United Mexican States v. Lion Mexico Consolidated L.P.

• Court: District Court, District of Columbia
• Decided: November 8, 2024
• Docket: Civil Action No. 2021-3185
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED MEXICAN STATES, Petitioner, v. Case No. 1:21-cv-03185 (ACR) LION MEXICO CONSOLIDATED, L.P.,

Respondent.

MEMORANDUM OPINION AND ORDER

Article 1105(1) of the North Atlantic Free Trade Agreement (NAFTA) required

Petitioner United Mexican States (Mexico) to “accord to investments of investors of [Canada and

the United States] treatment in accordance with international law, including fair and equitable

treatment and full protection and security.”

In 2015, Respondent Lion Mexico Consolidated, L.P. (Lion), a Canadian limited

partnership, brought a NAFTA Chapter 11 arbitration against Mexico, claiming that Mexico

failed to accord Lion’s investments the protection Article 1105(1) required. Mexico raised

several defenses, but only one is relevant here. Mexico argued that, by its plain meaning, the

phrase “investments of investors” applied only to investments. Because Lion is an investor, not

an investment, it could not seek relief under Article 1105(1). Lion countered that Mexico’s

interpretation was mistaken and, if accepted, would have rendered Article 1105(1) toothless.

Agreeing with Lion that Article 1105(1) applied and finding that Mexico had violated it, the

Tribunal awarded Lion over USD 47 million in damages (Award).

Mexico now petitions to vacate the Award while Lion cross-petitions to confirm it.

Mexico acknowledges, and Lion readily agrees, that the Court’s power to vacate an arbitral

1 award is quite circumscribed. So long as the Tribunal “interpreted” Article 1105(1), the Court

must confirm the Award—indeed, must confirm even if the Tribunal committed “serious error.”

Seeking to sideline this constraint, Mexico claims that the Tribunal did not “interpret” anything.

The Tribunal instead ignored the “literal meaning” of “investments of investors” by granting

relief to Lion, an investor.

Mexico’s contention founders at the get-go. The Tribunal addressed Mexico’s

interpretation of Article 1105(1) head on, employed common interpretative tools to reach a

different conclusion, cited authorities in support of its reading, and explained its reasoning. By

any definition of the word, the Tribunal interpreted Article 1105(1). Because the Court cannot

second-guess that interpretation, it DENIES Mexico’s Petition to Vacate the Arbitration Award,

Dkt. 32, and GRANTS Lion’s Cross-Petition for Confirmation, Recognition, and Enforcement

of the Arbitral Award, Dkt. 35.

After addressing the dueling petitions, the Court addresses a motion to intervene filed by

Héctor Cárdenas Curiel. Cárdenas, a Mexican businessman, contemporaneously knew the

arbitration was proceeding. And he knew that the arbitral demand turned on Lion’s contention

that he had orchestrated a massive fraud in the Mexican courts. Yet, Cárdenas did not move to

participate in the arbitration and instead seeks to attack the Award here. That attack comes too

late and, in any event, is futile. Because Cárdenas does not meet the requirements for

intervention under Federal Rule of Civil Procedure 24(a)(2) or 24(b), the Court DENIES his

Motion to Intervene, Dkt. 42.

2 I. BACKGROUND

Petitioner Mexico is a foreign state as defined in the Foreign Sovereign Immunities Act.

Award ¶ 9; 28 U.S.C. § 1603(a)–(b). Respondent Lion is a Canadian limited partnership with its

principal place of business in Dallas, Texas. Award ¶ 7.

A. Unpaid Loans

In 2007, Lion entered financing relationships with C&C Ingeniería, S.A. de C.V. and

C&C Capital, S.A. de C.V., two companies owned by Cárdenas. Award ¶¶ 57, 63–85.1 Lion

provided financing for Cárdenas—USD 32,805,479 across three loans—to develop two large

real estate projects in Nayarit and Jalisco, Mexico. Id. ¶¶ 63–85. The parties documented the

loan agreements in mortgages for the real property in Lion’s name, promissory notes to pay on

the mortgages, and credit agreements. Id.; see also id. ¶ 61. The structure of these agreements is

dizzying and, happily, not relevant to these proceedings.2 The relevant point is that Cárdenas’s

companies never made a single payment on any of the loans. Id. ¶ 90. Lion tried for years to

obtain payment—any payment—to no avail. Id. ¶¶ 86–91. Tired of waiting for Godot,3 in 2012,

Lion served Cárdenas and his companies with a formal demand for payment and threatened to

initiate foreclosure proceedings. Id. ¶ 92.

1 The Court takes these facts from the Tribunal’s factual findings and solely to resolve the pending motions. See Gold Rsrv. Inc. v. Bolivarian Republic of Venezuela, 146 F. Supp. 3d 112, 130 (D.D.C. 2015). The Court takes no position on whether Cárdenas in fact engaged in fraud. To put it mildly, Cárdenas disputes the Tribunal’s findings. Dkt. 42-1 at 16–17. 2 For the reader who cannot get enough of analyzing financing transactions, the Tribunal summarized the ones here at paragraphs 63 to 85 of the Award. 3 SAMUEL BECKET, WAITING FOR GODOT (Faber & Faber ed., 2006).

3 B. Court Proceedings in Mexico

Lion’s formal demand did not induce Cárdenas or his companies to repay the loans. The

Tribunal found that, instead, Cárdenas effected a scheme of “complex judicial fraud” to evade

the obligations. Award ¶ 94. That is, Cárdenas created a forged settlement agreement (forged

agreement), complete with a fake signature of Lion’s attorney, in which Lion purportedly agreed

to cancel all existing debts. Id. ¶¶ 98–99, 103. The forged agreement gave jurisdiction to the

courts of Jalisco, Mexico, even though the promissory notes gave jurisdiction to the courts of

Mexico City. Id. ¶ 101. Cárdenas then filed a lawsuit before the Juez Noveno de lo Mercantil in

Jalisco (Mercantil Court) to enforce the forged agreement and cancel the loans. Id. ¶¶ 96, 98–99.

The forged agreement also included a fake name and address for notice and service of process to

Lion—the lawyer residing at the address had no affiliation with Lion and yet accepted service on

its behalf. Id. ¶¶ 94, 102–03, 107. By design, no one notified Lion of the lawsuit and so Lion

did not appear. Id. ¶ 108.

Cárdenas’s companies submitted evidence purportedly supporting the forged agreement.

Id. ¶¶ 96, 110. On June 27, 2012, the Mercantil Court issued a default judgment discharging the

loans and ordering Lion to cancel the mortgages (Cancellation Judgment). Id. ¶ 111. It accepted

the amount in controversy to be MEX 500,000 (about USD 25,000)—a lower amount than

required for appeal—even though the loan documents admitted into evidence described

transactions worth “tens of millions of dollars.” Id. ¶¶ 112–13. This low amount precluded a

standard appeal, thus cutting off one of only two avenues for Lion to reinstate the loans once it

learned of the Cancellation Judgment.

