brought under the dominican republic - central america - ita

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ties before its investment was made, but that such nationality should exist prior to the alleged breach of CAFTA by the other Party. Therefore, as regards this issue in the present case, the Tribunal is required to determine when the Parties‟ dispute arose in order to establish if the Claimant‟s required nationality under CAFTA nationality was present at the relevant time. 3.35. (ii) The Second Question: As already noted earlier in this decision, the Parties strongly disagree as to what is the relevant dispute and the time when it arose. Whilst the Respondent submits that the relevant measure giving rise to the dispute was the failure to issue the environmental permit within the statutorily mandated adjudication period by December 2004 or the termination by negative silence of the exploitation concession proceedings under Article 38 of the Mining Law in January 2007, the Claimant alleges that the relevant measure was the de facto mining ban resulting from a practice of withholding mining-related permits and concessions which only came to light, to the Claimant‟s knowledge, in March 2008. 123 3.36. For the reasons given in Part 2 above, the Tribunal has determined that the relevant dispute as regards the Claimant‟s claims (as now pleaded and clarified in these proceedings) arose on 13 March 2008, at the earliest. 3.37. The Tribunal‟s determination has several consequences for the Ratione Temporis issue. First, as a matter of chronology, there is no doubt that at the time the dispute arose in March 2008, the Claimant was a national of the USA, a CAFTA Party (since 13 December 2007). Second, the relevant measure alleged by the Claimant will necessarily focus on unlawful acts or omissions under CAFTA that allegedly took place not earlier than March 2008. 3.38. Such being the Tribunal‟s analysis, the debate between the Parties concerning: (i) the measures that took place both before the Claimant changed its nationality on 13 December 2007 or before CAFTA entered into force on 1 March 2006; and (ii) the three-year time limit under CAFTA as invoked by the Respondent become irrelevant 123 The Claimant´s Post-Hearing Submissions, § 14. Part 3 - Page 11
for the purpose of deciding the Ratione Temporis issue; and it is not necessary for the Tribunal to address their respective submissions any further here. 3.39. (iii) The Third Question: The Respondent has much relied upon the passage in the award dated 14 March 2011 in the Commerce Group arbitration, where the tribunal considered that: “even if the de facto mining ban policy and the revocation of the permits could be teased apart, the Tribunal is of the view that the policy does not constitute a „measure‟ within the meaning of CAFTA.” 124 The ban was treated by the tribunal as a policy of the Government, as opposed to a measure taken by it. In contrast, the revocation of the environmental permits was treated as a measure taken pursuant to that policy and, as noted, it was the revocation of those permits which put an end to the claimants´ mining and processing activities. 3.40. In the opinion of the Tribunal, this passage must be read in the context of that particular case, where there was at least one specific and identifiable governmental measure that allegedly terminated the rights of the claimants. 125 That particular measure was challenged by the claimants, both before the local courts and before the CAFTA arbitration tribunal. The CAFTA claim was dismissed by the CAFTA tribunal on the ground that the claimants should have discontinued the local proceedings and, by not having done so, the claimants had infringed the waiver provision in CAFTA Article 10.18. 126 Although the tribunal accepted that non-compliance with this waiver provision did not formally dispose of the de facto ban claim (because that particular of action had been not challenged before the local courts), 127 it did do so in substance. 3.41. As it appears to the Tribunal from this award, the tribunal decided that it was not confronted with separate and distinct claims pleaded by the claimants in that arbitra- 124 125 126 127 Commerce v. El Salvador, supra note 105, § 112. Id., § 62, citing the Claimants‟ request (“On September 13, 2006 MARN revoked the environmental permits of the San Sebastian Gold Mine and the San Cristobal Plant and Mine, thereby effectively terminating Claimants´ right to mine and process gold and silver”). In addition, “Commerce/Sanseb applied to MARN for an environmental permit for the New San Sebastian Exploration Licence and the Nueva Esparta exploration license, and then to Respondent´s Ministry of Economy for extension of the exploration licenses. The requested environmental permits were not granted, and on 28 October 2008, El Salvador´s Ministry of Economy denied Commerce/Sanseb´s application citing Commerce/Sanseb´s failure to secure an environment permit”, (Id § 65). Id. § 107. Id. § 108. Part 3 - Page 12
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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.
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(02) CAFTA 1.4. CAFTA Article 10.1:
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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 and 76: leged de facto ban on mining was no
Page 77 and 78: Claimant, it came to light only in
Page 79: that led to the revocation should b
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
Page 127 and 128: 6.10. The Claimant submits that, un
Page 129 and 130: 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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