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Dominicana Renovables v. Dominican Republic

Dominicana Renovables, S.L. v. The Dominican Republic, ICC Case No. 23364/JPA
Nature of the proceedings:
International
Type of case:
Investor-State
Economic sector:
Electricity, gas, steam and air conditioning supply (energy)
Electricity, gas, steam and air conditioning supply (energy)
Date of introduction:
16 Jan 2018
Status of the case:
Decided in favor of investor
Claimant’s country of origin:
Spain
Respondent:
Dominican Republic
Institution:
ICC (International Chamber of Commerce)
Rules of arbitration:
Seat of arbitration:
Miami
Applicable law:
Dominican Republic

Documents of the case

profile picture Stanimir A. Alexandrov President
profile picture Juan Pablo Cárdenas Mejía Appointed by the State
profile picture Oscar M. Garibaldi Appointed by the investor
Collected and published by Jus Mundi. ICC has not contributed to this publication.

Lawyers, other representatives, expert(s), tribunal’s secretary

Final Award

DEFINITION OF TERMS

¶(¶) Paragraph(s)
§(§) Section(s)
p(p). Page(s)
Addvante AddVANTE FORENSE and CONCURSAL SLL, the Claimant's expert for the evaluation of damages suffered
ATA Astrom Technical Advisors, SL, Claimant's expert for the technical-economic valuation of La Isabela.
CESCE Spanish Export Credit Insurance Company
CDEEE Dominican Corporation of State Electric Companies
ICSID International Center for Settlement of Investment Disputes
CNE National Energy Commission
Final Concession or Concession Agreement or Final Concession Agreement Final Concession Agreement for the Exploitation of Electric Generation Works from Primary Renewable Sources of Wind Energy entered into between Dominicana Renovables, SL, and the Dominican State, dated January 23, 2013
Provisional Concession Resolution CNE-CP-0005-2009, by which the CNE grants Dominicana Renovables a provisional concession, dated February 9, 2009
Answer to the Petition Answer to the Petition for Arbitration presented by the Respondent on May 28, 2018
PPA Power purchase agreement
International Tribunal of Arbitration of the International Chamber of Commerce
Timeline Timeline of events, prepared by the Parties by mutual agreement, dated May 29, 2020.
Dominicana Renovables, Company, Concessionaire or Claimant Dominicana Renovables, SL
State or Respondent The sovereign State of the Dominican Republic
ETED Dominican Electrical Transmission Company
General Electricity Law General Electricity Law No. 125-01, dated July 26, 2001
Law 57-07 Law No. 57-07 on Incentives for the Development of Renewable Energy Sources and Special Regimes, dated May 7, 2007
Organic Law of Public Administration Law No. 247-12, dated August 14, 2012
MEM Ministry of Energy and Mines of the Dominican Republic
Opinion Letter sent by the former legal director of the Ministry of Energy and Mines, Susana Gautreau, Esq., to the Vice Minister of Energy, Ernesto Vilalta, on March 13, 2017
La Isabela Wind Farm, Wind Farm, Park, or Project Renewable energy project to be developed by Dominicana Renovables in the Province of Puerto Plata, Dominican Republic, authorized by the Dominican State through the Final Concession granted on January 4, 2013
Parties Dominicana Renovables, SL, and the Dominican Republic, jointly
Special Power Presidential Special Power No. 121-15 granted to the Executive Vice President of CDEEE, dated November 27, 2015
Protocol Protocol of mandatory general conditions for the signing of contracts for the sale of electrical energy from renewable energy sources by the Dominican Corporation of State Electric Companies, dated September 9, 2014
Rules Decree No. 202-08 by which Law 57-07 on Renewable Energy Incentives and Special Regimes dated May 7, 2007 is regulated
ICC Rules International Chamber of Commerce Rules of Arbitration, effective as of March 1, 2017
Secretariat Secretariat of the International Tribunal of Arbitration of the International Chamber of Commerce
SENI National Interconnected Electric System
SIE Superintendency of Electricity
Request for Arbitration Request for Arbitration presented by Dominicana Renovables, SL, dated January 16, 2018

I. PRESENTATION OF THE PARTIES

1.
In this arbitration, the Claimant and the Respondent will be referred to hereinafter jointly as the “Parties” and individually as indicated below:

A. Claimant

2.
The Claimant is DOMINICAN RENOVABLES, SL (hereinafter "Dominicana Renovables," "Company," "Concessionaire" or the "Claimant"), a company incorporated under the laws of the Kingdom of Spain, duly registered in the Dominican Republic as a foreign company, with offices at Calle Magallanes, número 30, 1era. Derecha, Madrid, Spain; and at Calle el Cayao 11, 10125, Santo Domingo, Dominican Republic.
3.
[The parties] responsible for the legal representation of Dominicana Renovables are:

Francisco A. Rodriguez
Luis A. Pérez
Rebeca E. Mosquera
AKERMAN LLP
Three Brickell City Centre
98 Southeast Seventh Street, Suite 1100
Miami, Florida 33131-1714
United States
francisco.rodriguez@akerman.com
luis.perez@akerman.com
rebeca.mosquera@akerman.com

Luis Soto
SOTO ABOGADOS
Calle C (El Cayao) No. 11
Ensanche Serrallés
Santo Domingo, Dominican Republic
luis@sotolaw.com

B. Respondent

4.
The Respondent is the Dominican Republic, a sovereign State (hereinafter the “State” or the “Respondent”).
5.
The State is represented in this arbitration by:

Antoliano Peralta
Noelia Rivera
Nathalie Hernández
Sara Patnella
Legal Advisor to the Executive Branch
Office of the Legal Advisor to the Executive Branch (CJPE)
National Palace, Avenida México esq. Dr. Delgado
Gascue, Santo Domingo D.N.
Dominican Republic
antolianoperalta@consultoria.gov.do
noeliarivera@consultoria.gov.do
nhernandez@consultoria.gov.do
spatnella@consultoria.gov.do

Eduardo Silva Romero
Catalina Echeverri Gallego
DECHERT (PARIS) LLP
32, rué de Monceau
75008 París
Francia
eduardo.silvaromero@dechert.com
catalina, echeverrigall ego@dechert.com

Juan Felipe Merizalde
DECHERT LLP
1900 K Street, NW
2006 Washington D.C.
United States
juanfelipe.merizalde@dechert.com
alldominicanarenovables@dechert.com

Alvaro Galindo
114 Franklin St.
Alexandria
Virginia 22314
United States
ahg5@georgetown.edu

II. COMMITMENT CLAUSE AND TRIBUNAL JURISDICTION

6.
On January 16, 2018, the Claimant submitted to the International Tribunal of Arbitration of the International Chamber of Commerce (hereinafter the “Tribunal”) a request for arbitration (the “Request for Arbitration”) against the Dominican Republic.
7.
Dominicana Renovables invoked the jurisdiction of the Tribunal based on Article 16 of the Final Concession Agreement for the Exploitation of Electric Generation Works from Primary Renewable Wind Energy Sources entered into between the Claimant and the Dominican State on January 23, 2013 (hereinafter "Final Concession Agreement").1 Article 16 of the Final Concession Agreement establishes:2

CONFLICT RESOLUTION: Any Dispute arising from this Agreement, or related thereto, including its breach, termination, validity or arbitrability will be submitted to arbitration and decisively resolved, in accordance with the Rules of Arbitration, by three (3) arbitrators with a command of the English and Spanish languages. The petitioner will nominate one (1) arbitrator in the Request for Arbitration (the "Request"), the respondent will nominate one (1) arbitrator within thirty (30) days of receipt of the Request, and the ICC will nominate a third arbitrator, who will act as chair of the Arbitration Tribunal, within thirty (30) days of the appointment of the Second Arbitrator. If either Party does not nominate an arbitrator in accordance with the provisions of this Article, then the ICC will appoint such arbitrator. These arbitrators appointed by the ICC will be experienced in matters related to concessions or licenses for the establishment or operation of electric companies. power purchase agreements, and if possible, in agreements between independent energy producers or generators and distribution or state-owned companies, in the Dominican Republic or in any other jurisdiction. No arbitrator may be an employee or agent, or have previously served as an employee or agent, of any Party. It is expressly agreed that the Parties may reach an agreement, at any time, that resolves the dispute that gave rise to the arbitration process. The International Arbitration Process will be conducted in Spanish, or through simultaneous interpretation into that language, and will be based in Miami, Florida, United States of America.

Paragraph I: The Parties, individually, bear full responsibility for any expenses they may incur during the course of the International Arbitration Process, for the payment of professional fees, and any other additional expenses, notwithstanding the right of reimbursement to which the prevailing party of the International Arbitration Process is entitled.

Paragraph II: THE DOMINICAN STATE unconditionally and irrevocably waives the defense of sovereign immunity with respect to its person and/or its property under the Applicable Laws of any jurisdiction, including, without limitation, in relation to: (a) the submission to arbitration of any disputes inherent to the Wind Farm and this Agreement: (b) the recognition, confirmation and/or enforcement of any arbitration award issued in the context of this arbitration: (c) notifications, jurisdiction, precautionary measures, garnishments, and coercive and enforceable procedures.

Paragraph III: THE DOMINICAN STATE AND THE CONCESSIONAIRE accept and agree that any award issued by the Tribunal will be final and binding and will not be subject to appeal, as well as that any competent court may issue a ruling recognizing and confirming the award. (...)

8.
The Respondent did not dispute the jurisdiction of the Tribunal in the Answer to the Request for Arbitration, at which time it could have done so as provided in Article 6(3) of the Arbitration Rules of the International Chamber of Commerce in force since March 1, 2017 (the “ICC Rules”). However, in the Answer to the Request for Arbitration, the Dominican State “expressly reserved all right to object, at the appropriate stage of the proceedings, to the totality of the facts and the Law invoked, as well as to file counterclaims as appropriate."3
9.
The Respondent did not challenge the Tribunal's jurisdiction in its subsequent filings. Consequently, the Tribunal understands that its jurisdiction has been recognized by the Parties, and it is not a controversial issue that requires a decision.

