brought under the dominican republic - central america - ita

More documents

Recommendations

Info

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. Part 1 – Page 13
H: The Jurisdictional Issues 1.46. It is convenient for the purpose of this Decision to describe the Respondent‟s jurisdictional objections under four separate headings: (A) the “Abuse of Process” issue regarding the Claimant‟s claims under CAFTA; (B) the “Ratione Temporis” issue; (C) the “Denial of Benefits” issue regarding the Claimant‟s claims under CAFTA; and (D) the “Investment Law” issue regarding the Claimant‟s Non-CAFTA claims. The Abuse of Process Issue does not apply to the Claimant‟s Non-CAFTA claims, as determined by the Tribunal. In addition, the Tribunal addresses the Parties‟ respective claims for Legal and Arbitration Costs (E). 1.47. In addressing these Issues A to E, the Tribunal has considered all the written and oral submissions made by the Parties. In order to explain the grounds for this Decision, it is necessary below to cite or summarise a certain number of these submissions at some length, but not all of them. The fact that a submission is not cited or summarised below does not signify that it was not considered by the Tribunal in arriving at this Decision. Part 1 – Page 14
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 and 20: G: The Parties’ Claims for Relief
Page 21: c. Piercing the corporate veil (Mem
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
show all

brought under the dominican republic - central america - ita

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?