brought under the dominican republic - central america - ita

the Claimant forms part has and has had since December 2007 substantial business
activities in the USA.
4.64. A useful description of such activities was given by Ms McLeod-Selzer, the Chairman
of Pacific Rim, a Director of Pacific Rim Exploration Inc, the President and a
Director of Dayton Mining (U.S.) Inc. and also one of the Claimant‟s managers.
Significantly, the Respondent chose not to cross-examine this witness at the Jurisdiction
Hearing. In the circumstances, for present purposes, the Tribunal accepts her
written testimony as regards such activities.
4.65. Ms McLeod-Selzer‟s description in her written witness statement leaves no doubt as
to the existence of such activities in Nevada, USA by “the Companies”, defined by
this witness to mean collectively Pacific Rim and all its subsidiaries, including the
Claimant:
―... the Companies have always had a substantial presence in Nevada, USA. Indeed,
Mr. Thomas C. Shrake, who has served as the Chief Executive Officer (―CEO‖) of
Pacific Rim Mining Corporation since 1997, has always maintained his offices
there, along with the Companies‘ other senior geologists. Mr. Shrake has largely
managed the Companies, including [the Claimant] and its Salvadoran subsidiaries
[PRES and DOREX] from Nevada. Pacific Rim Mining has other subsidiaries in
Nevada, including Dayton Mining (U.S.) Inc, which provided a substantial portion
of the capital invested in El Salvador. [The Claimant] is a legitimate holding company,
which for many years has held the Companies‘ most important assets, namely
our Salvadoran subsidiaries ....‖ 135
4.66. However, in the Tribunal‟s view, this first condition under CAFTA Article 10.12.2
relates not to the collective activities of a group of companies, but to activities attributable
to the “enterprise” itself, here the Claimant. If that enterprise‟s own activities
do not reach the level stipulated by CAFTA Article 10.12.2, it cannot aggregate
to itself the separate activities of other natural or legal persons to increase the level
of its own activities: those would not be the enterprise‟s activities for the purpose of
applying CAFTA Article 10.12.2.
4.67. Accordingly, the relevant question is whether the Claimant by itself had substantial
activities in the USA from 13 December 2007 onwards. The Tribunal accepts that
135
Ms McLeod-Selzer‟s witness statement, §5.
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