brought under the dominican republic - central america - ita

3.5. The Respondent also submits that the provisions of CAFTA Chapter 10, including
the dispute settlement provisions, can only apply after CAFTA entered into force for
the USA and the Respondent on 1 March 2006; and as the Claimant did not become
a national of the USA until 13 December 2007, CAFTA protections and benefits
could only have been available to the Claimant after 13 December 2007. 88
3.6. As a result of these undisputed facts, the Respondent concludes that: (i) CAFTA
could only cover investments made by the Claimant as a covered investor after 13
December 2007; and that there were no such investments; 89 (ii) the Tribunal lacks
jurisdiction over disputes based on any relevant measure that took place before 13
December 2007; and all relevant measures took place before 13 December 2007; 90
and, in any case, (iii) CAFTA imposes a three-year time limit to bring CAFTA
claims that should be counted from the time the Claimant knew or should have
known of the alleged breach and that damage had occurred caused by such breach;
and these CAFTA proceedings began after the expiry of that limitation period: the
Respondent submits that, taking 2004 as the commencement date (the expiration of
environmental permit statutorily mandated period) or 1 March 2006 (when CAFTA
entered into force), the Claimant did not file its Notice of Arbitration within three
years of either of those commencement dates. 91
3.7. The Respondent alleges that, when considering its jurisdiction ratione temporis the
Tribunal is not impeded from looking at factual events that took place before the
Claimant‟s change of nationality, but its jurisdiction must depend upon the existence
of a relevant measure that took place after 13 December 2007 and which also constituted
a breach of the Respondent‟s obligations towards the Claimant under CAFTA.
According to the Respondent, if this breach date occurred prior to the acquisition of
CAFTA nationality by the Claimant, it necessarily follows that there can be no juris-
88
89
90
91
Jurisdiction Memorial, §§ 264-274 and 297-304, §185; Hearing D1.111-114; Respondent‟s Post-Hearings
Submissions, § 102.
Jurisdiction Memorial, §§ 260-263; Reply Memorial, § 186.
Jurisdiction Memorial, §§ 275-279; Reply Memorial, § 187. Respondent‟s Post-Hearings Submissions, §
109.
Jurisdiction Memorial, §§ 324-336; Reply Memorial, § 188; Respondent‟s Post-Hearings Submissions, §
112.
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