brought under the dominican republic - central america - ita

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.
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