III. PROCEDURAL BACKGROUND

10.
The Claimant submitted the Request for Arbitration to the Tribunal on January 16, 2018.
11.
On January 17, 2018, the Secretariat of the Tribunal (the “Secretariat”) acknowledged receipt of the Request for Arbitration and, in accordance with the provisions of Article 4(2) of the ICC Rules, initiated this arbitration proceeding.
12.
On January 23, 2018, the Secretariat notified the Respondent of the Request for Arbitration and indicated that it should submit its answer within the next 30 days.
13.
The Respondent, by means of a brief dated February 26, 2018, requested an extension of 90 days from the Tribunal to present its answer to the Request for Arbitration.
14.
On February 27, 2018, the Secretariat granted the deadline requested by the Respondent and established May 28, 2018 as the deadline to file the answer to the Request for Arbitration.
15.
The Respondent, within the term granted by the Secretariat, answered the Request for Arbitration, on May 28, 2018 (the “Answer to the Request”). In the Answer to the Request, the Dominican State asked the Tribunal to issue a Preliminary Order requiring Dominicana Renovables to indicate how it obtained access to the letter dated March 13, 2017 sent by the former legal director of the Ministry of Energy and Mines, Susana Gautreau, Esq., to the Vice Minister of Energy, Ernesto Vilalta (hereinafter the "Opinion"). According to the Respondent, the Company obtained the aforementioned confidential and restricted document unlawfully, and therefore, it requested that the Tribunal refrain from reviewing the text of the Request for Arbitration and its exhibits, in particular, Exhibits 6 and 66 (the "Preliminary Request").45
16.
In the Request for Arbitration, the Claimant notified the Tribunal of the appointment of Mr. Oscar M. Garibaldi as arbitrator. Mr. Garibaldi accepted his appointment, which was confirmed by the Secretary General of the Tribunal on June 19, 2018. Mr. Garibaldi's contact information is as follows:

Oscar M. Garibaldi
809 Wincrest Place
Great Falls, Virginia 22066
United States
ogaribaldi@garibaldiarbitrator.com

17.
The Respondent, in the Answer to the Request, appointed Mr. Juan Pablo Cárdenas Mejía as arbitrator.6 Additionally, the Dominican State proposed that the Claimant modify the method of appointment for the chair of the Tribunal, provided in the arbitration agreement contained in the Final Concession Agreement. .7 The Respondent suggested that the chair of the Tribunal be appointed by the co-arbitrators designated by the Parties.
18.
Mr. Juan Pablo Cárdenas Mejía accepted his appointment, which was confirmed by the Secretary General of the Tribunal on June 19, 2018. The contact information for Mr. Cárdenas Mejía, for the purposes of this arbitration, is as follows:

Juan Pablo Cárdenas Mejía
Avenida Calle 72 No. 6-30 Piso 11
Bogotá, D.C.
Colombia
jpcm2001@yahoo.com

19.
The Claimant accepted the proposal made by the Respondent for the appointment of the chair of the Tribunal. Consequently, the co-arbitrators jointly appointed Mr. Stanimir A. Alexandrov as the third arbitrator and Chair of the Tribunal, an appointment that was confirmed on July 27, 2018 by the Secretary General of the Tribunal. The contact information for Mr. Alexandrov is as follows:

Stanimir A. Alexandrov
STANIMIR A. ALEXANDROV PLLC
1501 K Street N.W.
Suite C-072
Washington D.C., 20005
United States
salexandrov@alexandrovlaw.com

20.
On July 27, 2018, the Secretariat delivered the case file to the members of the Tribunal.
21.
The Tribunal, within the term established in Article 23(2) of the ICC Rules, prepared the Mission Statement, and its content was approved and signed by the Parties and the arbitrators on August 24, 2018.
22.
In the Mission Statement, the Tribunal indicated that it would rule on the Preliminary Request presented by the Respondent once the Mission Statement was signed and the Parties had the opportunity to present their arguments in that regard.8
23.
Similarly, the Tribunal specified that the rules applicable to this procedure would be those contained in the ICC Rules that entered into force on March 1, 2017.9Likewise, the Tribunal added that the regulations of the domicile that would apply, as subsidiary provisions or as legal requirements, would be those currently in force in the city of Miami, Florida, United States of America.10
24.
During the month of September 2018, in fulfillment of the provisions of Article 24 of the ICC Rules, the Parties and the Tribunal held a discussion via email on the handling of the proceedings and the procedural calendar.
25.
Having listened to the Parties and taken their statements into account, on September 24, 2018 the Tribunal issued Procedural Order No. 1, whereby it issued the provisions governing the procedure and set the procedural calendar.
26.
On that same date, the Tribunal invited the Parties to consecutively submit their observations on the Preliminary Request made by the Respondent in its Answer to the Request.
27.
The Tribunal, in a session held October 4, 2018, determined that the deadline for issuing the final award would be March 31, 2020.
28.
On October 8, 2018, the Claimant submitted its observations on the Preliminary Request. Subsequently, on October 15 of the same year, the Respondent presented its response to the Claimant's observations, at which time it modified the scope of the Preliminary Request. The Respondent asked the Tribunal: (i) to reject Exhibits 6 and 66 in the absence of an explanation from the Claimant on how they were obtained; (ii) refrain from reviewing any paragraphs that refer to these documents; and (iii) order the Claimant to pay any costs incurred by the State in the processing of this procedural matter.
29.
Finally, on October 22, 2018, Dominicana Renovables submitted its answer to the Preliminary Request, requesting, in turn, that the Tribunal issue an order of protection with respect to Exhibit 6 and any affidavit in connection therewith and that it order an in camera hearing of the disputed documents.
30.
On November 4, 2018, the Tribunal issued Procedural Order No. 2, by which it ruled against the Preliminary Request submitted by the Dominican State and the requests presented by the Claimant. The Tribunal rejected the Respondent's Preliminary Request on the grounds that the State did not meet the burden of proving that the documents in question were illegally obtained. Additionally, the Tribunal felt that the Respondent did not establish the irreparable harm it would have suffered if the aforementioned documentary evidence were admitted. In relation to the order of protection requested by the Claimant, the Tribunal rejected the request because it felt that Dominicana Renovables had not established the necessary elements to justify this measure.
31.
On January 18, 2019, in accordance with the provisions of Procedural Order No. 1, the Claimant filed its merits brief known as the Pleading of the Claimant (the “Claim”).
32.
On April 18, 2019, within the term provided in Procedural Order No. 1, the Respondent filed its Statement of Defense on the Merits (the “Response”).
33.
In accordance with the procedural calendar, on June 11, 2019 the Claimant submitted, to the Tribunal, its Redfern Schedule with the Requests for Exchange of Documents made to the Respondent, including the respective objections presented by the Dominican State and the Claimant's responses thereto.
34.
On July 8, 2019, the Tribunal issued Procedural Order No. 3, which determined the documents to be presented by the Respondent.
35.
On August 6, 2019, the Claimant submitted a request for the additional production of documents by the Respondent. The Dominican State opposed the request on August 15, 2019.
36.
On August 22, 2019, the Tribunal issued Procedural Order No. 4, denying the Claimant's request. The Tribunal rejected the petition, finding that the documents in question belonged to a category of documents that had been withdrawn by the Claimant itself. The Tribunal concluded that the Claimant could not go back on its decision and that the Claimant's waiver of its right to request these documents was a legal act. procedural that had, in principle, a preclusive effect. Additionally, the Tribunal concluded that there were no exceptional circumstances that would allow the request to be renewed.
37.
On August 23, 2019, the Claimant requested the reconsideration of Procedural Order No. 4, arguing the existence of exceptional circumstances that justified the renewal of the request for documents. The Respondent once again objected to Dominicana Renovables' request in its response of August 30, 2019.
38.
On September 4, 2019, through Procedural Order No. 5, the Tribunal ruled against the request for reconsideration submitted by the Claimant. The Tribunal did not accept the justification invoked by Dominicana Renovables to reconsider the provisions of Procedural Order No. 4.
39.
On September 6, 2019, the Parties agreed to partially modify the procedural calendar. In response to the aforementioned agreement, the Tribunal issued Procedural Order No. 6, adjusting the deadlines for submission of the Reply and Rejoinder.
40.
On October 1, 2019, the Claimant filed, within the term provided in Procedural Order No. 6, the Reply Brief on the Merits (the "Reply").
41.
In a letter dated October 21, 2019, the Respondent asked the Tribunal to order the Claimant to present a complete and faithful string of WhatsApp messages between Mr. Esteban Fernández and Ms. Santa Ramos. According to the Dominican State, the conversations contributed by the Claimant with the Reply constituted a partial exhibition of the document.
42.
The Claimant responded to the request on October 28, 2019. On that occasion, Dominicana Renovables explained that the conversations provided were full and complete copies of the conversations between Mr. Fernández and Ms. Ramos. Additionally, the Claimant classified the Respondent's request as untimely and inadmissible, for which reason it requested that the Tribunal reject the Dominican Republic's request.
43.
On November 1, 2019, the Tribunal issued Procedural Order No. 7, denying the Respondent's request. The Tribunal clarified that, in the case of WhatsApp, it is not possible to affirm that the conversations held between two people on that system constitute a single document, since there is not necessarily any unity between them. Similarly, the Tribunal added that the Dominican State did not fulfill the burden of demonstrating the exceptional circumstances that justified the untimely request for the production of documents.
44.
In an email dated December 4, 2019, the Respondent requested a 4-day extension for submission of the Rejoinder, which was granted the same day.
45.
On December 20, 2019, the Respondent filed the Rejoinder Brief on the Merits (the “Rejoinder”).
46.
In fulfillment of the provisions of Section 9 of Procedural Order No. 8, on February 3, 2020, the Parties informed the Tribunal of the witnesses and experts who would be cross-examined at the hearing. Similarly, on February 10, 2020, the Parties indicated to the Tribunal the order in which the witnesses and experts would be questioned.
47.
On February 10, 2020, the Tribunal issued Procedural Order No. 8, determining the procedural rules that would govern the conduct of the hearing scheduled for March 16 to 20, 2020. Given the issuance of the aforementioned procedural order, the Tribunal found that it was not necessary to hold the telephone conference to prepare for the hearing.
48.
On February 24, 2020, the Claimant submitted two separate briefs to the Tribunal. In the first brief, the Claimant asked the Tribunal to allow Andrés Anastacio, Esq., to testify as an expert, replacing Mr. Antonio Almonte due to the fact that the latter could not attend the hearing. In the second brief, the Claimant requested the admission of several official public documents for cross-examination of the Respondent's expert.
49.
The Respondent objected to the requests, in the letter sent to the Tribunal on March 2, 2020. It requested that Mr. Almonte's report be withdrawn in the event that he missed the hearing, and informed the Tribunal of the contact that the Claimant's expert, Mr. Almonte, had with the Respondent's expert, Mr. Reinoso, to discuss the case.
50.
On March 3, 2020, the Claimant took a stance regarding the interaction of the two experts. According to Dominicana Renovables, it was "an innocent conversation that arose between the two professionals and friends to advance their arguments in this case." Similarly, the Claimant offered to explain to the Tribunal ex parte the reasons of a personal nature that prevented the Claimant's expert from attending the hearing.
51.
That same day, the Respondent sent a letter to the Tribunal, rejecting, on the one hand, the Claimant's characterization of the conversation between the two experts, and, on the other, the offer to explain in a manner ex parte the absence of Mr. Almonte.
52.
On March 5, 2020, the Tribunal ruled on the requests submitted by the Claimant through Procedural Order No. 9. The Tribunal denied the replacement of the expert, Mr. Almonte, with Mr. Andrés Anastacio, and deferred, to a later phase, the Respondent's request to withdraw, from the record, the report prepared by the expert, Mr. Almonte. Likewise, the Tribunal rejected the request to hear ex parte the personal reasons that prevented the expert from attending the hearing, deeming that such action could harm the Respondent's rights. Finally, the Tribunal granted the request to admit to the case file any documents of an official nature, in the public domain, that were issued by Dominicana Renovables for the cross-examination of Mr. Reinoso.
53.
On March 10, 2020, the Claimant asked the Tribunal to admit to the file the PPA signed on October 24, 2011 between Electronic JRC, SRL and the Dominican Corporation of State Electric Companies (“CDEEE”). The Claimant argued that this document was mentioned by the witness Jiménez Bichara in his witness statement, and added that the aforementioned agreement was necessary to fully understand Exhibit R-41, which refers to Amendment No. 2 to the PPA.
54.
The Respondent objected to Dominicana Renovables' request on March 12, 2020. The Dominican State argued, among other things: (i) that the witness Jiménez Bichara did not refer to the document whose admission is requested but to the amendment contained in Exhibit R-41; (ii) that the Claimant's request was untimely.
55.
On March 16, 2020, the Tribunal issued Procedural Order No. 10, ruling in favor of the Claimant's request. The Tribunal reasoned that if the witness saw no problem in referring to the existence of an amendment made to a previously signed contract or in submitting the text of the amendment as an exhibit, there should be nothing to prevent the Respondent from adding the original agreement to the case file.
56.
In the same way, on March 11, 2020, the Respondent requested a suspension of the hearing scheduled for the week of March 16 of that year, in response to events related to the COVID-19 virus. The Dominican State argued that: (i) if the hearing were held, its participants would be exposed to the risk of transmission of the virus; and (ii) due to restrictions on immigration imposed by the United States government, it was not possible to guarantee the attendance of the Respondent's witnesses, experts, and attorneys-in-fact at the hearing.
57.
On that same date, the Claimant took a stance on the Respondent's request for suspension. Dominicana Renovables insisted that the hearing be held, but deferred the decision to the Tribunal.
58.
The Tribunal, by means of an email dated March 11, 2020, informed the Parties that it deemed it appropriate to prioritize the health of the participants and to postpone the hearing scheduled for March 16 to 20, 2020. This decision was later confirmed by the Tribunal through Procedural Order No. 11, dated March 17, 2020.
59.
In a session held on March 19, 2020, the Tribunal extended the term to issue the award until June 30, 2020.
60.
On May 5, 2020, the Tribunal informed the Parties that, because it was not certain when the travel restrictions due to the pandemic would be lifted, it was necessary to hold the hearing virtually. In this regard, the Tribunal proposed to the Parties that the hearing be held via the Cisco Webex platform administered by ICSID, during the week of June 8-12 (both weekends, inclusive). After verifying their agendas, on May 21, 2020, the Parties accepted the Tribunal's proposal.
61.
On May 22, 2020, the Tribunal requested that the Parties submit (i) the joint proposal for the hearing protocol; (ii) a mutually agreed timeline of the most important events surrounding the dispute; and (iii) an annex of legal precedents on general rules for the interpretation of agreements, regulations and laws, as well as the most relevant judgments of the Supreme Court in this regard.
62.
On June 2, 2020, the Parties sent the Tribunal the Tentative Schedule of the Hearing.
63.
On that same date, the Respondent submitted a communication in which, first, it requested that the Tribunal present four press releases as evidence of rebuttal to the documents incorporated into the file through Procedural Order No. 9. Second, in fulfillment of Procedural Order No. 10, the Dominican State presented the numbering of the documentary exhibit RD-0001-RD-003 1. Third, and finally, the Respondent corrected the format of Exhibits R-73 and R-75 so that they could be read properly.
64.
On May 29, 2020, in response to the request dated May 22, 2020, the Parties submitted to the Tribunal the timeline of events prepared by mutual agreement (hereinafter the “Timeline”).
65.
Additionally, on May 30, 2020, the Parties forwarded to the Tribunal the exhibit on legal authorities.
66.
On June 1, 2020, the Claimant submitted its response to the Dominican State's communication of May 28, 2020. In the aforementioned brief, Dominicana Renovables stated that it did not oppose the acceptance of the documents presented by the Respondent, despite believing that they had been presented in an untimely manner and did not constitute rebuttal material.
67.
In the absence of opposition, on June 2, 2020, the Tribunal issued Procedural Order No. 12, accepting the request of the Dominican State. Consequently, that day, the Respondent submitted to the file the four press releases identified as Exhibits R-191, R-192, R-193 and R-194, and Exhibits R-73 and R-75 were amended by Exhibits R -73 (bis) and R-75 (bis).
68.
On the same date, in preparation for the hearing, the Parties made available to the Tribunal, by email, an electronic copy of the full text of the documents considered essential to the case file.
69.
On June 3, 2020, the Parties sent the protocol of the virtual hearing, via email, for the Tribunal's consideration.
70.
In a communication dated June 4, 2020, the Tribunal asked the Claimant to confirm the attendance of Mr. Almonte at the hearing and the Respondent to confirm whether it maintained (i) its intention to cross-examine the expert and (ii) its request to withdraw Mr. Almonte's report in the event of his absence.
71.
The Parties responded to the Tribunal's request on June 5, 2020. The Claimant confirmed that the Mr. Almonte was not going to appear at the hearing for personal reasons that the Claimant would explain at the first session of the hearing. For its part, the Respondent ratified its request to exclude Mr. Almonte's report, in accordance with the provisions of Article 15.4 of Procedural Order No. 1.
72.
In a separate communication of the same date, the Parties forwarded, to the Tribunal, the list of participants at the hearing and who the main representatives would be.
73.
On the same day, the Tribunal issued Procedural Order No. 13 with the Virtual Hearing Protocol. Likewise, the Chair requested, by email, that each Party designate a person in charge of accounting for the time spent, and that these persons check their records daily to maintain the proper management thereof.
74.
The virtual hearing was held from June 8 to 15, 2020, on the Cisco Webex platform administered by ICSID from Washington DC The following people were present, connected from various locations:

