brought under the dominican republic - central america - ita

Tribunal‟s jurisdiction ratione temporis under CAFTA; but it would preclude the exercise
of such jurisdiction on the basis of abuse of process if the Claimant had
changed its nationality during that continuous practice knowing of an actual or specific
future dispute, thus manipulating the process under CAFTA and the ICSID
Convention in bad faith to gain unwarranted access to international arbitration.
2.108. At this point, it is necessary to return again to the Claimant‟s pleading at the Hearing,
to the effect that it was only claiming compensation for the period from March
2008 onwards, in the words of its counsel:
―… let me be very clear: with respect to our claim for damages, we are only asking
for damages as a result of the breach that we became aware of and that we only
could have become aware of in – as of March 2008 at the earliest …
… let me just emphasize in response to the Tribunal's question as to whether the
measure at issue is the same for the CAFTA claims and the Investment Law claims,
it is. In both cases the measure at issue is the de facto mining ban. Also, as I said
earlier, in both cases, Claimant is alleging damages only from the period from
March 2008 forward and not from any earlier period.‖ 85
2.109. As unequivocally explained at the Hearing on several occasions, the Claimant‟s alleged
measure, the de facto ban forming the legal and factual basis pleaded for its
CAFTA claims, must be understood by the Tribunal as a continuous act relevant for
the Claimant‟s claims for compensation from March 2008 onwards (not before);
that, as such, it became known to the Claimant only from the public report of President
Saca‟s speech on 11 March 2008; and that, also as such, it was not known to or
foreseen by the Claimant before 13 December 2007 as an actual or specific future
dispute with the Respondent under CAFTA.
(08) Decisions
2.110. For these reasons, in the circumstances of the present case, taking into particular
consideration the Claimant‟s claims as finally pleaded and explained to this Tribunal,
the Tribunal determines that the change in the Claimant‟s nationality on 13 December
2007, on all the evidential materials adduced by the Parties in these proceedings,
is not proven to have been an abuse of process precluding the exercise of the
85
Hearing D3. 719 & 729 (see also D3.701).
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