Lion could still have pursued the other avenue, a so-called amparo proceeding (i.e., a

constitutional challenge) to contest the Cancellation Judgment once Lion learned of it. Id. ¶ 119.

4 But Cárdenas was on the case—figuratively and literally—and quickly cut off this second

avenue for Lion to obtain relief. See id. ¶¶ 116–26. He arranged for another attorney to act

fraudulently on Lion’s behalf using an identification card stolen from a Lion legal representative.

Id. ¶¶ 124–25. That attorney filed an amparo purportedly on Lion’s behalf and then purposefully

abandoned it. Id. ¶ 129. The abandonment rendered the amparo final and not subject to further

appeal, even after Lion learned of the Cancellation Judgment. Id.

Six months later, in early 2013, Lion finally learned of the Cancellation Judgment but not

of the forged agreement. Id. ¶ 138. Unaware of Cárdenas’s preemptive amparo, Lion filed its

own amparo with the Juez de Distrito en Materia Civil in Jalisco (Juez de Distrito), challenging

the earlier proceedings based on failure of service. Id. ¶¶ 142–45. After filing its amparo, Lion

finally learned of the forged agreement when a court filing referenced it. Id. ¶ 145. At that

point, Lion sought to admit evidence proving that the forged agreement was indeed forged. Id.

¶¶ 146–47. On January 30, 2013, a court clerk instead dismissed the motion. Id. ¶ 148. Lion

then brought a second complaint before the Juez de Distrito, seeking for a second time to

introduce evidence of the forgery. Id. ¶ 149. The court considered Lion’s request but postponed

its decision until a separate proceeding initiated by one of Cárdenas’s companies, C&C

Ingeniería, was resolved in yet a different court. Id. ¶¶ 150–51.

C&C Ingeniería had challenged Lion’s actual amparo proceeding in the Segundo

Tribunal Colegiado en Materia Civil del Tercer Circuito (Tribunal de Queja), an appeal court.

Id. ¶¶ 151, 153. The company claimed that Lion’s real attorneys had not properly signed the

motion to admit evidence in its amparo proceeding before the Juez de Distrito, rendering that

motion void. Id. The Tribunal de Queja agreed, ruling that Lion’s legal representative, and not

the attorney representing it in the amparo proceeding, should have signed the motion. Id. The

5 Tribunal de Queja did not permit Lion to cure the procedural defect.4 Id. ¶ 154. Thus—because

a real Lion lawyer, but not the right Lion lawyer, signed the motion to admit evidence—Lion

could not introduce evidence that a fake Lion lawyer had forged the agreement. Id. ¶ 153.

With this separate proceeding resolved, the Juez de Distrito resumed his work. Relying

on the Tribunal de Queja’s decision, he excluded all evidence that the agreement had been

forged. Id. ¶¶ 155, 163. On December 14, 2013, the Juez de Distrito entered a final judgment

rejecting Lion’s amparo and upholding the Cancellation Judgment. Id. ¶ 158. He reached this

decision even though a criminal judge had earlier ordered Cárdenas imprisoned for forging Lion

documents and even though he acknowledged a different instance of a forged Lion signature.

Id. ¶¶ 160–62.

Lion filed a recurso de revisión (i.e., a reconsideration proceeding) that ultimately landed

with the Tribunal de Queja. Id. ¶¶ 167, 169. By this point, Lion had filed numerous formal

requests for a court to consider that the agreement was forged. Id. ¶ 170. On April 17, 2015,

more than 16 months after Lion filed the recurso, the Tribunal de Queja again decided against

Lion and remanded to the Juez de Distrito to determine whether Cárdenas’s fraudulent amparo

exhausted Lion’s right to pursue its real amparo. Id. ¶ 171. This was the first time Lion learned

of the earlier false amparo. Id. ¶ 173. The Tribunal de Queja ordered the Juez de Distrito not to

consider the authenticity of the forged agreement, but only to analyze the admissibility of Lion’s

amparo. Id. ¶ 174.

On remand, the Juez de Distrito refused to allow Lion to introduce evidence of the

forgery. Id. By this point, Lion had spent three years in the Mexican civil courts trying to undo

4 That same court permitted Cárdenas’s company to cure a procedural defect. Id. ¶ 154.

6 Cárdenas’s fraud with nothing to show for its efforts but a new fight about whether the courts

had jurisdiction to consider its claim at all. Id. ¶ 178. On December 11, 2015, Lion ended its

amparo because “it was futile to continue.” Id. ¶ 179. It turned instead to arbitration.

C. Arbitration Under NAFTA

NAFTA, Can.–Mex.–U.S., Dec. 17, 1992, 107 Stat. 2057, 32 I.L.M. 289, was a

multilateral treaty between the United States, Mexico, and Canada that aimed to facilitate trade

and strengthen the economic relationship among the three nations.5 Id. pmbl. To that end,

Chapter 11 of NAFTA required the signatories to provide certain protections and standards of

treatment to foreign investors of another signatory and their investments. Id. arts. 1101–10. Key

here is Article 1105(1), which required that “each Party . . . accord to investments of investors of

another Party treatment in accordance with international law, including fair and equitable

treatment and full protection and security.” Id. art. 1105(1). Article 1139, NAFTA’s definition

section, provided an exhaustive list of what constituted an “investment” for purposes of Chapter

11. Id. art. 1139. And Article 1120(1) established a procedure for investors to initiate arbitration

proceedings directly against a party government for violating its Chapter 11 protections. Id.

art. 1120(1).

In December 2015, Lion filed a request for arbitration with the International Centre for

Settlement of Investment Disputes (ICSID). Dkt. 56-8; see also Award ¶ 12. The arbitration

was seated in Washington, D.C., under the ICSID Additional Facility Rules. Award ¶¶ 3, 40; see

5 NAFTA is no longer operative. The United States–Mexico–Canada Agreement, which took effect on July 1, 2020, replaced it. Can. –Mex. –U.S., Dec. 10, 2019, 134 Stat. 11.

7 also id. Annex A ¶ 28. The Tribunal consisted of three experienced arbitrators,6 and the parties

were aptly represented. Id. ¶¶ 13, 40.

Lion alleged that the Mexican courts canceled Lion’s mortgages based on the forged

agreement and “repeatedly denied [Lion] the opportunity to prove that the purported []

agreement [was] a forgery.” Dkt. 56-8 ¶ 15. This denial, Lion claimed, breached the

International Minimum Standard of Treatment required by NAFTA Article 1105(1). Id.