Members of the Arbitration Tribunal:
Mr. Stanimir Alexandrov, Chair
Mr. Oscar M. Garibaldi, Co-Arbitrator
Mr. Juan Pablo Cárdenas Mejía, Co-Arbitrator

Claimant's Representatives:
Francisco A. Rodríguez (Akerman, LLP)
Luis A. Pérez (Akerman, LLP)
Rebeca E. Mosquera (Akerman, LLP)
Alejandro E. Chevalier (Akerman, LLP)
Tracy Leal (Akerman, LLP)
Luis Soto (Soto Abogados)
Esteban Fernández Rosado (Dominicana Renovables)
Alejandro Bertola (Grupo BTD)
Andrés Llorden (Grupo BTD)
Victor Cusí Puig (Witness - Normawind)
Pablo Valera (Expert - ATA Renovables)
Ignacio Becares (Expert - ATA Renovables)
Iván Fernández (Expert - ATA Renovables)
David Martínez (Expert - AddVANTE)
Joan Jiménez (Expert - AddVANTE)
Julio Miguel Castaños (Expert - Castaños & Castaños)
Juan Luis Sendín Cifuentes (Expert - Garrido Forensic SL)
José Manuel Báez (Expert - Báez Mueses & Assoc.)

Respondent's Representatives:
Eduardo Silva Romero (Dechert LLP)
José Manuel García Represa (Dechert LLP)
Alvaro Galindo (Outside Consultant)
Juan Felipe Merizalde (Dechert LLP)
Catalina Echeverri (Dechert LLP)
Ana Durán (Dechert LLP)
Santiago Rojas Molina (Dechert LLP)
Laura Arboleda Gutiérrez (Dechert LLP)
Santiago Soto García (Dechert LLP)
Anne Driscoll (Dechert LLP)
Judith Alves (Dechert LLP)
Sofía Galindo Reyes (Dechert LLP)
Ernesto Lima (Dechert LLP)
Samuel Jegou (Dechert LLP)
Loïc Cropage (Dechert LLP)
Donnie Villanueva (Dechert LLP)
Flavio Darío Espinal (Office of the Legal Advisor to the Executive Branch - CJPE)
Jimena Conde (Office of the Legal Advisor to the Executive Branch - CJPE)
Nathalie Hernández (Office of the Legal Advisor to the Executive Branch - CJPE)
Sara Patnella (Office of the Legal Advisor to the Executive Branch - CJPE)
Johanna Frías (Office of the Legal Advisor to the Executive Branch - CJPE)
Raysa Paulino (Ministry of Energy and Mines - MEM)
Manuel Batista (Dominican Corporation of State Electric Companies - CDEEE)
Nelson Burgos (National Energy Commission - CNE)
Matilde Balcácer (National Energy Commission - CNE)
Bons Blanco (National Energy Commission - CNE)
Michael de Lancer (Administrative Office of the President)
Gerardo Guzmán (Administrative Office of the President)
Moisés Mejía (Administrative Office of the President)
Pedro Espinal (Administrative Office of the President)
Santa Ramos (Witness - Dominican Corporation of State Electric Companies -CDEEE)
María Susana Gautreau (Witness - Ministry of Energy and Mines - MEM)
Rubén Jiménez Bichara (Witness - Dominican Corporation of State Electric Companies - CDEEE)
Juan Luis Villanueva (Witness - Independent Consultant)
George Reinoso (Expert - Independent Consultant)
Daniel Flores (Expert - Quadrant Economics LLC)
Juan Femando Riveros (Expert - Quadrant Economics LLC)
Darío Gatti (Expert - Quadrant Economics LLC)

