brought under the dominican republic - central america - ita

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.
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