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of a de facto mining ban in March 2008 that we began to believe that a dispute with the Government was a real possibility.” 6.61. As the Respondent then explained: “Claimant's continued allegations in its Counter- Memorial make the information and documents requested in El Salvador's requests numbers 10, 11, 12, and 13 even more relevant than before. As noted in El Salvador's original request, the timing of the relationship between [the Claimant] and its international arbitration counsel, as well as the identity of the client, are material for the Tribunal to make a decision regarding the reason why Pacific Rim decided to change the nationality of the Claimant from the Cayman Islands to the United States in December 2007. The issue is fundamental to the Tribunal's decision on the Objections to Jurisdiction because Claimant and its counsel have emphatically denied El Salvador's abuse of process objection and instead have accused El Salvador of fabricating the reasons for this objection.” The Respondent ended its renewed request by noting that, if these questions remained unanswered, the Respondent would seek permission from the Tribunal to introduce evidence contradicting the assertions made by the Claimant; but the Claimant continued to refuse to answer the Respondent‟s questions and to insist that such questions were irrelevant. 6.62. By letter dated 22 February 2011, the Claimant requested the Tribunal to order the Respondent to produce any information it had relating to “any Crowell & Moring lawyer having attended any meetings with Salvadoran officials prior to Pac Rim Cayman's domestication to Nevada in December 2007.” The Respondent submits that it was only in response to that letter, given also the Claimant's refusal to answer the relevant questions, that Mr Parada was obliged to inform the Tribunal that he knew that the Claimant was not stating the true facts, explaining that he had been told directly by the Claimant's counsel (before the change of the Claimant‟s nationality in December 2007) that such counsel represented their client in a dispute with the Respondent and that their client was planning on commencing an arbitration under CAFTA, if this client did not receive its mining concession from the Respondent. 6.63. In response to Mr Parada's letter to the Tribunal, the Respondent submits that it was the Claimant which urged the Tribunal to order Mr Parada to submit a sworn witness statement: “Not only does Claimant not oppose Mr Parada's request. To the contrary, Part 6 - Page 20
Claimant submits that under the circumstances, the Tribunal should order Mr Parada to resubmit his 4 March 2011 letter as a sworn witness statement and to make himself available for cross-examination by Claimant's counsel during the hearing.” Acceding to the Claimant's request, the Tribunal then ordered the Respondent to submit Mr Parada's sworn statement and required him to be available for cross-examination at the Hearing, as he was. 6.64. The Respondent contends that it was only after Mr Parada was ordered to submit a sworn statement and to be available for cross-examination that the Claimant finally admitted, ten days before the Hearing, that “[a]n attorney-client relationship between Crowell & Moring and Pacific Rim Mining Corp. and its subsidiaries ... commenced on or around [24 October 2007]” and that Mr Ali and another of Claimant's counsel attended a lunch where President Saca was the keynote speaker on 28 November 2007. According to the Respondent, there is no excuse for the Claimant to have put the Respondent and the Tribunal through seven months of denials and evasions and then force Mr Parada to become a witness in this arbitration before giving these answers to the Respondent‟s questions, when truthful, timely answers could have avoided the entire situation. 6.65. Under these circumstances, the Respondent submits that it is ironic for the Claimant to base its request that the Respondent should pay costs on the assertion that Mr Parada's testimony was somehow improper. The Respondent argues that there is no basis for this assertion: as an international arbitral tribunal, this Tribunal is not bound by the rules of any U.S. jurisdiction; there is no rule preventing the Tribunal from accepting Mr Parada‟s testimony; and there is no rule preventing the Claimant from submitting its own rebuttal testimony, which it chose not to do at the Hearing. According to ICSID Arbitration Rule 34: “(t]he Tribunal shall be the judge of the admissibility of any evidence adduced and of its probative value”); and, thus, the Tribunal has full discretion to decide what evidence to admit and to determine the relevance and materiality of any proffered evidence. 6.66. The Respondent submits that even under the American Bar Association Model Rule (cited by the Claimant) as discouraging lawyers from representing parties in trials where the lawyer is likely to be a witness, it was acceptable and appropriate for Mr Part 6 - Page 21
Page 1 and 2:
IN THE MATTER OF AN ARBITRATION BEF
Page 3 and 4:
One-Time Acts .....................
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Glossary of Defined Terms “CAFTA
Page 7 and 8:
African Holding Company of America,
Page 9 and 10:
Waste Management, Inc. v. United Me
Page 11 and 12:
1.4. Prior to 2 March 2012, the Cla
Page 13 and 14:
C: The Tribunal’s Decision of 2 A
Page 15 and 16:
1.23. The Respondent: The Responden
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under cover of a letter also dated
Page 19 and 20:
G: The Parties’ Claims for Relief
Page 21 and 22:
c. Piercing the corporate veil (Mem
Page 23 and 24:
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
Page 31 and 32:
(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
Page 43 and 44:
2.32. In its Post-Hearing Submissio
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SID Convention, nor relates to a
Page 47 and 48:
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
Page 55 and 56:
vestment (which by themselves are n
Page 57 and 58:
minated; nothing more could have be
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to arbitrarily change or add new re
Page 61 and 62:
2.86. Accordingly, treating the rel
Page 63 and 64:
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
Page 71 and 72:
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
Page 77 and 78:
Claimant, it came to light only in
Page 79 and 80:
that led to the revocation should b
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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
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would qualify for treaty protection
Page 89 and 90:
4.17. (iii) Timeliness: The Respond
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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 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: The Respondent acknowledges, of cou
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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