Mexico submitted a preliminary objection to the Tribunal’s jurisdiction “on the grounds

that Lion’s claims were manifestly without merit.” Award, Annex A ¶ 21. The Tribunal

dismissed this objection after full briefing. Id. Annex A ¶¶ 21–29. Mexico then requested

bifurcation, raising two additional objections to the Tribunal’s jurisdiction. Id. Annex A ¶ 31.

This time, the Tribunal granted Mexico’s request in part, deciding to address Mexico’s objection

that “the Tribunal lack[ed] jurisdiction . . . because Lion did not make an investment in Mexico

within the terms required by Art[icles] 1101 and 1139 [of] NAFTA.” Id. Annex A ¶ 33.

The Tribunal held, after full briefing and a jurisdictional hearing, that “the Mortgages

qualif[ied] as investments and that the Tribunal ha[d] jurisdiction . . . to adjudicate claims

brought by Lion based on measures adopted by Mexico which affect[ed] the Mortgages.” Id.

Annex A ¶ 266; see also id. ¶ 15. On the other hand, the Tribunal held that Lion’s promissory

notes were not qualifying investments under Article 1139 and dismissed all claims related to

those notes. Id. Annex A ¶¶ 203–08; see also id. ¶ 15.

6 The arbitrators were: (1) Chair Juan Fernández-Armesto, appointed by ICSID’s Secretary General by agreement of the parties; (2) David J.A. Cairns, appointed by Lion; and (3) Professor Laurence Boisson de Chazournes, appointed by Mexico. Award ¶ 13; see also Dkts. 33-18, 33- 19. 8 In March 2017, Lion submitted its opening brief along with 120 factual exhibits, 200

legal authorities, three witness statements, and an expert report on Mexican law which included

another 122 authorities. Id. Annex A ¶ 30. Mexico later filed a counter-memorial attaching 33

factual exhibits, 60 legal authorities, a witness statement, three expert reports, and a valuation

expert report. Id. ¶ 22. Lion’s reply included an additional 40 factual exhibits, 218 legal

authorities, another witness statement, a fourth legal expert report, an expert evaluation report,

and a rebuttal expert report. Id. ¶ 27.

The Tribunal then held a three-day merits hearing to address whether Mexico had

violated NAFTA Article 1105(1). Id. ¶ 40. Lion argued that the Mexican courts’ conduct was a

denial of justice and thus violated Article 1105(1). Award ¶¶ 187, 197. Mexico shot back that

Article 1105(1) did not apply at all because, by its plain terms, it protected only “investments”

and did not protect “investors.” Id. ¶¶ 353, 356.

The Tribunal rendered the Award—which weighed in at 924 paragraphs across 215

pages—on September 20, 2021. Id. ¶ 214. The Award was unanimous, with Mexico’s

appointed arbitrator joining it. The Tribunal addressed and rejected Mexico’s “literal reading”

that Article 1105(1) covered only investments. Id. ¶¶ 356–58. Along with the Article’s

language, the Tribunal found that it was bound by NAFTA to consider a Free Trade Commission

Note of Interpretation (Interpretation Note).7 Id. ¶ 207; NAFTA art. 1131(2). Section B(1) of

the Interpretation Note equated Article 1105 with “the customary international law minimum

standard of treatment of aliens.” Award ¶¶ 208, 356–58 (quoting Interpretation Note § B(1)).

The Tribunal determined that the reference to “aliens” in the Interpretation Note meant that

7 The Free Trade Commission consisted of the trade ministers of the three NAFTA signatories. NAFTA art. 1131(2). 9 investors themselves received protection under the Article. Id. ¶ 358. The Tribunal also cited

several other arbitration awards containing language supporting its interpretation. Id. n.384.

Finding that Article 1105(1) applied, the Tribunal then concluded that Mexico “failed to

provide Lion fair and equitable treatment under NAFTA Article 1105.” Id. ¶¶ 615, 924. Aware

that “the standard for finding a denial of justice is high,” and required a finding of “improper and

egregious procedural conduct” by the local courts, id. ¶ 370, the Tribunal nonetheless found that

the Mexican courts denied Lion justice. They did so by (1) failing to ensure proper service and

improperly declaring default, (2) denying Lion the right to appeal, and (3) denying Lion the right

to submit evidence of forgery. Id. ¶ 371. The Tribunal summarized that the “Mexican judicial

system . . . should have effectively restored [Lion’s] rights,” id. ¶ 614, but failed to do so

“despite multiple opportunities” to get it right. Id. ¶ 373; see also id. ¶ 508. The Tribunal

ordered Mexico to pay Lion USD 47,000,000 in compensation, USD 583,598.91 in costs, and

USD 1,725,000 in attorney’s fees, all with interest. Id. ¶ 924.

D. Confirmation Proceeding in the United States

On December 6, 2021, Mexico filed the present petition to vacate the Award on the

grounds that the Tribunal exceeded its power under 9 U.S.C. § 10(a)(4) and acted in manifest

disregard of the law. Dkt. 1 ¶ 39. On February 4, 2022, Lion submitted a cross-petition to

confirm, recognize, and enforce the Award. Dkt. 15. Lion and Mexico filed responses to each

other’s petitions in February and March 2022. Dkts. 14–18. Five months after the parties

finished briefing their cross-petitions, on August 22, 2024, Cárdenas moved to intervene.

Dkt. 23.

While the parties’ petitions were pending, the Court Clerk reassigned the case to the

undersigned. Dkt. Notice (Feb. 24, 2023). In the interest of judicial efficiency, the Court

10 dismissed all pending motions without prejudice and instructed the parties to refile their motions

to reflect any recent developments in the case law. Minute Ord. (May 9, 2023). The parties re-

filed their motions and updated their briefing. Dkts. 32–51. The Court heard oral argument on

the Motion to Intervene on October 23, 2023, and on the Cross-Petitions for Confirmation and

Vacatur three days later.

II. THE AWARD

A. Legal Standard

The Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq., represents an “emphatic federal

policy in favor of arbitral dispute resolution” that the Supreme Court has recognized “applies

with special force in the field of international commerce.” Mitsubishi Motors Corp. v. Soler

Chrysler–Plymouth, Inc., 473 U.S. 614, 631 (1985). The Act “lists only four grounds upon

which an arbitration award may be vacated.” Kurke v. Oscar Gruss & Son, Inc., 454 F.3d 350,

354 (D.C. Cir. 2006). Only one—set forth in Section 10(a)(4)—is at issue here: “where the

arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and

definite award upon the subject matter was not made.” 9 U.S.C. § 10(a)(4).

