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sion and environmental permits following the Claimant‟s discovery of valuable deposits of gold and silver under exploration licenses granted by MINEC for the Respondent; (ii) the Respondent's failure to protect the Claimant's investments in accordance with the provisions of its own law and (iii) the Respondent‟s unlawful expropriation of the investments of the Claimant (with the Enterprises) in El Salvador. 1.9. The details of these claims pleaded by the Claimant are set out in the Decision of 2 August 2010 issued by the Tribunal, to which further reference is made below. 1.10. CAFTA: In pursuance of these claims, it is alleged by the Claimant that the Respondent breached its obligations under Section A of CAFTA, namely: (i) CAFTA Article 10.3: “National Treatment”; (ii) CAFTA Article 10.4: “Most-Favoured Nation Treatment”; (iii) CAFTA Article 10.5: “Minimum Standard of Treatment”; (iv) CAFTA Article 10.7: “Expropriation and Compensation”; and (v) CAFTA Article 10.16.1(b)(i)(B): as to “investment authorizations.” 1.11. Investment Law: The Claimant also alleges that the Respondent has breached the Salvadoran Investment Law, which prohibits expropriation without compensation, as well as unjustified or discriminatory measures which may hinder the establishment, administration, use, usufruct, extension, sale and liquidation of foreign investments (Article 5 - Equal Protection, Article 6 - Non-Discrimination, and Article 8 - Expropriation). 1.12. Other Salvadoran Laws: The Claimant also alleges that the Respondent has breached the Salvadoran Mining Law (Articles 8, 14, 19 and 23), Article 86 of the Salvadoran Constitution, Article 1 of the Salvadoran Civil Code and Article 4(j) of the Salvadoran Governmental Ethics Law. 1.13. During the Hearing (described below), the Claimant significantly clarified, inter alia, the temporal limits to its CAFTA Claims, namely claims for damages only from the period from March 2008 forwards and not for any earlier period. The Tribunal returns to this late clarification of the Claimant‟s pleaded case later in this Decision. Part 1 – Page 3
C: The Tribunal’s Decision of 2 August 2010 1.14. On 2 August 2010, the Tribunal issued its Decision on the Respondent‟s Preliminary Objections under CAFTA Articles 10.20.4 and 10.20.5 (for ease of reference, here called “the Decision of 2 August 2010”). 1.15. In Part X of the Decision of 2 August 2010 (paragraph 266), the Tribunal decided for the reasons therein set out: (1) As to the Respondent‟s Objections under CAFTA Article 10.20.4, these objections are not granted by the Tribunal; (2) As to the Respondent‟s Objection under CAFTA Article 10.20.5, this objection is not granted by the Tribunal; (3) As to costs, the Tribunal here makes no order under CAFTA Article 10.20.6, whilst reserving all its powers as to orders for costs at the final stage of these arbitration proceedings; and (4) As to all other matters, the Tribunal retains its full powers to decide any further matters in these arbitration proceedings, whether by order, decision or award. 1.16. The Decision of 2 August 2010 (with its all recitations and reasons) should be read with this Decision to avoid unnecessary repetition here. D: The Respondent’s Jurisdictional Objections 1.17. The Respondent submitted its Objections to Jurisdiction under ICSID Arbitration Rule 41(1) on 3 August 2010, leading to the further procedure resulting in this Jurisdiction Decision. The Respondent‟s Objections comprise four independent grounds to this Tribunal‟s jurisdiction: (i) Abuse of Process by the Claimant; (ii) Ratione Temporis; (iii) the Respondent‟s Denial of Benefits under CAFTA Article 10.12.2; and (iv) the Investment Law. Part 1 – Page 4
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 and 10: Waste Management, Inc. v. United Me
Page 11: 1.4. Prior to 2 March 2012, the Cla
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
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
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leged de facto ban on mining was no
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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
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
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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
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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
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The Respondent acknowledges, of cou
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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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