brought under the dominican republic - central america - ita

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the Cayman Islands, without losing any tax benefits. It made no sense to manage a Cayman Islands company from Nevada, if that company could be domesticated to Nevada with cost savings and no adverse tax consequences.” 12 2.22. This was an incomplete explanation on the evidential materials adduced by the Claimant itself, particularly from its principal factual witness, Mr Shrake. Even before the Hearing, Mr Shrake candidly acknowledged that the availability of international arbitration (under CAFTA and ICSID) was one of the elements of its decision to change the Claimant‟s nationality: ―The ability of Pac Rim Cayman to bring claims under CAFTA, if a dispute with El Salvador were to arise in the future, was one of the factors I considered, and which – with others – weighed in favour of the reorganization.‖ 13 2.23. The Claimant nonetheless submitted that the events giving rise to the Parties‟ dispute occurred after this change of nationality on 13 December 2007; and, given that timing, the change cannot be characterised as an abuse of process by the Claimant. It was said that a change in nationality can be triggered by many reasons; and if nationality planning for the purpose of international arbitration can be made in good faith as one of several reasons before an investment is made (as the Respondent acknowledges), then why not a change made in like good faith after an investment but before any dispute has arisen? 2.24. In the present case, however, the timing is important. For the Respondent, CAFTA came into force on 1 March 2006; the Claimant changed its nationality in 13 December 2007 whereupon, ostensibly, it acquired substantive and procedural rights under CAFTA; President Saca‟s speech was publicly reported on 11 March 2008; and the Claimant submitted its Notice of Arbitration on 30 April 2009. 2.25. From the Claimant‟s Notice of Intent onwards, the Claimant has pleaded “unlawful and politically motivated measures” taken by the Respondent before 13 December 2007, including (as alleged) the arbitrary imposition of unreasonable delays and un- 12 13 Jurisdiction Counter-Memorial, § 138. Mr Shrake‟s Witness Statement, § 113. See also, to the same effect, the Jurisdiction Counter-Memorial, § 139: “As part of this overall assessment of the Companies‘ organizational structure, Mr. Shrake also considered the Companies‘ potential avenues of recourse if a dispute were ever to arise with El Salvador in the future.‖ Part 2 – Page 7
precedented regulatory obstacles designed and implemented with the aim of preventing PRES and DOREX from developing gold mining rights in which the Claimant, through those Enterprises, had made substantial and long-term investments. 14 As pleaded by the Claimant, many of these events necessarily pre-dated the speech of President Saca in March 2008, allegedly confirming the opposition of the Respondent‟s Government to granting mining permits. 15 2.26. In the Notice of Arbitration, the following measures were also alleged by the Claimant against the Respondent, as taking place before December 2007: ―As previously set out in the Notice of Intent and further summarized herein, PRC‘s claims arise out of unlawful and politically motivated measures taken by the Government of President Elias Antonio Saca Gonzalez, through the Ministerio de Medio Ambiente y Recursos Naturales (―MARN‖) and MINEC, against Claimant‘s investments.‖ 2.27. As regards the speech of President Saca, the Claimant alleges first: “in March 2008, President Saca abruptly and without any justification announced that he opposed granting any new mining permits.” 16 The Claimant next alleges that the permit had been earlier refused by MARN on the instructions of the Government: “it is now apparent that MARN‟s inaction had been directed from above, and specifically from the offices of President Saca.” 17 These events cover a period which, at least in part, pre-date December 2007. The Claimant alleges that President Saca‟s speech revealed that the permit refusals were made following an existing policy by the Government and were not mere bureaucratic incidents: “In 2008, it became clear that the Government‟s delay tactics with respect to the issuance of the Enterprises‟ various permits had been designed and implemented with the unlawful, discriminatory, and politically motivated aim of preventing the Enterprises‟ mining.” 18 2.28. In other words, as here alleged by the Claimant, President Saca‟s speech (post- December 2007) expressed a “newly announced „policy‟ of opposing the issuance of 14 15 16 17 18 Notice of Intent, Introduction, pp. 1-2. Notice of Intent, § 32. Notice of Arbitration, § 9. Notice of Arbitration, § 64. Notice of Arbitration, § 74. Part 2 – 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 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: 2.19. In presenting this main objec
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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