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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. Part 2 – Page 17
scribed in its early pleadings formed only a factual pattern which derived from a then unstated practice of the Salvadoran Government, of which (as the Claimant alleges) the Claimant first became aware on 11 March 2008 with the report of President Saca‟s speech. Accordingly, the Tribunal treats the Claimant‟s pleaded case as alleging a practice by the Respondent which came to the Claimant‟s knowledge only with President Saca‟s reported speech in March 2008, which practice is alleged to consist of either a continuing or composite act in breach of CAFTA and for which the Claimant claims damages only from March 2008 onwards. The Tribunal accepts that a governmental practice, by definition, has necessarily to comprise a multiplicity of pre- or co-existing acts or omissions. It is necessary to ascertain the legal nature and timing of such a practice where a claimant‟s pleaded allegations are directed both at the acts or omissions themselves and to the practice comprising such acts or omissions, which practice only become known to a claimant at a later date. 2.59. What then is the role of President Saca‟s speech as now alleged and explained by the Claimant in its pleadings? According to the Claimant, it was not by itself a measure, but it is what made public an alleged pre-existing governmental practice: ―This is why President Saca‘s March 2008 public acknowledgment of the ban is so important. Claimant does not contend that the President‘s statement is by itself the measure at issue. But the President‘s statement did provide critical information, given the inherent difficulty in discerning the measure at issue, and as such may be seen as the consummation point of the administration‘s action and inaction constituting the offending measure at issue in this arbitration.‖ 46 2.60. From this and other explanations from the Claimant, it follows that, although the President‟s speech is not alleged to be a measure by itself, it is the point in time when, according to the Claimant, its dispute with the Respondent arose. It would be possible to use other language to describe the emergence of this dispute, as employed by both Parties in this case (e.g. “born”, “crystallised” etc); but all these terms convey the same concept; and the Tribunal here prefers substance to semantics. 46 Jurisdiction Rejoinder, § 238. Part 2 – Page 18
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 and 46: SID Convention, nor relates to a
Page 47 and 48: But on the other side, an internati
Page 49: for such disputes would constitute,
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
Page 99 and 100: 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
Page 125 and 126:
PART 6: ISSUE E - LEGAL AND ARBITRA
Page 127 and 128:
6.10. The Claimant submits that, un
Page 129 and 130:
tion ratione temporis (i.e. the con
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Party to also put in a witness stat
Page 133 and 134:
ture arbitration proceedings. Indee
Page 135 and 136:
this arbitration with the least exp
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abused the Tribunal's indulgence in
Page 139 and 140:
avoided; but, instead, the Responde
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“a U.S. investor organized under
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The Respondent acknowledges, of cou
Page 145 and 146:
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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