brought under the dominican republic - central america - ita

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and de Gramont divulged this confidential client information even though Mr Parada had told them of his close and long-standing professional ties to the Salvadoran Government; Mr Parada further testified that Mr Ali told him that he (Mr Ali) had met the week before with President Saca to inform the President that Mr Ali's client intended to initiate arbitration against the Respondent under CAFTA; however, as Mr Parada testified, he (Mr Parada) had concluded that the true purpose of the interview was that Crowell & Moring wanted Mr Parada to inform the Respondent of Mr Ali‟s plans; and, notwithstanding Mr Parada's “conclusion” about the real reason for the interview, Mr Parada also testified that Messrs. Ali and de Gramont “invited” him to join Crowell & Moring's international arbitration practice, even as they were planning to commence an ICSID arbitration against the Respondent and even though Mr Parada had told them that he “would be extremely uncomfortable working on an ICSID arbitration against El Salvador”. 6.25. The Claimant submits that any counsel appearing before this Tribunal (as counsel or as a witness) has an obligation to make sure that his assertions, especially assertions of such a serious nature, have a basic foundation. According to the Claimant, the modus operandi of the Respondent has been to suggest or insinuate wrongdoing on the part of the Claimant without any regard for whether such suggestions have any foundation at all. The Respondent retained its own counsel (Dewey & Le- Boeuf) by April 2009 at the latest, so that the Respondent had more than two years to confirm the foundations for its several allegations; but the Respondent significantly failed to do so. 6.26. The Claimant concludes that, if the Tribunal were again in its jurisdictional decision to decline to allocate costs against the Respondent following this second phase of objections (as it did with its Decision of 2 August 2010 following the first phase), the Respondent will have been well rewarded for its misconduct; and the Respondent will have succeeded (again) in delaying the merits phase of this arbitration and in imposing yet more expense on the Claimant, with its limited resources. Moreover, so the Claimant further concludes, a decision by the Tribunal not to order costs against the Respondent will ensure that the Respondent will continue such misconduct as this arbitration proceeds to the merits; and it would strongly encourage other miscreant parties to engage in the same misconduct in fu- Part 6 - Page 8
ture arbitration proceedings. Indeed, so the Claimant submits, the Respondent will have created a “blueprint” as to how all CAFTA respondents can double the length of the period for objections and deplete the resources of all but the best-funded CAFTA claimants. 6.27. The Claimant submits, as to arbitration costs, that according to the interim financial statement as of 3 June 2011 issued by the ICSID Secretariat, the Centre's total disbursements as of that date totalled US $311,025.77 to which the Claimant has contributed US $249,962.00. As to its own legal costs, the Claimant submits the following statement: I: First Phase of Objections: C&M Legal Fees US$ 1,791,297 C&M Disbursements US$ 72,566 Expert fees of Professor Don Wallace, Jr. US$ 35,625 Total C&M Fees and Disbursements for First Phase: US$1,899,488 II: Second Phase of Objections: C&M Legal Fees US$2,355,713 C&M Disbursements US$ 83,543 Total C&M Fees and Disbursements for Second Phase: US$2,439,256 Total Fees and Disbursements for Both Phases: US$4,338,744 6.28. The Claimant requests that the Tribunal issue an order allocating to the Respondent all the arbitration and legal costs of these proceedings to date. Part 6 - Page 9
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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
Page 13 and 14:
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
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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 and 130: tion ratione temporis (i.e. the con
Page 131: Party to also put in a witness stat
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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