brought under the dominican republic - central america - ita

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1.18. Procedural Orders: During this further procedure, the Tribunal made a number of procedural orders, all of which were issued or recorded in writing. It is unnecessary to set out their terms here. 1.19. Jurisdiction Memorials: Pursuant to the Tribunal‟s procedural orders, the Respondent submitted its Memorial on its Objections to Jurisdiction dated 15 October 2010 (here described as the Respondent‟s “Jurisdiction Memorial”); the Claimant submitted its Counter-Memorial on the Respondent‟s Objections to Jurisdiction on 31 December 2010 (here described as the Claimant‟s “Jurisdiction Counter-Memorial”); the Respondent submitted its Reply Memorial on the Claimant‟s Jurisdiction Counter-Memorial on 31 January 2011 (here described as the Respondent‟s “Jurisdiction Reply”); and the Claimant submitted its Rejoinder Memorial on the Respondent‟s Jurisdiction Reply on 2 March 2011(here described as the Claimant‟s “Jurisdiction Rejoinder”). 1.20. Written Testimony: The Parties adduced the following written testimony in support of their respective cases on jurisdiction: for the Respondent, the witness statement of Mr Luis Alberto Parada dated 14 March 2011; and for the Claimant, the witness statements of Ms Catherine McLeod Seltzer dated 31 December 2010, Mr Tom Shrake dated 31 December 2010, Mr Steven K. Krause dated 31 December 2010 and Mr Charles Pasfield dated 2 March 2011. 1.21. The Hearing: The Hearing on the Respondent‟s jurisdictional objections took place over three days, from 2 to 4 May 2011, at the World Bank, Washington DC, USA, recorded by verbatim transcript (here referred to as “D1”, “D2” and “D3”). The Hearing was attended by (inter alios) the following Parties and Non-Participating Parties. 1.22. The Claimant: The Claimant was represented by Mr Tom Shrake and Ms Catherine McLeod-Seltzer; and from Messrs Crowell & Moring LLP by Mr Arif H. Ali, Mr Alexandre de Gramont, Mr R. Timothy McCrum, Mr Theodore Posner, Ms Ashley R. Riveira, Ms Marguerite C. Walter, Ms Kassi Tallent, Mr Timothy Hughes, Ms Maria Carolina Crespo, Ms Christina Ferraro, Mr Stephen Duncan and Ms Jessica Ferrante. Part 1 – Page 5
1.23. The Respondent: The Respondent was represented by Mr Benjamín Pleités (Secretary General of the Attorney General‟s Office), Mr Daniel Ríos (Legal Adviser from the Ministry of the Economy), Mr René Salazar (Director General of Commercial Treaty Administration, Ministry of Economy), Mr Enilson Solano and Ms Claudia Beltrán (of the Respondent‟s Embassy in Washington DC); and from Messrs Dewey & LeBoeuf by Mr Derek Smith, Mr Aldo Badini, Mr Luis Parada, Mr Tomás Solís, Ms Erin Argueta, Ms Mary Lewis, Mr Albert Coto and Ms Jamihlia Johnson. 1.24. Costa Rica: The Republic of Costa Rica, as a Non-Disputing Party, was represented by Mr José Carlos Quirce (of the Ministerio de Comercio Exterior) and Ms Laura Dachner (of Costa Rica‟s Embassy in Washington DC). 1.25. USA: The USA, as a Non-Disputing Party, was represented by Mr Mark Feldman, Ms Alicia Cate, Mr Patrick Pearsall, Ms Kimberley Claman, Mr David Bigge, Ms Katharine Kelly, Ms Karen Kizer, Mr Lee Caplan, Mr Jeremy Sharpe (all from the US Department of State), Mr Gary Sampliner (of the U.S. Department of Treasury), Ms Kimberley Claman (of the United States Trade Representative) and Mr Chris Herman (of the U.S. Environmental Protection Agency). 1.26. The Hearing was also attended by, as interpreters: Ms Silvia Colla, Ms Judith Letendre and Mr Daniel Giglio; and, as court reporters: Mr Rodolfo Rinaldi and Mr David Kasdan. 1.27. The Parties made respective oral opening submissions at the Hearing: for the Respondent: Mr Smith [D1.6], Mr Badini [D1.71] and Mr Parada [D1.106]; and for the Claimant: Mr Ali [D1.131], Mr de Gramont [D1.152], Mr Posner [D1.212] and Mr Walter [D1.264]. The Non-Disputing Parties present at the Hearing elected not to make oral submissions to the Tribunal. 1.28. The Parties made respective closing oral submissions at the Hearing: for the Respondent: Mr Smith [D3.576 & 756] and Mr Badini [D3.620 & 751]; and for the Claimant: Mr Ali [D3.653 & 739], Mr de Gramont [D3.655] and Mr Posner [D3.698]. Part 1 – Page 6
Page 1 and 2: IN THE MATTER OF AN ARBITRATION BEF
Page 3 and 4: One-Time Acts .....................
Page 5 and 6: 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: C: The Tribunal’s Decision of 2 A
Page 17 and 18: 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.
Page 25 and 26: (02) CAFTA 1.4. CAFTA Article 10.1:
Page 27 and 28: 2. At least 90 days before submitti
Page 29 and 30: measure alleged to constitute a bre
Page 31 and 32: (03) The ICSID Convention 1.13. ICS
Page 33 and 34: (5) ILC Articles on State Responsib
Page 35 and 36: proof or the Claimant‟s allegatio
Page 37 and 38: 2.11. Burden of Proof: As far as th
Page 39 and 40: 2.19. In presenting this main objec
Page 41 and 42: precedented regulatory obstacles de
Page 43 and 44: 2.32. In its Post-Hearing Submissio
Page 45 and 46: SID Convention, nor relates to a
Page 47 and 48: But on the other side, an internati
Page 49 and 50: for such disputes would constitute,
Page 51 and 52: scribed in its early pleadings form
Page 53 and 54: 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
Page 59 and 60: 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
Page 65 and 66:
ability and not merely as a possibl
Page 67 and 68:
2.105. Having reached these several
Page 69 and 70:
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
Page 87 and 88:
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
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4.44. The Claimant contends further
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lomatic protection within the meani
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Party [i.e. as the host State] whic
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there were and are certain activiti
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4.74. It will be recalled that the
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der different arbitration rules, th
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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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Legislativa was fully aware that th
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made before and after the Claimant
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5.33. As established by the Interna
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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
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6.10. The Claimant submits that, un
Page 129 and 130:
tion ratione temporis (i.e. the con
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Party to also put in a witness stat
Page 133 and 134:
ture arbitration proceedings. Indee
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this arbitration with the least exp
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abused the Tribunal's indulgence in
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avoided; but, instead, the Responde
Page 141 and 142:
“a U.S. investor organized under
Page 143 and 144:
The Respondent acknowledges, of cou
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Claimant submits that under the cir
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ment in the communications with the
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6.76. The Claimant submits that the
Page 151 and 152:
PART 7: THE OPERATIVE PART 7.1. For
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