brought under the dominican republic - central america - ita
brought under the dominican republic - central america - ita
brought under the dominican republic - central america - ita
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diction for <strong>the</strong> Tribunal to decide <strong>the</strong> merits of <strong>the</strong> Claimant‟s claims <strong>under</strong> CAF-<br />
TA. 92<br />
3.8. The Respondent submits that <strong>the</strong> relevant measure giving rise to <strong>the</strong> Parties‟ dispute<br />
took place before 13 December 2007. It alleges that: (i) with regard to <strong>the</strong> environmental<br />
permit, MARN did not meet <strong>the</strong> time-limit established <strong>under</strong> Salvadoran law<br />
to ei<strong>the</strong>r issue or deny <strong>the</strong> environmental permit by December 2004, 93 and (ii) with<br />
regard to <strong>the</strong> application for <strong>the</strong> explo<strong>ita</strong>tion concession filed with <strong>the</strong> Bureau of<br />
Mines, once <strong>the</strong> Bureau of Mines sent <strong>the</strong> two warning letters to PRES in October<br />
and December 2006 triggering <strong>the</strong> provisions of Article 38 of <strong>the</strong> Mining Law, <strong>the</strong><br />
application was effectively terminated; and nothing more could have been done after<br />
<strong>the</strong> expiration of <strong>the</strong> 30-day extension <strong>the</strong>reby granted to revive its application.<br />
Therefore, according to <strong>the</strong> Respondent, <strong>the</strong> application should be treated as having<br />
been effectively terminated by January 2007. 94<br />
3.9. With respect to <strong>the</strong> requirement to submit evidence of ownership or authorisation to<br />
use <strong>the</strong> surface area of <strong>the</strong> concession, <strong>the</strong> Respondent contends that it did not have<br />
any legal duty or obligation to change its laws in favour of <strong>the</strong> Claimant‟s application<br />
and, <strong>the</strong>refore, that <strong>the</strong>re was no breach of CAFTA or any o<strong>the</strong>r legal obligation<br />
towards <strong>the</strong> Claimant. In any case, all <strong>the</strong> attempts to change <strong>the</strong> law in order to accommodate<br />
<strong>the</strong> Claimant‟s interests took place in 2005 and 2006, followed by Claimant‟s<br />
attempt to procure a new law in 2007. 95<br />
3.10. Concerning <strong>the</strong> Claimant‟s allegation that <strong>the</strong> relevant measure is a de facto ban<br />
occurring in March 2008 with President Saca‟s speech or constitutes a continuing or<br />
composite act that was only apparent to <strong>the</strong> Claimant from that speech in March<br />
2008, <strong>the</strong> Respondent submits that press reports of President Saca‟s statements does<br />
not constitute a measure 96 and that not issuing <strong>the</strong> environmental permit and not<br />
granting <strong>the</strong> concession application are not <strong>the</strong> result of several omissions or a continued<br />
omission by <strong>the</strong> Respondent; nor can <strong>the</strong>se constitute a composite act be-<br />
92<br />
93<br />
94<br />
95<br />
96<br />
Reply Memorial, § 191; Respondent‟s Post-Hearings Submissions, § 103.<br />
Jurisdiction Memorial, § 287.<br />
Reply Memorial, §§ 194-196; Respondent‟s Post-Hearings Submissions, §§ 104-105.<br />
Reply Memorial, § 197.<br />
Jurisdiction Memorial, §§ 321-323.<br />
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