brought under the dominican republic - central america - ita

5.8. In the Respondent‟s submission, the tribunal in SPP v. Egypt did not actually apply
the principles of interpretation for a unilateral declaration; and its decision, therefore,
does not stand for the proposition that unilateral declarations are not to be interpreted
restrictively. 153 With regard to the decision in Mobil v. Venezuela, the Respondent
contends that the tribunal there did not specifically reject a restrictive interpretation
for unilateral acts of the State, such as national legislation; and that it concluded
that the ambiguous arbitration provision in the applicable investment law, together
with the lack of evidence of any intention to consent to arbitration, meant that
the investment law did not include a statement of unilateral consent to ICSID arbitration.
154
5.9. As additional evidence that the Respondent did not intend unilaterally to consent to
ICSID arbitration by its Investment Law, the Respondent cites Article 146 of the
Salvadoran Constitution which only allows the Respondent to agree to arbitration in
treaties and contracts; Article 146 simply does not mention legislation (such as the
Investment Law); and the Respondent accordingly cites in support of its case the
general principle of legal interpretation: “expressio unius est exclusio alterius”. 155
5.10. As to the second ground, the Respondent submits that the Claimant‟s claims are
precluded for the Claimant‟s failure to initiate conciliation before ICSID arbitration.
According to the Respondent, the text of the Investment Law is clear: if a dispute is
to be referred to ICSID under Article 15, such dispute is to be settled “by means of
conciliation and arbitration.” The express linguistic use of the conjunction “and”
connects conciliation with arbitration, so that both methods of dispute resolution
must be used by a claimant. As the Claimant did not initiate any conciliation prior to
arbitration for its claims under the Investment Law, the Claimant‟s request for IC-
SID arbitration was and remains impermissible. 156
5.11. As to the third ground, the Respondent contends that there is no indication of any
investment made by the Claimant in El Salvador at any time. In the Respondent‟s
submission, the Claimant qualifies as a foreign legal person; but it does not meet the
153
154
155
156
Jurisdiction Reply, § 232.
Jurisdiction Memorial, § 361.
Jurisdiction Memorial, §§ 374-378; Jurisdiction Reply, §§ 251-252; Hearing D1.127.
Jurisdiction Memorial, §§ 424-427; Jurisdiction Reply, §§ 253-254.
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