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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mining permits;” 19 and <strong>the</strong> earlier refusal of <strong>the</strong> Government (pre-December 2007)<br />
to act upon <strong>the</strong> Enterprises‟ applications for permits <strong>the</strong>refore constituted “a gross<br />
abuse of administrative discretion.” 20<br />
2.29. In <strong>the</strong> Counter-Memorial, <strong>the</strong> Claimant again focused on <strong>the</strong> speech given by President<br />
Saca in March 2008:<br />
―Even if Respondent contests <strong>the</strong> existence of a mining ban (despite <strong>the</strong> public<br />
statements of President Saca and his successor, President Funes), its characterization<br />
of <strong>the</strong> measure at issue as a single act or omission completed in December 2004<br />
still is incorrect, because <strong>the</strong> failure of MARN to act in December 2004, toge<strong>the</strong>r<br />
with subsequent failures to act by MARN and its sister ministry, Ministerio de<br />
Economía (―MINEC‖), is a situation that continued to exist after <strong>the</strong> key jurisdictional<br />
thresholds were crossed, thus causing it to come within <strong>the</strong> scope of CAFTA‘s<br />
Investment Chapter.‖ 21<br />
2.30. Ano<strong>the</strong>r c<strong>ita</strong>tion from <strong>the</strong> Claimant‟s earlier pleadings to <strong>the</strong> same effect, amongst<br />
many o<strong>the</strong>rs, can be reproduced here, because it refers not only to “continuing” acts<br />
or omissions alleged against <strong>the</strong> Respondent, but also to “composite” acts or omissions:<br />
―Even if <strong>the</strong> Tribunal were to accept Respondent‘s assertion that, despite <strong>the</strong> public<br />
statements of two successive heads of State, <strong>the</strong> de facto mining ban does not exist,<br />
<strong>the</strong> individual instances of Respondent‘s failure to grant Claimant‘s mining-related<br />
applications are continuing or composite acts or omissions that breach CAFTA obligations<br />
…” 22<br />
2.31. In its Jurisdiction Rejoinder, <strong>the</strong> Claimant returned to <strong>the</strong> alleged significance of <strong>the</strong><br />
de facto ban:<br />
―As explained in <strong>the</strong> Notice of Arbitration, it is <strong>the</strong> de facto mining ban confirmed by<br />
President Saca – as opposed to any individual missed deadlines <strong>under</strong> <strong>the</strong> Mining<br />
Law or <strong>the</strong> Environmental Law – that rendered Claimant‘s investments valueless.‖ 23<br />
19<br />
20<br />
21<br />
22<br />
23<br />
Notice of Arbitration, § 77.<br />
Notice of Arbitration, § 81.<br />
Jurisdiction Counter-Memorial, § 19.<br />
Jurisdiction Counter-Memorial, § 163.<br />
Jurisdiction Rejoinder, § 235.<br />
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