brought under the dominican republic - central america - ita

for such disputes would constitute, to take the words of the Phoenix Tribunal, ‗an
abusive manipulation of the system of international investment protection under the
ICSID Convention and the BITs‘. The Claimants seem indeed to be conscious of this,
when they state that they ―invoke ICSID jurisdiction on the basis of the consent expressed
in the Treaty only for disputes arising under the Treaty for action that the
Respondent took or continued to take after the restructuring was completed.‖ 40
2.52. The Tribunal concludes from these and other legal materials submitted by the Parties
that, in order to determine whether the Claimant‟s change of nationality was or was
not an abuse of process, the Tribunal must first ascertain whether the relevant measure(s)
or practice, which (as the Claimant allege) caused damage to its investments
from March 2008 onwards, took place before or after the change in nationality on 13
December 2007. This approach in turn requires the Tribunal to ascertain the legal
nature of the relevant measure(s) or practice alleged by the Claimant.
2.53. The Relevant Measure(s) or Practice: In order to identify these measures or practice,
the Tribunal must necessarily analyse the Claimant‟s own pleadings. It will be
recalled that the Tribunal decided, in its Decision of 2 August 2010, that the Notice
of Intent was incorporated by reference into the Notice of Arbitration, and also to
“treat the Notice of Arbitration as amended in the manner requested by the Claimant.”
41 Accordingly, the Claimant‟s early pleadings include both the Notice of Intent
and the Notice of Arbitration.
2.54. The Notice of Intent pleads several alleged measures; and in the Notice of Arbitration,
the same measures are pleaded. Starting with the Jurisdiction Counter-
Memorial, the emphasis is increasingly placed by the Claimant on the alleged de
facto ban publicly disclosed in President Saca‟s speech.
2.55. At this early stage, the Claimant based its pleaded case on the allegation that the Respondent
had taken precise measures (in the plural) that improperly refused to grant
to PRES an exploitation concession and to deliver to DOREX environmental permits.
In its Jurisdiction Counter-Memorial, the Claimant alleged that the measure (in
40
41
Mobil v. Venezuela, supra note 27, §§ 204-205. Emphasis added.
Decision on the Respondent‟s Preliminary Objections under CAFTA Articles 10.20.4 and 10.20.5, 2
August 2009, § 35.
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