the different functions that the principles can perform.

According to Manuel Atienza Rodriguez ²¹, the general principles are not used only to fill vacuums, but also used to interpret the law, to develop new standards, etc.; furthermore, Maria Jose Falcon y Tella ²² quoting Norberto Bobbio, distinguishes three specific functions of the general principles of law: a) interpretative, which consists in untangling the complex character of a legal standard; b) integrating, which consists in creating a rule or norm that is non-existent but is necessary in order to solve a controversy, and c) directive, this is, guiding the legislator at the time of legislating.

Due to the above, for us it appears that a panel formed in Mexico can assume that the general principles of law were incorporated in NAFTA in order to fulfill the first two functions. We do not accept that a literal interpretation of paragraph 3 of Article 1904 limits it to applying them only and exclusively when faced with a legal vacuum because notwithstanding that the text being analyzed may lack clarity, in the light of a correct grammatical interpretation, it does not necessarily lead us to the conclusion that its purpose was for a panel to apply them in “ the same manner as”,(“as it would” or “in the same manner in which”) a court of the importing party ²³.

On the contrary, to agree that the double function of interpretation and integration of the general principles of law is totally in accordance with NAFTA’s objectives and purposes, which also constitutes a mandatory rule of interpretation, as stated by Article 31 of the Vienna Convention, is evident that the flexible and dynamic nature of these general principles of law allow a panel to fulfill paragraph 1 of Article 102 of the Treaty, in the sense that the procedure for the solution of a controversy derived from Chapter XIX is actually efficient.

In conclusion, a binational panel can and must apply directly the general principles of law whenever the panel considers such action warranted. This does not mean that it would transform itself to a kind of equity court that may disregard express judicial provisions whose observance are obliged to safekeep. On the contrary, the use of these principles in their double functional aspect, this is, of interpretation, and of integration of law, allows the panel to weight all particular and special circumstances that surround a given case in order to reach a fair and balanced decision to a controversy that had been presented to it ²⁴.

Finally it need to be said that for the signatories: Lucia Reina Antuña and Rodolfo Terrazas Salgado, it is gratifying to see that the judicial position on the sense and reach of the general principles of law have been changing, thus we allow ourselves to quote as a judicial precedent, the most recent thesis on this issue that has been sustained by the Judicial Power of the Federation.

GENERAL PRINCIPLES OF LAW, THEIR FUNCTION IN JUDICIAL ORDER.    Traditionally it has been considered by the Mexican Judicial System that judges, in order to decide matters brought to them, are subject to follow not only the positive-legal law, but also the general dogmas that conforms and give coherence to the entire judicial order, which are known as general principles of law, as they were gathered by the Constituent in Article 14 of the Fundamental Chart. The operation of these principles in their entire extension - for some as the source from which emanates all legal provisions, for others as their guide toward its objective- has not been understood as restricted to civil matters as could be derived from the cited constitutional provision through its strict interpretation, but even without its positivization to other type of matters, it is frequently admitted as the measure in which they are taken as the most general statement of the values incorporated in today’s conception of law. Their function is not extinguished by the task of filling legal vacuums. It is mainly applicable to the interpretation of the law and its’ application. Thus courts are empowered, and in many cases, obliged to issue their decisions having them in mind, in addition to the content of the law which are always limited by their own generality and abstraction, the content of the general principles of law, because they are the authentic and clear manifestation of the aspiration of community’s justice.

THIRD COLLEGIATE COURT FOR THE FIRST CIRCUIT ADMINISTRATIVE MATTERS.

Queja 93/89. Federico Lopez Pacheco. April 27, 1989. Unanimity of votes. Speaker: Genaro David Gongora Pimentel. Secretary: Adriana Leticia Campuzano Gallegos.

Fifth Epoque, Instancia: Third Section. Source: Semanario Judicial de la Federacion. Volume LV. Page 2641.”

