brought under the dominican republic - central america - ita

3.28. With respect to the difference between a dispute and a mere disagreement drawn by
the Respondent, the Claimant submits that, although every dispute involves a disagreement,
it is not true that every disagreement constitutes a dispute. In the Claimant´s
submission, the Respondent‟s case is not supported by the decision of the
Permanent Court of International Justice in the Mavrommatis Palestine Concessions
case, nor is it the correct interpretation of CAFTA. According to the Claimant, for
there to be a dispute under CAFTA, there must be an allegation of a breach of an obligation
under CAFTA and an allegation of loss or damage by reason of or arising
out of that breach. 118
3.29. Also according to the Claimant, even if there were some theoretical circumstances
under which a government agency´s failure to meet a statutory deadline might automatically
give rise to a treaty dispute between an investor and the government, the
conduct of MARN, the Bureau of Mines and other government officials led the
Claimant reasonably to understand that even though deadlines had been missed,
PRES´s applications for a permit and a concession remained under active consideration
by these agencies. 119 Therefore, having induced the Claimant to understand that
despite the missed deadlines in 2004 or 2007 there was no dispute, the Respondent is
now precluded, as a matter of law, from arguing that the missed deadlines triggered
the present dispute between the Claimant and the Respondent. 120
3.30. With respect to the decision in Commerce Group, the Claimant submits that its circumstances
differ significantly from this case. Whilst the Commerce Group case was
about the Respondent‟s revocation of environmental permits previously granted, the
present case relates only to a de facto ban. 121 The claim in this other case was dismissed
by the tribunal on the basis that the claimant had challenged the revocation
before the local courts and had failed to terminate such local court action, even after
it had submitted its claims to arbitration under CAFTA, in violation of its waiver obligation
under CAFTA Article 10.18. That being that the principal factor for the tribunal‟s
decision, the tribunal‟s reference (in paragraph 112 of its award ) to a policy
118
119
120
121
Jurisdiction Rejoinder, §§ 260-267.
Jurisdiction Counter-Memorial, §§ 93-127.
Jurisdiction Rejoinder, §§ 268-276; Hearing D1.223-225.
Hearing D1.228-234; and the Claimant‟s Post-Hearing Submissions, §§ 13-15.
Part 3 - Page 9