brought under the dominican republic - central america - ita

PART 3: ISSUE B - RATIONE TEMPORIS
(01) Introduction
3.1. This Ratione Temporis issue under CAFTA formed a relatively limited part of the
jurisdictional debate between the Parties; it has already been addressed in material
part by the Tribunal in Part 2 above (in regard to the Abuse of Process issue); and, as
appears later in this Decision, it is not decisive of the Tribunal‟s jurisdiction in regard
to the Claimant‟s CAFTA claims. In these circumstances, the Tribunal addresses
this issue shortly, again as a matter of courtesy to the Parties.
3.2. It is nonetheless necessary to summarise the Parties‟ respective submissions on this
issue, which, to a significant extent, mirrors certain of their submissions made on the
Abuse of Process issue. The summaries below therefore inevitably duplicate earlier
submissions in Part 2 of this Decision, which the Tribunal has there already decided.
(02) The Respondent´s Case
3.3. As an alternative and subsidiary objection to its case on the Abuse of Process and
Denial of Benefits issues, the Respondent contended that this Tribunal lacks jurisdiction
ratione temporis due to the fact, principally, that the Claimant‟s change of nationality
on 13 December 2007 occurred after the relevant measure or measures
leading to the Parties‟ present dispute. 86
3.4. In summary, the Respondent submits that in order to be considered as an investor
under CAFTA Article 10.28, an enterprise has first to be a national or an enterprise
of a Party, and as such the enterprise has to attempt to make, be making or have
made an investment in the territory of another Party. As the Claimant became an enterprise
of a Party only on 13 December 2007, all transactions in which it may have
been involved before that date were not made as an investor under CAFTA. 87
86
87
Jurisdiction Memorial, § 8; Hearing D1.107; and the Respondent‟s Post-Hearings Submissions, § 102.
Jurisdiction Memorial, §§ 256-257; Hearing D1.107-111.
Part 3 - Page 1