brought under the dominican republic - central america - ita

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PART 1: THE ARBITRATION A: The Parties 1.1. The Claimant: The named Claimant is Pac Rim Cayman LLC (also called “Pac Rim Cayman” or “PRC”), a legal person organised under the laws of Nevada, USA, with its principal office at 3545 Airway Drive, Suite 105, Reno, Nevada 89511, USA. The Claimant is wholly owned by Pacific Rim Mining Corporation (also called “Pacific Rim”), a legal person organised under the laws of Canada. In these arbitration proceedings, the Claimant advances several claims against the Respondent both on its own behalf and on behalf of its subsidiary companies, collectively described as the “Enterprises.” 1.2. The Enterprises: The Enterprises are legal persons organised under the laws of the Respondent, namely: (i) Pacific Rim El Salvador, Sociedad Anónima de Capital Variable (also called “PRES”), with its principal office at 5 Avda. Norte, No. 16, Barrio San Antonio, Sensuntepeque, Cabañas, El Salvador; and (ii) Dorado Exploraciones, Sociedad Anónima de Capital Variable (also called “DOREX”), with its principal office at the same address. PRES is the owner of certain rights in the mining areas denominated as “El Dorado Norte,” “El Dorado Sur” and “Santa Rita”; and DOREX is the owner of certain rights in the mining areas denominated as “Huacuco”, “Pueblos” and “Guaco.” These mining areas are located in Las Cabañas and San Vicente, in the northern part of El Salvador. 1.3. ICSID & CAFTA: The Claimant is and has been since 13 December 2007 a national of a Contracting State to the Convention on the Settlement of Investment Disputes (the “ICSID Convention”) and the Dominican Republic-Central America-United States Free Trade Agreement (“DR-CAFTA” or “CAFTA”), in force for the USA as from August 2005. Canada is not a Contracting State to CAFTA or the ICSID Convention; and Pacific Rim, being a Canadian legal person, is not and never has been a national of a Contracting State to CAFTA or the ICSID Convention. Part 1 – Page 1
1.4. Prior to 2 March 2012, the Claimant had designated its legal representatives as Messrs Arif H. Ali, Alexandre de Gramont, R. Timothy McCrum, and Theodore Posner Esqs, all of Crowell & Moring LLP, 1001 Pennsylvania Avenue NW, Washington, DC 20004. By letter dated 2 March 2012, the Claimant advised the Secretary of the Tribunal that Messrs Ali, de Gramont, and Posner had changed law firms, and submitted a Power of Attorney providing that Claimant‟s legal representatives henceforth be designated as Arif H. Ali, Alexandre de Gramont, and Theodore Posner, Esqs. of Weil, Gotshal & Manges LLP, 1300 Eye Street NW, Suite 900, Washington, DC 20005, and R. Timothy McCrum, Ian A. Laird, Kassi D. Tallent, and Ashley R. Riveira of Crowell & Moring LLP, 1001 Pennsylvania Avenue NW, Washington, DC 20004. 1.5. The Respondent: The Respondent is the Republic of El Salvador. 1.6. The Respondent is a Contracting State to the ICSID Convention. It is also a Contracting State to CAFTA, in force for the Respondent as from 1 March 2006. 1.7. The Respondent‟s legal representative is Lic. Romeo Benjamín Barahona, Fiscal General de la República, Final 48 Calle Oriente y 19 Avenida Sur, Residencial Primavera, Santa Tecla, La Libertad, EI Salvador. Prior to 10 May 2012, the Respondent had also designated its legal representatives as Messrs Derek C. Smith, Luis Parada, Tomás Solís and Ms Erin Argueta, all of Dewey & LeBoeuf LLP, 1101 New York Avenue NW, Suite 1100, Washington D.C. 20005, USA. By letter dated 10 May 2012, the Respondent submitted a Power of Attorney providing that Messrs Smith, Parada and Solís, and Ms Argueta had moved to Foley Hoag LLP, 1875 K Street NW, Suite 800, Washington, DC 20006, but continued to represent the Respondent in this arbitration. B: The Dispute 1.8. The Claims: As asserted by the Claimant (but denied by the Respondent), the claims pleaded by the Claimant (with the Enterprises) allege: (i) the Respondent‟s arbitrary and discriminatory conduct, lack of transparency, unfair and inequitable treatment in failing to act upon the Enterprises' applications for a mining exploitation conces- Part 1 – Page 2
Page 1 and 2: IN THE MATTER OF AN ARBITRATION BEF
Page 3 and 4: One-Time Acts .....................
Page 5 and 6: Glossary of Defined Terms “CAFTA
Page 7 and 8: African Holding Company of America,
Page 9: Waste Management, Inc. v. United Me
Page 13 and 14: C: The Tribunal’s Decision of 2 A
Page 15 and 16: 1.23. The Respondent: The Responden
Page 17 and 18: under cover of a letter also dated
Page 19 and 20: G: The Parties’ Claims for Relief
Page 21 and 22: c. Piercing the corporate veil (Mem
Page 23 and 24: H: The Jurisdictional Issues 1.46.
Page 25 and 26: (02) CAFTA 1.4. CAFTA Article 10.1:
Page 27 and 28: 2. At least 90 days before submitti
Page 29 and 30: measure alleged to constitute a bre
Page 31 and 32: (03) The ICSID Convention 1.13. ICS
Page 33 and 34: (5) ILC Articles on State Responsib
Page 35 and 36: proof or the Claimant‟s allegatio
Page 37 and 38: 2.11. Burden of Proof: As far as th
Page 39 and 40: 2.19. In presenting this main objec
Page 41 and 42: precedented regulatory obstacles de
Page 43 and 44: 2.32. In its Post-Hearing Submissio
Page 45 and 46: SID Convention, nor relates to a
Page 47 and 48: But on the other side, an internati
Page 49 and 50: for such disputes would constitute,
Page 51 and 52: scribed in its early pleadings form
Page 53 and 54: 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
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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
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for the purpose of deciding the Rat
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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
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lomatic protection within the meani
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Party [i.e. as the host State] whic
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there were and are certain activiti
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4.74. It will be recalled that the
Page 107 and 108:
der different arbitration rules, th
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
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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
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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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brought under the dominican republic - central america - ita

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