brought under the dominican republic - central america - ita

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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. Part 2 – Page 23
minated; nothing more could have been done by the Claimant after the expiration of the 30-day extension to revive it; and, therefore, such application should be treated as having been effectively terminated under the laws of the Respondent by January 2007 (i.e. one year before the Claimant‟s change of nationality). 60 2.78. The Claimant’s Submission: In summary, the Claimant alleges that the relevant measure was the de facto mining ban consisting of a practice 61 of withholding mining-related permits and concessions which only became public and known to the Claimant in March 2008 (with President Saca‟s speech); and which then wiped out the value of its mining investments and nullified its legitimate expectations and other protections under CAFTA, thereby giving rise to its present dispute with the Respondent. 2.79. One-Time Acts: The Tribunal considers first whether the relevant measure or measures constitute one-time acts that were completed before the Claimant‟s change of nationality in December 2007. If this were the case, in the Tribunal‟s view, it would follow on the particular facts of this case, that the Claimant‟s change of nationality would be an abuse of process by the Claimant. However, if the relevant one-time acts all took place after such change of nationality in or after March 2008, in the Tribunal‟s view, it would follow on the particular facts of this case, that such change would not be an abuse of process. The Tribunal bears in mind that, in the case of one-time completed acts, the mere fact that earlier conduct has gone un-remedied when a treaty enters into force does not justify a tribunal applying the treaty retrospectively to that conduct. Any other approach would subvert both the intertemporal principle in the law of treaties and the basic distinction between breach and reparation which underlies international law on State responsibility. 62 2.80. One factor supporting the Respondent‟s analysis is the Claimant‟s own early pleading of its case in the Notice of Intent, where almost all the references to acts (of which the Claimant there complains) take place before the Claimant‟s change of na- 60 61 62 Jurisdiction Reply, §§ 194-196; the Respondent‟s Post-Hearing Submissions, §§ 104-105. Meaning: “a repeated or customary action; the usual way of doing something”: see the Claimant´s Post- Hearing Submissions, § 14. Mondev International Ltd. v. United States of America, ICSID Case No. ARB(AF)/99/2, Award, 11 October 2002, § 70 [Mondev v. USA]. Part 2 – Page 24
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IN THE MATTER OF AN ARBITRATION BEF
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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 and 54: 2.65. The Tribunal considers that t
Page 55: vestment (which by themselves are n
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
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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
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Government had always treated the C
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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
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The Respondent acknowledges, of cou
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Claimant submits that under the cir
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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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