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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. Part 3 - Page 13
distinction made in the Commerce Group award, as invoked by the Respondent, is inapplicable to this Ratione Temporis issue. 3.44. Decisions: In conclusion, as regards the Claimant‟s CAFTA claims, the Tribunal decides to reject the Respondent‟s objections to its jurisdiction under this Ratione Temporis issue. As already noted in regard to the Abuse of Process issue, however, this is not the decisive issue in regard to the Respondent‟s jurisdictional objections to the Claimant‟s CAFTA claims. Part 3 - Page 14
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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
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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 and 80: that led to the revocation should b
Page 81: for the purpose of deciding the Rat
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
Page 131 and 132: 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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