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diction for the Tribunal to decide the merits of the Claimant‟s claims under CAF- TA. 92 3.8. The Respondent submits that the relevant measure giving rise to the Parties‟ dispute took place before 13 December 2007. It alleges that: (i) with regard to the environmental permit, MARN did not meet the time-limit established under Salvadoran law to either issue or deny the environmental permit by December 2004, 93 and (ii) with regard to the application for the exploitation concession filed with the Bureau of Mines, once the Bureau of Mines sent the two warning letters to PRES in October and December 2006 triggering the provisions of Article 38 of the Mining Law, the application was effectively terminated; and nothing more could have been done after the expiration of the 30-day extension thereby granted to revive its application. Therefore, according to the Respondent, the application should be treated as having been effectively terminated by January 2007. 94 3.9. With respect to the requirement to submit evidence of ownership or authorisation to use the surface area of the concession, the Respondent contends that it did not have any legal duty or obligation to change its laws in favour of the Claimant‟s application and, therefore, that there was no breach of CAFTA or any other legal obligation towards the Claimant. In any case, all the attempts to change the law in order to accommodate the Claimant‟s interests took place in 2005 and 2006, followed by Claimant‟s attempt to procure a new law in 2007. 95 3.10. Concerning the Claimant‟s allegation that the relevant measure is a de facto ban occurring in March 2008 with President Saca‟s speech or constitutes a continuing or composite act that was only apparent to the Claimant from that speech in March 2008, the Respondent submits that press reports of President Saca‟s statements does not constitute a measure 96 and that not issuing the environmental permit and not granting the concession application are not the result of several omissions or a continued omission by the Respondent; nor can these constitute a composite act be- 92 93 94 95 96 Reply Memorial, § 191; Respondent‟s Post-Hearings Submissions, § 103. Jurisdiction Memorial, § 287. Reply Memorial, §§ 194-196; Respondent‟s Post-Hearings Submissions, §§ 104-105. Reply Memorial, § 197. Jurisdiction Memorial, §§ 321-323. Part 3 - Page 3
cause there was only one application for an environmental permit and only one omission to issue it (which occurred in December 2004) and only one application for an exploitation concession that was effectively terminated by January 2007. 97 3.11. In addition, the Respondent contends that such statements by the Respondent were not new. Press reports in July 2006 and June 2007 contained similar concerns expressed by the Respondent‟s Ministers of Environment Barrera and Guerrero with respect to mining and possible changes to existing legislation for exploitation concessions, respectively. 98 3.12. Moreover, according to the Respondent, the Claimant has failed to identify the date of the relevant measure at issue. Instead, it has identified only when it allegedly “became aware” of the relevant measure; and this insufficient response cannot assist the Claimant‟s argument that there is a relevant measure covered by CAFTA that occurred after the Claimant‟s change of nationality, over which CAFTA could apply and by which this Tribunal could assert jurisdiction over the Claimant‟s CAFTA claims. The Respondent concludes that there is no such relevant measure. 99 3.13. The Respondent submits that the loss of value in Pac Rim‟s stock was not caused by the press reports regarding President Saca´s statement, but co-incided with the worldwide decline in stock values in 2008 and mirrored the significant drop in the values of other gold stocks. 100 The reason why this Canadian parent company‟s stock price never recovered was because it suspended drilling activities and began to make work-force reductions in El Salvador. 101 3.14. The Respondent submits that the present case should be distinguished from other cases, such as RDC v. Guatemala, because in that case there was an executive act affecting the investment after CAFTA entered into force. The Respondent also contends that although a “practice” could be considered a measure, the timing of that measure must depend on the specific acts that are alleged to form part of that “prac- 97 98 99 100 101 Jurisdiction Memorial, §§ 305-319; Reply Memorial, § 201; Respondent‟s Post-Hearing Submissions, § 106. Reply Memorial, §§ 205-206, citing R-120 and R-121. Hearing, D3.709-719; Respondent‟s Post-Hearing Submissions, § 105. Reply Memorial, §§ 209-210; Hearing D1.115. Hearing D1.116-117; and the Respondent‟s Post-Hearing Submissions, § 20. Part 3 - Page 4
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IN THE MATTER OF AN ARBITRATION BEF
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One-Time Acts .....................
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Glossary of Defined Terms “CAFTA
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African Holding Company of America,
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Waste Management, Inc. v. United Me
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1.4. Prior to 2 March 2012, the Cla
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C: The Tribunal’s Decision of 2 A
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1.23. The Respondent: The Responden
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under cover of a letter also dated
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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 and 66: ability and not merely as a possibl
Page 67 and 68: 2.105. Having reached these several
Page 69 and 70: Tribunal‟s jurisdiction to determ
Page 71: 3.5. The Respondent also submits th
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
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Government had always treated the C
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PART 6: ISSUE E - LEGAL AND ARBITRA
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6.10. The Claimant submits that, un
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tion ratione temporis (i.e. the con
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Party to also put in a witness stat
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ture arbitration proceedings. Indee
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this arbitration with the least exp
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abused the Tribunal's indulgence in
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avoided; but, instead, the Responde
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“a U.S. investor organized under
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The Respondent acknowledges, of cou
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Claimant submits that under the cir
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ment in the communications with the
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6.76. The Claimant submits that the
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PART 7: THE OPERATIVE PART 7.1. For
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