75.
On June 17, 2020, the Tribunal sent a letter to the Parties requesting that they provide a copy of: (i) Law 1486 of March 20, 1938; (ii) the six PPAs signed by the CDEEE with renewable energy developers who had previously obtained a final concession from Dominicana Renovables; and (iii) any special powers issued by the Executive Branch in relation to any of the agreements mentioned in the preceding numeral.
76.
On June 23, 2020, the Respondent submitted the documents requested by the Tribunal. On that same date, the Claimant submitted to the Tribunal Emergency Decrees No. 894-09 and No. 358-10.
77.
The Dominican State opposed the filing of the aforementioned documents in a brief dated June 24, 2020. The Respondent reasoned that the decrees were not within the scope of the Tribunal's request, as they did not refer to the purchase or sale of renewable energy.
78.
The Claimant responded to the objection formulated by the Dominican State in its brief of June 25, 2020. According to the Claimant, the aforementioned decrees were in force during the period in which the CDEEE signed six of the seven PPAs and, contrary to the Dominican Republic's assertion, they were applicable to the purchase of energy derived from renewable sources.
79.
On June 26, 2020, the Tribunal issued Procedural Order No. 14, accepting the objection raised by the Respondent. The Tribunal reiterated that the request of June 17, 2020 related to specific documents and did not constitute a new opportunity to present evidence.
80.
On June 30, 2020, the Secretariat informed the Tribunal and the Parties that the Tribunal, in its session of June 18, 2020, extended the term for issuing the award to September 30, 2020.
81.
Pursuant to what was agreed at the last hearing session, the Parties informed the Tribunal on July 12, 2020 that they would send their expense statements on July 27, 2020 and the corrected transcript on July 28, 2020.
82.
On July 27, 2020, the Parties informed the Tribunal that by mutual agreement they had agreed to extend the submission of the certification of expenses to July 28, 2020. The Chair of the Tribunal approved the extension, in an email of that same date.
83.
On July 28, 2020, the Parties submitted their expense statements and the final version of the transcript.
84.
The Claimant, in a letter dated August 17, 2020, notified the Tribunal of Mr. Almonte's appointment as Minister of Energy and Mines of the Dominican Republic, a circumstance that it requested be taken into account when deciding on the admissibility of the expert's report.
85.
On August 19, 2020, the Respondent opined on the Claimant's request, reiterating that Mr. Almonte's report should be excluded for two reasons: (i) the appointment as Minister of Energy and Mines does not justify his absence from the hearing; (ii) the expert's new position confirms the lack of impartiality to act as an expert, given his political affiliation.
86.
On September 30, the Tribunal was informed that, in its session of September 17, 2020, the Tribunal extended the term for issuing the award until October 30, 2020.
87.
On October 30, 2020, the Secretariat informed the Tribunal that the Tribunal had extended the term for issuing the final award until November 30, 2020.
88.
In an email dated November 17, 2020, the Tribunal informed the Parties that the draft award was sent to the Tribunal for its approval. Additionally, the Tribunal invited the Parties to reach an agreement for the electronic signing and virtual notification of the award.
89.
On November 18, 2020, the Parties indicated to the Tribunal that they agreed for the award be electronically signed and [agreed to] receive a digital copy thereof.
90.
On November 19, 2020, the International Tribunal of Arbitration of the International Chamber of Commerce extended the deadline to issue the final award until January 29, 2021.

IV. NON-DISPUTED FACTS

91.
Below, the Tribunal presents a general account of the events with regard to which there is no dispute between the Parties. Considering the number of events that took place surrounding the dispute, the Tribunal complements this section with a Timeline, prepared by mutual agreement of the Parties in anticipation of the hearing, attached to this award.
92.
On May 7, 2007, the Executive Branch of the Dominican State enacted Law No. 57-07 on Incentives for the Development of Renewable Energy Sources and Special Regimes ("Law 57-07," "Incentive Law" or "Law").11
93.
The issuance of Law 57-07 was aimed at reducing the dependence of the Dominican Republic on imported fossil fuels as the main source of electricity generation and promoting the development of renewable energy sources.12 To achieve this objective, the Law established a series of incentives in favor of the developers of this kind of energy.
94.
Among the economic benefits provided by Law 57-07, which are not subject to dispute by the Parties, are: (i) exemption from taxes on the importation of machinery related to the development of renewable energy sources; (ii) income tax exemption for a period of 10 years, with a maximum term until 2020, on income derived from the sale of renewable energy; and (iii) the reduction of the tax rate for the payment of interest on external financing to 5%.13
95.
On May 30, 2008, the State enacted Law 57-07 by means of Decree No. 202-08 ("Regulations").14
96.
On February 4, 2009, Dominicana Renovables submitted to the National Energy Commission (“CNE”) an application for a provisional concession to carry out the necessary analyses and studies for the development of a wind farm, which would later be identified as La Isabela Wind Farm, located in the Province of Puerto Plata, Dominican Republic (“La Isabela Wind Farm,” “Wind Farm,” “Farm,” or “Project”).15
97.
On February 9, 2009, the CNE approved the request and granted a provisional concession to Dominicana Renovables through Resolution CNE-CP-0005-2009 (“Provisional Concession”).16
98.
In the years 2009 to 2012, Dominicana Renovables complied with the requirements set forth in Law 57-07 and the Regulations for obtaining a final concession, including: (i) wind studies; (ii) environmental impact studies; (iii) management of land leases; (iv) installation of wind resource measurement towers; and (vi) analysis of wind data in order to demonstrate the viability and feasibility of the Project. Additionally, Dominicana Renovables registered with the Special Regime Power Plant Registry. On May 15, 2012, Dominicana Renovables applied to the CNE for a final concession to develop and exploit the La Isabela Wind Farm.1718
99.
The CNE, through Resolution CNE-CD-010-2012 of November 8, 2012, recommended that the Executive Branch grant a final concession to Dominicana Renovables.111 As a result, on January 23, 2013 Dominicana Renovables and the CNE, on behalf of the Dominican State, signed the Final Concession Agreement ("Final Concession" or "Concession Agreement").19
100.
In April 2013, Dominicana Renovables requested that the CDEEE initiate negotiations for signing a PPA.20
101.
"[After several contacts [...] and visits to the CDEEE," on October 29, 2013 the CDEEE sent a draft of the PPA to Dominicana Renovables in order to begin the negotiation process for the PPA.21
102.
On August 4, 2014, Dominicana Renovables informed the CDEEE that it had obtained, from the CNE, an extension of the term provided by Law 57-07 for signing the PPA, wherefore it requested that the entity resend a draft of the PPA.22
103.
On September 3, 2014, the CDEEE, by email, informed Dominicana Renovables that the PPA negotiations were were detained until the Board of Directors could issue the protocol it was working on to streamline the process for the negotiation and review of power purchase 23 agreements.23
104.
On September 9, 2014, the CDEEE's Board of Directors issued a new “Protocol of mandatory general conditions for the signing of contracts for the sale of electrical energy from renewable energy sources, by the Dominican Corporation of State Electric Companies (CDEEE)” (the “Protocol”).24
105.
On January 20, 2015, the CDEEE sent the Protocol to Dominicana Renovables.25
106.
On May 19, 2015, the CDEEE and the company Electronic JRC, SRL signed an amendment to the PPA Agreement previously entered into on October 24, 2011.26
107.
On November 15, 2015, ten power companies signed the Formal Declaration of Acceptance of the Terms and Conditions for Signing a PPA with the CDEEE.27
108.
On November 27, 2015, the Office of the President of the Dominican Republic granted the Executive Vice President of the CDEEE Special Power No. 121-15 (the “Special Power”) so that it may, in the name and on behalf of the Dominican State, negotiate power purchase agreements with renewable energy producers (power purchase agreements), known by their abbreviation as PPAs.28
109.
On February 5, 2016, Dominicana Renovables told the CDEEE that, in the course of the negotiations they had been holding for the purpose of executing a PPA, they had been informed that the Protocol was not current and had been replaced by another one. It therefore requested a copy of the current protocol so that the negotiations could proceed.29
110.
In a letter dated April 29, 2016, the CDEEE again sent the Protocol to Dominicana Renovables and informed it of the closing of the PPA negotiations as follows:30

Notwithstanding the aforementioned remittance, at the direction of the Executive Vice President of this CDEEE, it is our duty to inform you that the CDEEE is not adding new projects to the list of producers with whom it is in the process of closing on potential power purchase agreements (PPAs) for renewable energy at this time, until it is possible to determine how much energy from the source indicated can be tapped by the National Interconnected Electric System (SENI) in the short term, from these projects, without creating risks to its efficient operation. It is important to note that these producers were selected based on the age of their projects and their advanced status of administrative processing with the authorities in question.

In this respect, we wish to express to you that it is currently impossible for this CDEEE to initiate negotiations aimed at signing a PPA based on your project without first definitively establishing which of the ongoing projects will be effectively implemented and can be commercially operated. In any case, we note that any future contract for the purchase and sale of energy from renewable sources must be the result of a public bidding process carried out under the applicable regulations.

111.
On September 1, 2016, the Company sent a letter to the CDEEE confirming that:31

[It is aware of] the terms of the Protocol of general conditions for the signing of contracts for the sale of electrical energy from renewable energy sources established in Special Power No.121-15, and [wants] to declare [its] agreement and formal acceptance of the terms and the purchase price of energy for wind projects established therein.

112.
On January 27, 2017, Dominicana Renovables met with the Vice Minister of Energy, Mr. Ernesto Vilalta, at which time Dominicana Renovables told him what happened during the negotiations with the CDEEE.32 The Vice Minister promised to speak with the Legal Director of the CDEEE "to request information about the situation and [ask] if they are working on Dominicana Renovables' case."33
113.
On February 14, 2017, the Ministry of Energy and Mines of the Dominican Republic (“MEM”) contacted Dominicana Renovables to request that it forward the entire file concerning its case and reiterated that it would contact the CDEEE.34
114.
On February 24, 2017, the CDEEE responded, via email, to the query made by the Vice Minister in relation to the case of Dominicana Renovables.35 The aforementioned response was forwarded to Dominicana Renovables on February 28, 2017.36
115.
On March 8, 2017, Dominicana Renovables sent a letter to the MEM refuting the arguments presented by the CDEEE in its email of February 24, 2017.37
116.
On March 13, 2017, the Legal Director of the MEM, Susana Gautreau, Esq., prepared a legal opinion (the "Opinion") for the Vice Minister of the MEM on the complaint made by Dominicana Renovables.38 Three days later, the Vice Minister forwarded the aforementioned Opinion to the CDEEE.39
117.
On May 8, 2017, Dominicana Renovables approached the CDEEE requesting that it reconsider its position and include the Company in the list of companies entitled to sign a PPA Agreement with the CDEEE.40

V. CLAIMS OF THE PARTIES

118.
The Tribunal presents below a detailed summary of the arguments presented by the Parties throughout the arbitration proceedings. For the sake of clarity, the Tribunal notes that, although it has only reproduced the most important claims and arguments of the Parties in this award, the Tribunal has considered all briefs and evidence presented by the Parties.

