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continuous act in this case, only that portion of the continuous act taking place after the change of nationality on 13 December 2007 could be considered by the Tribunal for the purpose of engaging possible responsibility by the Respondent under CAFTA. 2.90. As regards this question, the Claimant explained that: ―... (w)hile the ban may have come into existence at some earlier point in time, it continued to exist after Pac Rim Cayman acquired its U.S. nationality in December 2007, which is when CAFTA became applicable to measures relating to Pac Rim Cayman.‖ 73 2.91. The Tribunal also bears in mind that the Claimant pleads that the alleged unlawful practice by the Respondent is a negative practice not to grant any mining application, i.e. it allegedly comprises omissions to act and not positive acts; and that, consequently, it is difficult to give a precise date for such omissions (compared to a specific positive act). Once an act takes place, it affects the parties‟ legal position; but, in contrast, an omission to act does not necessarily affect the parties as long as it is not definitive; and an omission can remain non-definitive throughout a period during which it could be cured by a positive act. As determined above by the Tribunal, although there were deadlines fixed under Salvadoran law for the granting of the permits and the concession, the Claimant understood that the Salvadoran authorities themselves did not treat these deadlines as definitive deadlines after which permits or concessions could no longer be granted to the Claimant at all. 2.92. In the Tribunal‟s view, on the particular facts of this case as pleaded by the Claimant, an omission that extends over a period of time and which, to the reasonable understanding of the relevant party, did not seem definitive should be considered as a continuous act under international law. The legal nature of the omission did not change over time: the permits and the concession remained non-granted. The controversy began with a problem over the non-granting of the permits and concession; and it remained a controversy over a practice of not granting the mining permits and concession. 73 The Claimant‟s Post-Hearing Submissions, § 4. Part 2 – Page 29
2.93. The Tribunal notes that this same general approach was adopted for the omission to pay a debt (which omission lasts as long as the debt remains unpaid) in SGS v. Philippines, where the tribunal decided that: “… the failure to pay sums due under a contract is an example of a continuing breach.” 74 A similar analysis was made by the tribunal in African Holding: ―The Tribunal concludes in this regard that the nature of the dispute concerned the fact that the work had been performed under a contract and that their cost had not been paid during a lengthy period of more than fifteen years. That the DRC officially refused to pay or kept silent is unimportant for the nature of the dispute. The fact is that the DRC defaulted in its obligations under the terms of the contract, to which is therefore attached a situation of non-performance envisaged by Article 7.1.1 of the UNIDROIT Principles. Under this same article, non-performance includes defective or late performance. Moreover, the fact that the DRC offered to renegotiate the debts and to pay only a fraction of their value cannot be considered the same as an official refusal. Even if the DRC had agreed to pay, and did not in fact pay, the nature of the dispute would still remain the same: before as well as after the critical date, the amount for the work performed was not paid.” 75 2.94. Accordingly, the Tribunal determines that the alleged de facto ban should be considered as a continuing act under international law, which: (i) started at a certain moment of time after the Claimant‟s request for environmental permits and an exploitation concession but before the Claimant‟s change of nationality in December 2007 and (ii) continued after December 2007, being publicly acknowledged by President‟s Saca speech in March 2008; or, in other words, that the alleged practice continued after the Claimant‟s change of nationality on 13 December 2007. 2.95. Legal Consequences: What then are the legal consequences of the existence of an alleged continuous act overlapping the Claimant‟s change of nationality? This ques- 74 75 SGS Société Générale de Surveillance S.A. v. Republic of the Philippines, ICSID Case No. ARB/02/6, Decision on Jurisdiction, 29 January 2004, § 167. African Holding Company of America, Inc. and Société Africaine de Construction au Congo S.A.R.L. v. Democratic Republic of the Congo, ICSID Case No ARB/05/21, Sentence sur les déclinatoires de compétence et la recevabilité, 29 July 2008. French original: “Le Tribunal conclut à cet égard que la nature du différend concerne le fait que des travaux ont été exécutés sous contrat et que leur coût n‟a pas été réglé pendant une longue période de plus de quinze ans. Que la RDC ait officiellement refusé de payer ou ait gardé le silence, est sans importance pour la nature du différend. Le fait est que la RDC a manqué à ses obligations aux termes du contrat, ce qui se rattache donc à une situation d‟inexécution envisagée à l‟article 7.1.1 des Principes d‟UNIDROIT. Aux termes de ce même article, l‟inexécution comprend l‟exécution défectueuse ou tardive. En outre, le fait que la RDC offrait de renégocier les créances et de ne payer qu‟une fraction de leur valeur ne peut pas être assimilé à un refus officiel. Même si la RDC avait accepté de payer, et n‟a en fait pas payé, la nature du différend serait toujours restée la même: avant comme après la date critique : le montant des travaux exécutés n‟a pas été réglé.” Part 2 – Page 30
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
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African Holding Company of America,
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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 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: 2.86. Accordingly, treating the rel
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
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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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