brought under the dominican republic - central america - ita

the singular) that had damaged its investments was the de facto ban announced by
President Saca in March 2008, inter alia, as follows:
―Respondent treats a December 2004 missed deadline by El Salvador‘s Ministerio
de Medio Ambiente y Recursos Naturales (―MARN‖) as if that were the sole or primary
measure at issue. In fact, as is clear from Claimant‘s Notice of Arbitration, the
measure at issue is Respondent‘s de facto ban on mining operations, a practice
which then-President Saca announced in March 2008.‖ 42
―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 …‖ 43
2.56. At the Hearing, the Claimant‟s Opening Statement described “the measure at issue”
(again in the singular) as follows: “The practice of the Government not to grant any
metallic mining application regardless of whether it satisfied all of the regulatory requirements.”
44
2.57. At the end of the Hearing, the Claimant clarified its pleaded case in its Closing
Statement, as follows:
― ... And it is true – and Respondent has really hit on this point over and over again
over the course of these proceedings – it is true that we've sometimes referred to the
individual acts and omissions that resulted in the denial of permits to PRES and
DOREX as measures. We sometime used term ―measures‖ to describe those acts
and omissions. And they are, indeed, measures. That is an accurate way to describe
those acts and omissions, but they're not the measure at issue, and I think that's a
very important distinction to make. The measure at issue – and I really want to
emphasize that phrase – ―the measure at issue‖ – that is, the measure that is the
basis for Claimant's articulation of breaches by Respondent of obligations on the
international law plane is the practice of withholding mining-related permits. It is
that measure that forms the basis of our claims …‖ 45
2.58. The Tribunal considers that the Claimant‟s case was most clearly pleaded and explained
during the Hearing. It therefore does not attach undue significance to its earlier
written pleadings which might well be understood differently. The Tribunal understands
the Claimant from its later pleadings as alleging that the measures de-
42
43
44
45
Jurisdiction Counter-Memorial, § 19.
Jurisdiction Counter-Memorial, § 376. Cited in § 11 of the Respondent‟s Post-Hearing Submissions.
The Claimant‟s Opening Statement, Hearing D1.160, with its Opening Power Point, Overview of Facts, p.
4.
Hearing D3.708-709.
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