By design, Section 10(a)(4) leaves a court little room to maneuver. The “sole question”

is “whether the arbitrators (even arguably) interpreted the parties’ contract, not whether they got

its meaning right or wrong.” Oxford Health Plans LLC v. Sutter, 569 U.S. 564, 573 (2013). It is

not enough for a tribunal to have committed a legal or factual error, even if that error is

“serious.” United Paperworkers Int’l Union, AFL–CIO v. Misco, Inc., 484 U.S. 29, 38 (1987);

see also Kurke, 454 F.3d at 354 (cleaned up) (explaining that “factual or legal error” is

insufficient for vacatur); Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 671 (2010)

(holding that even “serious error” is insufficient for vacatur). More bluntly, “[t]he arbitrator’s

11 construction holds, however good, bad, or ugly.” Oxford Health Plans, 569 U.S. at 573 (cleaned

up). “Improvident, even silly, factfinding does not provide a basis for a reviewing court to refuse

to enforce the award.” Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509

(cleaned up).

A party seeking vacatur must therefore “clear a high hurdle,” Stolt-Nielsen S.A., 559 U.S.

at 671, and meet an “onerous” burden, Republic of Arg. v. AWG Grp. Ltd., 894 F.3d 327, 333

(D.C. Cir. 2018) (cleaned up). It must show that an arbitral tribunal acted “outside the scope of

[its] contractually delegated authority.” Eastern Associated Coal Corp. v. Mine Workers, 531

U.S. 57, 62 (U.S. 2000) (cleaned up). Examples include issuing an award that reflects the

arbitrators’ “own notions of economic justice” or their “own brand of industrial justice.” Mesa

Power Grp., LLC v. Gov’t of Can., 255 F. Supp. 3d 175, 184 (D.D.C. 2017) (quoting Stolt-

Nielsen S.A., 559 U.S. at 671) (cleaned up).

This standard of review applies with equal force to an arbitration tribunal’s interpretation

of treaty language. See BG Grp., PLC v. Republic of Arg., 572 U.S. 25, 33 (2014). “[U]nder our

law,” “it is up to [a] tribunal to determine what [a] treaty means,” and thus a court has “no

authority to delve into the merits” of that interpretation. LLC SPC Stileks v. Republic of

Moldova, 985 F.3d 871, 879 (D.C. Cir. 2021); see also State of Libya v. Strabag SE, No. 20-cv-

02600, 2021 WL 4476771 (D.D.C. Nov. 30, 2021); Republic of Arg. v. AWG Grp. Ltd., 211 F.

Supp. 3d 335 (D.D.C. 2016), aff’d, 894 F.3d 327 (D.C. Cir. 2018).

12 A court can also vacate an award if the tribunal acted in “manifest disregard of the law.”8

Like Section 10(a)(4), manifest disregard for the law requires “more than error or

misunderstanding with respect to the law.” Petruss Media Grp., LLC v. Advantage Sales &

Mktg., LLC, No. 22-3278, 2023 WL 5507306, at *15 (D.D.C. Aug. 25, 2023) (quoting Kanuth v.

Prescott, Ball & Turben, Inc., 949 F.2d 1175, 1180 (D.C. Cir. 1991)). “Instead, a court must

find that (1) the arbitrators knew of a governing legal principle yet refused to apply it or ignored

it altogether and (2) the law ignored by the arbitrators was well defined, explicit, and clearly

applicable to the case.” Id. (quoting LaPrade v. Kidder, Peabody & Co., Inc., 246 F.3d 702, 706

(D.C. Cir. 2001)).

B. The Tribunal’s Interpretation

Mexico argued to the Tribunal that Lion could not recover because the language “shall

accord to investments of investors” applied to “investments and not investors.” Award ¶ 356.

The Tribunal disagreed and held that Article 1105(1) also “grants protection to Lion as an

investor.” Award ¶ 358. Mexico claims that, in doing so, the Tribunal exceeded its powers and

acted in manifest disregard of the law. Not so.

1. The Tribunal’s Ruling Focused on Affected Qualified Investments

Mexico’s Petition to Vacate is based on its view that “[t]he Tribunal ruled that Mexico

owed Lion—the investor—an obligation to fair and equitable treatment under NAFTA” even

though Article 1105(1) “extends only to investments, not investors.” Dkt. 32 ¶ 2. The

8 In Hall Street, the Supreme Court explained that Section 10 “provide[s] the FAA’s exclusive grounds for expedited vacatur.” Hall St. Assocs., LLC v. Mattel, Inc., 552 U.S. 576, 584 (2008). The D.C. Circuit has “assumed without deciding that” a tribunal acting in “‘manifest disregard of the law’ survives [Hall Street] as a separate ground for vacatur.” Mesa Power Grp., 255 F. Supp. 3d at 183. The Court takes the same approach and assumes without deciding that manifest disregard of the law remains as a separate ground for vacatur.

13 Tribunal’s ruling, however, was not so sweeping. The Tribunal held only that investors had

standing to bring claims if a challenged action affected a qualified investment.

Some background is helpful. Lion’s arbitration demand alleged that Mexico had failed to

grant its “investments” protection under Article 1105(1). Award ¶ 187. It initially claimed that

Article 1105(1) covered each financing Cárdenas’s companies received, including the mortgages

and promissory notes. But NAFTA protected only investments that fell under the definition of

“investment” in Article 1139. Mexico objected that “the Tribunal lack[ed] jurisdiction . . .

because Lion did not make an investment in Mexico” as defined in that Article. Id.

Annex A ¶ 33. The Tribunal agreed with Mexico in part. It determined that the mortgages

qualified as investments, id. Annex A ¶ 266, but that the promissory notes did not qualify and

dismissed all claims related to those notes, id. ¶¶ 15, 203–08. And thus it awarded damages as to

the mortgages but not as to the promissory notes. Id. ¶¶ 171, 924.

The Tribunal did not, therefore, rule that Article 1105(1) applied to investors writ large.

Instead, it held only that an investor could bring a claim under Article 1105(1) if the challenged

treatment affected a qualifying investment. This is fully consistent with the approach taken by

other NAFTA tribunals. For example, in Grand River Enters. Six Nations, Ltd. v. United States,

the tribunal held that “Article 1105 provides no scope for individual investors’ claims that they

have received treatment contrary to international law, except as that treatment affects a covered

investment.” UNCITRAL, Award, ¶ 177 (Jan. 12, 2011), https://2009-

2017.state.gov/documents/organization/156820.pdf (emphasis added).

If, as Mexico urges, investors could not bring Article 1105(1) claims, there would have

been no enforcement mechanism, and the Article would have been rendered toothless. This is so

because, as Lion highlights, “[t]he mortgages themselves [can]not commence legal proceedings,

14 nor can they be served or sued. Only Lion Mexico, as the investor in the investment and as

claimant in the Arbitration, can act to protect its mortgage investment.” Dkt. 15-1 at 16. Put

differently, under Mexico’s interpretation, no arbitration could ever have been commenced to

protect a qualifying investment. The Tribunal’s approach in permitting Lion to bring claims as

to investments covered by Article 1139 sidestepped this fatal flaw in Mexico’s approach.

