brought under the dominican republic - central america - ita

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If there were in fact any inconsistency, the Tribunal requests the Parties to clarify the full list of the jurisdictional objections addressed in these arbitration proceedings. Accordingly, the Tribunal requests the Respondent (as the Disputing Party raising jurisdictional objections) briefly to clarify in writing the full list of its jurisdictional objections as soon as possible but no later than 26 September 2011; and the Tribunal requests the Claimant (as the Disputing Party responding to such objections) to respond briefly in writing to such clarification, within two weeks of its receipt ...‖ 1.43. The Respondent responded to the Tribunal‟s request by letter dated 26 September 2011, confirming (inter alia) the list of its objections as summarised in an attached “outline”, as follows (with underlining and other emphasis here omitted): ―I: Primary Objection against all claims in this arbitration: Abuse of Process If the Tribunal finds that Claimant‘s actions constitute Abuse of Process, El Salvador requests the Tribunal to dismiss the entire arbitration (Memorial, para. 71) by: A: Rejecting jurisdiction and dismissing all claims under CAFTA (Memorial, paras. 61-70); and B: Rejecting jurisdiction and dismissing all claims under the Investment Law of El Salvador (Memorial, paras. 103-105). II: Alternative Objections: A: Alternative 1: If the Tribunal decides that there is no Abuse of Process: (1) With regard to the CAFTA claims, El Salvador requests the Tribunal to dismiss all CAFTA claims for lack of jurisdiction based on any of the following independent objections: (i) Denial of benefits provisions of CAFTA (Memorial, para. 106; 253-254); or (ii) Pac-Rim Cayman is not an Investor of a Party (Memorial, paras. 256- 259); or (iii) There is no jurisdiction ratione temporis (Memorial, paras. 305-318); or (iv) CAFTA‘s three-year statute of limitations precludes consideration of Claimant‘s main claims (Memorial, paras. 324-336);and (2) With regard to the Investment Law claims, El Salvador requests the Tribunal to dismiss all claims under the Investment Law of El Salvador for lack of jurisdiction based on any of the following independent objections: a. Enforcing the CAFTA waiver (Memorial, paras. 428-454); or b. Pac-Rim Cayman is not a ―Foreign Investor‖ under the Investment Law (Memorial, paras. 379-380); or Part 1 – Page 11
c. Piercing the corporate veil (Memorial, paras. 381-413); or d. Article 15 of the Investment Law does not constitute consent (Memorial, paras. 337-379); or, in the alternative, the Investment Law claims are inadmissible (Memorial, paras. 424-427); or e. Indivisibility of the CAFTA claims and the Investment Law claims (Memorial, para. 105). B: Alternative 2: If the Tribunal finds that Claimant‘s actions constituted Abuse of Process, but that the Abuse of Process only affects the CAFTA claims and only results in the rejection of jurisdiction under CAFTA, (1) El Salvador requests the Tribunal to also dismiss all claims under the Investment Law for lack of jurisdiction based on any of the independent objections listed in paragraph II.A.2 above, i.e., a. Enforcing the CAFTA waiver (Memorial, paras. 428-454); or b. Pac-Rim Cayman is not a ―Foreign Investor‖ under the Investment Law (Memorial, paras. 379-380); or c. Piercing the corporate veil (Memorial, paras. 381-423); or d. Article 15 of the Investment Law does not constitute consent (Memorial, paras. 337-379); or, in the alternative, the Investment Law claims are inadmissible (Memorial, paras. 424-427); or e. Indivisibility of the CAFTA claims and the Investment Law claims (Memorial, para. 105).‖ 1.44. The Claimant responded by letter dated 10 October 2011 to the Tribunal‟s request, stating (inter alia) as follows: ― ... Claimant wishes to observe that Respondent‘s recitation of its objections in the September letter is not entirely consistent with its previous pleadings, and in some instances is internally contradictory. The primary ambiguity arises from Respondent‘s seemingly interchangeable use of the terms,―dismiss for lack of jurisdiction‖ and ―reject jurisdiction.‖ For example, in their first paragraph of page 2 of the September letter, Respondent asserts that if the Tribunal finds an abuse of process, it should dismiss all claims ―for lack of jurisdiction.‖ In the following paragraph, however it asserts that the consequence of a finding of abuse of process would be for the Tribunal to ―reject jurisdiction under CAFTA.‖ A dismissal for lack of jurisdiction occurs where a claimant has failed to demonstrate that the requirements for jurisdiction are satisfied. On the other hand, the notion of ―rejecting‖ jurisdiction indicates that the requirements for jurisdiction have been proved – i.e., jurisdiction exists – but the tribunal, in the exercise of its discretion, chooses not to accept jurisdiction. Here, this distinction is relevant because Respondent has raised objections to the Tribunal‘s jurisdiction ratione temporis (under CAFTA) and ratione personae and voluntatis (under the Investment Law), while also raising objections that, in Respondent‘s own words, ―are not strictly tied to the requirements for jurisdiction, like Abuse of Process and Denial of Benefits.‖ Part 1 – Page 12
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 and 14: C: The Tribunal’s Decision of 2 A
Page 15 and 16: 1.23. The Respondent: The Responden
Page 17 and 18: under cover of a letter also dated
Page 19: G: The Parties’ Claims for Relief
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
Page 71 and 72:
3.5. The Respondent also submits th
Page 73 and 74:
cause there was only one applicatio
Page 75 and 76:
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
Page 81 and 82:
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
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 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 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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brought under the dominican republic - central america - ita

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