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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2.65. The Tribunal considers that <strong>the</strong> Claimant‟s response might be more appropriate for<br />
<strong>the</strong> Ratione Temporis issue; but that it is clearly inappropriate to this Abuse of Process<br />
issue. For this latter issue, it is important to ascertain whe<strong>the</strong>r <strong>the</strong> alleged measure<br />
began before and continued after <strong>the</strong> change in <strong>the</strong> Claimant‟s nationality. It here<br />
is necessary to apply first principles of international law.<br />
2.66. The question of identifying precisely when an internationally wrongful act takes<br />
place is often a difficult factual question; it has important consequences on <strong>the</strong> law<br />
of international responsibility; and, as far as it concerns investment arbitration <strong>under</strong><br />
a treaty, it can directly affect (as here) <strong>the</strong> exercise of jurisdiction by a tribunal.<br />
2.67. In any particular case, three different situations can arise: (i) a measure is a “onetime<br />
act”, that is an act completed at a precise moment, such as, for example, a nationalisation<br />
decree which is completed at <strong>the</strong> date of that decree; or (ii) it is a “continuous”<br />
act, which is <strong>the</strong> same act that continues as long as it is in violation of rules<br />
in force, such as a national law in violation of an international obligation of <strong>the</strong><br />
State; or, (iii) it is a “composite” act, that is an act composed of o<strong>the</strong>r acts from<br />
which it is legally different. These important and well-established distinctions <strong>under</strong><br />
customary international law are considered in <strong>the</strong> Commentaries of <strong>the</strong> ILC Articles<br />
on State Responsibility. 48<br />
2.68. (i) One-Time Act: As far as a one-time act is concerned, <strong>the</strong> ILC Commentaries explain<br />
both its instant realisation, at a precise moment in time, and <strong>the</strong> fact that it can<br />
have continuous effects:<br />
―The critical distinction for <strong>the</strong> purpose of article 14 is between a breach which is<br />
continuing and one which has already been completed. In accordance with paragraph<br />
1, a completed act occurs ‗at <strong>the</strong> moment when <strong>the</strong> act is performed‘, even<br />
though its effects or consequences may continue…‖ 49<br />
―An act does not have a continuing character merely because its consequences extend<br />
in time.‖ 50<br />
48<br />
49<br />
50<br />
Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001,<br />
Yearbook of <strong>the</strong> International Law Commission, 2001, vol II, Part Two [“ILC Commentaries”].<br />
ILC Commentaries, p. 59.<br />
ILC Commentaries, p. 60.<br />
Part 2 – Page 20