brought under the dominican republic - central america - ita

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PART 5: ISSUE D - INVESTMENT LAW (01) Introduction 5.1. The Tribunal here addresses the Respondent‟s independent and alternative jurisdictional objection to the effect that this Tribunal lacks any jurisdiction under the Investment Law of El Salvador to decide the Claimant‟s pleaded Non-CAFTA claims. The Claimant contests this jurisdictional objection in full. 5.2. In the Tribunal‟s opinion, the Parties‟ debate under this separate issue can be determined largely as a matter of legal interpretation, where issues as to the standard of proof play no material part. It is, however, ultimately for the Claimant to establish the Tribunal‟s jurisdiction over its Non-CAFTA claims as a matter of such interpretation. (02) The Respondent’s Case 5.3. In summary, 140 the Respondent denies jurisdiction under this issue on four principal grounds: (i) that Article 15 of the Investment Law does not constitute consent to IC- SID jurisdiction; 141 (ii) even if the Investment Law did constitute such consent and did apply to the Claimant, the Claimant‟s claims are precluded for the Claimant‟s failure to initiate conciliation before ICSID arbitration; 142 (iii) the Claimant is not a foreign investor under the Investment Law; 143 and (iv) the CAFTA waiver precludes jurisdiction under the Investment Law. 144 5.4. As to the first ground, the Respondent alleges that Article 15 of the Investment Law does not constitute consent to arbitration for the purposes of Article 25 of the ICSID 140 141 142 143 144 Jurisdiction Memorial, § 9; Hearing Day1.119-129. Jurisdiction Memorial, §§ 337-378; Jurisdiction Reply, §§ 225-250. Jurisdiction Memorial, §§ 424-427; Jurisdiction Reply, §§ 253-254. Jurisdiction Memorial, §§ 379-380; Jurisdiction Reply, §§ 255-261. Jurisdiction Memorial, §§ 428-454; Jurisdiction Reply, §§ 262-264. Part 5 - Page 1
Convention. 145 In the Respondent‟s submission, Article 15 contains no consent by the Respondent to arbitration. 146 5.5. The Respondent disputes the Claimant‟s submission that the passage in the Inceysa award supports the Claimant‟s case that Article 15 constitutes consent under Article 25 of the ICSID Convention: the Respondent contends that this issue was not before the Inceysa tribunal and that the short passage cited by the Claimant was mere obiter dicta and should not replace this Tribunal‟s own legal analysis of Article 15. 147 Further, the Respondent submits that the focus in the Inceysa case was on the illegality of the investment by a foreign company; 148 therefore, the Inceysa case is not relevant to the issue of whether or not Article 15 of the Investment Law constitutes consent; and it is not necessary for the Tribunal to consider that case in order to arrive at its own decision in the present case. 149 5.6. In the Respondent‟s further submission, the Tribunal‟s duty to interpret Article 15 cannot be substituted, as the Claimant suggests, by the unreasoned reference to Article 15 in the Inceysa award, or academic commentaries, or what the Claimant erroneously refers to as the “official position” of the Respondent with respect to Article 15 of its Investment Law. 150 5.7. The Respondent contends that Article 15 is a unilateral declaration by the Respondent, as opposed to reciprocal or multilateral statements of consent in a BIT or CAFTA; there is no clear statement of consent in its text; and it must be interpreted restrictively. 151 Therefore, so the Respondent contends, by stating that Article 15 should not be interpreted restrictively or by seeking support for its argument in the decisions in SSP v. Egypt and Mobil v. Venezuela, the Claimant´s arguments are fundamentally mistaken. 152 145 146 147 148 149 150 151 152 Jurisdiction Memorial, § 337; Jurisdiction Reply, § 225. Jurisdiction Memorial, § 373. Jurisdiction Memorial, § 339; Jurisdiction Reply, § 238. Jurisdiction Memorial, § 339; Jurisdiction Reply, § 240; Hearing Day 1.127-129. Jurisdiction Reply, § 241. Jurisdiction Reply, §§ 227-246. Jurisdiction Memorial, §§ 340-373; Jurisdiction Reply, §§ 225-250; Respondent‟s Post-Hearing Submissions § 129. Jurisdiction Reply, § 231; Hearing D1.127. Part 5 - Page 2
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IN THE MATTER OF AN ARBITRATION BEF
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One-Time Acts .....................
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Glossary of Defined Terms “CAFTA
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African Holding Company of America,
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Waste Management, Inc. v. United Me
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1.4. Prior to 2 March 2012, the Cla
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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
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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
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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
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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
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vestment (which by themselves are n
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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 and 106: 4.74. It will be recalled that the
Page 107 and 108: der different arbitration rules, th
Page 109: 4.91. It follows that this third co
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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