brought under the dominican republic - central america - ita

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the restructuring was to protect Mobil investments from adverse Venezuelan measures in getting access to ICSID arbitration through the Dutch-Venezuela BIT.” 27 2.43. That, however, is not a sufficient answer to determine the issue of Abuse of Process in this case. The Tribunal does not accept the arguments made to the contrary in the Amicus Curiae Submission. As already described, there is an important issue of timing and other circumstances in this case, to which it is necessary to return below at some length. 2.44. At the outset, the Tribunal subscribes to the general approach set out in the decision made in Mobil v. Venezuela: ―The Tribunal first observes that in all systems of law, whether domestic or international, there are concepts framed in order to avoid misuse of the law. Reference may be made in this respect to ―good faith‖ (―bonne foi‖), ―détournement de pouvoir‖ (misuse of power) or ―abus de droit‖ (abuse of right).‖ 28 2.45. The Claimant‟s restructuring consisted of its change of nationality on 13 December 2007. To adopt the tribunal‟s approach in Mobil v. Venezuela, “(s)uch restructuring could be „legitimate corporate planning‟ as contended by the Claimant or an „abuse of right‟ as submitted by the Respondent. It depends upon the circumstances in which it happened.” 29 As already summarised above, it is not contested between the Parties that the circumstances of this case are decisive as to the time when the relevant measure(s) occurred and the Parties‟ dispute arose, whether before or after the change in the Claimant‟s nationality on 13 December 2007. 2.46. This important question of timing was also explained in the Phoenix award: ―International investors can of course structure upstream their investments, which meet the requirement of participating in the economy of the host State, in a manner that best fits their need for international protection, in choosing freely the vehicle through which they perform their investment. … 27 28 29 Mobil Corporation and others v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/07/27, Decision on Jurisdiction, 10 June 2010, § 190. [Mobil v. Venezuela] Mobil v. Venezuela, supra note 27, § 169. Ibid, § 191. Part 2 – Page 13
But on the other side, an international investor cannot modify downstream the protection granted to its investment by the host State, once the acts which the investor considers are causing damages to its investment have already been committed.‖ 30 2.47. The Tribunal does not dispute (nor did the Respondent) that if a corporate restructuring affecting a claimant‟s nationality was made in good faith before the occurrence of any event or measure giving rise to a later dispute, that restructuring should not be considered as an abuse of process. 31 That is not, however, the issue in the present case, as the Tribunal explains below by reference to other reported cases. 2.48. The Tribunal notes first the approach adopted by the tribunal in Autopista v. Venezuela, 32 where a Mexican company restructured its investment in a Venezuelan company, Aucoven, by transferring 75 % of its shares to a US corporation. As in the present case, the respondent alleged that this restructuring was an abuse in order to gain access to ICSID jurisdiction. The tribunal noted that the US entity had been incorporated eight years before the parties had entered into their concession agreement; and that it was not a mere shell corporation. Thus, the tribunal concluded that the restructuring did not constitute “an abuse of the Convention purposes.” 33 2.49. In Tokios Tokelés v. Ukraine, 34 the claimant was organised under Lithuanian law but was owned and controlled as to 99 % by Ukrainian nationals. The tribunal noted that this enterprise was formed many years before the BIT between Ukraine and Lithuania entered into force; and it concluded: ―The Claimant manifestly did not create Tokios Tokelés for the purpose of gaining access to ICSID arbitration under the BIT against Ukraine, as the enterprise was founded six years before the BIT … entered into force. Indeed, there is no evidence in the record that the Claimant used its formal legal nationality for any improper purpose.” 35 30 31 32 33 34 35 Phoenix v. Czech Republic, supra, note 5, §§ 94-95. Emphasis in the original. Certain decisions to this effect have been made subject to a dissenting opinion. Autopista Concesionada de Venezuela, C.A. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/00/5, Decision on Jurisdiction, 27 September 2001. Ibid., § 126. Tokios Tokelės v. Ukraine, ICSID Case No. ARB/02/18, Decision on Jurisdiction, 29 April 2004, §§ 53 to 56. This case did not involve a restructuration by a change of nationality to get access to ICSID jurisdiction, but an initial structuration permitting such access. Ibid., § 56. Part 2 – Page 14
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 and 44: 2.32. In its Post-Hearing Submissio
Page 45: SID Convention, nor relates to a
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
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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
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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
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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
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PART 6: ISSUE E - LEGAL AND ARBITRA
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6.10. The Claimant submits that, un
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tion ratione temporis (i.e. the con
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Party to also put in a witness stat
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ture arbitration proceedings. Indee
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this arbitration with the least exp
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abused the Tribunal's indulgence in
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avoided; but, instead, the Responde
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“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
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PART 7: THE OPERATIVE PART 7.1. For
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