2. The Tribunal Interpreted Article 1105(1)

Even putting aside Mexico’s misapprehension as to the Tribunal’s ruling, its petition

fails. The key question in a confirmation proceeding is whether the tribunal “interpreted” the

language of Article 1105(1). Oxford Health Plans LLC, 569 U.S. at 573. Somewhat oddly,

however, courts in the FAA context do not appear to have defined the word “interpret.” Instead,

they address what “to interpret” does not encompass, i.e., making public policy or administering

one’s own brand of industrial justice. See Stolt-Nielsen S.A., 559 U.S. at 671–72. This may be

because the definition of “interpret” is both broad and straightforward. To interpret is to

“ascertain the meaning and significance of thoughts expressed in words.” Interpret, BLACK’S

LAW DICTIONARY (12th ed. 2024). By the same token, interpretation is “the ascertainment of the

thought or meaning of the author of, or of the parties to, a legal document, as expressed therein,

according to the rules of language and subject to the rules of law.” ANTONIN SCALIA & BRYAN

A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 53 (2012) (quoting H.T.

Tiffany, Interpretation and Construction, in 17 AMERICAN AND ENGLISH ENCYCLOPEDIA OF LAW

1, 2 (David S. Garland & Lucius P. McGehee eds., 2d ed. 1900)).

The Tribunal’s work falls comfortably within the realm of interpretation. It identified

and rejected Mexico’s argument, applied existing guidance interpreting Article 1105(1), cited

cases, and explained its reasoning. The Tribunal did not, as Mexico complains, “ignore” the

15 “literal meaning” of “investments of investors.” Dkt. 32 ¶¶ 49–50 (citing Award ¶¶ 356–358).

The Tribunal first regurgitated Mexico’s position: “Mexico’s first argument is based on a literal

reading of Art[icle] 1105 of NAFTA.” Award ¶ 356.9 Then, far from ignoring anything, it

explained why it rejected Mexico’s interpretation. Award ¶¶ 357–358.

The Tribunal began by recognizing its mandate. An “interpretation” of NAFTA by the

Free Trade Commission (FTC) was “binding on a Tribunal.” NAFTA art. 1131. And the FTC

had interpreted Article 1105 as “prescrib[ing] the customary international law minimum standard

of treatment of aliens as the minimum standard of treatment to be afforded to investments of

investors of another Party.” Award ¶¶ 207, 357–58; Dkt. 33-4. Applying this directive, the

Tribunal reasoned that: (a) because [as the FTC opined] the standard of treatment under Article

1105(1) was the same as the customary international standard protecting aliens; (b) and aliens

referred to individuals; (c) Article 1105(1) must have also protected individuals; (d) investors

were individuals; and so (e) Article 1105(1) protected investors. Id. This analysis was assuredly

“interpretation” by the Tribunal.

The Tribunal also cited other awards in support of its holding. Award ¶ 358 n.384.

Mexico grumbles that the Tribunal “tersely cited” these awards. Dkt. 32 ¶ 56. That the Tribunal

cited cases, tersely or in any other tone, confirms that it was “arguably interpreting” Article

1105(1), not “ignoring” it. And Mexico’s complaint that these citations were “misplaced,”

id. ¶ 52, is but an inapposite argument that the Tribunal erred. That said, the Tribunal’s citations

were not haphazard. Each opinion is at least consistent with the conclusion that Article 1105(1)

9 The Tribunal could have made its intent clearer by writing “Mexico’s literal reading” instead of “a literal reading.” But in the context of Mexico’s pleading to the Tribunal and the rest of the Award, the Tribunal unambiguously did not agree with Mexico’s “literal reading” of Article 1105.

16 permitted investors to bring claims. The tribunal in Merrill & Ring wrote that “Article 1105(1)

provides for the treatment of another Party’s investors in accordance with international law.”

Merrill & Ring Forestry L.P. v. Canada, ICSID Case No. UNCT/07/01, Award ¶ 183 (Mar. 31,

2010) (cleaned up). Gami held that “a government’s failure to implement or abide by its own

law in a manner adversely affecting a foreign investor may . . . lead to a violation of Article

1105.” Gami Invs. Inc. v. United Mexican States, Award ¶¶ 91–92 (Nov. 15, 2004). And in

Chematura, a case discussing the Interpretation Note to Article 1105, the tribunal stated that

“Article 1105 of NAFTA seeks to ensure that investors from NAFTA member States benefit

from regulatory fairness.” Chematura Corp. v. Gov’t of Can., Award ¶ 179 (Aug. 2, 2010).

Mexico complains that the Tribunal ignored the Vienna Convention on the Law of

Treaties (VCLT), which can be used to understand applicable “customary international law.”

Dkt. 32 ¶ 60. Mexico is correct that the Tribunal did not cite the VCLT. But that is not germane

for two reasons. First, the Tribunal was not required to set forth every possible basis for its

conclusion. Kurke, 454 F.3d at 354 (cleaned up) (holding that a court must confirm an award

even if the tribunal gave “no explanation . . . if any justification can be gleaned from the

record”). Second, the VCLT arguably supports the Tribunal’s interpretation. It requires that “[a]

treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to

the terms of the treaty in their context and in the light of its object and purpose.” Dkt. 32 ¶ 60

(quoting VCLT art. 31(1)) (emphasis added). Here, the context includes the Interpretation Note

and other arbitral opinions the Tribunal relied on. And permitting investors to bring arbitration

proceedings for the maltreatment of their investments furthered NAFTA’s purpose of

encouraging the free flow of goods, services, and investments among the signatories. See

NAFTA art. 102(1).

17 Mexico separately faults the Tribunal for not acknowledging that the United States filed a

non-disputing party brief (essentially an amicus brief) in which it supported Mexico’s

interpretation of Article 1105(1). Dkt. 32 ¶ 50. This complaint is wide of the proverbial mark.

To start, a tribunal is “not require[d] to address [a non-disputing party’s] submission at any point

in the arbitration.” Free Trade Commission, Statement on Non-Disputing Party Participation ¶ 9,

https://2009-2017.state.gov/documents/organization/38791.pdf. That said, the Tribunal quoted

and addressed the United States’s brief at length, including its view as to the application of

Article 1105(1) to judicial acts. See Award ¶ 553; see also id. ¶¶ 189, 205, 282–84, 287, 553,

556, 806. And, moreover, the United States nowhere argued that investors could not bring

Article 1105(1) claims. To the contrary, its discussion of “investments of investors” is fully

consistent with the Tribunal’s approach: to succeed, “a claimant (i.e., an investor) must therefore

establish that the treatment accorded to its investment rose to the level of a denial of justice

under customary international law.” Dkt. 67-1 ¶ 10.10

While mistakenly faulting the Tribunal for failing to consider the United States’s brief,

Mexico fails to mention the brief submitted by Canada. This may well be because Canada flatly

contradicted Mexico’s position and arguably went even further than the Tribunal. It contended

that “Article 1105(1) requires the NAFTA Parties to accord to investors and their investments

the customary law minimum international law standard.” Dkt. 67-1 ¶ 4 (emphasis added).

