brought under the dominican republic - central america - ita

gard to the words actually used, interpreted in a natural and reasonable way.
5.37. The Tribunal decides that the wording of Article 15 is clear and unambiguous. By
providing foreign investors with the option (“may”), absent for local investors, of
submitting the “disputes arising between foreign investors and the State, regarding
their investment in El Salvador” to ICSID, Article 15 of the Investment Law clearly
invites foreign investors to decide whether to submit their claims to local courts (Article
15, first paragraph) or to ICSID tribunals (Article 15, second paragraph, (a) and
(b)), therefore providing the consent of the Respondent required by Article 25 of the
ICSID Convention which the investor can accept.
5.38. In the Tribunal‟s opinion, nothing in the ICSID Convention establishes the need for
specific wording in national legislation or other unilateral acts by which a State consents
to ICSID jurisdiction, still less the identical wording used in other instruments
of consent used by that State historically (whether in BITs or CAFTA). Consent
must be evident and in writing; 188 and, in the Tribunal´s opinion, both requirements
were duly met in the present case by the Respondent, as later accepted in writing by
the Claimant in commencing these ICSID arbitration proceedings.
5.39. Accordingly, the Tribunal decides that the wording of Article 15 of the Investment
Law contains the Respondent‟s consent to submit the resolution of disputes with foreign
investors to ICSID jurisdiction; that such intention appears unambiguously
from the text of Article 15; and that it is confirmed from the context, the circumstances
of its preparation and the purposes intended to be served by Article 15, read
with Article 25 of the ICSID Convention. 189 Although the Tribunal has reached this
decision based on the language of Article 15 alone, the Tribunal also notes that, confronted
with the extraneous evidence adduced by the Claimant to this same effect, 190
the Respondent chose not to provide to the Tribunal any rebuttal evidence indicating
that it was not the intention of the Salvadoran legislature to provide for unilateral
consent to ICSID arbitration in Article 15 the Investment Law.
188
189
190
Report of the Executive Directors on the Convention, § 23.
Mobil v. Venezuela, supra note 27, §§ 92-96; Cemex v. Venezuela, supra note 179, §§ 85-89.
See the power point presentation made before the Salvadoran Congress when the Investment Law bill was
debated, CL-149, an UNCTAD Report alleged to have been made with input from PROESA and other
Government officials, CL 147 and the academic opinions of Professors Schreuer and Oliva de la Cotera
referred by the Claimant.
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