Signed in the original by:

On December 17, 1997	Lucía Reina Antuña
Date	Lucía Reina Antuña
On December 17, 1997	Rodolfo Terrazas Salgado
Date	Rodolfo Terrazas Salgado

1.    Ortiz Ahlf, Loretta, Derecho Internacional Público. Mexico, Harla, 1993, at 173-182.

2.    Seara Vázquez, Modesto, Derecho Internacional Público. Mexico, Porrúa, 1994, at 321.

3.    Sepúlveda, César, Derecho Internacional. Mexico. Porrúa, 1996, at 399-400.

4.    Arellano García, Derecho Internacional Público, México, Porrúa, 1983, at 216-217.

5.    According to Gilbert R. Winham, the motive that prevailed to establish the character of Binational Panels in NAFTA, was exactly the same that was invoked for the Free Trade Agreement between Canada and the United States (FTA), stating that: “ ... the parties agreed that the judicial review of the determinations issued by national agencies regarding the application of antidumping or countervailing duties would be performed by Binational Panels to serve those individuals that, would otherwise, be authorized to request judicial review, under domestic laws.” (“The Mechanism for the Resolution of Disputes in the North American Free Trade Agreement and the Free Trade Agreement between Canada and the United States” in México, Estados Unidos, Canadá, 1993-1994. Gustavo Vega Cánovas de., Mexico, El Colegio de México, Centro de Estudios Internacionales, 1995, op. cit., at 130).

6.    Idem.

7.    Id. at 131.

8.    As a matter of fact, we must remember that paragraph 9 of NAFTA Article 1904, points out that the decision of a panel will be binding for the involved parties with respect to the particular matter between the parties, provision that is explained by Hugo Perezcano Díaz, in the following terms: “Obligatoriness must not be confused with the lack of coercitivity. s mentioned previously, any decision in a procedure of this nature is obligatory. However, a third impartial party lacks the power to order the forceful enforcement of the decision. In procedures between States, the compliance of the determination comes to a sovereign decision of the country against of which the award was issued. For this reason, the noncompliance of the decision, can only raise to compensation mechanisms or political pressure. In all other cases, the internal recognition and enforcement of decision procedures must be followed, before the competent domestic tribunals, to have enforcement ordered employing the power of the state.” (“Dispute Settlement in the framework of the North American Free Trade Agreement” in El Futuro del Libre Comercio en el Contitnente Americano. Análisis y Perspectivas. Sergio López Ayllón (coord). Mexico, UNAM, 1997, at 280).

9.    For a deeper analysis see: Toope, Stephen J., Mixed International Arbitration. Studies in Arbitration between Estates and Private Persons. Cambridge University Press, 1990.

10.    There are people that prefer to classify Binational Panels as intermediate or hybrid arbitral bodies, explaining that the reason of their origin and evolution is the need of individuals to come to their governments for the defense of their interests derived from international agreements, against the breach of another State, without the possibility to assert them on their own, which has caused the relatively recent appearance of intermediate or hybrid procedures, in which active and passive subjects are respectively, individuals and the State.

11.    It is important to mention that the phrase “based solely in the record” that is literally expressed in subrule c) of the 1911 Annex, must not be understood to be referred exclusively to what the diverse article 1911 of the NAFTA defines as “administrative record”, since though this latter is vital for the Panel to be in a position to review the lawfulness of the performance of the Investigating Authority, it is also true that there is a record that might be called “jurisdictional” and that is conformed by virtue of the same review before the Panel. Such record contains the complaints, replies, briefs, motions and orders that rule the latter, as well as all the evidence and annexes submitted by the parties, obviously including, the transcript of the public hearing.

12.    “72. The decision of the Panel will be issued in writing and will be grounded...”