A. POSITION OF THE CLAIMANT

119.
Dominicana Renovables claims that the Final Concession Agreement signed with the Dominican State granted it the right to enter into the PPA with the CDEEE (Section 1). The CDEEE has refused to negotiate a PPA with Dominicana Renovables. As a state-owned entity, it (i) arbitrarily suspended the negotiation process; (ii) refused to remit the Protocol issued by the president; (iii) granted PPAs to those who did not meet the requirements, and (iv) has required Dominicana Renovables to participate in public bidding processes. The Claimant adds that, contrary to what the State maintains, the Company did accept the CDEEE's trade terms and demonstrated its financial capacity to implement the Project (Section 2). In the Claimant's view, the conduct of the CDEEE constitutes a contractual breach of the Final Concession Agreement by the Dominican State (Section 3). According to Dominicana Renovables, the State itself recognized the recklessness of the CDEEE's conduct in the Opinion issued by the MEM's Legal Vice President (Section 4). Therefore, Dominicana Renovables must be fully compensated by the Dominican Republic.
120.
In this respect, the Claimant asks the Tribunal: (i) to declare the Dominican State in breach of contract, as well as in breach of Law 57-07 and its Regulations; (ii) declare the termination of the Agreement; and (iii) order the Respondent to compensate Dominicana Renovables.

1. The Final Concession Agreement Establishes the Right of Dominicana Renovables to Enter into the PPA with the CDEEE41

121.
Dominicana Renovables argues that the Final Concession Agreement grants it two very important rights. First, the right to build a wind farm on the concessioned land, with a capacity of up to 100 megawatts. Second, the right to enter into or establish power purchase agreements with the CDEEE, by virtue of which it would receive payments at the prices established in Law 57-07.

a) Regarding the right to enter into a PPA with the CDEEE42

122.
To substantiate its claim, first, the Claimant relies on the provisions of Articles 2 and 5 of the Final Concession Agreement.
123.
Article 2 of the Concession Agreement stipulates the right to build the Farm under the following terms:43

PURPOSE OF THE AGREEMENT. The DOMINICAN STATE authorizes THE CONCESSIONAIRE to construct, install, operate and exploit, for its own benefit and at its own risk, ONE (1) wind farm for the generation of electricity, with a maximum capacity of FIFTY (50) MW ... The total capacity may be expanded to double its size when THE CONCESSIONAIRE has installed at least 50% of the original size granted, subject to meeting the timelines established by the regulations.

124.
For its part, Article 5 of the Final Concession lists the rights that Dominicana Renovables has in its capacity as Concessionaire, according to the Concession Agreement. In particular, the Claimant invokes the following stipulations:44

RIGHTS OF THE CONCESSIONAIRE: Under this agreement, the CONCESSIONAIRE will have the right to perform the following activities, including, but not limited to:

c) Build, operate and exploit, under its sole and direct ownership, the Generation Facilities up to a maximum of 50MW;

d) Execute power purchase agreements and/or sell its energy production in SENI under the conditions provided by current legislation, as applicable, including within the framework of the provisions of Article 65 Subparagraph (a) of the Regulation for Implementation of Law No. 57-07. or within the framework of Paragraph II of said Article 65 (...):

…

h) Receive, as remuneration for the generation of electricity from primary renewable sources, the wholesale market price, plus the incentives provided for in Law 57-07 on Incentives for the Development of Renewable Energy Sources and its Special Regimes, dated May 7, 2007 and its regulation for implementation, with their respective amendments;

…

k) All other conditions established in the Regulation for Implementation of Law No. 57-07 on Incentives for the Development of Renewable Energy Sources and their Special Regimes, with their respective amendments;

…

m) Any other right granted under Dominican legislation, and in particular, subject to the terms and conditions provided for such purpose under Law 57-07 and its Regulation for Implementation with regard to tax incentives and other rights established therein.

125.
Based on the provisions of Paragraphs d), k) and m) of Article 5, the Claimant refers to the text of Article 65 a) of the Regulations to maintain that the aforementioned norm establishes the right of Dominicana Renovables to execute a PPA with the CDEEE. The text of the Regulation is as follows:45

Article 65.- PPA. Any companies benefiting from a Final Concession, included in the Register of the Special Regime. will establish an agreement for the supply of electricity from primary renewable sources, with the CDEEE. by virtue of which they will receive from it any payments that correspond to them in accordance with this Regulation. (...)

SUBSECTION I: In each case, the agreement will be negotiated by the parties, based on their respective commercial interests.

SECTION II: The heads of Renewable Energy Power Companies may sign renewable energy supply contracts with any other agent of the wholesale electricity market, in adherence with the provisions of Law No. 57-07.

126.
According to the Claimant, a simple reading of Article 5 of the Agreement and Article 65 of the Regulations shows that Dominicana Renovables has the right to develop the Farm and enter into the PPA with the CDEEE.
127.
On the other hand, the Claimant rejects the interpretation of Article 65 of the Regulations proposed by the Dominican State in the Answer to the Claim.46
128.
In the Claimant's view, there is no legal basis to assert, as the Dominican Republic does, that Article 65 confers to the CDEEE a preemptive purchase option and not the obligation to purchase the energy generated by the Company. According to the Claimant, the weakness of the Respondent's argument can be proven by the simple fact that the State does not cite any part of Law 57-07, the Regulations or the Agreement that could justify that said article establishes a purchase option in favor of the CDEEE.
129.
Likewise, Dominicana Renovables claims that it is not possible to argue that there is no obligation to sign the PPA because Paragraph I of Article 65 precisely foresees the possibility that the parties may not agree on their commercial interests and be unable to sign a PPA.
130.
The Claimant asserts that Paragraph I of Article 65 must be interpreted in the light of the provisions of Article 65. Although Paragraph I establishes that the PPA must be negotiated based on the commercial interests of the parties, we should not lose sight of the fact that the PPA elements of "price" and "item sold" are determined by the Concession Agreement, Law 57-07 and the Regulations. In that regard, Paragraph I allows the parties to negotiate the collateral elements of the PPA without it affecting the required contractual agreement for the purchase and sale of energy generated.
131.
The Claimant explains that the commercial interests referred to in Paragraph I refer to aspects such as the right to priority dispatch, payments for the right of connection to transmission companies, and grounds for the termination or rescission of the Agreement. The Claimant additionally states that the secondary features of the PPA are already standardized on the PPA forms, and therefore, in practice, are not subject to negotiation.
132.
Dominicana Renovables also rejects the State's argument that there is no obligation for the CDEEE to sign the PPA because Paragraph II of Article 65 of the Regulations and Article 5 establish the right of Dominicana Renovables to sell the energy it produces on the wholesale market or the spot market.
133.
In the Claimant's view, the potential to sell energy to any agent in the wholesale electricity market constitutes a voluntary option for the Company but not for the Dominican State. It is the Concessionaire who has the power to decide if it wants to sell its energy to an agent other than the CDEEE.
134.
Dominicana Renovables argues that this interpretation is supported by Law 57-07 Article 18, which establishes that the beneficiary companies of a Final Concession Agreement "will not have the obligation to make offers on the Wholesale Market for these facilities, but they will have the right to sell the production of electrical energy to distributors at a marginal cost."47
135.
Likewise, according to the Claimant, the option that the Company has to sell energy on the wholesale market or on the spot market does not diminish the CDEEE's obligation to execute the PPA with Dominicana Renovables.
136.
Secondly, Dominicana Renovables affirms that the PPA is a "formalization or administrative procedure that the CDEEE has no right to deny."48 The Claimant supports this thesis based on the wording of Article 4.2 of the Final Concession Agreement that uses the term “formalization” when adjusting the timeline for the start and end of the works, as follows:49

Timeline for Start and End of Works: THE CONCESSIONAIRE will have a period of three hundred and sixty (360) days from the signing of this document, to present evidence of the formalization of a Power Purchase Agreement with the Dominican Corporation of State Electric Companies (CDEEE) that allows the sale of all energy of THE CONCESSIONAIRE, notwithstanding any right of THE CONCESSIONAIRE to sell energy to any other agent on the Wholesale Electricity Market [MEM, by its Spanish acronym] or on the Spot Market.

137.
Based on the previous clause, Dominicana Renovables maintains that the language used by the Regulations and the Concession Agreement "refer to the PPA as a legal reality that the concessionaire - in this case, Dominicana Renovables - must formalize or establish with the CDEEE."50
138.
According to the Claimant, the fact that the start of the works is contingent on the attainment of the PPA demonstrates the latters' relevance in enabling the implementation of the Project. In the Company's view, it is contradictory to assert that the signing of the PPA is discretionary when the Final Concession itself establishes a timeframe for the execution of its formalization.
139.
In the Dominicana Renovables' view, the fact that the Concession Agreement sets a timeline for execution of the PPA means that it is based on the assumption that it will not be denied by the Dominican State. Precisely for this reason, Law 57-07 and the Regulations establish as one of the requirements for the awarding of a Final Concession that the CDEEE issue an opinion stating that there is no technical objection to the execution of the renewable energy project.
140.
Similarly, based on the opinion of the expert in Dominican law, Mr. Julio Miguel Castaños, the Claimant affirms that, once the Final Concession is awarded, Dominicana Renovables has an acquired right to be able to sell any energy produced to the CDEEE, under the price and benefits established by Law 57-07 and the Regulations. For this reason, the CDEEE has no discretionary power to refuse to sign them without justification.51
141.
Thirdly, the Claimant maintains that the acquired right of Dominicana Renovables is explicitly recognized by the CDEEE in the clauses of the draft PPA that it sent to the Company during the negotiation process. The Claimant invokes Article 13 of the draft PPA, which states:52

RIGHT OF THE PARTIES TO SIGN THIS AGREEMENT.

13.1 THE GENERATOR states that:

a It justifies its right to sign this Contract under its holding of the Final Concession Agreement, as well as its registration in the Register of the Special Regime established in the Regulations for the Implementation of Law No. 57-07. (...)

13.2 THE CDEEE states that:

...

b. It signs this Agreement by mandate of Law No. 57-07 and Article 65 of the Regulation for the Implementation of Law No. 57-07.

142.
In Dominicana Renovables' view, the statements issued by the CDEEE confirm the provisions of Article 5 of the Final Concession Agreement, according to which the beneficiary companies for this type of concessions have the "right" to enter into PPAs under the preferential regime established in Article 65 of the Regulations.

b) Regarding the right to charge the rate established in Law 57-07 and the Regulations53

143.
The Claimant alleges that Article 65 Paragraph (a) of the Regulations and Article 5 of the Final Concession Agreement also grant Dominicana Renovables the right to sell energy to the CDEEE according to the rate established in the Regulations.
144.
According to Dominicana Renovables, this right is also recognized in Article 11 of the Concession Agreement, which provides:

THE CONCESSIONAIRE will have the right to collect the list price of the electricity sold and the corresponding premiums from the distribution companies, the CDEEE or other agents of the Wholesale Electricity Market, as established in the applicable regulations in force.

