brought under the dominican republic - central america - ita
brought under the dominican republic - central america - ita
brought under the dominican republic - central america - ita
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Given <strong>the</strong> manner in which Respondent has articulated its objections (as opposed to<br />
<strong>the</strong> relief which it may have requested in connection <strong>the</strong>rewith, or <strong>the</strong> order in which<br />
<strong>the</strong> objections may have been presented), Claimant does not <strong>under</strong>stand <strong>the</strong> objection<br />
dubbed ―Abuse of Process‖ to be an objection based on a ―lack of jurisdiction.‖<br />
As Respondent has described it in its Objections, its abuse of process argument<br />
is derived from a judicial doctrine of a discretionary nature, whereby an international<br />
tribunal may decline to exercise its jurisdiction if it concludes, based on an<br />
assessment of <strong>the</strong> ―particular facts and circumstances of <strong>the</strong> case,‖ that to do so<br />
would <strong>under</strong>mine <strong>the</strong> tribunal‘s integrity or o<strong>the</strong>rwise constitute an abuse of <strong>the</strong> arbitral<br />
procedure.<br />
In Claimant‘s view, it is clear that abuse of process, as an equ<strong>ita</strong>ble doctrine, is not<br />
relevant to <strong>the</strong> question of whe<strong>the</strong>r or not <strong>the</strong> Tribunal has jurisdiction over <strong>the</strong> present<br />
dispute. Indeed, as it has emphasized on past occasions, Claimant is not aware<br />
of any investment arbitration tribunal having dismissed an entire case for lack of jurisdiction<br />
on <strong>the</strong> sole basis of abuse of process. In this regard, Claimant has repeatedly<br />
referred to <strong>the</strong> guidance provided by <strong>the</strong> Rompetrol tribunal, cautioning that<br />
dismissal on <strong>the</strong> sole basis of abuse of process would require a tribunal to disregard<br />
<strong>the</strong> jurisdiction that it is ―bound to exercise‖ <strong>under</strong> <strong>the</strong> terms of <strong>the</strong> Washington<br />
Convention; and that a tribunal certainly is not in a position, ―at [a] very preliminary<br />
stage, before it has even had <strong>the</strong> benefit of <strong>the</strong> Claimant‘s case laid out in detail<br />
in a Memorial, let alone <strong>the</strong> supporting evidence,‖ to assess a question of abuse<br />
of process, including <strong>the</strong> attendant considerations of <strong>the</strong> Claimant‘s motivation in<br />
bringing its claims to arbitration.<br />
In conclusion, Claimant submits that Respondent‘s abuse of process objections is a<br />
request for an extraordinary remedy <strong>under</strong> which <strong>the</strong> Tribunal may decline to exercise<br />
its jurisdiction even where all of <strong>the</strong> jurisdictional requirements have been met,<br />
because it has concluded that <strong>the</strong> arbitral process has been so severely abused that<br />
it would be improper to hear <strong>the</strong> merits of <strong>the</strong> dispute. In this case, <strong>the</strong>re is more<br />
than enough argument and evidence presently before <strong>the</strong> Tribunal to demonstrate<br />
that such a remedy would be entirely unwarranted and inappropriate. Thus, notwithstanding<br />
that <strong>the</strong> abuse of process objection does not and cannot per se affect<br />
<strong>the</strong> Tribunal‘s jurisdiction, Claimant submits that <strong>the</strong> Tribunal should proceed to<br />
evaluate and reject <strong>the</strong> objection and <strong>the</strong> associated relief requested ...‖<br />
1.45. By letter dated 18 October 2011 (communicated by <strong>the</strong> Tribunal‟s Secretary), <strong>the</strong><br />
Tribunal acknowledged receipt of <strong>the</strong> Parties‟ two responses, having also noted <strong>the</strong>ir<br />
respective contents for <strong>the</strong> purpose of this Decision.<br />
Part 1 – Page 13