brought under the dominican republic - central america - ita

More documents

Recommendations

Info

came applicable to Claimant.” 80 The Respondent shared this analysis, here cited (for example) from its Jurisdiction Reply: “The relevant issue [for jurisdiction ratione temporis] is the date on which the measure, act, or fact that constitutes the alleged breach took place.” 81 There is here no reference to a claimant‟s knowledge or awareness of an alleged breach or present or future dispute. 2.103. The general principle of non-retroactivity in the law of international treaties, unless there is a specific indication to the contrary, is well established. This principle is embodied in CAFTA‟s Article 10.1 (cited in the Annex to Part 1 above). It is codified in Article 28 of the Vienna Convention on the Law of Treaties, which provides: “Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.” In its 1966 Commentaries to the Draft Articles of the Law of Treaties, the International Law Commission stated: “There is nothing to prevent the parties from giving a treaty, or some of its provisions, retroactive effect if they think fit. It is essentially a question of their intention. The general rule however is that a treaty is not to be treated as intended to have retroactive effects unless such an intention is expressed in the treaty or was clearly to be implied from its terms.” 82 It would be possible to add to these legal materials; but it is unnecessary to do so given that this general principle is not materially disputed by the Parties. 2.104. Where there is an alleged practice characterised as a continuous act (as determined above by the Tribunal) which began before 13 December 2007 and continued thereafter, this Tribunal would have jurisdiction ratione temporis over that portion of the continuous act that lasted after that date, regardless of events or knowledge by the Claimant before 13 December 2007. The Tribunal concludes that this solution is different from that reached in its analysis of the Abuse of Process issue, as here explained. 80 81 82 The Claimant‟s Post-Hearing Submissions, § 8. Jurisdiction Reply, § 191. Yearbook of the International Law Commission, 1966, Vol. II, p. 211. Part 2 – Page 33
2.105. Having reached these several conclusions, the Tribunal turns to the question whether, as regards the Ratione Temporis issue, all factual materials before 13 December 2007 are irrelevant to the Claimant‟s pleaded case in regard to the alleged practice as a continuous act causing injury from March 2008 only? The Tribunal considers that such materials could still be received as evidence of the factual background to the Parties‟ dispute, as was stated in Mondev (when discussing substantive standards under NAFTA Chapter 11): ―... events or conduct prior to the entry into force of an obligation for the respondent State may be relevant in determining whether the State has subsequently committed a breach of the obligation. But it must still be possible to point to conduct of the State after that date which is itself a breach.‖ 83 As in Mondev, the Tribunal determines that it could remain appropriate for the Claimant to point to the conduct of the Respondent before 13 December 2007. This same approach was adopted by the MCI tribunal, which did not dismiss acts and omissions completed before the treaty‟s entry into force as irrelevant. It decided that such acts and omissions may be considered: “for purposes of understanding the background, the causes, or scope of violations of the BIT that occurred after its entry into force.” 84 2.106. Accordingly, the Tribunal decides that for jurisdiction to exist under CAFTA in the present case ratione temporis, there must be a dispute between the Parties after the application of CAFTA to the Claimant consequent upon its change of nationality on 13 December 2007, based on a continuous act or measure that existed after such date. 2.107. In the Tribunal‟s view, the relevant date for deciding upon the Abuse of Process issue must necessarily be earlier in time than the date for deciding the Ratione Temporis issue. Where the alleged practice is a continuous act (as concluded above by the Tribunal), this means that the practice started before the Claimant‟s change of nationality and continued after such change. This analysis would found the basis of the 83 84 Mondev v. USA, supra note 62, § 69. M.C.I. Power Group L.C. and New Turbine, Inc. v. Republic of Ecuador, ICSID Case No. ARB/03/6, Award, 31 July 2007, § 62. Part 2 – Page 34
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
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 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 and 64: 2.93. The Tribunal notes that this
Page 65: ability and not merely as a possibl
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
Page 113 and 114: further express requirement of havi
Page 115 and 116: Legislativa was fully aware that th
Page 117 and 118:
made before and after the Claimant
Page 119 and 120:
5.33. As established by the Interna
Page 121 and 122:
5.40. As also summarized above, the
Page 123 and 124:
Government had always treated the C
Page 125 and 126:
PART 6: ISSUE E - LEGAL AND ARBITRA
Page 127 and 128:
6.10. The Claimant submits that, un
Page 129 and 130:
tion ratione temporis (i.e. the con
Page 131 and 132:
Party to also put in a witness stat
Page 133 and 134:
ture arbitration proceedings. Indee
Page 135 and 136:
this arbitration with the least exp
Page 137 and 138:
abused the Tribunal's indulgence in
Page 139 and 140:
avoided; but, instead, the Responde
Page 141 and 142:
“a U.S. investor organized under
Page 143 and 144:
The Respondent acknowledges, of cou
Page 145 and 146:
Claimant submits that under the cir
Page 147 and 148:
ment in the communications with the
Page 149 and 150:
6.76. The Claimant submits that the
Page 151 and 152:
PART 7: THE OPERATIVE PART 7.1. For
show all

brought under the dominican republic - central america - ita

Create successful ePaper yourself

Delete template?

Save as template?