brought under the dominican republic - central america - ita

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costs but, rather, that it is entitled to recover its own costs from the Claimant, as submitted (in summary) below. (04) The Respondent’s Claim 6.37. The Respondent notes, as a preliminary matter, that costs only need to be addressed at this stage if the Tribunal decides that it lacks jurisdiction as established by the Respondent; and that, as the Tribunal indicated when instructing the Parties to address costs with their post-hearing submissions, “obviously on one view of what happens with our decision, we may have to address costs, and that's the claim ... which is made by the Respondent.” 206 Thus, according to the Respondent, despite the Claimant's efforts to argue the contrary, the Claimant's claim for costs would only be relevant if the Claimant were to prevail at the end of this arbitration. 6.38. The Respondent submits that the Tribunal has already seen enough to conclude without hesitation that this arbitration must end now unfavourably for the Claimant. The Respondent submits that the evidence establishes that this arbitration has been abusive by the Claimant at different levels, beginning with Pacific Rim‟s manipulation of the Claimant's nationality to manufacture jurisdiction under CAFTA; followed by the lack of merit in the Claimant‟s main claim (an asserted entitlement to a mining exploitation concession which the Claimant in fact did not have any right to receive); and finally the manner in which the Claimant has conducted this arbitration; all leading to the result that this entire arbitration should now be dismissed with an award at this jurisdictional phase; and accordingly that costs could and should be awarded to the Respondent and against the Claimant. 6.39. The Respondent also notes that, even if the Claimant's costs claim were somehow relevant, its claim was filed in contravention of the Tribunal's instructions to include “a brief summary as regards both allocation and quantification of costs that are being sought by both sides” with the Post-Hearing Submissions, which the Tribunal indicated was to have a maximum length of fifty pages. Rather than abide by the Tribunal‟s instructions, the Claimant requested flexibility on the page limit and then 206 Hearing D3.764. Part 6 - Page 12
abused the Tribunal's indulgence in granting such flexibility by filing a separate thirteen-page written submission on costs, in addition to its full fifty-page Post-Hearing Submissions. The Claimant thus circumvented the page-limit for the post-hearing submissions, seeking to gain an unfair advantage over the Respondent; whereas the Respondent fully abided by the Tribunal's fifty-page limit. Accordingly, the Respondent contends that the Claimant's separate costs submission should be considered inadmissible by the Tribunal. 6.40. Nevertheless, the Respondent states that, because the Claimant's costs submission has been filed with the Tribunal as a part of the public record and includes many misrepresentations, the Respondent is obliged to respond at length. 6.41. First, the Respondent submits that it did not “bifurcate” its objections to cause delay, but to ensure that the Claimant's unmeritorious claims could be dismissed as efficiently as possible; that the Claimant argued in the Preliminary Objections phase that the Respondent brought too many objections; but that the Claimant now argues that the Respondent, rather than limiting its Preliminary Objections, should have added even more objections. In fact, the Respondent submits that it properly refrained in the first phase from asserting its Abuse of Process, Denial of Benefits, Ratione Temporis Objections (as well as its additional Objection to claims under the Investment Law), because these objections needed to be decided without assuming the Claimant's factual allegations to be true, required consideration of disputed facts, and could not have been properly decided under the strict time-limit for the expedited procedure required by CAFTA Article 10.20.5. 6.42. Second, the Respondent submits that the Preliminary Objections phase served a useful purpose. It raised these Preliminary Objections to present undisputed facts to the Tribunal that exposed fatal weaknesses in the Claimant's claims on the merits that could have resulted in the early dismissal of the primary claims in this arbitration; the Claimant, however, refused to provide additional facts that might have permitted the Tribunal to come to an early decision, merely stating that its claims could not be decided at a preliminary first phase in an expedited proceeding; that whereas the Respondent had hoped to narrow the issues in this arbitration to save time and expense, the Claimant successfully postponed an adverse decision by promising that it would Part 6 - Page 13
Page 1 and 2:
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
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for the purpose of deciding the Rat
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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 and 132: Party to also put in a witness stat
Page 133 and 134: ture arbitration proceedings. Indee
Page 135: this arbitration with the least exp
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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