brought under the dominican republic - central america - ita

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
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