brought under the dominican republic - central america - ita

5.22. The Claimant denies that it was required to initiate conciliation before ICSID arbitration.
In its view, the conjunction “and” in Article 15 of the Investment Law means
only that both dispute settlement mechanisms provided by the ICSID Convention are
available to the disputing parties. In the present case, the investor decided to initiate
arbitration and not conciliation under the ICSID Convention. Further, the Claimant
submits that in the event that the Tribunal considers that conciliation is a procedural
requirement under Article 15 of the Investment Law, the Claimant should be released
from complying with this requirement because, in the circumstances of this
particular case, conciliation was and would remain completely futile. 172
5.23. With regard to the CAFTA waiver question raised by the Respondent, the Claimant
contends that the matter was definitively settled by the Tribunal when deciding on
the Preliminary Objection in its Decision of 2 August 2010; and it should therefore
not be revisited at this late stage by the Tribunal. 173
5.24. Moreover, the Claimant submits that, it is the proceedings that are indivisible here,
not the Claimant‟s claims. There is nothing in the Tribunal‟s Decision of 2 August
2010 that should be revisited in evaluating whether to dismiss any of Claimant‟s
claims under the Respondent‟s jurisdictional objections. The Claimant submits that
the dismissal of its CAFTA claims on any of the Respondent‟s jurisdictional objections
cannot be applied to the Claimant‟s Non-CAFTA claims under the Investment
Law simply because (as the Respondent argues) those latter claims are being addressed
as part of the same ICSID arbitration proceedings. 174
5.25. With respect to the Respondent‟s allegations that the Investment Law is not applicable
to the Claimant due to the lack of investments made by the Claimant in El Salvador,
the Claimant submits that although substantial portions of the financial and intellectual
capital invested in El Salvador are of U.S. origin, 175 the nationality of a
particular foreign investor is irrelevant for purposes of qualifying as a “foreign investor”
under the Investment Law. The Claimant‟s investments in El Salvador were
172
173
174
175
Jurisdiction Rejoinder, §§ 317-325.
Jurisdiction Counter-Memorial, §§ 472-474; Jurisdiction Rejoinder, §§ 326-328.
Claimant‟s Post-Hearing Submissions, §§ 105-112.
Jurisdiction Rejoinder, §§ 330.
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