145.
Dominicana Renovables affirms that Law 57-07 established a regulatory model of feed-in rates, in which the State, as part of the strategy to attract renewable energy producers, established one of the highest rates in the energy market. Article 18 of Law 57-07 and Articles 109 and 110 of the Regulations set an initial rate of US$125.20 per MWh which, with annual increases, resulted in 2013 in a rate of US$144.00 per MWh, and which in 2015 became US$147.3 per MWh.
146.
In its Reply, the Claimant alleges that the State is wrong in stating that “the compensation framework of Law 57-07 and its Regulations did not guarantee a fixed price for the purchase of energy, but rather established, as stated in Article 110 of the Regulation, benchmark values for each type of technology."54
147.
According to the Company, Law 57-07 Article 18 establishes that the remuneration (R) is comprised of the marginal cost of the SENI (Cm) complemented by a premium or positive compensation incentive due to outside factors (Pr). Namely: R = Cm + Pr.
148.
Thus, the framework provided in Article 109 of the Regulation establishes a variable premium intended to lend “stability” to the investments. Within this framework, in the Claimant's view, this means that the only figure that changes is the variable premium and not the total amount of the compensation, as affirmed by the Dominican State. In other words, the remuneration is fixed, as recommended, and the Regulations foresee the premium as being the only variable.
149.
Therefore, the Respondent is wrong in concluding that the values established in the Regulations are “benchmark values” subject to change, because it is confusing the terms of remuneration and premiums.

2. The Dominican State has violated the Final Concession Agreement insofar as the CDEEE has refused to negotiate the PPA with Dominicana Renovables55

150.
The Claimant alleges that the conduct displayed by the CDEEE during the PPA negotiation process with the Company constitutes three contractual violations. First, the CDEEE arbitrarily suspended the negotiation process that it had initiated with Dominicana Renovables. Second, the CDEEE never sent the Company the Special Power issued by the President of the Republic with the commercial terms for the signing of the PPA. Finally, the CDEEE, to the detriment of Dominicana Renovables, has granted PPAs to power companies that do not comply with the requirements established in Law 57-07 and the Regulations.
151.
In response to the arguments presented by the Respondent, Dominicana Renovables alleges: firstly, that the Company accepted the commercial terms of the CDEEE, and secondly, that Dominicana Renovables demonstrated its financial capacity to sign the PPA.

a) The CDEEE arbitrarily suspended the PPA process after beginning negotiations for the PPA with Dominicana Renovables56

152.
Dominicana Renovables argues that, as soon as it obtained the Final Concession, it approached the CDEEE to begin the process of negotiating the PPA.
153.
After several exchanges of correspondence and visits to the CDEEE, on October 29, 2013, the Company received the draft of the PPA via email. In that email, the CDEEE stated that it was willing to start the negotiation process.
154.
According to the Claimant, the CDEEE told it in an email dated March 14, 2014 that as soon as it sent the documentation mentioned therein, the Company could "request a meeting in order to discuss and negotiate the trade conditions, of a possible power purchase agreement.57
155.
The legal representative of Dominicana Renovables and witness for the Claimant in this arbitration, Mr. Esteban Fernández, claims to have sent the documents to the CDEEE 7 months before, on August 12, 2013.58 Likewise, the Company maintains that these documents were resent to the CDEEE.
156.
Regarding the letter dated August 12, 2013, the Claimant notes that, although the State claims in its Answer that it was not aware of this letter until Dominicana Renovables sent a summary with its own version of the facts, the aforementioned summary was submitted at the request of the CDEEE itself.59
157.
The Company affirms that the CDEEE does not have a file on Dominicana Renovables, or at least the aforementioned file was never sent to the CDEEE Legal Department. Therefore, the Claimant questions how the Dominican State can affirm that the letter was not delivered on August 12, 2013, if the CDEEE does not have a file on Dominicana Renovables.60
158.
On May 1, 2014, Dominicana Renovables sent the CDEEE the audited balance sheets of its parent company BTD. The Claimant adds that after this delivery was made, despite having met and communicated with the CDEEE on several occasions, the entity's officials did not ask the Company for any other document proving its financial capacity, as the CDEEE had done with other companies.61
159.
Specifically, the Claimant explains that it met with the CDEEE on May 26, 2014, and subsequently wrote to the entity on July 22, 2014 in order to advance the formalization of the PPA.
160.
Because the negotiations with the CDEEE were taking longer than expected, the Claimant requested an extension, from the CNE, of the 360-day term provided in the Concession Agreement for formalization of the PPA. The CNE initially granted a 180-day extension to Dominicana Renovables in January 2014. Upon expiration of the term, the CNE granted a second extension for another 180 days. The Claimant points out that in the CNE resolution granting the second extension, the state-owned entity acknowledged that the PPA had not been formalized for reasons not attributable to Dominicana Renovables.
161.
Dominicana Renovables states that on August 4, 2014, it sent a letter to the CDEEE informing it of the extension granted by the CNE and, since the State was working on the preparation of a new PPA form, the Company requested that it be sent a draft of the amended PPA so that it could finish signing the relevant agreement.62
162.
The Claimant alleges that on September 3, 2014, surprisingly and without prior notification, the CDEEE informed Dominicana Renovables that the negotiation of PPAs was on hold until the CDEEE Board of Directors could issue the protocol to "streamline the process for the negotiation and review of power purchase agreements."63
163.
The Claimant adds in its Reply that, in said correspondence, the CDEEE promised to send the new draft of the PPA "in accordance with the newly approved provisions."64
164.
The Company sent communications to the CDEEE in November and December inquiring about the issuance of the new protocol and the new draft of the PPA; however, the CDEEE did not respond to any of the communications.
165.
In the Claimant's view, the arbitrary cancellation of the formalization process for the PPAs was the beginning of the CDEEE's willful misconduct consisting in the frustration of Dominicana Renovables' contractual rights and expectations, conduct that, for Dominicana Renovables, constitutes a breach of contract on the part of the Dominican State.
166.
Dominicana Renovables rejects the thesis put forward by the Respondent in the Answer according to which a PPA could not be formalized with the Company because the latter did not show a serious interest in developing the Project.65 According to the Claimant, the Company did everything possible to obtain its respective PPA.
167.
In Dominicana Renovables' view, the reason it was not possible to formalize the PPA during the period from January 2013 to November 2015 was that the CDEEE was not in a position to formalize any PPAs. The Company affirms that this is demonstrated by the testimony of the Respondent, where the witnesses admit that the negotiation process was suspended for a long time due to the constant changes implemented by the CDEEE.66Likewise, the entity's unavailability is also proven by the fact that during that period the CDEEE did not formalize any PPAs.67

b) The CDEEE refused to send the Protocol issued by the President to Dominicana Renovables68

168.
Dominicana Renovables maintains that it accepted the CDEEE's decision to suspend the negotiations of the PPA in good faith. However, the Company states that its good faith was not reciprocated by the CDEEE.
169.
First, the Claimant alleges that the Protocol approved on September 9, 2014 was never officially published by the CDEEE and, despite the Company's requirements, it was only sent to Dominicana Renovables four months after being issued, that is, in January of 2015.
170.
In this regard, the Claimant points out that the way in which the 2014 CDEEE Protocol was sent to Dominicana Renovables was totally different from the way it was sent to other companies.69 First, the Protocol was sent to companies like Electronic JRC three to four weeks after it was issued, while it was sent to the Company three months later. Second, the cover letter included a timeline for the implementation the protocol's terms and conditions. The communication sent to Dominicana Renovables did not include any deadline for formalizing the PPA, nor did it include a Formal Declaration of Acceptance like the one that was sent to other energy producers.
171.
Dominicana Renovables alleges that, at the time it received the Protocol from the CDEEE, the Executive Director of the CNE informed it that all concessions would be suspended until the President of the Republic issued a new protocol. According to the Claimant, during 2015 the Company repeatedly asked the CDEEE about the aforementioned protocol without obtaining any response.
172.
Second, Dominicana Renovables maintains that on November 27, 2015 a new protocol for the signing of PPAs was issued by the President of the Republic. However, Claimant argues that the CDEEE has refused to provide it with this new protocol without providing any explanation.
173.
The Claimant maintains that the cordial relationship that existed with the CDEEE changed in 2016 when the Company learned that the President of the Republic had issued the Special Power with a list of companies that had obtained PPAs.70
174.
According to the Claimant, the Company requested the new protocol for the negotiation of the PPA in communications dated February 5, 2016, February 24, 2016 and March 9, 2016.71 Initially, Ms. Ramos had informed Dominicana Renovables on February 24, 2016 that she had to request the protocol from the CDEEE's Legal Directorate. Subsequently, on April 12, 2016, Ms. Ramos confirmed to Dominicana Renovables that the Special Power could be obtained online since it was a Decree.72
175.
Dominicana Renovables affirms that on April 29, 2016, in an act of bad faith, the CDEEE responded to the communications of February 24, 2016 and March 9 of that same year, sending only the 2014 Protocol and not the Special Power.
176.
In Dominicana Renovables' view, the attitude of the CDEEE is totally arbitrary, all the more so if one takes into account that during the course of that same year, its representatives held several working meetings with CDEEE officials, who informed them that they should wait for the new issuance of the protocol.
177.
Dominicana Renovables alleges that it is not possible to understand the motivation of the CDEEE in refusing to formalize the PPA with the Claimant, after the Company had submitted all required documentation and was ready to implement the Project. The Claimant adds that, furthermore, the Company had already reviewed and approved the draft of the Agreement that the CDEEE had shared with it in October 2013.
178.
The Claimant rejects the Dominican State's assertion that the Company was absent after the Protocol was delivered to it in January 2015 and did not show any interest in formalizing the PPA.73
179.
Dominicana Renovables alleges that, on the contrary, the Company remained in contact with the CDEEE throughout 2015, waiting for the entity to send it the amended version of the PPA.74
180.
To support its claim, the Claimant submits a timeline of the communications exchanged with the CDEEE during the months of March, April, May and August 2015.75
181.
According to the Claimant, on May 8, 2015, the Company met with the CDEEE and, on that occasion, Ms. Santa Ramos informed it that it should wait, “that there was nothing to be done until the CDEEE resolved the issue of the Original Seven [Companies]."76
182.
The Claimant states that the CDEEE's message remained the same as always. At a meeting on September 2, 2015, the CDEEE told Dominicana Renovables that the Protocol would be replaced by a new provision. Likewise, the entity informed it that, at that time, the CDEEE was only formalizing PPAs with the seven companies that had a PPA.77 Then, on December 2, 2015, Ms. Ramos confirmed to Dominicana Renovables that a new provision had been issued, but nevertheless, the new resolution had not yet come out, and at that time they were only processing projects that had agreements.78
183.
The Company states that it contacted the Ramos engineering firm again on January 28, 2016, at which time Ramos engineering informed him that “the matter was complex”; that the CDEEE was signing PPA Agreements with those who had an authorization "from the Authority." According to the Claimant, these were the usual seven companies and other potential new concessionaires.79
184.
Thus, the Claimant maintains that it was in contact with the CDEEE during 2015 and that, without obtaining a copy of the amended PPA Agreement, or the acceptance form, there was nothing that Dominicana Renovables could accept.80

c) The CDEEE granted PPA Agreements to entities that did not comply with the Requirements of Law 57-07 and its Regulations.81