13.    Indeed, the Panel that decided the case MEX-94-1904-01, limited itself to sustain asserting the Standard of Review that a panel must apply “has two parts”, the first one established by Article 238 of the Federal Tax Code, or any other law that is substitute for it, based only in the record, and the second one, as General Principles of Law that otherwise a court of the importing party would apply to review a determination of a competent investigating authority. Nevertheless, it does not explain why the stated principles shall be understood as a “second part of the Standard of Review”. The Panel that decided the case MEX-94-1904-02 affirmed that for a “Mexican case of antidumping, the binational panels shall apply the standard of review and the general principles of law that the Tax Tribunal would apply in reviewing the same final determination issued by SECOFI...” adding that the General Principles of Law are also defined by the treaty (NAFTA Article 1911), but not in a limiting way, so that all principles a court of the importing country would apply must be taken into consideration. The Panel that decided the case MEX-94-1904-03, after admitting the applicability of the General Principles of Law, limited itself to stating that they “include principles such as: the legal standing, due process, rules of interpretation of Law, issues without legal value and the exhaustion of remedies” all of them, based on Article 1911 NAFTA. Finally the Panel that dealt with the case MEX-96-1904-03 also limited itself to stating the General Principles of Law are a “second part of the Standard of Review”, but without elaborating on the reason for its’ statement. Nevertheless, the Final Decision admitted explicitly that “The General Principles of Law aforementioned have guided this Panel in its’ Revision Process”.

14.    “...In civil suits the final judgment shall be according to the letter of or the judicial interpretation of the law; in the absence of those, it shall be based on general principles of law”. This constitutional provision is applied in all legal matters with exception to the penal laws. In Mexico those not admit of any form of legal interpretation.

15.    Furthermore, regarding the general principles of law, the Supreme Court of Justice of the Nation has sustained the following jurisprudential thesis which is quoted in order to illustrate the above considerations.

“GENERAL PRINCIPLES OF LAW. THE FEDERAL CONSTITUTION IN ITS ARTICLE 14 ADMITS THE APPLICABILITY OF THEM. In order to fix the concept of general principles of law, the Supreme Court of Justice of the Nation has sustained two criteria:

1.- In the first one, in relation to positive law, it stated that “they are the principles contained in some of our laws, understanding as such not only those that have been issued after 1917, but also those before the 1917 Constitution. Fifth Époque, Volumes XIII, 1924 and XLIII, 1935, pages 995 and 858.

2.- In the second one, which we can refer to as the philosophical one, it states that “they are notorious legal truths, of general character undoubtedly, as their own name points out, made or selected by the legal science in such a manner that a judge can decide in the same way as a legislator would have reached if he had been present or would have established if he had foreseen the case, with the condition that it does not harmonize or are in contradiction with the body of legal norms whose vacuums are supposed to filled. Fifth Époque, Volume LV, 1938, page 2,641” (Góngora Pimentel, Genaro David y Miguel Acosta Romero, Political Constitution of the United States of Mexico. Doctrine, Legislation and Jurisprudence, Mexico, Porrua, 1987, pages 328 and 329).

16.    Dictionary for the Spanish Language. Spanish Royal Academy, Madrid, Spain, 1992

17.    Azua Reyes, Sergio T., Los Principios Generales de Derecho. Mexico, Porrua, 1986, pages 16-19

18.    Enciclopedia Juridica Omeba, V. XXIII, Buenos Aires, Argentina, Driskill, S.A., 1995, pages 156 and 157

19.    This last element is of the utmost importance. The countries that constitute NAFTA, belong to different legal systems. Canada (except, as the civil law, Quebec) and the United States are members of the Anglo-Saxon or Common Law, which is based on history and tradition due to its’ origin in customs and practice of primitive English communities, which as time passed, they transformed in legal customs norms by virtue of the findings of tribunals through the operation of the adversarial system and the amendments to positive legislation thus three essential elements are necessary for its formation: a) a custom; b) the precedents and c) legislation; Mexico is counted among the Roman-Germanic or Civil Law, which is characterized for being a legislated law in which legal norms are made and ordered with precision having to be applied by judges in accordance to its clear and expressed text of the law. It is a legal system that its provisions are organized in codes, in which legislation and its judicial interpretation play a relevant role because they need to be in accordance with the social, economic and political thoughts of the époque.

20.    It needs to be said that Article 1911 of NAFTA include in not a limited manner some of these principles such as: legal standing, due process, rules for interpretation of law, matters without legal value, and exhaustion of administrative remedies.

