brought under the dominican republic - central america - ita

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2.61. However, in the Tribunal‟s view, it is necessary as a matter of international law (being applicable to the Claimant‟s CAFTA claims) to distinguish between President‟s Saca‟s speech as the alleged culminating point of a pre-existing practice and the effective beginning of a practice causing injury to the Claimant and its Enterprises. The Claimant‟s pleaded case was ambiguous on this point; particularly as to whether and (if so) when the alleged practice became a continuous act or a composite act by the Respondent. 2.62. During the Hearing, the Tribunal understood the Claimant´s case to include three alternative analyses of its alleged practice: (i) the speech of President Saca publicly launched a new policy, that did not exist before; (ii) the speech of President Saca acknowledged the existence of a practice analysed as a continuous act; and (iii) the speech of President Saca acknowledged the existence of a practice analysed as a composite act. 2.63. At the end of the Hearing, the Tribunal requested both the Claimant and the Respondent to comment on whether and (if so) when the alleged practice constituted a continuing act or a composite act, as those two terms are used in Articles 14 and 15, respectively, of the ILC Articles on State Responsibility of States (cited in the Annex to Part 1 above); and in particular whether the Claimant‟s pleaded claims were based on alleged conduct by the Respondent that pre-dated the Claimant‟s change of nationality on 13 December 2007. 2.64. According to the Claimant‟s answer, the Tribunal did not need to characterise the relevant measure because the only important factor, according to the Claimant, was the existence of an unlawful situation which was applicable to the Claimant in March 2008, after 13 December 2007: ―As for whether the ban is better described as a continuing measure or a composite measure, Claimant suggests that, like other tribunals confronted with similar fact patterns, this Tribunal need not choose. If the Tribunal finds that the measure at issue is conduct that did not cease to exist prior to CAFTA‘s becoming applicable to Claimant, there is no need to label the measure.” 47 47 The Claimant‟s Post-Hearing Submissions, § 23. Part 2 – Page 19
2.65. The Tribunal considers that the Claimant‟s response might be more appropriate for the Ratione Temporis issue; but that it is clearly inappropriate to this Abuse of Process issue. For this latter issue, it is important to ascertain whether the alleged measure began before and continued after the change in the Claimant‟s nationality. It here is necessary to apply first principles of international law. 2.66. The question of identifying precisely when an internationally wrongful act takes place is often a difficult factual question; it has important consequences on the law of international responsibility; and, as far as it concerns investment arbitration under a treaty, it can directly affect (as here) the exercise of jurisdiction by a tribunal. 2.67. In any particular case, three different situations can arise: (i) a measure is a “onetime act”, that is an act completed at a precise moment, such as, for example, a nationalisation decree which is completed at the date of that decree; or (ii) it is a “continuous” act, which is the same act that continues as long as it is in violation of rules in force, such as a national law in violation of an international obligation of the State; or, (iii) it is a “composite” act, that is an act composed of other acts from which it is legally different. These important and well-established distinctions under customary international law are considered in the Commentaries of the ILC Articles on State Responsibility. 48 2.68. (i) One-Time Act: As far as a one-time act is concerned, the ILC Commentaries explain both its instant realisation, at a precise moment in time, and the fact that it can have continuous effects: ―The critical distinction for the purpose of article 14 is between a breach which is continuing and one which has already been completed. In accordance with paragraph 1, a completed act occurs ‗at the moment when the act is performed‘, even though its effects or consequences may continue…‖ 49 ―An act does not have a continuing character merely because its consequences extend in time.‖ 50 48 49 50 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001, Yearbook of the International Law Commission, 2001, vol II, Part Two [“ILC Commentaries”]. ILC Commentaries, p. 59. ILC Commentaries, p. 60. Part 2 – Page 20
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 and 50: for such disputes would constitute,
Page 51: scribed in its early pleadings form
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
Page 101 and 102: 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
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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
Page 143 and 144:
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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