brought under the dominican republic - central america - ita

4.20. Accordingly, so the Respondent submits, the timing of the Respondent‟s invocation
of denial of benefits was appropriate as a timely jurisdictional objection in these IC-
SID arbitration proceedings; and that this timing has permitted the Tribunal to consider
the denial of benefits issue efficiently under the ICSID Convention and ICSID
Arbitration Rules, along with other objections to jurisdiction made by the Respondent.
Conversely, the Respondent submits that an implied time-limit requiring that
the denial of benefits under CAFTA Article 10.12.2 must be invoked prior to an arbitration‟s
commencement would lead to several practical difficulties for CAFTA
Parties.
4.21. The Respondent accepts, however, that a CAFTA Party may not wait until after an
adverse award to invoke denial of benefits under CAFTA for measures addressed in
that arbitration award. It submits, apart from considerations of good faith, that in an
ICSID arbitration, a “party which knows or should have known that a provision of ...
these [ICSID Arbitration] Rules or of any other rules or agreement applicable to the
proceeding . . . has not been complied with and which fails to state promptly its objections
thereto, shall be deemed . . . to have waived its right to object” pursuant to
ICSID Arbitration Rule 27.
4.22. The Respondent further contends that the present case demonstrates the inappropriateness
of requiring a CAFTA Party to invoke denial of benefits prior to the commencement
of an arbitration. Here, the Respondent did not have any notice that the
Claimant changed its nationality in December 2007 (from the Cayman Islands to the
USA) until 16 June 2008; that such notice was not volunteered by the Claimant but
given in response to an unrelated query by the Respondent's National Investment Office;
and that the Respondent would not even then have had any reason to understand
that the Claimant was to become a claimant under CAFTA or whether, in such
a dispute, the Respondent could invoke denial of benefits under CAFTA Article
10.12.2.
4.23. Nor, according to the Respondent, is there any requirement under CAFTA for the
invocation of denial of benefits in the short ninety-day period between a CAFTA
Party‟s receipt of the Notice of Intent from a claimant and that claimant‟s subsequent
filing of a Notice of Arbitration under CAFTA. It would be unreasonable, so
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