brought under the dominican republic - central america - ita

More documents

Recommendations

Info

Based on such a definition, it is relatively easy to determine the moment when a measure takes place as a one-time act. 2.69. (ii) Continuous Act: In contrast, a continuous act is the same act extending throughout a period of time, as also explained in the ILC Commentaries: ―In accordance with paragraph 2, a continuing wrongful act, on the other hand, occupies the entire period during which the act continues and remains not in conformity with the international obligation, provided that the State is bound by the international obligation during that period.‖ 51 2.70. (iii) Composite Act: Finally, a composite act is not the same, single act extending over a period of time, but is composed of a series of different acts that extend over that period; or, in other words, a composite act results from an aggregation of other acts and acquires a different legal characterisation from those other acts, as described in the ILC Commentaries: ―Composite acts give rise to continuing breaches, which extend in time from the first of the actions or omissions in the series of acts making up the wrongful conduct. Composite acts covered by article 15 are limited to breaches of obligations which concern some aggregate of conduct and not individual acts as such. In other words, their focus is ‗a series of acts or omissions defined in aggregate as wrongful.‘‖ 52 ―Only after a series of actions or omissions takes place will the composite act be revealed, not merely as a succession of isolated acts, but as a composite act, i.e. an act defined in aggregate as wrongful.‖ 53 2.71. The fact that a composite act is composed of acts that are legally different from the composite act itself means that the composite act can comprise legal acts and still be unlawful or that it can comprise unlawful acts violating certain norms which are different from the legal norm violated by the composite act. For example, several legal acts (of which each by itself is not unlawful) can become unlawful as the composite aggregation of those legal acts; 54 or a series of unlawful acts interfering with an in- 51 52 53 54 ILC Commentaries, p. 60. ILC Commentaries, p. 62. ILC Commentaries, p. 63. This type of composite act was referred to by the Claimant in its Post-Hearing Submissions, § 30: “A composite measure is a series of acts and omissions which, in the aggregate, constitute a breach of relevant obligations (even though individual acts or omissions on their own may not constitute such a breach). Such Part 2 – Page 21
vestment (which by themselves are not expropriatory) can by their aggregation result in an unlawful expropriation. 2.72. Was the relevant measure in the present case, as alleged by the Claimant, a continuous act or a composite act? This is important, if the continuous or composite act extends over a critical date, here the Claimant‟s change of nationality on 13 December 2007. 2.73. As regards a continuing act, the ILC Commentaries state the following: “Thus, conduct which has commenced sometime in the past, and which constituted (or, if the relevant primary rule had been in force for the State at the time, would have constituted) a breach at that time, can continue and give rise to a continuing wrongful act in the present.‖ 55 In this situation, the unlawful act only starts when the rule which this act violates is applicable. 2.74. As regards a composite act, the ILC Commentaries state the following: ―In cases where the relevant obligation did not exist at the beginning of the course of conduct but came into being thereafter, the ‗first‘ of the actions or omissions of the series for the purposes of State responsibility will be the first occurring after the obligation came into existence. 56 Paragraph 1 of article 15 defines the time at which a composite act ‗occurs‘ as the time at which the last action or omission occurs …‖ 57 In this situation, the unlawful composite act is composed of aggregated acts and takes place at a time when the last of these acts occurs and violates (in aggregate) the applicable rule. 55 56 57 an analysis was performed by the tribunal in Société Générale, which referred to the concept of composite act and stated clearly that acts that are not illegal can become such by accumulation: “While normally acts will take place at a given point in time independently of their continuing effects, and they might at that point be wrongful or not, it is conceivable also that there might be situations in which each act considered in isolation will not result in a breach of a treaty obligation, but if considered as a part of a series of acts leading in the same direction they could result in a breach at the end of the process of aggregation …”, Société Générale v. Dominican Republic, LCIA Case No. UN7927, Award on Preliminary Objections to Jurisdiction, 19 September 2008, § 91. ILC Commentaries, p. 61. ILC Commentaries, p. 64. ILC Commentaries, pp. 63-64. Part 2 – Page 22
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 and 52: scribed in its early pleadings form
Page 53: 2.65. The Tribunal considers that t
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
Page 103 and 104: there were and are certain activiti
Page 105 and 106:
4.74. It will be recalled that the
Page 107 and 108:
der different arbitration rules, th
Page 109 and 110:
4.91. It follows that this third co
Page 111 and 112:
Convention. 145 In the Respondent
Page 113 and 114:
further express requirement of havi
Page 115 and 116:
Legislativa was fully aware that th
Page 117 and 118:
made before and after the Claimant
Page 119 and 120:
5.33. As established by the Interna
Page 121 and 122:
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
Page 131 and 132:
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
Page 137 and 138:
abused the Tribunal's indulgence in
Page 139 and 140:
avoided; but, instead, the Responde
Page 141 and 142:
“a U.S. investor organized under
Page 143 and 144:
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
Page 149 and 150:
6.76. The Claimant submits that the
Page 151 and 152:
PART 7: THE OPERATIVE PART 7.1. For
show all

brought under the dominican republic - central america - ita

Create successful ePaper yourself

Delete template?

Save as template?