brought under the dominican republic - central america - ita

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4.78. It follows that the first condition is met by the Respondent under CAFTA Article 10.12.2: the Tribunal finds as a fact that the Claimant did not and does not have substantial activities in the USA after December 2007. 4.79. (ii) Ownership/Control: As to ownership, it is not disputed between the Parties that the Claimant has been and remains wholly owned by its Canadian parent company, Pacific Rim, a person of a non-CAFTA Party for the purpose of CAFTA Article 10.12.2. 4.80. However, a majority of the shareholders in this Canadian company, both natural and legal persons, reside or at least have postal addresses in the USA. According to the Claimant, as noted above, this factor is said to result in the Claimant being owned, albeit indirectly, by persons of a CAFTA Party (namely the USA). 4.81. In the Tribunal‟s view, the Respondent is correct in applying CAFTA‟s Annex 2.1 referring for natural persons as USA nationals to the US Immigration and Nationality Act. That statute‟s requirements for US citizenship or permanent allegiance to the USA cannot be met by adducing mere US postal addresses for shareholders in the Canadian parent company, even assuming them to be natural persons and however convenient or even appropriate for other domestic purposes (as Mr Pasfield testified). The Tribunal does not here decide, were CAFTA‟s definition materially different, the question whether or not indirect ownership of the Claimant could suffice to establish the nationality of the Claimant‟s ownership. 4.82. It follows that that the second condition is met by the Respondent under CAFTA Article 10.12.2: the Tribunal finds as a fact that the Claimant is owned by Pacific Rim Corporation, a legal person of a non-CAFTA Party. In these circumstances, it is not necessary for the Tribunal to decide the alternative part of this second question as to “control” under CAFTA Article 10.12.2. It should not be assumed that the Respondent‟s case would have failed on this issue, if necessary to the Tribunal‟s decisions above. 4.83. (iii) Timeliness: There is no express time-limit in CAFTA for the election by a CAFTA Party to deny benefits under CAFTA Article 10.12.2. In a different case un- Part 4 - Page 23
der different arbitration rules, this third question might have caused this Tribunal certain difficulties given the importance of investor-state arbitration generally and, in particular, the potential unfairness of a State deciding, as a judge in its own interest, to thwart such an arbitration after its commencement. In this case, however, no such difficulties arise for three reasons. 4.84. First, the Tribunal accepts that, given that this was the first denial of benefits by any CAFTA Party under CAFTA Article 10.12.2, denying benefits to the Claimant under CAFTA was a decision requiring particular attention by the Respondent, to be exercised upon sufficient and ascertainable grounds. Inevitably, such a decision requires careful consideration and, inevitably, also time. It is not apparent to the Tribunal that the Respondent thereby deliberately sought or indeed gained any advantage over the Claimant, by waiting until 1 March 2010 (as regards notification to the USA) or 3 August 2010 (for its invocation of denial of benefits to the Claimant). 4.85. Second, this is an arbitration subject to the ICSID Convention and the ICSID Arbitration Rules, as chosen by the Claimant under CAFTA Article 10.16(3)(a). Under ICSID Arbitration Rule 41, any objection by a respondent that the dispute is not within the jurisdiction of the Centre, or, for other reasons, is not within the competence of the tribunal “shall be made as early as possible” and “no later than the expiration of the time limit fixed for the filing of the counter-memorial”. In the Tribunal‟s view, that is the time-limit in this case here incorporated by reference into CAFTA Article 10.12.2. Any earlier time-limit could not be justified on the wording of CAFTA Article 10.12.2; and further, it would create considerable practical difficulties for CAFTA Parties inconsistent with this provision‟s object and purpose, as observed by Costa Rica and the USA from their different perspectives as host and home States (as also by the Amicus Curiae more generally). In the Tribunal‟s view, the Respondent has respected the time-limit imposed by ICSID Arbitration Rule 41. 4.86. Third, the Tribunal does not accept the Claimant‟s arguments based on ICSID Articles 25(1) and 27(1). 4.87. As regards ICSID Article 27(1) precluding diplomatic protection in respect of a dispute subject to ICSID arbitration before an award is rendered in such dispute, the Part 4 - Page 24
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IN THE MATTER OF AN ARBITRATION BEF
Page 3 and 4:
One-Time Acts .....................