185.
The Claimant affirms that the CDEEE did send the Protocol to companies that did not comply with the requirements established in Law 57-07 and the Regulations to be able to access a PPA Agreement.
186.
In particular, Dominicana Renovables refers to the companies EGE Haina, Emerald Solar Energy SRL and IC Power DR Operations SAS, which obtained a PPA Agreement with the CDEEE in 2016, without previously having a Final Concession Agreement approved by the CNE.
187.
As the Claimant explains, because renewable energy cannot be managed or stored, the Dominican State has a predetermined capacity to sign PPA Agreements. The CDEEE, by granting the PPA Agreements to these other three companies, caused Dominicana Renovables to lose the 100 megawatts that it had available to sell to the distribution companies of the Dominican State.
188.
The Claimant adds in its Reply that the Dominican State has not refuted the fact that the CDEEE established PPA Agreements with companies that did not comply with the requirements established in the Law and Regulations.82
189.
In this regard, Dominicana Renovables highlights that, in the communication of June 16, 2017, the MEM indicated to the CDEEE that it had signed PPA Agreements with two entities that did not have a Final Concession, in violation of the provisions of Law 57- 07 and the Regulations.83
190.
The Claimant adds that, based on the discovery of documents, it was able to verify that the Dominican State also signed PPA Agreements with seven other generators without the latter having a Final Concession.84
.
Additionally, Dominicana Renovables points out that the Dominican State closed the doors to the Company by giving priority to the construction of the Punta Catalina coal plant and not to renewable energies85 The Claimant emphasizes that the construction of said project was awarded to the controversial company Odebrecht, a project in which there are allegations of bribery payments to State officials for US $ 39 million.86

d) The CDEEE called upon Dominicana Renovables participate in a public bidding process to enter into a PPA Agreement87

192.
Dominicana Renovables alleges that the CDEEE, in a communication dated April 29, 2016, informed the Company that it would not add “new projects to the list of producers with which... [it has signed] power purchase and sale contracts from renewable sources” and that “any future contract for the purchase and sale of energy from renewable sources must be the result of a public bidding process carried out under the applicable regulations.”88According to the Claimant, this position was reiterated by the CDEEE in the letter of January 5, 2018.89
193.
The Claimant alleges that the CDEEE's position is contrary to the Regulations. Article 65 of the Regulation establishes an exception to the rule that requires a public tender. Dominicana Renovables adds that neither Law 57-07, nor the Regulations, nor the Final Concession mention the need to participate in a public bidding process in order to enter into a PPA Agreement.
194.
In this regard, for the Claimant, the new position of the CDEEE is a regulatory change that constitutes a contractual violation according to the provisions of Articles 8.3 (c) and 8.4 of the Concession Agreement.90 According to Dominicana Renovables, the guarantee of entering into the PPA Agreement with the rates of the Regulation, without the need to participate in a public tender, is what ensures the financial success of the investment.
195.
The Claimant asserts that the Dominican State can change the incentives of Law 57-07 and the Regulations, but only with respect to new projects. The La Isabela Wind Farm was not a new project. The Project had a Final Concession, financing and had obtained the necessary permits and authorizations.

and) Dominicana Renovables accepted the terms of the Special Power of the Dominican State as soon as it received a copy of it91

196.
The Claimant rebuts in the Reply the argument presented by the Dominican Republic and its witnesses, according to which Dominicana Renovables never accepted the price offered by the CDEEE or the commercial conditions established in the Protocol. '92
197.
Dominicana Renovables alleges that the right to sign a PPA Agreement with the CDEEE cannot be abrogated by the business interests of the Parties because this would violate the mandate established in Article 65 of the Regulations and the provisions of the Final Concession Agreement. However, even if this argument were accepted, it would be irrelevant because Dominicana Renovables explicitly accepted all the terms imposed by the CDEEE in the letter dated September 1, 2016.93
198.
According to the Claimant, as soon as it had access to the terms of the Special Power, the Company sent a letter to the CDEEE confirming that:94

[Know] the terms of the Protocol of General Conditions for the signing of Contracts for the Sale of electrical energy from renewable energy sources established in the Special Power No. 121-15. and [wants] to express [its] agreement and formal acceptance of the conditions and energy sale price for the wind power projects established in the said protocol.

199.
Although the Respondent argues that the acceptance of the terms of the Special Power is untimely, Dominicana Renovables asserts that this argument is inadmissible. “Dominicana Renovables accepted the terms of the Special Power as soon as it was informed that it had been issued but that the Dominican State refused to hand it over. Once again, it was only [.v / c] through its own efforts that Dominicana Renovables was able to obtain a copy from a third party.”95

f) Dominicana Renovables proved its financial capacity96

200.
The Claimant affirms that it is not true that Dominicana Renovables has never proven its financial capacity to develop the Project as stated by the Dominican State.97 According to the Company, its financing capacity was established by sending the State and CDEEE two letters of intent and its audited financial statements.98
201.
First of all, Dominicana Renovables maintains that its financial capacity was verified by the State at the time of signing the Final Concession Agreement. The Claimant points out that Article 5 of Law 57-07, as well as Article 39 of the Regulations, require the demonstration of financial viability. Specifically, the Regulation requires the presentation of a "financing scheme and proof of the financial capacity to undertake the project, accompanied by the identity documents or financial entities that certify their commitment to financing the Project."99 Dominicana Renovables complied with this requirement to the CNE, otherwise it would not have obtained the Final Concession.100
202.
Second, the Claimant maintains that it sent the CDEEE the documents indicated in the draft PPA Agreement that the CDEEE sent it in October 2013.101 Specifically, it indicates that in 2013 the Company sent the CDEEE a letter from Banesto and on May 1, 2014 it submitted its audited financial statements. After this delivery of information, the CDEEE never again asked Dominicana Renovables for proof of its financial capacity, as demonstrated in the Respondent's document discovery stage.102
203.
As the CDEEE did not request more documents from the Company, the latter assumed that the documentation presented was sufficient. If the information was insufficient, the CDEEE could have asked Dominicana Renovables to attach the missing documentation, as it did with other companies.103
204.
Third, the Claimant alleges that the State is seriously erring in maintaining that Banesto's letter was a simple “offer to study the financing of the project, subject to a series of conditions and approvals from various entities” and was not sufficient to prove the financial capacity of Dominicana Renovables.104 Dominicana Renovables explains, based on the Addvante experts' report, that it is not possible to have a firm financing offer until there is a signed PPA Agreement. Standard practice is that dealers have only a letter of intent or proposal to study the project at that time.105
205.
The Claimant affirms that proof of the foregoing are the documents that other developers that did formalize a PPA Agreement with the CDEEE to demonstrate their financial capacity. By way of example, the Company indicates that the documents presented by the companies Parques Eólicos del Caribe, SA, WCG Energy, LTD. and Poseidon Energía Renovable C. By A., were very similar to the Banesto letter sent by Dominicana Renovables.106 However, these companies did manage to formalize a PPA Agreement.
206.
According to the Claimant, the CDEEE even awarded PPA Agreements to companies that were only in talks or negotiations with the banks.107
207.
Following that line of reasoning, Dominicana Renovables concludes that (i) the Company presented the documentation required in Law 57-07 and in the Contract; (ii) once the CDEEE was presented, it did not make any remarks or request additional information; and (iii) the documents presented by the other developers that did formalize a Concession Agreement were similar or of inferior quality to those presented by Dominicana Renovables.

3. CDEEE's contractual breach is a breach of the Final Concession Agreement by the Dominican State.108

208.
Dominicana Renovables alleges that the Dominican State is responsible for the conduct of the CDEEE based on two facts. First, given the character of the unitary republic of the Dominican Republic, the Dominican State is responsible for the conduct of its bodies. Second, the Final Concession Agreement explicitly states that a contractual violation by the CDEEE constitutes a contractual breach.
209.
Regarding the first point, Dominicana Renovables argues that Article 7 of the Constitution provides that the "|4] to Dominican Republic is a Social and Democratic State of Law, organized as a unitary republic." To that extent, the CDEEE cannot assume a position contrary to that assumed by the State when it granted rights to the Company by contract.
210.
The Claimant, citing its expert in Dominican law, explains that although the Dominican State executes its power through autonomous bodies that have their own legal personality and administrative autonomy, these bodies are always part of the State. Therefore, the actions of these entities constitute actions of the Dominican State, by virtue of the principle of unity of the State.
211.
The Claimant adds that the principle of unity is also recognized in international law in Article 4 of the Articles on Responsibility of States for Internationally Unlawful Acts with Comments (Articles on Responsibility of States for Internationally Wrongful Acts, with Commentary) drawn up by the International Law Commission. According to this provision, the conduct of any state body is attributable to the State and it must be considered as a state act.109 Thus, a state body is understood to be any government body that performs any function at any level of the state hierarchy.
212.
Regarding the second argument, Dominicana Renovables alleges that the Parties intended in Articles 8.3 (c) and 8.4 of the Final Concession Agreement to protect the Company from any breach of the bodies that make up the Dominican State under any contract necessary for the construction and operation, in an economically viable manner, of the Wind Farm. The text of the aforementioned provisions is as follows:

8.3. Notwithstanding that the following events or circumstances may be considered as exempt or exempting circumstances from liability for THE CONCESSIONAIRE under this Contract, and allowing it to validly suspend its obligations under it because such events or circumstances are considered to be breaches of essential obligations of the DOMINICAN STATE assumed under this Contract, they may not be used by the DOMINICAN STATE, or any of its dependencies, including the CNE and the SIE as an allegation of force majeure or exemption that justifies the suspension of its obligations under this Contract, namely:

c) Any modification to the current legislation and regulations of the Dominican Republic that has as a direct or indirect effect the impossibility of continuing in an economically viable manner with the operation of the Wind Farm.

8.4 In the event of any of the events described above in paragraph 8.3, to the extent that the termination or rescission of this Contract is decided due to causes attributable to the DOMINICAN STATE, the latter acknowledges and accepts the obligation to compensate THE CONCESSIONAIRE for the damages suffered. due to the event in question, as a breach by the DOMINICAN STATE. The Parties accept that the amount of compensation to which THE CONCESSIONAIRE would be entitled will be established by the arbitration award to be issued. The amount of these damages will in no case be less than the debt that THE CONCESSIONAIRE has pending with THE FINANCIAL CREDITORS.

