brought under the dominican republic - central america - ita

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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. Part 5 - Page 7
made before and after the Claimant changed its nationality on 13 December 2007; and its change to US nationality cannot affect its access to ICSID arbitration under the Investment Law. Before its change of nationality, the Claimant was a Cayman Islands company; and as such it could have invoked Article 15 because the United Kingdom‟s ratification of the ICSID Convention extended to the Cayman Islands. 176 Such being the case, the change in nationality of the Claimant cannot justify the Respondent‟s case under this issue. 5.26. Lastly, the Claimant contends that it is an enterprise organised under the laws of Nevada, USA. Consequently, under the applicable rules of international law, the Claimant is a national of the USA, which is a Party to the ICSID Convention. 177 Moreover, according to the Claimant, if the Claimant‟s corporate veil were lifted (contrary to the Claimant‟s primary submission), and nationality were then to be assessed by reference to control over the Claimant, the Claimant would have U.S. nationality because the Claimant is (indirectly) controlled by U.S. persons. 178 (04) The Tribunal´s Analysis and Decisions 5.27. Pursuant to Article 25 of the ICSID Convention, the Centre´s jurisdiction extends to: “any legal dispute arising directly out of an investment between a Contracting State and a national of another Contracting State which the parties to the dispute consent in writing to submit to the Centre” (emphasis supplied). 5.28. Article 15 of the Investment Law, provides, in material part: “In the case of disputes arising between foreign investors and the State, regarding their investment in El Salvador, the investors may submit the dispute to: (a) the International Center for Settlement of Investment Disputes (ICSID), in order to settle the dispute by means of conciliation and arbitration, in accordance with the Convention on Settlement of Investment Disputes Among States and Nationals of other States (ICSID Convention)”. The full texts of Article 15 in Spanish and English are set out in the Annex to Part I above. 176 177 178 Jurisdiction Rejoinder §§ 332-333; Claimant‟s Post-Hearing Submissions, §§ 100-101. Jurisdiction Rejoinder, §§ 336-337. Jurisdiction Rejoinder, §§ 352-355. Part 5 - Page 8
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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
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to arbitrarily change or add new re
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2.86. Accordingly, treating the rel
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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 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: Legislativa was fully aware that th
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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