brought under the dominican republic - central america - ita

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liberate delay, the CAFTA Party could thwart any objection from the investor‟s CAFTA Party under CAFTA Articles 18.3 and 20.4, notwithstanding CAFTA Article 10.12.2. 4.48. The Claimant submits that there is no legitimate reason based on the text or context of CAFTA for the Respondent‟s assertion that the proper time to provide notice to a claimant can be delayed to the jurisdictional phase of an arbitration. Indeed, so the Claimant contends, under the Respondent‟s interpretation there is no reason why a respondent could not wait to deny benefits until after an award has been made in favour of such claimant. The Claimant submits that this absurd result cannot be the correct interpretation of CAFTA Article 10.12.2 under international law. 4.49. Lastly, the Claimant contends that ICSID Article 25(1) prevents the Respondent from denying benefits to the Claimant after claims have been submitted to arbitration by the Claimant because once a Contracting State has consented to ICSID arbitration with a claimant, that consent is irrevocable and may not be unilaterally withdrawn; and that the Respondent‟s mistaken interpretation of CAFTA Article 10.12.2 would allow a respondent CAFTA Party to withdraw its consent after claims had been submitted by a claimant to arbitration, in violation of ICSID Article 25(1). 4.50. In conclusion, the Claimant contends that the Respondent has not satisfied any of the conditions for denying benefits to the Claimant under CAFTA Article 10.12.2; and that, accordingly, the Respondent‟s attempt to deprive the Claimant of CAFTA benefits should fail and should have no effect on this Tribunal‟s jurisdiction to address the Claimant‟s CAFTA claims on their merits. (04) Non-Disputing Parties’ Submissions 4.51. Costa Rica: In its Submission, Costa Rica observes that no provision of CAFTA requires the CAFTA Party to address any communications “to the individual concerned” (paragraph 3), as distinct from addressing the other CAFTA Party under CAFTA Articles 18.3 and 20.4. Costa Rica also observes that the consultation procedure between CAFTA Parties under CAFTA Article 20.4 does not amount to dip- Part 4 - Page 15
lomatic protection within the meaning of ICSID Article 27(1), citing the International Law Commission‟s Draft Articles on Diplomatic Protection (paragraph 5). 4.52. As to timing, Costa Rica observes that CAFTA Article 10.12.2 is silent on when a CAFTA Party may deny benefits; and it suggests that, consequently, “denial of benefits may occur at any time, regardless even of the existence or not of an investment arbitration” (paragraph 6), particularly when a tribunal is examining its jurisdiction (paragraphs 8 & 9), although such a denial could not be legally effective after an award was made (paragraph 7). 4.53. Costa Rica analyses the object and purpose of CAFTA Article 10.12.2, as follows (paragraphs 12 & 13 ): “12 ... the denial of benefits clause of [CAFTA Article 10.12] aims to correct a situation where investors, who may formally be from a Party to the Treaty but are not such in reality, attempt to benefit from the Treaty. In this regard it is a clause that privileges substance over form ... An interpretation of [CAFTA Article 10.12] that creates formal requirements, including as to the moment of invocation, that are not present in the text of the treaty and that have the effect of denying the provision of any practicality goes against the object and purpose of the Treaty. 13 A State Party to DR-CAFTA is not necessarily informed at all times of the share make-up and corporate structure of all investors from other Parties to the Treaty in its territory. What is more likely is that the State only becomes aware of who owns or controls a company at the time when there is a dispute, which escalates into an investment arbitration. Failing to allow the invocation of the denial of benefits clause even when an investment arbitration has already commenced deprives this provision of any effectiveness.‖ 4.54. As regards the nationality of a natural person under CAFTA Article 10.12.2, Costa Rica observes that, with respect to the USA, CAFTA expressly provides that such nationality is determined by the US Immigration and Nationality Act, to the exclusion of other domestic law instruments (paragraph 16). 4.55. USA: In its Submission, the USA observes that CAFTA Article 10.12.2 “is consistent with a long-standing U.S. policy to include a denial of benefits provision in investments to safeguard against the potential problem of “free-rider” investors, i.e. third party entities that may only as a matter of formality be entitled to the benefits Part 4 - Page 16
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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
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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 and 96: provided the Respondent with its No
Page 97: 4.44. The Claimant contends further
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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