brought under the dominican republic - central america - ita

this arbitration with the least expenditure of time and expense; only after extensive
written submissions and denials in the Preliminary Objections phase did the Claimant
accept that: (i) it never had a “perfected right” to a concession; and (ii) it had
known of problems with its application and chose to try to lobby the Respondent‟s
Government to change its legal requirements instead of complying with them.
6.33. In this jurisdictional phase, the Respondent submits that the Claimant sought to disregard
its own nationality and relevant treaty provisions, wrongly insisting on its
right to arbitrate even though it does not qualify to initiate CAFTA claims or to invoke
ICSID jurisdiction against the Respondent; and that the Claimant again wasted
time and expense before accepting these straightforward facts. The Respondent cites,
as one example, the Claimant‟s continuous invocation of the activities of the “Pacific
Rim Companies” to suggest that the Claimant had activities in the USA, even
though it was forced to admit that the Claimant is a passive holding company with
no activities beyond holding shares on paper.
6.34. The Respondent contends that these essential facts were not complicated; that these
jurisdictional objections could have been argued concisely; but that the Claimant
submitted a 256-page Jurisdiction Counter-Memorial and a 186-page Jurisdiction
Rejoinder, sticking to the tactic: “if the facts are against you, focus on the law; if the
law is against you, focus on the facts; if the law and the facts are against you, create
distractions and confusion.”
6.35. The Respondent submits that the Claimant cannot hide from the true facts of this
case: this dispute relates to the application for an environmental permit that was presumptively
denied by the Respondent. By early 2007 at the latest, the Claimant
knew that the concession application could not be approved until it either revised
and resubmitted the application or succeeded in its efforts to change the Mining
Law; but Pacific Rim changed the Claimant‟s nationality to the USA in December
2007 and later began these arbitration proceedings.
6.36. The Respondent contends that in all these circumstances, having been unfairly subjected
to the Claimant‟s abusive process and to its abusive tactics and misconduct in
this arbitration, the Respondent should not be required to bear any of the Claimant‟s
Part 6 - Page 11