brought under the dominican republic - central america - ita

of a particular agreement”, citing NAFTA Article 1113 and also testimony before
the US House of Representatives by one of CAFTA‟s US negotiators (paragraph 3).
4.56. The USA observes (in common with Costa Rica) that a CAFTA Party is not required
to invoke denial of benefits under CAFTA Article 10.12.2 before an arbitration
commences; and that it may do so as part of a jurisdictional defence after a claim has
been submitted to arbitration (paragraph 5). The USA likewise observes that this
CAFTA provision contains no time-limit for its invocation; and that a contrary interpretation
would place an untenable burden on a CAFTA Party, contrary to the purpose
of CAFTA Article 10.12.2:
― ... It would require the respondent, in effect, to monitor the ever-changing business
activities of all enterprises in the territories of each of the other six CAFTA-DR Parties
that attempt to make, are making, or have made investments in the territory of
the respondent [citing Ms Kinnear‘s NAFTA Commentary]. This would include conducting,
on a continuing basis, factual research, for all such enterprises, on their respective
corporate structures and the extent of their business activities in those
countries. To be effective, such monitoring would in many cases require foreign investors
to provide business confidential and other types of non-public information
for review. Requiring CAFTA-DR Parties to conduct this kind of continuous oversight
in order to be able to invoke the denial of benefits provision under Article
10.12.2 before a claim is submitted to arbitration would undermine the purpose of
the provision‖ (paragraph 6).
4.57. The USA also observes that neither CAFTA Article 10.12.2 nor CAFTA Article
18.3 require a CAFTA Party to give any notice to a claimant (such as the Claimant
in the present case); and the USA notes that CAFTA Article 20.4.1 is only discretionary
even as to CAFTA Parties: “Any Party may request in writing consultations
with any other Party ...” (emphasis supplied).
(05) Amicus Curiae
4.58. The Amicus Curiae observes in its Submission that CAFTA Article 10.12.2 “provides
an important safeguard to CAFTA Parties and their citizens” and “cannot be
emptied of practical effect” or rendered “a nullity” (page 13).
4.59. The Amicus Curiae also observes that an imposed time-limit for the invocation of
denial of benefits by a CAFTA Party “would necessarily be expensive” for that
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