brought under the dominican republic - central america - ita

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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. Part 5 - Page 11
5.40. As also summarized above, the Parties also debated the effect to be given to paragraph 332 of the Inceysa award. 191 While it is correct that the Inceysa tribunal declined jurisdiction and dismissed the claimant‟s claims on the basis that the investment did not meet the conditions for legality, the tribunal also interpreted Article 15 of the Investment Law in a manner which accords with the interpretation separately reached by this Tribunal. 5.41. With respect to Article 146 of the Salvadoran Constitution, 192 the Tribunal does not find such provision incompatible or inconsistent with the consent provided to ICSID jurisdiction in Article 15 of the Investment Law. Article 146 is included in Title VI, Chapter I, Third Section of the Salvadoran Constitution under the heading “Tratados” (Treaties). As the plain reading of Article 146 indicates, the purpose of such provision is to limit what may or may not be negotiated in a treaty or concession. Article 146 allows the Salvadoran State to submit disputes to arbitration or to an international tribunal in treaties or contracts as a qualification to the restrictions made earlier in the Constitution; 193 and it should be read in such context (i.e. what treaties or concession contracts can contain or not). The Respondent‟s interpretation, limiting the instruments by which the Respondent can consent to ICSID arbitration so as to exclude laws and other instruments not referred by in Article 146, does not have, in the Tribunal´s opinion, any rational or other legal support. 191 192 193 See Inceysa v. El Salvador, supra note 180, § 332 (“The foregoing clearly indicates that the Salvadoran State, by Article 15 of the Investment Law, made to the foreign investors a unilateral offer of consent to submit, if the foreign investor so decides, to the jurisdiction of the Centre, to hear all ´disputes referring to investments´ arising between El Salvador and the investor in question. However, in the case at hand, as indicated in the previous paragraphs, Inceysa cannot enjoy the rights granted by said Investment Law because its ´investment´ does not meet the conditions of legality”). Article 146 of the Salvadoran Constitution provides that: “No podrán celebrarse o ratificarse tratados u otorgarse concesiones en que de alguna manera se altere la forma de gobierno o se lesionen o menoscaben la integridad del territorio, la soberanía e independencia de la República o los derechos y garantías fundamentales de la persona humana. Lo dispuesto en el inciso anterior se aplica a los tratados internacionales o contratos con gobiernos o empresas nacionales o internacionales en los cuales se someta el Estado salvadoreño, a la jurisdicción de un tribunal de un estado extranjero. Lo anterior no impide que, tanto en los tratados con en los contratos, el Estado salvadoreño en caso de controversia, someta la decisión a un arbitraje o a un tribunal internacionales”. (“Treaties shall not be entered into or ratified, nor shall any concessions be granted that would in any way alter the form of government or damage or diminish the territorial integrity, sovereignty, or independence of the Republic or the fundamental rights and guarantees of individuals. The provisions of the previous paragraph shall apply to all international treaties or agreements entered into which governments or domestic or international companies in which the Salvadoran State is subject to the jurisdiction of a tribunal of a foreign state. The aforementioned does not prevent the Salvadoran State from submitting, in treaties and contracts, to arbitration or to an international tribunal for a decision in the event of a dispute”. ) “Lo anterior no impide…” (the aforementioned does not prevent…) Part 5 - Page 12
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 and 12:
1.4. Prior to 2 March 2012, the Cla
Page 13 and 14:
C: The Tribunal’s Decision of 2 A
Page 15 and 16:
1.23. The Respondent: The Responden
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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,
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scribed in its early pleadings form
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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
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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 and 116: Legislativa was fully aware that th
Page 117 and 118: made before and after the Claimant
Page 119: 5.33. As established by the Interna
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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