brought under the dominican republic - central america - ita
brought under the dominican republic - central america - ita
brought under the dominican republic - central america - ita
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<strong>the</strong> singular) that had damaged its investments was <strong>the</strong> de facto ban announced by<br />
President Saca in March 2008, inter alia, as follows:<br />
―Respondent treats a December 2004 missed deadline by El Salvador‘s Ministerio<br />
de Medio Ambiente y Recursos Naturales (―MARN‖) as if that were <strong>the</strong> sole or primary<br />
measure at issue. In fact, as is clear from Claimant‘s Notice of Arbitration, <strong>the</strong><br />
measure at issue is Respondent‘s de facto ban on mining operations, a practice<br />
which <strong>the</strong>n-President Saca announced in March 2008.‖ 42<br />
―The act supporting Pac Rim Cayman's claims of breach resulting in loss or<br />
damage is Respondent's de facto ban on mining as announced by President Saca in<br />
March 2008 …‖ 43<br />
2.56. At <strong>the</strong> Hearing, <strong>the</strong> Claimant‟s Opening Statement described “<strong>the</strong> measure at issue”<br />
(again in <strong>the</strong> singular) as follows: “The practice of <strong>the</strong> Government not to grant any<br />
metallic mining application regardless of whe<strong>the</strong>r it satisfied all of <strong>the</strong> regulatory requirements.”<br />
44<br />
2.57. At <strong>the</strong> end of <strong>the</strong> Hearing, <strong>the</strong> Claimant clarified its pleaded case in its Closing<br />
Statement, as follows:<br />
― ... And it is true – and Respondent has really hit on this point over and over again<br />
over <strong>the</strong> course of <strong>the</strong>se proceedings – it is true that we've sometimes referred to <strong>the</strong><br />
individual acts and omissions that resulted in <strong>the</strong> denial of permits to PRES and<br />
DOREX as measures. We sometime used term ―measures‖ to describe those acts<br />
and omissions. And <strong>the</strong>y are, indeed, measures. That is an accurate way to describe<br />
those acts and omissions, but <strong>the</strong>y're not <strong>the</strong> measure at issue, and I think that's a<br />
very important distinction to make. The measure at issue – and I really want to<br />
emphasize that phrase – ―<strong>the</strong> measure at issue‖ – that is, <strong>the</strong> measure that is <strong>the</strong><br />
basis for Claimant's articulation of breaches by Respondent of obligations on <strong>the</strong><br />
international law plane is <strong>the</strong> practice of withholding mining-related permits. It is<br />
that measure that forms <strong>the</strong> basis of our claims …‖ 45<br />
2.58. The Tribunal considers that <strong>the</strong> Claimant‟s case was most clearly pleaded and explained<br />
during <strong>the</strong> Hearing. It <strong>the</strong>refore does not attach undue significance to its earlier<br />
written pleadings which might well be <strong>under</strong>stood differently. The Tribunal <strong>under</strong>stands<br />
<strong>the</strong> Claimant from its later pleadings as alleging that <strong>the</strong> measures de-<br />
42<br />
43<br />
44<br />
45<br />
Jurisdiction Counter-Memorial, § 19.<br />
Jurisdiction Counter-Memorial, § 376. Cited in § 11 of <strong>the</strong> Respondent‟s Post-Hearing Submissions.<br />
The Claimant‟s Opening Statement, Hearing D1.160, with its Opening Power Point, Overview of Facts, p.<br />
4.<br />
Hearing D3.708-709.<br />
Part 2 – Page 17