brought under the dominican republic - central america - ita

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2. Subject to paragraph 3 and the other terms of this Section, when a claim is submitted under Article 10.16.1(a)(i)(B) or (C), or Article 10.16.1(b)(i)(b) or (C), the tribunal shall apply: (a) the rules of law specified in the pertinent investment agreement or investment authorization, or as the disputing parties may otherwise agree; or (b) if the rules of law have not been specified or otherwise agreed: (i) (ii) the law of the respondent, including its rules on the conflict of laws; and such rules of international law as may be applicable. 3. A decision of the Commission declaring its interpretation of a provision of this Agreement under Article 19.1.3(c) (The Free Trade Commission) shall be binding on a tribunal established under this Section, and any decision or award issued by the tribunal must be consistent with that decision.‖ 1.12. CAFTA Article 10.28: Definitions ―‘enterprise‘ means an enterprise as defined in Article 2.1 (Definitions of General Application) and a branch of an enterprise; ...‖ [Article 2.1 provides:―‘enterprise of a Party‘ means an enterprise constituted or organised under the law of a Party, and a branch located in the territory of a Party and carrying out business activities there‖; ...‖] ―‗national‘ means a natural person who has the nationality of a Party according to Annex 2.1 (Country-Specific Definitions); ...‖ [Annex 2.1(g) provides: ―with respect to the United States, ‗national of the United States‘ as defined in the existing provisions of the Immigration and Nationality Act…‖]. Annex to Part 1 – Page 7
(03) The ICSID Convention 1.13. ICSID Article 25(1) ―1. The jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment, between a Contracting State (or any constituent subdivision or agency of a Contracting State designated to the Centre by that State) and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre. When the parties have given their consent, no party may withdraw its consent unilaterally.‖ 1.14. ICSID Article 27 ―1. No Contracting State shall give diplomatic protection, or bring an international claim, in respect of a dispute which one of its nationals and another Contracting State shall have consented to submit or shall have submitted to arbitration under this Convention, unless such other Contracting State shall have failed to abide by and comply with the award rendered in such dispute. 2. Diplomatic protection, for the purposes of paragraph (1), shall not include informal diplomatic exchanges for the sole purpose of facilitating a settlement of the dispute.‖ (04) The ICSID Arbitration Rules 1.15. ICSID Arbitration Rule 27 ―A party which knows or should have known that a provision of the Administrative and Financial Regulations, of these Rules, of any other rules or agreement applicable to the proceeding, or of an order of the Tribunal has not been complied with and which fails to state promptly its objections thereto, shall be deemed— subject to Article 45 of the Convention—to have waived its right to object.‖ 1.16. ICSID Arbitration Rule 28 ―(1) Without prejudice to the final decision on the payment of the cost of the proceeding, the Tribunal may, unless otherwise agreed by the parties, decide: Annex to Part 1 – Page 8
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 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: measure alleged to constitute a bre
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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