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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. Part 4 - Page 13
4.44. The Claimant contends further that a denying CAFTA Party‟s notice under CAFTA Article 10.12.2 must be provided in a timely manner for State-to-State consultations to occur before claims are submitted to ICSID arbitration by the Claimant because otherwise ICSID Article 27(1) renders later consultations impermissible. 4.45. The Claimant stresses the fact that the Respondent deliberately waited five months to deny benefits to the Claimant in August 2010 after its notice to the USA in March 2010; that the Respondent‟s tendered explanation lacks any substance (namely: “ ... because this really is the first denial of benefits that we‟re aware of under CAFTA or NAFTA. And because we take seriously the opportunity of the United States Government or any other affected Party to engage in State-to-State consultation”); 134 that if the Respondent had truly wished to provide the USA with an opportunity to engage in State-to-State consultations, the Respondent would not have waited until this ICSID arbitration was well under way, at which point the USA was bound by its treaty obligation under ICSID Article 27(1) not to give any diplomatic protection to the Claimant; and that tactical ad hoc waivers made unilaterally by the Respondent at the Hearing (significantly to the Claimant and not the USA) cannot amend the interpretation of two multilateral treaties under international law. 4.46. The Claimant submits that arguments that the investor‟s claim is valid are clearly intended to be addressed by the State-to-State consultation procedure under CAFTA Article 20.4; that the very purpose of notice and consultation qualifying CAFTA Article 10.12.2 is to give the CAFTA Parties the opportunity to exchange views on both facts and law relevant to the claim (including any proposed denial of benefits); and that it is not credible that the USA would have agreed to a procedure in CAFTA that would require precisely the kind of intervention into the merits of a dispute in a pending arbitration contrary to ICSID Article 27(1). 4.47. The Claimant submits that, for this reason, if the Respondent‟s interpretation were adopted, then for tactical reasons a CAFTA Party could deliberately wait until after an investor had submitted its claim to ICSID arbitration to invoke denial of benefits under CAFTA (just as the Respondent did in the present case); and that by such de- 134 Hearing D3.647. Part 4 - Page 14
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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
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precedented regulatory obstacles de
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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 and 94: ditiously resolved” (paragraph l)
Page 95: provided the Respondent with its No
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
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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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