brought under the dominican republic - central america - ita

tion. Accordingly, the tribunal viewed: “the Claimants‟ claim regarding the de facto
mining ban policy as part and parcel of their claim regarding the revocation of the
environmental permits.” 128 Therefore, having considered that the claim concerning
the revocation of the environmental permit was pleaded by the claimants before the
local Salvadoran courts and could not be re-pleaded under CAFTA, the tribunal
could only conclude that the same approach needed to be taken to preclude the
pleading under CAFTA of the de facto mining ban claim.
3.42. Given this Tribunal‟s interpretation of the award in its context, the distinction apparently
drawn between the Respondent‟s policies and measures in paragraph 112 of
the award can be seen as being limited to the particular claims pleaded by the claimants
in that particular case, as was indeed acknowledged by the tribunal. 129
3.43. In this Tribunal‟s opinion, the present case differs significantly from the Commerce
Group arbitration. The relevant measure here at issue is not a specific and identifiable
governmental measure that effectively terminated the investor´s rights at a particular
moment in time (i.e. the termination of a permit or license, denial of an application,
etc.), but, rather the alleged continuing practice of the Respondent to withhold
permits and concessions in furtherance of the exploitation of metallic mining
investments. 130 Moreover, no legal action against the Respondent has been filed before
the local Salvadoran courts by the Claimant. Whilst it will remain for the Claimant
to prove its claims at the merits stage of these proceedings, the way the case
has been pleaded and clarified by the Claimant before this Tribunal indicates that the
128
129
130
Id. § 111.
Id. §§ 112 (“at least based on the Tribunal´s evaluation of this particular case”) and 68 (“…the Tribunal
will not address arguments that have not been raised by the Parties, as this Award is a decision only in the
dispute as pleaded between them”).
In answering the Tribunal´s question at the Hearing if “(A)s we stand today, going back in time to March
2008, has any foreign company been given an exploitation permit for underground mining, first of all as
regards any foreign company and, separately, as regards any local –that is, national- company. And if no
such and if none have been granted, either none to a foreign company or none to a local company or both,
what is the reason for that?” (page 559, lines 7/22 and 560, line 1), the Respondent answered “The truth of
the matter is that no foreign or national company received a mining exploitation concession in El Salvador
since Commerce Group was issued its last concession in August of 2003. The truth of the matter is that
since then there have only been two Exploitation Concession Applications. One was by Pacific Mining
Corp. of Canada. One was for another company whose name I do not know. That other one was filed in
2005 and was rejected by the Ministry of the Economy in 2006. Since 2005, with the exception of the
Pacific Rim Mining Corp. there simply have been no Mining Exploitation Concession Applications”.
Respondent‟s answers at Hearing D3.614-615.
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