10 The United States discussed the meaning of Article 1105(1) as applied in a “denial of justice” claim, see Dkt. 67-1 ¶ 10, and as applied to a “minimum standard of treatment” claim, see id. n.21. The United States does not appear to have attached any meaning to the two different types of claims. 18 3. The Cases Mexico Cites Do Not Support Its Petition

Bringing its focus to case law in the United States, Mexico asks the Court to compare the

Tribunal’s work with those of other tribunals whose awards have been confirmed and vacated.

See Dkt. 32 ¶¶ 63–71. Doing so fully supports the Court’s decision to confirm.

Mexico directs the Court’s attention to Mesa Power Grp. LLC v. Gov’t of Can., in which

the court confirmed an arbitral award after finding that the tribunal had “‘used all the standard

interpretative tools’ an arbitrator ‘would normally use.’” Id. ¶ 64. Mexico contrasts that work

with what the Tribunal did here which, in Mexico’s view, “did not apply . . . any of the methods

normally used by tribunals to interpret treaty text save for terse citations” to three other

inapposite awards. Id. ¶ 65. This both overstates the Tribunal’s obligations and understates its

work. The law does not require a tribunal to use “all” or even most of the available interpretative

tools or even to use them correctly. See supra Sections II.A & II.B(2). And, at a minimum, the

Tribunal interpreted the treaty language by its citation to the FTC’s Interpretation Note of Article

1105(1) and other awards.

Mexico claims that “[t]he Tribunal’s conduct is similar to the conduct of other arbitrators

whose awards [courts have] vacated because of their failure to adhere to the text of the contract.”

Dkt. 32 ¶ 63. Not so. Here, the Tribunal chose one of two competing interpretations of treaty

language. In the cases Mexico cites, the arbitrators created new contractual terms that

unequivocally contradicted existing terms. In Hay Adams Hotel LLC v. Hotel & Rest. Emps.,

Loc. 25, the arbitrator acknowledged that petitioner had the contractual right to terminate the

respondent employee. No. 06-968, 2007 WL 1378490, at *1 (D.D.C. May 9, 2007). And yet the

arbitrator ordered petitioner not to fire the employee and instead to have “a qualified professional

[carefully inquire] into [the employee’s] possible psychological problems.” Id. at *2. In

19 Raymond James Fin. Servs Inc. v. Bishop, the arbitrator granted wrongful termination damages

even though the employee was at will and therefore not entitled to any damages. 596 F.3d 183,

187 (4th Cir. 2010). In Davey v. First Command Fin. Servs., Inc., the arbitrator granted punitive

damages even though a contractual term prohibited such damages. No. 11-CV-1510, 2012 WL

277968, at *1 (N.D. Tex. Jan. 31, 2012). And in Mo. River Servs. Inc. v. Omaha Tribe, the

arbitrator had ordered damages be paid from proceeds of a casino in Iowa even though the

contract unambiguously limited proceeds to be paid from a casino in Nebraska. 267 F.3d 848,

855 (8th Cir. 2001).

4. The Tribunal Did Not Act in Manifest Disregard of the Law

For the same reasons applicable to the Section 10(a)(4) analysis above, the Tribunal did

not act in manifest disregard of the law. See Mesa Power Grp., 255 F. Supp. 3d at 183–84.

Mexico does not deny that it received due process and that the arbitral proceeding followed the

Additional Facility Rules. And the Tribunal did not replace the treaty language with a public

policy determination, ignore the treaty language, or otherwise go rogue.

* * *

Simply put, the Tribunal interpreted Article 1105(1). Whether it reached the correct

interpretation is beyond this Court’s mandate.

C. Confirmation

“[A]t any time within one year after” a tribunal issues an award, “any party to the

arbitration may apply . . . for an order confirming the award.” 9 U.S.C. § 9. The Court “must

20 grant such an order unless the award is vacated, modified, or corrected as prescribed in

[S]ections 10 and 11 of [the FAA].”11 Id.

Lion timely sought confirmation, see 9 U.S.C. § 9, within one year of when the Award

was issued on September 20, 2021, see Award at 212. Dkt. 1. And for the reasons stated above,

the Court rejects Mexico’s arguments for vacatur. The Court therefore confirms the Award.

III. INTERVENTION

The Court now turns to the Motion to Intervene. Dkt. 42. Héctor Cárdenas Curiel, who

did not participate in the arbitration, seeks collaterally to attack the Tribunal’s Award. Dkt. 42.

The Tribunal found that Cárdenas organized and carried out a fraudulent scheme against Lion,

including using the forged agreement in legal proceedings his companies brought to cancel

Lion’s mortgages. Award ¶¶ 94–95. Cárdenas takes serious exception to these findings,

proclaims his innocence, and seeks to unwind the Award. Dkt. 42-1 at 16–17. Even though

Cárdenas knew of the arbitration proceedings and that they concerned allegations that he

perpetuated a fraud on Lion, he made no attempt to intervene in the arbitration. Instead,

Cárdenas first moved to intervene here nine months after Mexico moved to vacate the Award

and eight months after the applicable limitations period expired. Dkts. 23, 42.

Lion opposes intervention, arguing mainly that Cárdenas fails to establish he is entitled to

intervene as of right or provide grounds for permissive intervention. Dkt. 49 at 8. Mexico takes

no position, but “emphasizes” “that the Motion is entirely unrelated to Mexico’s Petition.”

Dkt. 50 at 3.

11 Though Lion seeks confirmation under 9 U.S.C. § 9, courts typically confirm foreign arbitral awards under 9 U.S.C. § 207. See Republic of Arg., 211 F. Supp. 3d at 345–46. The Court need not decide which applies because Lion satisfies the requirements of both. 21 The Court finds that Cárdenas cannot intervene as of right under Rule 24(a) and denies

permissive intervention under Rule 24(b).

A. Intervention as of Right

1. Legal Standard

Federal Rule of Civil Procedure 24(a)(2) permits anyone to intervene as of right who, “on

timely motion . . . claims an interest relating to the property or transaction that is the subject of

the action, and is so situated that disposing of the action may as a practical matter impair or

impede the movant’s ability to protect its interest, unless existing parties adequately represent

that interest.” FED. R. CIV. P. 24(A)(2).

