brought under the dominican republic - central america - ita

the Claimant‟s argument but clearly rejects that argument in its own Submission to
this Tribunal.
4.28. Moreover, the Respondent formally made the following statement at the Hearing, as
recorded in the transcript: “[I]f the United States of America wishes to initiate such
consultations with El Salvador with respect to the invocation of the denial of benefits,
El Salvador would not have any objection to those consultations on the basis
that they would amount to diplomatic protection for purposes of Article 27 of the
ICSID Convention, and El Salvador expressly waives any right it might have to object
to those consultations on that ground.” 132
4.29. Lastly, the Respondent contends that its case is supported by the USA‟s state practice
relevant to CAFTA Article 20.4 and ICSID Article 27. The Respondent refers
to the US Department of State Foreign Affairs Manual, Volume 7 – Consular Services,
Part 671, Assistance to Citizens Involved in Commercial, Investment and
Other Business Related Disputes Abroad (“FAM”), as showing that the USA‟s official
policy on handling foreign investment disputes of U.S. nationals overseas
closely tracks the distinction made in ICSID Article 27(1) and Article 27(2) between
(i) diplomatic protection and espousal and (ii) informal communications meant to
facilitate dispute resolution; that FAM prohibits consular officers from taking a position
on the merits of a foreign investment dispute until the requirements for espousal
have been met, including the exhaustion of local and other remedies (which expressly
include international arbitration under any applicable international treaty);
that, until that time, “the scope of appropriate USG [U.S. Government] assistance is
generally confined to consular services aimed at helping the United States citizen/national
navigate the host country legal system”; that the USA “may in its discretion
decide to make diplomatic representations to the host government in order to
encourage expeditious resolution of the dispute”; but that there is a clear limit on
such representations, as follows: “In all such cases, however, posts [i.e., embassies
and consulates] should be clear both with the host government and with the investor
that such representations do not reflect a decision on the part of the USG that the
claim is valid, but rather reflect our interest in having the claim amicably and expe-
132
Hearing D4.649.
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