brought under the dominican republic - central america - ita

could provide such notice to the USA; and that CAFTA‟s notification and consultation
procedures exist so that CAFTA Parties may consult with one another over the
merits of a proposed measure, such as a proposed (but not actual) denial of benefits
to an investor of another CAFTA Party.
4.42. The Claimant dismisses the Respondent‟s subsidiary reliance upon the notice requirement
in CAFTA Article 18.3 applying only “[t]o the maximum extent possible.”
The Claimant contends that this plain language means only what it says: i.e.,
that failure to provide notice will not result in a breach of CAFTA in circumstances
where it is actually impossible for the CAFTA Party to provide such notice, as opposed
to mere inconvenience, impracticality or arbitration strategy; that the former
would include an emergency measure adopted by the CAFTA Party to deal urgently
with a natural disaster or a situation in which the CAFTA Party‟s legislative branch
unexpectedly amended a law without warning the executive branch effectively responsible
for providing notice to CAFTA Parties under CAFTA Article 18.3; and
that, in contrast, nothing in the circumstances of the Respondent‟s dealings with the
Claimant in the present case limited the possibility of the Respondent in providing
timely notice to the USA of its proposed denial of benefits to the Claimant.
4.43. The Claimant also dismisses the Respondent‟s subsidiary reliance upon CAFTA
Article 18.3 relating to “proposed or actual measures,” as if the Respondent could
notify the USA of its denial of benefits to the Claimant at the point only when such
denial was “proposed” or “actual.” The Claimant contends that, consistent with the
ordinary meaning of CAFTA Article 18.3, a CAFTA Party‟s obligation requires notice
of any measure that might affect another CAFTA Party‟s interests under
CAFTA (such as a denial of benefits to one of that Party‟s investors), whether that
measure is proposed or actual; that State-to-State consultations would be of little
utility (if any) if, as appears to have been the case when the Respondent sent its notice
to the USA, the denying Party has already made up its mind and was already
firmly committed to its position; and that the Respondent‟s limited interpretation of
its obligation under CAFTA Article 18.3 (with CAFTA Article 10.12.2) violates the
legal principle of “effet utile” under international law.
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