brought under the dominican republic - central america - ita

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tion touches not only upon the Abuse of Process issue, but also the Ratione Temporis issue; and it is here helpful to address these issues together to contrast their differences. 2.96. Abuse of Process: The Tribunal first considers the point in time when a change of nationality can become an abuse of process. Several different answers were suggested by the Parties as the crucial dividing-line: (i) where facts at the root of a later dispute have already taken place and that future dispute is foreseen or reasonably foreseeable; (ii) where facts have taken place giving rise to an actual dispute; and (iii) where facts have taken place giving rise to an actual dispute referable under the parties‟ relevant arbitration agreement. 2.97. The Tribunal starts with the last of these three suggested answers, as submitted by the Claimant during the Hearing: ―… the temporal determination for abuse of process purposes must be made on the basis of evaluating what concrete acts were taken by the Party asserting jurisdiction to invoke the instrument on which it intends to base its consent and under which it intends to assert its claims.‖ 76 2.98. The Respondent contested this dividing-line as far too late and also as an absurd logical impossibility: ―As El Salvador indicated at the hearing, under this standard there could never be abuse of process for change of nationality because the jurisdictional instrument relied on by a claimant committing an abuse cannot be invoked until after the putative claimant changes nationality. This guarantees that the moment of the ‗temporal determination‘ would always be after the change of nationality and the change could thus never be abusive.‖ 77 2.99. The Tribunal accepts the force of the Respondent‟s submission; and it therefore rejects this third suggested answer. As far as the two other suggested answers are concerned, the Tribunal considers that they can be examined together for the purpose of this case. In the Tribunal‟s view, the dividing-line occurs when the relevant party can see an actual dispute or can foresee a specific future dispute as a very high prob- 76 77 Hearing D3.744. The Respondent‟s Post-Hearing Submissions, § 46. Part 2 – Page 31
ability and not merely as a possible controversy. In the Tribunal‟s view, before that dividing-line is reached, there will be ordinarily no abuse of process; but after that dividing-line is passed, there ordinarily will be. The answer in each case will, however, depend upon its particular facts and circumstances, as in this case. As already indicated above, the Tribunal is here more concerned with substance than semantics; and it recognises that, as a matter of practical reality, this dividing-line will rarely be a thin red line, but will include a significant grey area. 2.100. To this extent, the Tribunal accepts the Respondent‟s general submission that: “... it is clearly an abuse for an investor to manipulate the nationality of a shell company subsidiary to gain jurisdiction under an international treaty at a time when the investor is aware that events have occurred that negatively affect its investment and may lead to arbitration.” 78 In particular, abuse of process must preclude unacceptable manipulations by a claimant acting in bad faith and fully aware of an existing or future dispute, as also submitted by the Respondent: ―... In addition, the investor has substantial control over the stages of the development of the dispute [as described in Maffezini]. Because it is the investor who must express disagreement with a government action or omission and the investor who must formulate legal claims, the investor may delay the development of the dispute into these later stages until it has completed the manipulative change of nationality. Relying on this test would permit an investor that is fully aware of a dispute to create access to jurisdiction under a treaty to which it was not entitled at the time of the actions affecting the investment, and at the same time provide no protection to the State from this abusive behaviour.‖ 79 2.101. Ratione Temporis: The Tribunal considers that this approach as regards the Abuse of Process issue is materially different from the approach applicable to the Ratione Temporis issue, where both Parties relied on the general principle of nonretroactivity for the interpretation and application of international treaties. 2.102. The Claimant submitted as follows in its Post-Hearing Submissions: “Whether the Tribunal has jurisdiction ratione temporis depends on whether the measure at issue is an act or fact that took place or a situation that continued to exist after CAFTA be- 78 79 The Respondent‟s Post-Hearing Submissions, § 49. Emphasis by the Respondent. The Respondent‟s Post-Hearing Submissions, § 50. Part 2 – Page 32
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IN THE MATTER OF AN ARBITRATION BEF
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One-Time Acts .....................
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Glossary of Defined Terms “CAFTA
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African Holding Company of America,
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Waste Management, Inc. v. United Me
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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 and 62: 2.86. Accordingly, treating the rel
Page 63: 2.93. The Tribunal notes that this
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
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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
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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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Page 109 and 110: 4.91. It follows that this third co
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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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