brought under the dominican republic - central america - ita

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.
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