brought under the dominican republic - central america - ita

More documents

Recommendations

Info

(05) The CAFTA Member States 2.35. The USA Submission addresses Denial of Benefits and does not address the issue of Abuse of Process. The Costa Rica Submission likewise does not address Abuse of Process, concentrating mostly on Denial of Benefits. (06) Amicus Curiae Submission 2.36. The Amicus Curiae Submission does address the issue of Abuse of Process (in addition to other matters), first in general terms: ―The facts underlying Claimant‘s claim are deeply intertwined with the social and political change that has occurred since the advent of representative democracy in post-civil war El Salvador, and there is little doubt that the Tribunal‘s decision to accept or reject jurisdiction over a claim of this nature could impact the transition toward democracy in El Salvador. The Tribunal‘s decision could also impact the communities amici represent - their lands, their livelihoods, and even their wellbeing and fundamental rights.‖ 2.37. This Amicus Curiae next contends that the Claimant‟s claims amount to an abuse of process for two reasons, the first developed by the Respondent (as summarised above) and the second that is specific to its own Amicus Curiae Submission: ―1. Pac Rim‘s last minute re-organization to take advantage of CAFTA benefits after setting itself up to enjoy the benefits of Cayman Islands‘ zero taxation is abusive in nature. 2. Pac Rim‘s attempt to take a dispute centered between it and the affected communities to a forum where the communities have only limited discretionary rights is abusive in nature ...‖ 2.38. The Amicus Curiae Submission contends, that in relying only on the first of these two reasons, “the Republic has, in fact, underestimated the extent of the abuse of process” (p. 10), because this dispute is, in fact, not a dispute between an investor and a host State but a dispute between an investor and the local communities of which the State is only an intermediary. 2.39. The Amicus Curiae Submission alleges that this is a purely political dispute and therefore that the Parties‟ dispute is not a “legal dispute” under Article 25 of the IC- Part 2 – Page 11
SID Convention, nor relates to a “measure” under CAFTA Article 10.1. The Tribunal will limit itself here to the Amicus‟ arguments relating to the Abuse of Process issue. 2.40. The Amicus Curiae Submission addresses the motivation for the Claimant‟s change of nationality, basing itself on Mr Shrake‟s testimony. It considers that stating that one of the motives for the change was to save a few thousand dollars in annual corporate registration fees is fanciful; but even if it were one element of the decisionmaking process, the Claimant‟s access to international arbitration was another factor; and that factor is sufficient for the Tribunal to find here that there has been an abuse of process by the Claimant. As alleged by the Amicus Curiae Submission: ―Moreover, regardless of whether the benefit of CAFTA dispute resolution was a primary or secondary motivation, the fact that it is a motivation is all that the relevant prong of the abuse of process inquiry requires.‖ (p. 10) (07) The Tribunal’s Analysis 2.41. The Tribunal finds as a relevant fact, based on the Claimant‟s own evidential materials, that one of the principal purposes of the change in the Claimant‟s nationality was the access thereby gained to the protection of investment rights under CAFTA and its procedure for international arbitration available against the Respondent. Although the Tribunal accepts that another purpose was to save unnecessary expenses for the Pacific Rim group of companies, the Tribunal finds, as a fact, again based on the Claimant‟s own evidential materials, that such a purpose was not the dominant, still less the only, motive for the change. As rightly emphasized by the Respondent, “… Claimant presents no evidence that the costs of maintaining a limited liability company in Nevada are significantly cheaper than being incorporated in the Cayman Islands.” 26 2.42. Accordingly, the factual situation here is materially similar to the facts found by the tribunal in the Mobil v. Venezuela case, that “… the main, if not the sole purpose of 26 Jurisdiction Reply, § 87. Part 2 – Page 12
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 and 42: precedented regulatory obstacles de
Page 43: 2.32. In its Post-Hearing Submissio
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

Create successful ePaper yourself

Delete template?

Save as template?