brought under the dominican republic - central america - ita

Given the manner in which Respondent has articulated its objections (as opposed to
the relief which it may have requested in connection therewith, or the order in which
the objections may have been presented), Claimant does not understand the objection
dubbed ―Abuse of Process‖ to be an objection based on a ―lack of jurisdiction.‖
As Respondent has described it in its Objections, its abuse of process argument
is derived from a judicial doctrine of a discretionary nature, whereby an international
tribunal may decline to exercise its jurisdiction if it concludes, based on an
assessment of the ―particular facts and circumstances of the case,‖ that to do so
would undermine the tribunal‘s integrity or otherwise constitute an abuse of the arbitral
procedure.
In Claimant‘s view, it is clear that abuse of process, as an equitable doctrine, is not
relevant to the question of whether or not the Tribunal has jurisdiction over the present
dispute. Indeed, as it has emphasized on past occasions, Claimant is not aware
of any investment arbitration tribunal having dismissed an entire case for lack of jurisdiction
on the sole basis of abuse of process. In this regard, Claimant has repeatedly
referred to the guidance provided by the Rompetrol tribunal, cautioning that
dismissal on the sole basis of abuse of process would require a tribunal to disregard
the jurisdiction that it is ―bound to exercise‖ under the terms of the Washington
Convention; and that a tribunal certainly is not in a position, ―at [a] very preliminary
stage, before it has even had the benefit of the Claimant‘s case laid out in detail
in a Memorial, let alone the supporting evidence,‖ to assess a question of abuse
of process, including the attendant considerations of the Claimant‘s motivation in
bringing its claims to arbitration.
In conclusion, Claimant submits that Respondent‘s abuse of process objections is a
request for an extraordinary remedy under which the Tribunal may decline to exercise
its jurisdiction even where all of the jurisdictional requirements have been met,
because it has concluded that the arbitral process has been so severely abused that
it would be improper to hear the merits of the dispute. In this case, there is more
than enough argument and evidence presently before the Tribunal to demonstrate
that such a remedy would be entirely unwarranted and inappropriate. Thus, notwithstanding
that the abuse of process objection does not and cannot per se affect
the Tribunal‘s jurisdiction, Claimant submits that the Tribunal should proceed to
evaluate and reject the objection and the associated relief requested ...‖
1.45. By letter dated 18 October 2011 (communicated by the Tribunal‟s Secretary), the
Tribunal acknowledged receipt of the Parties‟ two responses, having also noted their
respective contents for the purpose of this Decision.
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