brought under the dominican republic - central america - ita

More documents

Recommendations

Info

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 Part 4 - Page 7
the Respondent submits, to require a CAFTA Party to engage professional legal advisers, complete all necessary researches, vet the decision to deny benefits with appropriate government agencies and then promptly invoke its right to deny benefits all within ninety days of receiving each and every Notice of Intent, especially where a Notice of Intent might not even be followed by any Notice of Arbitration at all. 4.24. Moreover, in the present case, the Respondent submits that the Claimant's Notice of Intent was cursory and even misleading: it asserted (wrongly) that the Claimant was an “American investor” which was “predominantly managed and directed from its exploration headquarters in Reno, Nevada” (Introduction and paragraph 6). 4.25. The Respondent contends that by 1 March 2010 it had only partially completed its investigations into the Claimant's ownership and business activities when it provided to the U.S. Trade Representative a notification letter of the Respondent‟s intent to deny benefits to the Claimant under CAFTA Article 10.12.2; that the Respondent necessarily continued its investigations thereafter until its invocation of denial of benefits on 3 August 2010; and that there was therefore no delay, still less any undue delay by the Respondent. 4.26. The Respondent contends further that, in any event, the Claimant has not suffered any prejudice from the timing of the Respondent‟s denial of benefits under CAFTA Article 10.12.2. Indeed, so the Respondent submits, the Claimant was not itself entitled to any notice from the Respondent under CAFTA, as distinct from notification to the USA as the most directly affected CAFTA Party under CAFTA Article 18.3. 4.27. The Respondent particularly dismisses the Claimant's argument that the Claimant has somehow been prejudiced because the timing of the notice of denial of benefits prevented the USA from engaging in the consultation procedure under CAFTA Article 20.4. The Respondent contends that such participation could not be an inappropriate grant of “diplomatic protection” in contravention of Article 27(1) of the IC- SID Convention. The Respondent emphasises that if there were any merit to the Claimant‟s argument, it would be the USA (not the Claimant) which would have standing to make such an objection in this case; but the USA not only does not raise Part 4 - Page 8
Page 1 and 2:
IN THE MATTER OF AN ARBITRATION BEF
Page 3 and 4:
One-Time Acts .....................
Page 5 and 6:
Glossary of Defined Terms “CAFTA
Page 7 and 8:
African Holding Company of America,
Page 9 and 10:
Waste Management, Inc. v. United Me
Page 11 and 12:
1.4. Prior to 2 March 2012, the Cla
Page 13 and 14:
C: The Tribunal’s Decision of 2 A
Page 15 and 16:
1.23. The Respondent: The Responden
Page 17 and 18:
under cover of a letter also dated
Page 19 and 20:
G: The Parties’ Claims for Relief
Page 21 and 22:
c. Piercing the corporate veil (Mem
Page 23 and 24:
H: The Jurisdictional Issues 1.46.
Page 25 and 26:
(02) CAFTA 1.4. CAFTA Article 10.1:
Page 27 and 28:
2. At least 90 days before submitti
Page 29 and 30:
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 and 82: for the purpose of deciding the Rat
Page 83 and 84: distinction made in the Commerce Gr
Page 85 and 86: EMELEC v. Ecuador (under the USA-Ec
Page 87 and 88: would qualify for treaty protection
Page 89: 4.17. (iii) Timeliness: The Respond
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
Page 133 and 134: ture arbitration proceedings. Indee
Page 135 and 136: this arbitration with the least exp
Page 137 and 138: abused the Tribunal's indulgence in
Page 139 and 140: avoided; but, instead, the Responde
Page 141 and 142:
“a U.S. investor organized under
Page 143 and 144:
The Respondent acknowledges, of cou
Page 145 and 146:
Claimant submits that under the cir
Page 147 and 148:
ment in the communications with the
Page 149 and 150:
6.76. The Claimant submits that the
Page 151 and 152:
PART 7: THE OPERATIVE PART 7.1. For
show all

brought under the dominican republic - central america - ita

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?