brought under the dominican republic - central america - ita

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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. Part 4 - Page 9
ditiously resolved” (paragraph l). The Respondent submits, therefore, that there was and can have been no practical difficulty in this case arising from ICSID Article 27(1). 4.30. In conclusion, for all these reasons, the Respondent contends that it has effectively denied the Claimant and its investments any benefits under CAFTA; and that consequently this Tribunal has no jurisdiction or competence to decide any of the Claimant‟s claims under CAFTA and the ICSID Convention. (03) The Claimant’s Case 4.31. The Claimant contends that the Respondent has failed to establish any of the conditions for invoking its denial of benefits to the Claimant under CAFTA Article 10.12.2. 4.32. In summary, 133 the Claimant contends that it has substantial business activities in the USA; that it is both owned and controlled by persons of the USA as a CAFTA Party; and that the Respondent did not give timely notice of its invocation of CAFTA Article 10.12.2. 4.33. (i) Substantial Business Activities: The Claimant contends that the Respondent has failed to discharge its burden of proving its positive assertion that the Claimant lacks “substantial business activities” in the USA; that, ignoring evidence to the contrary, the Respondent‟s argument is narrowly focused on a small check-list of activities which must be present (but only according to the Respondent) in order to qualify as substantial business activities; and that the Respondent‟s mechanical approach is inconsistent with the text, object and purpose of CAFTA. 4.34. Taking all the evidence as a whole, the Claimant submits that it has substantial business activities in the USA, whether the Claimant is considered separately as a single holding company (which, along with its holdings, has been continuously managed since 1997 from Nevada, USA) or whether the Claimant is considered as part of a 133 This summary is largely prepared from the Claimant‟s oral submissions at the Hearing and its Post- Hearing Submissions. Part 4 - Page 10
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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
Page 13 and 14:
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
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(03) The ICSID Convention 1.13. ICS
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(5) ILC Articles on State Responsib
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proof or the Claimant‟s allegatio
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2.11. Burden of Proof: As far as th
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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 and 90: 4.17. (iii) Timeliness: The Respond
Page 91: the Respondent submits, to require
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
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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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