21.    Atienza Rodriguez, Manuel, Sobre la Analogia en el Derecho. Ensayo de Analisis de un Razonamiento Juridico. Madrid, España. Civitas, S.A., 1986, page 185

22.    Falcon y Tella, Maria Jose, El Argumento Analogico en el Derecho. Madrid, España, Civitas, S.A. 1991 page 142.

23.    From the grammatical interpretation of this provision, two possibilities can be derived: From a reading of the text itself (the intent of the words used in this wording) it is read: “The panel will apply to standard of review stated in Annex 1911 and the general principles of law which a court of the importing party would apply...”, meanwhile form a reading of the connotation of the text (intent of the writing contained in this sense) it is read: “The panel will apply the standard of review stated in Annex 1911 and the general principles of law that, in the circumstance it would be possible (viable, valid, etc.) a court, to which the importing party submits, would apply”. The two readings result in the conclusion that from a (semiological) view, both readings say the same, therefore, the universality of the document is restricted and its particularity expanded, thus it is possible to draft it with greater or lesser number of words.

24.    For merely illustrative purpose, we consider it interesting to summarize the concepts that over time have been issued: “Principles of Natural Law, principles identified with justice, principles dictated by reason and admitted by Law, universal rules of reason to give particular, fair and balanced solutions; universal common law created by nature and subsidiary by its function, applied as complement to legal vacuums, normative guides or directives of what if should be. Also they have been considered as principles admitted by practice, principles of Roman law, principles that build and give life to objective law, invitation of the law to the judge to create law, scientific law, supreme criterion fill the vacuums, fundamental norms or basic science norms, ‘building blocks’ necessary for the existence of an effective system, guiding norms or cardinal principles which point the ethical-political orientation of a system; indirect norms, normative compass or directives of what should be, furthermore, this principles have been understood as a mean used by legal authors to free themselves from the texts that do not answer to the prevailing legal opinion. (Azua Reyes, Sergio T., Los Principios Generales de Derecho, op. cit., pages 81 and 82).

On the other hand, the legal (standards) that are commonly called upon by Mexican courts as general principles of law are the following: “1 Ignorance of the law is not an exemption to its fulfillment; 2, the ancillary follows the path of the principal; 3. What is not forbidden, is allowed; 4. He who affirm is compel to prove; 5. There is no sentence without law; 6. He who can do the most, can also do the lesser; 7. Denied facts do not need prove; 8. There is no tax without a law; 9. First in time is first in right; 10. He who does not do what he is obliged to, does what he should not do; 11. When law makes no distinction, there is no need to distinguish; 12. Prove is to be borne by the complainant; 13. Void the payment of tax, void should be declared the fine and penalty; 14. Force majeure is like a necessity and it even exempts the fulfillment of the law; 15. No one is obliged to do the impossible; 16. Where there is the same reason, the same legal provision should apply; 17. No one is liable for someone else’s’ acts; 18. No agreement exempts the fulfillment of the law. 19. There are no witnesses other than a written document; 20. He who grants a proxy must be considered as having acted himself; 21. No one can be judge and a party of the same cause; 22. No one is allow to take justice on his own hands; 23. Doubt is to the benefit of the defendant; 24. Not twice over the same thing; 25. Where there is no ambiguity there can not be interpretation; 26. What is null does not produce any effect; 27. The fulfillment of law admits no excuses; 28. Any one’s right deserves the respect of the others; 29. Seizures are only a guaranty, without implying prejudice of rights; 30. Seizure does not modify the condition of the right; 31. Facts belong to the parties, law is a function for the judge or magistrate; 32. He who does not do what he should, can be sanctioned; 33. Who is late in delivery falls in penalty; 34. Interpretation that leads to the absurd is inadmissible; 35. Counterclaim is a right of the accused not an offense to the complainant; 36. Sentence is only binding to the parties; 37. New laws respect acquired rights; 38. Obligations are not presumed, they need to be proven; 39 Things that have been done by someone are not to benefit or prejudice others; 40. Profit without a cause is forbidden; 41. Bad faith should never lead to a profit; 42. Good faith is always presumed, bad faith needs to be proven; 43. There is no crime without a law; 44. Agreements must be met; 45. No one shall be sentence for being a suspect; 46. What it is specific supersedes the generality; and 47. Bad faith is not presumed” (Carrasco Iriarte, Hugo, Lecciones de Practica Contenciosa en Materia Fiscal, Mexico, Themis, 1996, pages 109 -111).