A motion to intervene as of right must be timely as “judged in consideration of all the

circumstances, especially weighing the factors of time elapsed since the inception of the suit, the

purpose for which intervention is sought, the need for intervention as a means of preserving the

applicant’s rights, and the probability of prejudice to those already parties in the case.” Karsner

v. Lothian, 532 F.3d 876, 886 (D.C. Cir. 2008) (quoting United States v. Brit. Am. Tobacco

Austl. Servs., Ltd., 437 F.3d 1235, 1238 (D.C. Cir. 2006)). “The most important circumstance

relating to timeliness is whether a party sought to intervene as soon as it became clear that its

interests would no longer be protected by the parties in the case.” Campaign Legal Ctr. v. Fed.

Election Comm’n, 68 F.4th 607, 610 (D.C. Cir. 2023) (cleaned up).

2. Cárdenas’s Motion Was Not Timely

a) Cárdenas Should Have Raised His Complaints with the Tribunal

Cárdenas complains that the Tribunal’s finding that he committed widespread fraud

caused, and will continue to cause, him substantial harm. Dkt. 42. Maybe so. But he should

22 have challenged the fraud allegations during the arbitration, not as a third party in a vacatur

proceeding.

To be sure, failure to intervene in an arbitration does not make a subsequent attempt to

intervene in a vacatur proceeding untimely per se. See Techcapital Corp. v. Amoco Corp., No.

99 CIV. 5093, 2001 WL 267010, at *4 (S.D.N.Y. Mar. 19, 2001). However, courts allow such

interventions primarily where the intervenor could not have intervened earlier. See Eddystone

Rail Co., LLC v. Jamex Transfer Servs., LLC, 289 F. Supp. 3d 582, 590 (S.D.N.Y. 2018). This is

not such a case. Cárdenas knew full well about the arbitration and “was on general notice that

there would be some allegations made about him.” Dkt. 54 at 18:23–24, 21:12–16.12 Yet, he did

nothing to try and intervene in the arbitration to protect his interests.

Cárdenas attempts to explain away his inaction by bemoaning that the Tribunal never

invited him to participate “as a witness or in any other capacity during the arbitration.”

Dkt. 42-2 ¶ 25; Dkt. 42-1 at 5–6. But a third party need not wait for an emblazed invitation to

intervene. It was up to Cárdenas, not the Tribunal or the parties, to act on his behalf.

Cárdenas alternatively contends that he did try to intervene in the arbitration because his

companies sought “to participate as non-disputing parties” and the Tribunal rejected that request.

12 The publicly available Request for Arbitration referenced Cárdenas eight times, Dkt. 56-8 ¶¶ 33–34, 36-37, 39, 41, and explained the forged document scheme and the alleged illegitimate legal proceedings, id. ¶¶ 41–50.

23 Dkt. 42-2 ¶ 26. This is the reddest of red herrings.13 Yes, Iván Mercado, a legal representative

acting on behalf of Cárdenas’s companies, filed letters with the Tribunal seeking to participate.

Dkt. 42-2 ¶ 26. And yes, the Tribunal denied the request. Dkt. 42-6 at 2. But Cárdenas’s

companies are not seeking to intervene here—Cárdenas himself is. And at no time did Mercado

act on behalf of Cárdenas in his individual capacity, seek to defend Cárdenas’s actions, or even

contest the alleged fraud. Instead, in each letter, Mercado represented the companies and

focused solely on challenging the Tribunal’s jurisdiction. Dkts. 42-7, 42-11.

Even accepting Cárdenas’s argument that he can rely on his companies’ efforts to

intervene does not help him. Instead, it raises its own obstacle. Cárdenas claims that he “is best

positioned to raise the additional argument on lack of jurisdiction that the attorney representing

Mr. Cárdenas’s companies tried to raise five different times during the arbitration but was not

allowed.” Dkt. 57 at 7. In other words, he wants this Court to allow the very intervention the

Tribunal rejected. The FAA prohibits this. See 9 U.S.C. § 10(a); see also supra Section II.A.

13 The figurative use of “red herring” has a fishy etymology. In 1667, Gentleman’s Recreation suggested using the scent of red herring to keep hounds on the trail during a fox hunt. See Red Herring, OXFORD ENGLISH DICTIONARY, https://www.oed.com/dictionary/red-herring_n (last visited Oct. 17, 2024) (citing NICHOLAS COX, THE GENTLEMAN’S RECREATION 59 (1674)). But in 1807, William Cobbett wrote that he had used a red herring as a decoy to deflect hounds chasing after a hare. See id. He then used that as a metaphor to claim that the English government had been misled by false foreign intelligence to divert attention away from domestic matters: “Alas! it was a mere transitory effect of the political red-herring; for, оn the Saturday, the scent became as cold as a stone.” Id. (citing COBBETT’S WKLY. POL. REG., Feb. 14, 1807). He retold the story numerous times, transforming the phrase into its figurative meaning of a clue used to divert from an issue at hand. See id; see also Michael Quinion, The Lure of the Red Herring, WORLD WIDE WORDS (Oct. 25, 2008), https://www.worldwidewords.org/herring.html (citing Robert Scott Ross & Gerald Cohen, Two Contributions to the Study of Red Herring, in COMMENTS ON ETYMOLOGY 58, 58–69 (Gerald Cohen ed., 2008)). 24 b) Cárdenas Did Not Timely File His Motion

Even if the Court were inclined to excuse Cárdenas’s failure to seek to participate in the

arbitration, he did not timely raise his arguments here. He moved to intervene “to vacate an

arbitral award that adversely affects [him].” Dkt. 57 at 3. But under the FAA, “[n]otice of a

motion to vacate, modify, or correct an award must be served upon the adverse party or his

attorney within three months after the award is filed or delivered.” 9 U.S.C. § 12. Cárdenas

missed this deadline, moving to intervene to argue vacatur more than eight months after the

limitations period expired. See Dkt. 23 (filed August 22, 2022); Dkt. 42-2 ¶ 57.

Cárdenas claims that this limitation period does not apply to him. He argues: “[t]he text

of Section 10(a) of the FAA is clear that ‘[i]n any of the following cases the United States court

in and for the district wherein the award was made may make an order vacating the award upon

the application of any party to the arbitration— . . . .’” and “[he] was not a party to the

arbitration and the three-month limitations period of Section 12 is therefore inapplicable to him.”

Dkt. 57 at 2 (cleaned up). By that reasoning, however, Cárdenas could not move to intervene to

vacate the Award at any time because he was never a party to the arbitration.

The applicability of the limitations period aside, the “parties to the arbitration”—Lion

and Mexico—would be prejudiced if the Court granted Cárdenas’s belated motion. By the time

he moved, the parties had fully briefed both the Petition to Vacate and Cross-Motion to Confirm.

