brought under the dominican republic - central america - ita

2.75. Application to this Case: Having here set out the relevant general principles of international
law, the Tribunal turns to the present case, as pleaded by the Claimant
and disputed by the Respondent.
2.76. The Respondent’s Submission: In summary, the Respondent submits that the relevant
acts alleged by the Claimant were completed before the change in the Claimant‟s
nationality on 13 December 2007:
“In the present case, the measure at issue was exhausted when MARN did not
respond to Claimant within the 60-day time period prescribed in the law. The
presumed denial, denegación presunta, of Claimant's application gave Claimant the
opportunity to challenge the denial of the environmental permit. On the date that the
60-day period expired, the measure and its effects were consummated. Therefore the
situation at the core of the present dispute, formed by all the acts and events
described above, ceased to exist before CAFTA entered into force. The fact that
Claimant's environmental permit was not granted is not the result of an omission
from an ongoing obligation to act by the Government arising from Claimant's 2004
application.
Indeed, Claimant could have resubmitted its application for an environmental
permit after CAFTA entered into force. This could have generated another measure
by MARN, either granting or denying the permit, which would be covered by the
Treaty. But once the Government did not respond within the time period prescribed
in the law concerning the 2004 application, and the presumed denial operated by
law, the measure of which Claimant here complains, took place for purposes of
CAFTA and the law of El Salvador. The fact that Claimant could resubmit its
application is evidence that the alleged omission by MARN to respond to Claimant's
application did not extend in time past the 60-day adjudication period, much less up
to the entry into force of the Treaty.‖ 58
2.77. Accordingly, the Respondent contends that the relevant acts, measure, measures and
other essential facts giving rise to the Parties‟ dispute all took place before 13 December
2007. The Respondent specifically alleges that: (i) with regard to the environmental
permit, MARN did not meet the time limit established under Salvadoran
law to either issue or deny the environmental permit by December 2004 (i.e. three
years before the Claimant‟s change of nationality); 59 and (ii) with regard to the exploitation
concession filed with the Bureau of Mines, once the Bureau of Mines sent
the two warning letters to the Claimant in October and December 2006 triggering
the provisions of Article 38 of the Mining Law, that application was effectively ter-
58
59
Jurisdiction Memorial, §§ 317-318.
Jurisdiction Memorial, § 287.
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