Third-party funder is the only winner in Odyssey Marine Exploration’s suit against Mexico  – Center for International Environmental Law

The nation will doubtless need to pay over $30 million to an American litigation agency as a result of it wished to guard its atmosphere from dangerous seabed mining.

Printed October 21, 2024

By Jen Moore, Affiliate Fellow of the Institute for Coverage Research, Ellen Moore, Making Clear Vitality Clear marketing campaign supervisor at Earthworks, and Carla García Zendejas, Director of the Folks, Land & Assets Program on the Heart for Worldwide Environmental Regulation.

This text was initially printed on inequality.org.

Mexico is attempting to guard the atmosphere and fishing communities off the nation’s northwest coast from the dangerous results of offshore mining. For that, the federal government will in all probability pay a excessive worth.

Final month, a global arbitration tribunal sided with a U.S. company, Odyssey Marine Exploration, in a lawsuit towards Mexico for denying an environmental allow for seabed mining of phosphate off the coast of Baja California Sur. The tribunal ordered the federal government to pay the corporate $37.1 million, plus curiosity and prices.

Mexican authorities are vowing to struggle the ruling and defend their determination to withdraw the allow primarily based on environmental issues that affected fishing communities, environmental organizations, and public officers have raised repeatedly. 

Whereas the tribunal’s full determination has but to be launched, it’s clear that the true beneficiary of this case is the corporate that financed Odyssey’s arbitration, Poplar Falls LLC. Latest reforms to Mexico’s mining legislation prohibit seabed mining, however the specter of future arbitrations might nonetheless affect Mexico’s regulatory selections and undermine its potential to fulfill obligations to guard its atmosphere and residents. 

In 2012, Odyssey acquired a majority holding in Oceanic Assets (ExO) and obtained a 50-year, renewable concession for the Don Diego marine phosphate mining undertaking within the Gulf of Ulloa off the coast of Baja California Sur. Projected to cowl 91 million hectares, the undertaking would use giant vessels to dredge the seabed, uprooting rock, sand, and marine life, for phosphate sand. The rest of the dredged materials could be discharged again into the ocean changing into a supply of air pollution, sedimentation, and potential radiation, given the presence of radioactive supplies corresponding to uranium and thorium. 

The Gulf of Ulloa is a wealthy coastal marine ecosystem. It’s a breeding space for grey whales and a house to many endangered species, together with loggerhead sea turtles. The proposed undertaking threatens the area’s wealthy biodiversity, in addition to the native fishing economic system. Odyssey’s mining concession overlaps fully with fishing concessions belonging to the Puerto Chale cooperative.

“Artisanal fishing is of elementary significance to our communities within the Gulf of Ulloa,” remarked Tomás Camacho Bareño, president of the Puerto Chale fishing cooperative. “Along with offering revenue and meals, fishing represents our genuine lifestyle and the spine of our social group.”

The fishing cooperative, quite a few environmental organizations, and officers from the State of Baja California Sur supplied plentiful info to federal environmental companies to make sure that that they had the required arguments to disclaim the corporate’s environmental allow. 

“Within the two public conferences held regarding Odyssey’s environmental allow, these of us who stay from fishing within the Gulf of Ulloa, journalists, researchers and a number of other NGOs demonstrated on technical, scientific and authorized grounds how dangerous this undertaking could be for the marine ecosystem,” continued Tomás Camacho Bareño. Their evaluation projected that the sedimentation, waste and noise from mining exercise on the seafloor “would go away the world lifeless on account of the environmental impacts, devastating the species that stay there, both killing them or inflicting them emigrate away.”

There is no such thing as a precedent for the sort of undertaking that Odyssey, a treasure-hunting agency turned marine exploration firm, was proposing. In truth, in most international locations the place the sort of undertaking has been proposed, governments have refused permits or declared a moratorium on the sort of exercise. The Puerto Chale cooperative additionally tried to submit an amicus temporary to the arbitration tribunal to speak their issues concerning the undertaking and to relay the environmental significance of the Gulf of Ulloa, however the tribunal rejected the authorized submission and refused their alternative to have any say within the course of. 

Unique privileges granted to international traders within the North American Free Commerce Settlement (NAFTA), which has since been reformed to restrict recourse to Investor State Dispute Settlement or ISDS as it’s identified, and over forty different funding and commerce agreements enable companies to deliver claims towards Mexico after they consider their pursuits have been affected. Odyssey introduced its declare towards Mexico for US$2.36 billion {dollars} underneath NAFTA earlier than the renegotiated model of the settlement got here into impact in July 2020. 

As an organization with none mines in operation and solely rare revenue from marine providers, Odyssey turned to a third-party funder to finance the arbitration. It’s unlikely that the corporate would have in any other case had the tens of millions of {dollars} wanted to pay the exorbitant authorized illustration charges required to take action. In the long run, the personal U.S. litigation agency, Poplar Falls LLC, funded Odyssey’s arbitration with over $23 million {dollars}. Poplar Falls anticipated to make thrice as a lot as in return on its funding, in addition to a share of the ultimate award if Odyssey gained the case. With the ultimate award reportedly set at $37.1 million plus curiosity and prices, it appears doubtless that Poplar Falls LLC would be the solely winner.

“It’s inconceivable that Mexico must be ordered to pay the corporate something. That is clearly one other underhanded method for firms to generate income. We all know that it isn’t any authorities official that should pay out of their pocket, however slightly the Mexican individuals who might be on the hook to cowl the invoice with our arduous work,” stated Camacho Bareño.  

Notably, there isn’t any enchantment course of on this type of arbitration. And whereas Mexican authorities have said that they’d pursue an annulment, the sort of reversal is extraordinarily uncommon. Annulment processes are solely accessible on very slim procedural grounds and don’t embody a reevaluation of the deserves of the case. 

Regardless of the Mexican authorities’s assertion in mild of this determination that it “is not going to enable tasks to be prioritized that profit the few at the price of the nation’s pure assets and sovereignty,” this destructive final result might nonetheless weigh on future selections by authorities regulators. 

Having turn into the fourth most sued nation on the earth, it’s essential that Mexican authorities take the lead from different governments who’re making a retreat from the worldwide arbitration system that makes such perverse claims potential by working towards eliminating entry to such authorized provisions for transnational companies. The necessity is particularly dire, in Mexico and globally, due to instances like this the place firms use the system to hunt substantial earnings from tasks that threaten folks and the atmosphere.