brought under the dominican republic - central america - ita

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change of nationality.” The Claimant contends that the Respondent persisted in its allegations that the Claimant failed to disclose its change in nationality, even as it was pointed out to the Respondent that the Claimant had duly notified the Respondent‟s Government of the Claimant‟s domestication to Nevada , USA, long before the commencement of this ICSID arbitration; and that the change in nationality from that of the Cayman Islands to that of the USA was again disclosed in the exhibits to the Claimant‟s Notice of Arbitration. 6.19. At the Hearing, so the Claimant submits, the Respondent (having repeatedly accused the Claimant of “bad faith,” “concealment,” and “deceit”) effectively conceded that there was no evidence to support any of these inflammatory allegations. Instead, the Respondent was reduced to arguing that the Respondent did not have to show any bad faith on the part of the Claimant, because bad faith is “inherent in this type of abuse [of process].” That assertion, so the Claimant contends, is without any merit as a matter of international law (given that good faith is always to be presumed); but, more important for present purposes is the fact that the Respondent was forced to make this concession at all. The Claimant submits that the Respondent's attempt to “imply” bad faith into the Claimant's conduct is illustrative of its tendency to make serious allegations against the Claimant that are either contradicted by the record or that turn out to be completely unsupported. 6.20. The Claimant submits that many of the tactics employed by the Respondent throughout this case, for example the tendency to offer unacceptably distorted assertions of fact and law; to make accusations and insinuations that were utterly without support and to hold back various allegations or information until the last minute in an effort to ambush the Claimant, were dramatically on display in the proffered testimony of the Respondent's own counsel, Mr Parada. The Claimant contends that Mr Parada‟s witness statement was offered only after the written phase for the Respondent's jurisdictional objections was closed and even though the Respondent maintained that the “information” contained in his testimony was the basis for the Respondent's documentary and other requests made in September 2010. 6.21. The Claimant submits that, as the Respondent's counsel acknowledged as he began his direct examination of Mr Parada, “it's quite extraordinary for a counsel for a Part 6 - Page 6
Party to also put in a witness statement.” Indeed, so the Claimant contends, it is not only extraordinary; but it is also strongly discouraged and often prohibited. 6.22. The Claimant cites the American Bar Association's Model Rules on Professional Responsibility which specifically prohibit a lawyer from acting as an advocate in a trial in which the lawyer is also likely to be a witness (absent several limited exceptions inapplicable here): ―[a] lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client.‖ The Claimant also cites the United States Supreme Court‟s observation that in some cases it may be unseemly, especially where counsel is in a position to comment on his own testimony; and that the practice of being an advocate and witness in the same case should be discouraged, the reasons for such discouragement being numerous, including, the danger of intruding upon attorney-client privilege and the fundamentally different roles played by advocates and witnesses. 204 6.23. The Claimant contends that Mr Parada's clashing roles of advocate and witness were evident at the Hearing, for example, when he asserted in his opening argument that he could definitively describe the position that the Respondent had taken in Inceysa (because he had worked at Arnold & Porter, the firm which represented the Respondent in that case); but he then admitted as a witness in cross-examination that he had left Arnold & Porter before the jurisdictional objections in that case were filed by the Respondent. 6.24. Further, so the Claimant submits, Mr Parada's testimony was marked by other inconsistencies and absurdities: Mr Parada testified that during a recruiting breakfast interview in December 2007, two of the Claimant's counsel (i.e. Messrs. Ali and de Gramont of Crowell & Moring) told him of their client‟s plans to commence arbitration proceedings against the Respondent; according to Mr Parada, Messrs. Ali 204 French v. Hall, 119 U.S. 152, 154 (1886), citing also Ferraro v. Taylor, 197 Minn. 5, 12, 265 N.W. 829, 833 (1936). Part 6 - Page 7
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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
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cause there was only one applicatio
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leged de facto ban on mining was no
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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 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: tion ratione temporis (i.e. the con
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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