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unfairness to the Respondent in maintaining these ICSID proceedings as one single arbitration. In particular, the Respondent does not here face any practical risk of double jeopardy. Lastly, it is hardly a legitimate objection to this Tribunal´s competence that it exercises jurisdiction over these Parties based not upon one consent to such jurisdiction from the Respondent but based upon two cumulative consents from the Respondent. It is an indisputable historical fact that several arbitration tribunals have exercised jurisdiction based on more than one consent from one disputant party, without being thereby deprived of jurisdiction.‖ 5.47. The Tribunal considers that these ICSID arbitration proceedings are indivisible; but it does not consider that the Claimant‟s claims are indivisible, given the Tribunal‟s decision above to deny any jurisdiction over the Claimant‟s CAFTA claims. What now remains in these ICSID proceedings for decision on the merits are the Claimant‟s non-CAFTA claims; and the Tribunal‟s jurisdiction to decide these claims in this ICSID arbitration cannot be affected by its rejection of the Claimant‟s CAFTA Claims under this Decision. To this extent, the Tribunal accepts the Claimant‟s submission that: “… Claimant commenced this proceeding by both invoking CAFTA and the Investment Law, and the Tribunal has already held that this dual invocation of consent did not violate Claimant´s waiver provision. Where the commencement of the proceeding did not violate the waiver, it can hardly be imagined that its continuation would somehow do so, regardless of which claims go forward and which do not …” 200 5.48. Decisions: For the reasons set out above, the Tribunal decides to reject the Respondent‟s jurisdictional objection based on Article 15 of the Investment Law and to accept jurisdiction to decide on their merits the Non-CAFTA claims pleaded by the Claimant in its Notice of Arbitration (incorporating its Notice of Intent). This decision is strictly limited to the Respondent‟s jurisdictional objection: it does not and will not affect any issue, whether legal or factual, as to the merits or demerits of any of the Claimant‟s non-CAFTA claims or any of the Respondent‟s as yet formally unpleaded defences to such claims. 200 Claimant‟s Post-Hearing Submissions, §111. Part 5 - Page 15
PART 6: ISSUE E – LEGAL AND ARBITRATION COSTS (01) Introduction 6.1. The Parties made submissions on the legal and arbitration costs incurred to date in their respective written submissions on costs of 10 June 2011 and their reply submissions on costs of 24 June 2011. 6.2. In summary, the Claimant claims legal costs US$ 4,338,744; and the Respondent claims legal costs US$ 4,057,719.96, together with arbitration costs of approximately US$ 250,000. These claims are denied in full by the Respondent and the Claimant respectively. 6.3. This issue as to costs arises under ICSID Arbitration Rule 28(1) and CAFTA Article 10.20.4 & 10.20.6 (cited in the Annex to Part 1 above). It also arises under Paragraph 266(3) of the Tribunal‟s Decision of 2 August 2010, whereby the Tribunal reserved its powers to order costs under CAFTA Article 10.20.6 until the final stage of these arbitration proceedings. 6.4. Given the conduct of this arbitration to date and the Parties‟ respective allegations of misconduct made against each other, together with the significant sums involved in this costs issue before these proceedings have even reached the actual merits of the Parties‟ dispute, the Tribunal considers it appropriate to set out the Parties‟ respective submissions on costs at some length in this Decision. (02) The Claimant’s Claim 6.5. In summary, 201 the Claimant requests the Tribunal to order the Respondent to bear all the costs of these arbitration proceedings to date. 201 This summary of the Claimant‟s claim and the Claimant‟s response below are based on the Claimant‟s written submissions on costs of 10 and 24 June 2011. Part 6 - Page 1
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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
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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
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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 and 122: 5.40. As also summarized above, the
Page 123: Government had always treated the C
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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