brought under the dominican republic - central america - ita

More documents

Recommendations

Info

group of Nevada-based companies (which together contributed substantial financial capital, intellectual property, personnel and oversight to the companies‟ Salvadoran operations). Accordingly, so the Claimant submits, its activities fall squarely within the meaning of “substantial business activities” in the USA under CAFTA Article 10.12.2. 4.35. (ii) Ownership/Control: The Claimant contends that the Respondent has equally failed to discharge its burden of rebutting the evidence that the Claimant ultimately is owned and controlled by persons of the USA as a CAFTA Party; and that the Respondent‟s argument that the Claimant is owned and controlled directly by its Canadian parent (Pacific Rim) ignores the fact that the ultimate owners and controllers of the Claimant are those US persons who own a majority of the shares in the Canadian parent. 4.36. As to control, the Claimant submits, taking all the evidence as a whole, that the Claimant is controlled, in the sense of exercise of critical decision-making, by a US national (Mr Shrake); that Mr Shrake serves as one of the managers of the Claimant (the Claimant‟s board of directors having been replaced by three managers consequent upon the change of nationality from the Cayman Islands to the USA in December 2007); and therefore, as both a manager and de facto chief executive officer of the Claimant, Mr Shrake has (and had) the power to direct and control the activities of the Claimant. 4.37. As to ownership, the Claimant also submits that the fact of majority ownership by US nationals (shareholders in the Claimant‟s parent company) and day-to-day management by a US national in the USA precludes the Respondent from denying CAFTA‟s benefits to the Claimant under CAFTA Article 10.12.2. 4.38. (iii) Timeliness: The Claimant submits that the Respondent‟s attempt to deny CAFTA benefits to the Claimant must also fail because the Respondent did not comply with the procedural requirements of CAFTA Article 10.12.2 requiring the Respondent to provide to the USA timely notice of its intent to deny benefits to the Claimant and an opportunity to engage in State-to-State consultations; that the Respondent deliberately waited until 1 March 2010 (fifteen months after the Claimant Part 4 - Page 11
provided the Respondent with its Notice of Intent) for the Respondent‟s notice to the USA, long after the time for any meaningful State-to-State consultation envisaged by CAFTA Article 10.12.2; and that the denial of benefits could not be validly made by the Respondent on 3 August 2010 long after the commencement of this ICSID arbitration. 4.39. The Claimant submits that the Respondent could have notified the USA as early as June 2008 (following the meeting between the Respondent‟s President, the USA‟s Ambassador and Pacific Rim‟s chief executive officer); and that the Respondent has never offered any satisfactory explanation in these proceedings as to why it chose deliberately to wait so long before providing the notice in March 2010 to the USA or the later notice in August 2010 to the Claimant. 4.40. The Claimant contends that CAFTA requires that a Party provide timely notice of its intention to deny benefits before the filing of a request for arbitration by a claimant; that, in contrast to almost every one of the 44 other U.S. investment treaties and free trade agreements concluded since NAFTA entered into force in 1994, CAFTA makes the invocation of denial of benefits “subject to” compliance with two other CAFTA articles: (i) the first on the provision of notice to other CAFTA Parties of measures that may affect CAFTA rights under CAFTA Article 18.3; and (ii) the second on formal State-to-State consultations under CAFTA Article 20.4; that, as denial of an investor‟s CAFTA benefits is made “subject to” these two obligations, compliance with these obligations must precede an actual denial of benefits by a CAFTA Party; and that compliance with these two obligations must necessarily occur before any claims are submitted by a claimant to ICSID arbitration under CAFTA. 4.41. The Claimant denies that its interpretation of CAFTA imposes any undue or impractical burden on CAFTA Parties. In particular, in the present case as already indicated, the Claimant contends that the Respondent could have provided the required notice in June 2008 (see above) or at least in December 2008 (after receiving the Claimant‟s Notice of Intent and before the Claimant submitted its Notice of Arbitration in April 2009); that, contrary to the Respondent‟s argument, it was not necessary for the Respondent to engage in lengthy investigations to determine whether all the criteria for denial of benefits were definitively established before the Respondent Part 4 - Page 12
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 and 90: 4.17. (iii) Timeliness: The Respond
Page 91 and 92: the Respondent submits, to require
Page 93: ditiously resolved” (paragraph l)
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?