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Glossary of Defined Terms “CAFTA
Page 7 and 8:
African Holding Company of America,
Page 9 and 10:
Waste Management, Inc. v. United Me
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1.4. Prior to 2 March 2012, the Cla
Page 13 and 14:
C: The Tribunal’s Decision of 2 A
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1.23. The Respondent: The Responden
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under cover of a letter also dated
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G: The Parties’ Claims for Relief
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c. Piercing the corporate veil (Mem
Page 23 and 24:
H: The Jurisdictional Issues 1.46.
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(02) CAFTA 1.4. CAFTA Article 10.1:
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2. At least 90 days before submitti
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measure alleged to constitute a bre
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(03) The ICSID Convention 1.13. ICS
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(5) ILC Articles on State Responsib
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proof or the Claimant‟s allegatio
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2.11. Burden of Proof: As far as th
Page 39 and 40:
2.19. In presenting this main objec
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precedented regulatory obstacles de
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2.32. In its Post-Hearing Submissio
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SID Convention, nor relates to a
Page 47 and 48:
But on the other side, an internati
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for such disputes would constitute,
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scribed in its early pleadings form
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2.65. The Tribunal considers that t
Page 55 and 56: vestment (which by themselves are n
Page 57 and 58: minated; nothing more could have be
Page 59 and 60: to arbitrarily change or add new re
Page 61 and 62: 2.86. Accordingly, treating the rel
Page 63 and 64: 2.93. The Tribunal notes that this
Page 65 and 66: ability and not merely as a possibl
Page 67 and 68: 2.105. Having reached these several
Page 69 and 70: Tribunal‟s jurisdiction to determ
Page 71 and 72: 3.5. The Respondent also submits th
Page 73 and 74: cause there was only one applicatio
Page 75 and 76: leged de facto ban on mining was no
Page 77 and 78: Claimant, it came to light only in
Page 79 and 80: that led to the revocation should b
Page 81 and 82: for the purpose of deciding the Rat
Page 83 and 84: distinction made in the Commerce Gr
Page 85 and 86: EMELEC v. Ecuador (under the USA-Ec
Page 87 and 88: would qualify for treaty protection
Page 89 and 90: 4.17. (iii) Timeliness: The Respond
Page 91 and 92: the Respondent submits, to require
Page 93 and 94: ditiously resolved” (paragraph l)
Page 95 and 96: provided the Respondent with its No
Page 97 and 98: 4.44. The Claimant contends further
Page 99 and 100: lomatic protection within the meani
Page 101 and 102: Party [i.e. as the host State] whic
Page 103 and 104: there were and are certain activiti
Page 105: 4.74. It will be recalled that the
Page 109 and 110: 4.91. It follows that this third co
Page 111 and 112: Convention. 145 In the Respondent
Page 113 and 114: further express requirement of havi
Page 115 and 116: Legislativa was fully aware that th
Page 117 and 118: made before and after the Claimant
Page 119 and 120: 5.33. As established by the Interna
Page 121 and 122: 5.40. As also summarized above, the
Page 123 and 124: Government had always treated the C
Page 125 and 126: PART 6: ISSUE E - LEGAL AND ARBITRA
Page 127 and 128: 6.10. The Claimant submits that, un
Page 129 and 130: tion ratione temporis (i.e. the con
Page 131 and 132: Party to also put in a witness stat
Page 133 and 134: ture arbitration proceedings. Indee
Page 135 and 136: this arbitration with the least exp
Page 137 and 138: abused the Tribunal's indulgence in
Page 139 and 140: avoided; but, instead, the Responde
Page 141 and 142: “a U.S. investor organized under
Page 143 and 144: The Respondent acknowledges, of cou
Page 145 and 146: Claimant submits that under the cir
Page 147 and 148: ment in the communications with the
Page 149 and 150: 6.76. The Claimant submits that the
Page 151 and 152: PART 7: THE OPERATIVE PART 7.1. For
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