brought under the dominican republic - central america - ita

4.13. As to the issue over CAFTA‟s interpretation, the Respondent submits that it is legally
irrelevant that the Canadian company might have US-based shareholders because,
regardless of who or what these shareholders might be or of their nationality,
the Claimant remains wholly owned by a person of a non-CAFTA Party for the purpose
of CAFTA Article 10.12.2, namely the Claimant‟s Canadian parent.
4.14. As to the issue over indirect share ownership, the Respondent submits that the
Claimant has not established, as a fact, that the Canadian parent is owned by “nationals”
of the USA. Chapter 10 of CAFTA defines “national” as “a natural person
who has the nationality of a Party according to Annex 2.1 (Country-Specific Definitions)”;
CAFTA Annex 2.1 provides that, for the USA, “ … 'a natural person who
has the nationality of a Party' means 'national of the United States' as defined in the
existing provisions of the Immigration and Nationality Act”; and that the US statute
defines a “national of the United States” as either “(A) a citizen of the United States,
or (B) a person who, though not a citizen of the United States, owes permanent allegiance
to the United States.” (8 U.S.C. § 1101(a)(22)). CAFTA and the US statute,
so submits the Respondent, take no account of postal addresses in the USA.
4.15. The Respondent also contends that a postal address or even residence in the USA is
not the same as nationality or permanent allegiance under US law because there are
many natural and legal persons with addresses in the USA who are not nationals or
do not owe permanent allegiance to the USA.
4.16. The Respondent concludes that it would violate basic principles of treaty interpretation
under international law to ignore such a carefully drafted definition in CAFTA
and instead to substitute what the Claimant acknowledges to be domestic “rules of
thumb” used by different U.S. governmental agencies for different purposes, not involving
a definition in a multilateral treaty subject to international law. Moreover,
even under these so-called proxies invoked by the Claimant, the Respondent contends
that, as an evidential matter, the Claimant has not identified these US-based
persons; and it therefore remains impossible for the Respondent (and the Tribunal)
even to test the Claimant‟s unfounded factual assertions.
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