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5.42. The Tribunal also finds no merit in the Respondent‟s argument that if Article 15 constituted consent, the Claimant‟s claims were precluded for failing to initiate conciliation before arbitration. The conjunction “and” in Article 15 of the Investment Law can only mean that both dispute settlement mechanisms provided by the ICSID Convention are available to the Claimant. Once consent has been given by the Respondent (as it is in the form of Article 15), it is for the party instituting the proceedings to choose between conciliation and arbitration under the ICSID Convention. 194 5.43. With regard to the Respondent‟s submission that the Investment Law is not applicable to the Claimant because of its lack of any investments in El Salvador, the Tribunal considers that the Claimant´s nationality (and subsequent change of nationality) is irrelevant for the purpose of it qualifying as a “foreign investor” under the Investment Law. 195 The Claimant was registered as a “foreign investor” for the purposes of the Investment Law from 2005; 196 it was successively a Cayman Island company prior to 13 December 2007 and a US company thereafter; and the Claimant, as such, could have invoked Article 15 of the Investment Law by virtue of the respective ratifications of the ICSID Convention by the United Kingdom and the USA, which (in the case of the United Kingdom) extended to the Cayman Islands. 5.44. The Respondent‟s next submission raises the question of the Claimant‟s actual investments in El Salvador. The definition of “a foreign investor” contained in the Investment Law is broad; and, as confirmation of this interpretation, the Tribunal notes that register of the Respondent‟s Ministry of Economy shows that the Salvadoran 194 195 196 SPP v. Egypt, supra note 180, § 102, R. Dolzer and C. Schreuer, Principles of International Investment Law, at page 221 (2008). Article 2 (d) of the Investment Law provides the following definition “Inversionista Extranjero: Las personas naturales y jurídicas extranjeras y los salvadoreños radicados en el exterior por más de un año ininterrumpido, que realicen inversiones en el país” (“Foreign Investor: The foreign natural and legal persons and the Salvadoran nationals established abroad for more than one ininterrupted year that make investments in the country”). To this respect, Article 17 of the Investment Law provides that “Los inversionistas extranjeros deberán registrar sus inversiones en la ONI, quien emitirá una Credencial la cual le otorgará a su titular la calidad de inversionista extranjero, con expresión de la inversión registrada” (Foreign investors shall register their investments before ONI, who will issue a credential that will provide to its bearer the quality of foreign investor, expressing the foreign investment”. See MINEC Resolution No. 288-R (21 June 2005), C-36 and MINEC Resolutions No. 368-MR (30 July 2008) and No. 387 MR (13 August 2008), C-12. Part 5 - Page 13
Government had always treated the Claimant as a foreign investor. 197 In the Tribunal‟s opinion, it is therefore unnecessary here to enter in any factual analysis of the precise origin or timing of funds invested in El Salvador by or on behalf of the Claimant to conclude that the Claimant is a foreign investor for the purpose of Article 15 of the Investment law. 5.45. With regards to the question relating to the CAFTA waiver raised by the Respondent, the Tribunal considers that it fully addressed this same question in its Decision of 2 August 2010; 198 and it here confirms that answer. In particular, the Tribunal finds no juridical difficulty in having an ICSID arbitration based on different claims arising from separate investment protections and separate but identical arbitration provisions, here CAFTA and the Investment Law. 199 To the contrary, when consent to the same tribunal´s jurisdiction is contained in two or more instruments, the Respondent‟s suggestion that different ICSID arbitrations must be commenced under each instrument would render nugatory the natural inclinations of both investors and States for fairness, consistency and procedural efficiency in international arbitration. 5.46. As regards indivisibility, the Tribunal repeats paragraph 253 of its Decision of 2 August 2010: ―In the Tribunal´s view, these arbitration proceedings are indivisible, being the same single ICSID arbitration between the same Parties before the same Tribunal in receipt of the same Notice of Arbitration registered once by the ICSID Acting Secretary-General under the ICSID Convention. To decide otherwise would require an interpretation of CAFTA Article 10.18 (2) wholly at odds with its object and purpose and potentially resulting in gross unfairness to a claimant. There is no corresponding 197 198 199 See MINEC Resolution No.368-MR (30 July 2008), C-12, page 10: “That pursuant to the records of foreign capital kept by the Ministry, the company PAC RIM CAYMAN LLC, domiciled in the State of Nevada, United States of America, has registered and invested in national companies as follows: …”, C-12. Pac Rim Cayman v. The Republic of El Salvador, ICSID Case No. ARB/09/12, 2 August 2010, §§ 252- 253. See Plama Consortium Limited v. Republic of Bulgaria, ICSID Case No. ARB/03/24, Decision on Jurisdiction, 8 February 2005, where the tribunal analysed the possibility of intervening in the case both under the Energy Charter Treaty and the Bulgaria-Cyprus BIT. The fact that it finally decided not to do so on the basis that the MFN existing in this BIT did not provide consent to ICSID arbitration under the BIT does not alter such conclusion. Under the reasoning of that tribunal, if consent would have been present, the tribunal would have been acting in the same proceeding on two different legal bases, both of which provided for ICSID arbitration. Id. Cemex v. Venezuela and Mobil v. Venezuela, where the tribunals admitted the possibility of hearing two sets of claims (under the Venezuelan Investment Law and the Venezuela-Netherlands BIT) in the same proceeding, although they finally declined its jurisdiction under the Investment Law because it did not provide consent to ICSID jurisdiction. Part 5 - Page 14
Page 1 and 2:
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
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
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c. Piercing the corporate veil (Mem
Page 23 and 24:
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
Page 31 and 32:
(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
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ability and not merely as a possibl
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2.105. Having reached these several
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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 and 120: 5.33. As established by the Interna
Page 121: 5.40. As also summarized above, the
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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