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mining permits;” 19 and the earlier refusal of the Government (pre-December 2007) to act upon the Enterprises‟ applications for permits therefore constituted “a gross abuse of administrative discretion.” 20 2.29. In the Counter-Memorial, the Claimant again focused on the speech given by President Saca in March 2008: ―Even if Respondent contests the existence of a mining ban (despite the public statements of President Saca and his successor, President Funes), its characterization of the measure at issue as a single act or omission completed in December 2004 still is incorrect, because the failure of MARN to act in December 2004, together with subsequent failures to act by MARN and its sister ministry, Ministerio de Economía (―MINEC‖), is a situation that continued to exist after the key jurisdictional thresholds were crossed, thus causing it to come within the scope of CAFTA‘s Investment Chapter.‖ 21 2.30. Another citation from the Claimant‟s earlier pleadings to the same effect, amongst many others, can be reproduced here, because it refers not only to “continuing” acts or omissions alleged against the Respondent, but also to “composite” acts or omissions: ―Even if the Tribunal were to accept Respondent‘s assertion that, despite the public statements of two successive heads of State, the de facto mining ban does not exist, the individual instances of Respondent‘s failure to grant Claimant‘s mining-related applications are continuing or composite acts or omissions that breach CAFTA obligations …” 22 2.31. In its Jurisdiction Rejoinder, the Claimant returned to the alleged significance of the de facto ban: ―As explained in the Notice of Arbitration, it is the de facto mining ban confirmed by President Saca – as opposed to any individual missed deadlines under the Mining Law or the Environmental Law – that rendered Claimant‘s investments valueless.‖ 23 19 20 21 22 23 Notice of Arbitration, § 77. Notice of Arbitration, § 81. Jurisdiction Counter-Memorial, § 19. Jurisdiction Counter-Memorial, § 163. Jurisdiction Rejoinder, § 235. Part 2 – Page 9
2.32. In its Post-Hearing Submissions, as at the Hearing, the Claimant presented the relevant measure as a “practice” covering both an earlier period of time when CAFTA did not apply (either pre-December 2007 or even pre-March 2006) and a later period of time when it did apply to the Claimant, namely, as a continuing course of conduct by the Respondent that existed before and after the Claimant‟s change of nationality on 13 December 2007: ―The measure at issue as consistently identified in Claimant‘s pleadings is El Salvador‘s practice of withholding permits necessary for metallic mining: This measure is a continuing course of conduct by Respondent which may have begun before CAFTA became applicable to Claimant, but continued thereafter (indeed, to this very day) and which Claimant became aware of at the earliest in March 2008, when El Salvador‘s President first confirmed the existence of a de facto mining ban.‖ 24 2.33. As regards the date when the Parties‟ dispute arose, the Claimant alleges that it arose only in March 2008 and not before, i.e. it came into existence as a continuing or composite act after the change in the Claimant‟s nationality in December 2007: “The act supporting Pac Rim Cayman's claims of breach resulting in loss or damage is Respondent's de facto ban on mining as announced by President Saca in March 2008. . . . As relevant to Respondent's abuse of process argument, since the act giving rise to the dispute did not occur until March 2008 or, alternatively, only became recognizable as a continuing or composite act in breach of CAFTA obligations at that time, Pac Rim Cayman's domestication to Nevada in December 2007 could not have been ―a retrospective gaming of the system to gain jurisdiction for an existing dispute.” 25 2.34. The Tribunal considers that the Claimant‟s pleaded case had developed significantly from its early pleadings by the end of the Hearing, as not infrequently happens during a complicated arbitration. This development has, however, created certain difficulties for the Tribunal, to which it is necessary to return below. 24 25 The Claimant‟s Post-Hearing Submissions, § 3. Jurisdiction Counter-Memorial, § 376. Emphasis by the Claimant. See also § 11 of the Respondent‟s Post- Hearing Submissions. Part 2 – Page 10
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 and 40: 2.19. In presenting this main objec
Page 41: precedented regulatory obstacles de
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
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Party [i.e. as the host State] whic
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there were and are certain activiti
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4.74. It will be recalled that the
Page 107 and 108:
der different arbitration rules, th
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4.91. It follows that this third co
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Convention. 145 In the Respondent
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further express requirement of havi
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Legislativa was fully aware that th
Page 117 and 118:
made before and after the Claimant
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5.33. As established by the Interna
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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
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avoided; but, instead, the Responde
Page 141 and 142:
“a U.S. investor organized under
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The Respondent acknowledges, of cou
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Claimant submits that under the cir
Page 147 and 148:
ment in the communications with the
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6.76. The Claimant submits that the
Page 151 and 152:
PART 7: THE OPERATIVE PART 7.1. For
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