brought under the dominican republic - central america - ita

6.13. The Claimant submits that the Respondent decided at the outset that it would “bifurcate”
its preliminary objections. Thus, on 4 January 2010, the Respondent launched
its Preliminary Objections under CAFTA Articles 10.20.4 and 10.20.5. Although
objections under Article 10.20.4 must be made “as a matter of law” and assuming
the Claimant's factual allegations “to be true,” the Respondent made innumerable
factual arguments that it plainly knew to be disputed by the Claimant. Indeed, those
arguments necessitated the submission of 54 exhibits consisting of nearly 800 pages
of material, notwithstanding that the Preliminary Objections were supposed to be
based on the facts as alleged by Claimant in the Notice of Arbitration.
6.14. In the meantime, so the Claimant contends, the Respondent was preparing its second
set of jurisdictional objections even as its Preliminary Objections were still being
prepared. For example, by 1 March 2010, the Respondent had already carried out a
full “investigation”, which, so the Respondent informed the United States Government,
“conclusively” proved that it was entitled to deny the Claimant the
benefits of CAFTA; when the Respondent filed its Objections to Jurisdiction on 3
August 2010 (literally within hours of the Tribunal's Decision of 2 August 2010),
the Respondent based its arguments largely, if not entirely, on the same
grounds that purportedly supported its case in the letter of 1 March 2010 to the
USA (although the Respondent failed to provide either the Claimant or the Tribunal
with such letter until 3 September 2010).
6.15. Furthermore, so the Claimant contends, given the nature of the two sets of objections,
there is no legitimate reason why the Respondent could not have asserted them
together. The Claimant submits that the arguments included in the Respondent‟s Objections
to Jurisdiction are no more fact-intensive than those that the Respondent put
forward in its first round of objections under CAFTA Article 10.20.4. Thus, so the
Claimant contends, the information on which the Respondent based its letter dated 1
March 2010 to the USA (as well as the Respondent‟s subsequent denial of benefits
to the Claimant) consists almost entirely of the Claimant‟s own public filings or
other information that the Claimant had made publicly available. In turn, the Respondent's
Objection to Jurisdiction based on Abuse of Process is, according to the
Claimant, largely based on the same underlying facts as the Objection based on Denial
of Benefits; the facts required to demonstrate that the Tribunal has jurisdic-
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