brought under the dominican republic - central america - ita

tice.” In the present case, according to the Respondent, such acts took place in 2004
and were in any event completed by January 2007. 102
3.15. With respect to the Claimant‟s allegation that exchanges before December 2007
between MARN and MINEC and the Claimant evidenced a “mere disagreement”
and not a dispute for the purpose of CAFTA, the Respondent submits that the definition
of a dispute set forth by the Permanent Court of International Justice in Mavrommatis
Palestine Concessions (adopted by ICSID tribunals) defines a dispute as
a “disagreement on a point of law or fact, a conflict of legal views or interests between
two persons.” As such a disagreement existed between 2004 and 2006 before
the Respondent‟s accession to CAFTA, the Claimant‟s contrary case should be rejected
by the Tribunal. 103
3.16. As regards CAFTA‟s limitation period, CAFTA Article 10.18.1 limits consent to
submit a claim to arbitration to three years from the date when the claimant first acquired,
or should have first acquired, knowledge of the alleged breach of CAFTA
and that the claimant or the enterprise had thereby incurred loss or damage. The
Respondent submits that the evidential materials before this Tribunal demonstrate
that the Claimant knew in December 2004 that the environmental permit was not issued
within the time-limit fixed by Salvadoran law; and that, even on the argument
that the three-year term could only count from the date CAFTA entered into force
for the Respondent (on 1 March 2006), the Claimant did not file its Notice of Arbitration
until 30 April 2009, after CAFTA‟s three-year time limit had expired. 104
3.17. Lastly, the Respondent relies on the award dated 14 March 2011 in Commerce
Group, 105 whereby, according to the Respondent, that tribunal considered the same
factual allegations advanced by the Claimant in this case and decided that the al-
102
103
104
105
Reply Memorial, §§ 213-216.
Reply Memorial, § 218.
Jurisdiction Memorial, §§ 324-336; Reply Memorial, §§ 220-223; Hearing D1.117-119; Respondent‟s
Post-Hearings Submissions, § 112.
Commerce Group Corp. and San Sebastian Gold Mines, Inc. v. Republic of El Salvador, ICSID Case No.
ARB/09/17, Award, 14 March 2011 [Commerce v. El Salvador].
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