brought under the dominican republic - central america - ita

tion ratione temporis (i.e. the continued existence of a ban on mining in El Salvador)
are not contested by the Respondent; and the issue of the Respondent's consent
to ICSID arbitration under the Investment Law is an issue of legal interpretation,
without any relevant factual dispute.
6.16. In contrast, the Claimant submits that the Respondent‟s Preliminary Objections
were based (inter alia) on numerous internal documents from the Respondent‟s
regulatory agencies which had never been provided to the Claimant, numerous alleged
communications between the Claimant and the Respondent (often alleged
by the Respondent without any evidential support), complex issues involving
the application of Salvadoran mining and environmental laws and
regulations to the Claimant's applications for an environmental permit and exploitation
concession, and various assertions concerning highly technical aspects of
the applications and the project itself.
6.17. The Claimant concludes that there is no legitimate reason for the Respondent
to have withheld its jurisdictional objections in reserve until after the Tribunal's
Decision of 2 August 2010. Moreover, the Claimant contends that none of the Respondent‟s
objections submitted under CAFTA Article 10.20 (with the possible exception
of the waiver issue under CAFTA Article 10.18.2) should have been
raised at the preliminary phase of the proceedings. The Claimant submits that the
Respondent's decision to submit such inappropriately fact-intensive Preliminary
Objections, even as it was already preparing its Jurisdictional Objections for later
submission to the Tribunal, was aimed solely at multiplying the preliminary phases
of these arbitration proceedings, thereby deliberately delaying any adjudication on
the merits and imposing additional costs on the Claimant.
6.18. The Claimant next contends, putting aside the Respondent's “bifurcation” of its preliminary
objections, that the Respondent‟s conduct during this second phase of these
proceedings standing alone, more than merits an order for costs in favour of the
Claimant: the entire theme of the Respondent' jurisdictional objections is that the
Claimant secretly changed its nationality from that of the Cayman Islands to that of
the USA; that the Claimant “tried to conceal this abuse through misleading
words and actions;” and that the Respondent‟s objections “exposed Claimant's
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