brought under the dominican republic - central america - ita

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6.72. As to the amount of such costs, the Respondent submits the following figures: The Respondent’s Statement of Costs Attorneys‟ fees US$3,610,651.75 Other Expenses UD$447,068.21 Amounts paid or due to ICSID US$250,000.00 TOTAL: US$4,307,719.96 6.73. The Respondent notes that its own claim for attorneys' fees for this arbitration total US$3,610,651.75 and that the Claimant's attorneys‟ fees total US$4,147,010.00 for the two rounds of objections: a significant difference of US$536,358.25. 6.74. The Respondent submits that, given that the Respondent had to carry the burden of proof for its two sets of objections, there is no reason that the Claimant's legal fees should be higher than the Respondent‟s legal fees. Nevertheless, the Respondent submits that the Claimant's higher legal fees are evidence that the amount of legal fees incurred by the Respondent is a reasonable amount for the Tribunal to include in its award as compensation for the Respondent‟s legal costs. (05) The Claimant’s Response 6.75. The Claimant responds that the Respondent's claim for costs is remarkable in that nowhere does it identify a legal rule for the Tribunal to apply in deciding how to allocate the costs of this arbitration to date; that, rather than argue any relevant legal points of law, the Respondent merely repeats arguments underlying its jurisdictional objections and the baseless accusation that the Claimant has not acted “honestly and in good faith”; that if its objections are well-founded (which they are not), that it should then automatically be entitled to have the Claimant “bear all the costs and expenses incurred by El Salvador in this arbitration.” The Claimant argues that the Respondent cites no authority for this proposition, because there is none in CAFTA, the ICSID Convention or in any other source of law applicable to this international arbitration. Part 6 - Page 24
6.76. The Claimant submits that the Respondent's repetition of its jurisdictional arguments contrasts adversely with the Claimant's costs submission, which articulates the relevant legal standard; explains why the application of that standard justifies an award of costs against the Respondent in this case; and then quantifies those costs. The Claimant notes that it has already addressed the Respondent's jurisdictional arguments in its written and oral submissions; and as the Respondent has identified no other basis for its costs submission, the Tribunal should decline the Respondent's request for an award of costs. (06) The Tribunal’s Analysis and Decisions 6.77. The Tribunal decides to receive in full all the submissions on costs made by the Parties; and it rejects the application by the Respondent to exclude the Claimant‟s separate written submission on costs. 6.78. As regards the first phase of these arbitration proceedings resulting in the Tribunal‟s Decision of 2 August 2010, the Tribunal sees at present no reason to depart from its original decision expressed in Paragraph 266(3) of that Decision; namely, that the Tribunal would reserve its powers to order legal and arbitration costs under CAFTA Article 10.20.6 relating to that first phase “until the final stage of these arbitration proceedings.” The Tribunal notes, of course, that the Claimant‟s CAFTA Claims cannot proceed beyond this Decision on Jurisdiction; but nonetheless the Tribunal thinks that it may be appropriate to weigh in the balance for the purpose of its discretion on such costs the final result of the Claimant‟s Non-CAFTA Claims, principally because both Claims relate to the same essential complaint (albeit advanced in different legal terms under separate instruments). 6.79. As regards this second phase of these arbitration proceedings resulting in this Decision on Jurisdiction, the Tribunal considers that neither the Claimant nor the Respondent can be regarded as having either wholly succeeded or wholly lost their respective cases. Whilst the Claimant‟s CAFTA Claims can no longer proceed in this arbitration as a result of this Decision, the Claimant‟s Non-CAFTA Claims may now proceed to the merits of the Parties‟ dispute. Part 6 - Page 25
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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
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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
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EMELEC v. Ecuador (under the USA-Ec
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would qualify for treaty protection
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4.17. (iii) Timeliness: The Respond
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the Respondent submits, to require
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ditiously resolved” (paragraph l)
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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
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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 and 144: The Respondent acknowledges, of cou
Page 145 and 146: Claimant submits that under the cir
Page 147: ment in the communications with the
Page 151 and 152: PART 7: THE OPERATIVE PART 7.1. For
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