Dkts. 16, 18, 23. Given this timing, his supplemental briefing in support of Mexico’s vacatur

proceeding would be supplemental briefing in name only. It would, in practice, function as an

independent petition by requiring a fresh round of opposition and reply briefing on vacatur

arguments not raised in the vacatur and confirmation petitions already ripe for judgment.

Cárdenas’s intervention would delay the proceeding further by requiring the parties to dedicate

25 substantial time and resources briefing arguments that they jointly contend are unrelated to the

existing petitions. See Dkt. 49 at 15; Dkt. 50 ¶ 9.

3. Intervention Would Be Futile

Courts regularly deny motions to intervene when the intervention would be futile. See,

e.g., Stotts v. Memphis Fire Dep’t, 679 F.2d 579, 582 (6th Cir. 1982); Peters v. District of

Columbia, 873 F. Supp. 2d 158, 210 (D.D.C. 2012); In re Nat’l Football League Players’

Concussion Inj. Litig., No. 14-1995, 2019 WL 188431, at *4 (E.D. Pa. Jan. 14, 2019); New York

Life Ins. Co. v. Singh, No. 14-CV-5726, 2017 WL 10187670, at *7 (E.D.N.Y. Mar. 8, 2017)

(citing United States v. Glens Falls Newspapers, Inc., 160 F.3d 853, 855 (2d Cir. 1998)). Here,

intervention would indeed be otiose.

Cárdenas contends that “excluding [him] from these proceedings would deprive the Court

of the opportunity to be briefed on an important jurisdictional defect in the Award” not raised by

Mexico. Dkt. 42-1 at 13. But the parties agreed to the ICSID Additional Facility Rules, which

provide that “[t]he Tribunal shall have the power to rule on its jurisdiction and competence.” See

NAFTA art. 1120(1)(b) (adopting ICSID Additional Facility Rule 53(1)). By consenting to

proceed under those rules, the parties delegated all decisions about the Tribunal’s jurisdiction to

the Tribunal itself. Crystallex Int’l Corp. v. Bolivarian Republic of Venezuela, 244 F. Supp. 3d

100, 111 (D.D.C. 2017), aff’d, 760 F. App’x 1 (D.C. Cir. 2019).

An argument by Cárdenas that the Tribunal lacked jurisdiction would be futile. Where,

as here, the parties assign arbitrability to the arbitrator, “a court possesses no power to decide the

arbitrability issue,” even if it thinks the argument for arbitrability is “wholly groundless.” LLC

SPC Stileks, 985 F.3d at 878 (quoting Henry Schein, Inc. v. Archer and White Sales, Inc., 586

U.S. 63, 68 (2019)). Instead, “the court’s standard for reviewing the arbitrator’s decision about

26 that matter should not differ from the standard courts apply when they review any other matter

that parties have agreed to arbitrate.” Id. at 878 (quoting First Options of Chi., Inc. v. Kaplan,

514 U.S. 938, 943 (1995)); see also supra Section II.A. This may well explain why Mexico’s

petition did not raise lack of jurisdiction as a basis to vacate the Award.

4. Mexico Can Protect Cárdenas’s Interests

Intervention is not necessary if the “existing parties adequately represent [the third

party’s] interest.” FED. R. CIV. P. 24(A)(2).

Cárdenas claims that neither Lion nor Mexico can protect his interests before this Court.

Dkt. 42-1 at 3. That is true as to Lion. But Mexico and Cárdenas share the same goal: vacatur of

the Award. Cárdenas seeks to intervene to raise “an important jurisdictional defect in the

Award” Mexico did not raise. Id. at 13. He does not explain, however, why Mexico is not

equally incentivized to raise the same jurisdictional defect. And so Cárdenas’s motion at best

reflects a strategy disagreement with Mexico as to whether to raise a jurisdictional argument in

support of vacatur. Such disagreement is not a basis to find that Mexico cannot represent

Cárdenas’s interest. See Jones v. Prince George’s Cnty., 348 F.3d 1014, 1020 (D.C. Cir. 2003).

B. Permissive Intervention

Cárdenas asks, in the alternative, that the Court allow permissive intervention.

Dkt. 42-1 at 1. “As its name would suggest, permissive intervention is an inherently

discretionary enterprise.” E.E.O.C. v. Nat’l Child.’s Ctr., Inc., 146 F.3d 1042, 1046 (D.C. Cir.

1998). The Court may allow permissive intervention under Federal Rule of Civil Procedure

24(b) so long as the prospective intervenor presents “(1) an independent ground for subject

matter jurisdiction; (2) a timely motion; and (3) a claim or defense that has a question of law or

27 fact in common with the main action.” Id. But the Court also has the discretion to deny such a

motion, even if the proposed intervenor meets these baseline criteria. Id. at 1048.

The final requirement under Rule 24(b)(2), a timely motion, dooms Cárdenas’s

permissive intervention request. Courts apply a more lenient standard of timeliness to

intervention as of right than to permissive intervention. Stadnicki on Behalf of Lending Club

Corp. v. Laplanche, 804 F. App’x 519, 522 (9th Cir. 2020); Wal-Mart Stores, Inc. v. Tex.

Alcoholic Beverage Comm’n, 834 F.3d 562, 566 n.1 (5th Cir. 2016). The Court has already

explained why Cárdenas’s Motion was not timely under the more stringent standard and will not

regurgitate that analysis. See supra Section II.A. Suffice it to say that Cárdenas neither asked to

participate in the arbitration nor filed his motion within the time the FAA prescribes to move to

vacate. Intervention at this late stage would delay the proceedings and prejudice Lion by

allowing the intervenor to circumvent the statute of limitations.

Even if Cárdenas’s Motion were timely, the Court would deny permissive intervention.

The Rule 24(b) requirements are the floor where the Court’s discretion begins, not the ceiling

where it ends. See Nat’l Child.’s Ctr., 146 F.3d at 1048. Like intervention as of right,

permissive intervention is not appropriate because Cárdenas’s arguments are futile, see supra

Section II.A, making his intervention unlikely to “significantly contribute to . . . the just and

equitable adjudication of the legal question presented.” Aristotle Int’l, Inc. v. NGP Software,

Inc., 714 F. Supp. 2d 1, 18 (D.D.C. 2010).

28 IV. CONCLUSION

For the reasons stated above, the Court DENIES Cárdenas’s Motion to Intervene, Dkt.

42; DENIES Mexico’s Petition to Vacate, Dkt. 32; and GRANTS Lion’s Cross-Petition for

Confirmation, Recognition, and Enforcement of the Arbitral Award, Dkt. 35.

SO ORDERED.

This is a final appealable Order. See FED. R. APP. P. 4(A).

Date: November 8, 2024 ________________________ ANA C. REYES United States District Judge