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March 2008, that wiped out the prospect of Claimant being able to derive value from its investments, thus rendering those investments worthless.” 109 3.21. In the Claimant´s submission, although the delays and irregularities by the Respondent in the application of Salvadoran law provide valuable historical context for understanding the Respondent‟s CAFTA breaches and constitute further evidence and factual bases for the Claimant‟s claims under CAFTA, they do not in themselves constitute the relevant measure alleged by the Claimant to have breached the Respondent‟s CAFTA obligations. 110 3.22. For the Claimant, the acts and omissions of the Respondent occurring prior to 2008 are not the measures at issue in this arbitration. Rather, they were only individual instances where MARN or MINEC failed to issue permits or concessions in a timely manner which may have caused delay, but which did not, in contrast to the de facto mining ban, wipe out the value of the Claimant´s mining investments nor nullify its legitimate expectations under CAFTA, giving rise to the present dispute. 3.23. According to the Claimant, “prior to the ban´s coming to light, the frustration of individual acts or omissions causing delay was dissipated by statements and acts of Government officials consistent with steady (albeit slow) progress towards the goal of being able to extract the minerals PRES and DOREX had discovered during the exploration phase of the investment.” 111 3.24. In the Claimant´s submission, there was in place in El Salvador a practice of withholding mining-related permits and concessions; and that such a practice – already in existence for some indeterminate period of time while the Respondent was to decide what the future of metallic mining in El Salvador was to be - was never revealed in the laws, regulations and representations by the Government on which the Claimant relied in making and expanding its investments in El Salvador. According to the 109 110 111 Jurisdiction Rejoinder, § 231; Jurisdiction Counter-Memorial, § 193; and the Claimant‟s Post-Hearing Submissions, § 5. Jurisdiction Counter-Memorial, §195. Jurisdiction Rejoinder, § 232. Part 3 - Page 7
Claimant, it came to light only in March 2008 when President Saca publicly acknowledged its existence. 112 3.25. The Claimant contends that the de facto mining ban constitutes the breach of CAF- TA pleaded by the Claimant; and, accordingly, the relevant date on which Claimant first knew or should have known that the ban had been implemented by the Respondent, causing loss to the Claimant, was March 2008. 113 According to the Claimant, the significance of President Saca‟s revelation in March 2008 is illustrated by the impact on the share price of the Claimant‟s parent company (Pacific Rim), which dropped precipitously upon the President‟s announcement of the alleged de facto mining ban and has never since recovered, a pattern materially different from other gold stocks. 114 3.26. The Claimant contends that President Saca´s speech in March 2008 may have marked either the actual imposition of the ban or confirmed a practice that pre-dated his announcement. In any case, that ban, as it relates to the Claimant, is a measure covered by CAFTA. In the first case, it would be a measure that took place both after CAFTA´s entry into force in March 2006 and the Claimant‟s change of nationality in December 2007. In the second case, it would be a continuing practice that continued both after CAFTA´s entry into force and the Claimant´s change of nationality. Moreover, in this last case, the Claimant submits that the de facto ban should be considered as a continuing or composite measure, 115 as distinct from a completed act with continuing effects. 116 3.27. According to the Claimant, acts and omissions that occurred before December 2007 should only be taken into account by this Tribunal “for purposes of understanding the background, the causes or scope of the violations of CAFTA that occurred after entry into force.” 117 112 113 114 115 116 117 Jurisdiction Rejoinder, § 244. Jurisdiction Rejoinder, § 236. Jurisdiction Rejoinder, §§ 249-251. Claimant‟s Post-Hearing Submissions, §§ 29-31. Jurisdiction Counter-Memoriall, § 224-244; Hearing D1.221-223. Claimant´s Post-Hearing Submissions § 21, citing Société Générale v. Dominican Republic, LCIA Case No. UN 7927, Award on Preliminary Objections on Jurisdiction, 19 September 2008, § 87. Part 3 - Page 8
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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
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c. Piercing the corporate veil (Mem
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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 and 72: 3.5. The Respondent also submits th
Page 73 and 74: cause there was only one applicatio
Page 75: leged de facto ban on mining was no
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
Page 123 and 124: Government had always treated the C
Page 125 and 126: 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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