213.
The Claimant explains, supported by the opinion of its expert in Dominican law, Dr. Castaños, that the PPA Agreement is essential for the State:

2. It will be understood that body includes any person or entity considered as such according to the internal law of the State.)

economically viable operation of the Park. According to Dominicana Renovables, neither the spot market nor the alternative market have the capacity to absorb the 100 megawatts granted under the concession agreement, nor is this amount a financially viable option. Without the PPA Agreement, Dominicana Renovables could not close the financing agreement for the Project.

214.
In this regard, the non-formalization of the PPA Agreement by the CDEEE constitutes a contractual breach of an obligation necessary for the operation of the Park in an economically viable manner, a breach that must be compensated for by Dominicana Renovables.
215.
The Claimant rejects the defense formulated by the Dominican State according to which the CDEEE has legal personality and broad autonomy to enter into PPA Agreements, for which reason it can refuse to formalize this type of contract. According to Dominicana Renovables, when the State signed the Final Concession, it did so on behalf of the entire state apparatus, including the CDEEE.110
216.
The Company affirms that this argument is supported by the text of Article 8.3 (d) of the Final Concession Agreement, which explicitly establishes that the CDEEE is the signatory party to the Concession Agreement in the following terms:111

Any breach attributable to the Dominican State, to any of its dependencies, agencies, ministries, secretariats, autonomous bodies, public companies, and other related institutions, under any contract signed with the Concessionaire necessary for the construction and operation of the Wind Farm in an economically viable manner. including, any breach attributable to any of the parties to this Contract, whether it is the Dominican State., the CNE. or the Superintendency of Electricity, the Dominican Electricity Transmission Company, or the Dominican Corporation of State Electric Companies ICDEEE1

217.
Likewise, Dominicana Renovables maintains that Article 8.4 of the Concession Agreement obliges the State to compensate Dominicana Renovables for the breach of contract by its constituent bodies, including autonomous entities such as the CDEEE.112
218.
The Claimant adds that the Dominican State makes the distinction that the Concession Agreement was not signed by the entire State apparatus, but was signed by the Dominican State represented by the Executive Director of the CNE, however it does not explain what the legal effect of said clarification is.113
219.
On the other hand, the Claimant alleges the power purchase and distribution function is a state function delegated to the CDEEE. Therefore, the entity acts on behalf and in representation of the State and cannot assume a position contrary to that in which the Dominican State has granted contractual rights. In fact, Dominicana Renovables highlights that the Respondent's witness, Mr. Bichara, admits that he had to obtain the approval of the Dominican State in order to formalize the PPA Agreements with the eleven selected companies.114
220.
Finally, Dominicana Renovables argues that the State must answer for the conduct of the CDEEE on the basis of the concept of unity of the Dominican State. In addition, Article 148 of the Constitution establishes the joint and several liability of public law persons and their officials for administrative actions or omissions. Likewise, the Organic Law of Public Administration, Law 247-12 of August 14, 2012 (hereinafter "Organic Law of Public Administration") subjects the CDEEE to the hierarchical control and supervision and guardianship of the President of the Republic.
221.
The Claimant insists that it is the State that signed the Concession Agreement and assumed the respective obligations on behalf of the entire State apparatus, especially on behalf of those entities that have been designated to act on behalf of the State, as is the case of the CDEEE. In that regard, the State is responsible for the CDEEE's refusal to formalize the corresponding PPA Agreement with Dominicana Renovables.

4. The State itself acknowledged the recklessness of the conduct of the CDEEE115

222.
Dominicana Renovables alleges that the MME, the entity that oversees the actions of the CDEEE, after an exhaustive investigation that arose from the complaint that the Company filed against the CDEEE, concluded in the Opinion prepared by the Legal Director of the Ministry, the lawyer Maria Susana Gautreau, that Dominicana Renovables was fully entitled to establish a PPA Agreement.
223.
According to the Claimant, in said Opinion the MEM also determined that the CDEEE had violated the contractual rights of Dominicana Renovables and that the Company had complied with all legal and regulatory guidelines to establish the respective PPA Agreement.
224.
Dominicana Renovables argues that the CDEEE ignored the MEM's recommendation and maintained an unlawful attitude towards the Company, an action that in its opinion constitutes a violation of the law and the principle of state unity.
225.
In the Reply, the Claimant points out that it is difficult to understand the unexpected change of opinion of Ms. Gautreau in relation to what was expressed in the Opinion and the testimonial statement presented in the arbitration. However, Dominicana Renovables claims that there are circumstances that cast doubt on the impartiality of the witness since she was appointed as Vice Minister of nuclear energy after the initiation of the arbitration and her telephones have been tapped.116
226.
Regarding what was expressed by the Respondent in relation to the Opinion issued by the attorney Gautreau, Dominicana Renovables presents two objections.
227.
First, the Claimant maintains that the witness's assertion that the Opinion was of an internal nature and could not be used by Dominicana Renovables is inadmissible. It is totally false, since the attorney Gautreau herself sent the Opinion to the Company.117
228.
Second, Dominicana Renovables states that the Dominican State affirms that the only thing that made Ms. Gautreau change her mind is that allegedly Dominicana Renovables did not indicate to the MEM that on January 20, 2015 the CDEEE had sent the Protocol to the Company, a fact that Ms. Gautreau was unaware of at the time of preparing her Opinion. In this regard, the Claimant maintains.118

(i) The attorney Gautreau always had at her disposal the communication whereby the CDEEE sent the Protocol to Dominicana Renovables. The State has stated that the CDEEE always kept the MEM informed of the negotiations of the PPA Agreements.

(ii) The Protocol sent in January 2015 is not the amended PPA Agreement that the CDEEE promised to the Company.

(iii) The CDEEE sent the Protocol to Dominicana Renovables under different conditions than it was sent to other developers. The Company never had the opportunity to accept or reject the conditions of the Protocol, as it was informed that the Protocol would be amended and it had to wait for the new protocol.

(iv) The CDEEE never sent it the Formal Declaration of Acceptance of Terms and Conditions for the Signing of a Contract for the Sale of Energy from Renewable Sources with the CDEEE

229.
The Claimant points out that the conclusions of the lawyer Gautreau about two companies that signed PPA Agreements with the CDEEE without having a Final Concession are unaltered by the fact that Dominicana Renovables did not mention the delivery of the Protocol in the executive summary to the MEM.119
230.
In relation to the Respondent's allegation about how the meeting between the Vice Minister of Energy and the Company “shows that [Dominicana Renovables] is the main and only party responsible for the fact that the CDEEE has not taken it into account for the signing of a PPA Agreement,"120 Dominicana Renovables maintains that they are totally unfounded and misleading allegations.121
231.
To begin with, the Claimant maintains that the recording of that conversation was made without the knowledge or consent of the Company's Legal Representative, Mr. Fernández.122 To this extent, due to the illegal manner in which it was obtained and the lack of context, Dominicana Renovables requests of the Tribunal that this evidence be excluded.123
232.
The Claimant states that Mr. Fernández's assertions in that conversation were taken out of context. Particularly:

(i) Dominicana Renovables denies that in that conversation Mr. Fernández admitted that the Company was negligent in the negotiation process with the CDEEE.124

(ii) The Company denies admitting that the contacts with the CDEEE were mainly verbal and not very specific.125

(iii) It is not true that the Invenergy company was not mentioned in the Complaint nor that the relationship with the said company was not serious. One of the annexes to the Claim is an item of correspondence with the aforementioned company. Additionally, engineer Ramos met with them personally on July 22, 2016 so that they could persuade the CDEEE to formalize the PPA Agreement with the Company.126

(iv) The mention of Invenergy to the Vice Minister of Energy did not mean that Dominicana Renovables did not have the financing. The Claimant reiterates that its financial capacity was proven by that time. The Company found it necessary to partner with a company with political influence in the Dominican Republic, taking into account that the State was not going to fulfil, as in fact happened, the signing of the PPA Agreement.127

(v) Mr. Fernández's comment on the price update does not exclude the fact that the State used arbitrary mechanisms to change prices.128

(vi) It should be clarified that when Mr. Fernández stated that “[Dominicana Renovables] [has not] been insistent enough,” at the same time he was making a gesture with his hands simulating a payment of cash. According to the Claimant, this gesture is understandable with the level of corruption that has occurred in the projects in the Dominican Republic.

5. Dominicana Renovables has the right to be compensated in full129

233.
The Claimant affirms that the Dominican State must compensate the Company for the damages generated by the CDEEE's refusal to sign the PPA Agreement. To support its assertion, Dominicana Renovables invokes: (i) Articles 8.3 (c), 8.3 (d) and 8.4 of the Final Concession Agreement; and (ii) the legal regime of contractual civil liability contained in Articles 1146 to 1155 of the Dominican Civil Code.
234.
According to Dominicana Renovables, in Article 8.4 of the Concession Agreement, the State accepts its contractual obligation to indemnify the Company for the contractual breaches described in paragraph 8.3. In particular, the Claimant focuses on the events set forth in points c) and d), which establish:

c) Any modification to the current legislation and regulation of the Dominican Republic that has as a direct or indirect effect the impossibility of continuing in an economically viable way with the operation of the Wind Farm.

d) Any breach attributable to the DOMINICAN STATE, to any of its dependencies, agencies, ministries, secretariats, autonomous bodies, public companies, and other related institutions, under any contract signed with THE CONCESSIONAIRE necessary for the construction and operation, in an economically viable way of the Wind Farm, including any breach attributable to any of the parties to this Contract, be it the DOMINICAN STATE, the CNE or the Superintendency of Electricity, the Dominican Electrical Transmission Company or the Dominican Corporation of State Companies ...

235.
The Claimant adds in the Reply that the CDEEE's refusal is an administrative action attributable to a State body that prevents Dominicana Renovables from effective control over its right to exploit the Wind Farm. Dominicana Renovables affirms that the right to enter into a PPA Agreement is a fundamental right in the Final Concession Agreement, since without a PPA Agreement there is no financing, and without financing there is no Wind Farm. Following this line of reasoning, the responsibility of the State is derived according to Article 8.3 (a) of the Concession Agreement.130
236.
Likewise, Dominicana Renovables affirms that there is also liability of the State according to Article 8.3 (d) of the Concession Agreement, since the same provision identifies the CDEEE as part of the Concession Agreement. Failure to comply with the CDEEE's obligation not to enter into a PPA Agreement is a breach of the Final Concession Agreement. Therefore, Article 8.3 (d) is applicable in the present case since we are not dealing with an indirect but a direct contractual breach.131
237.
In relation to the contractual civil liability regime, the Claimant explains that Dominican law requires four elements for compensation to apply: (i) the existence of a valid contract between the parties; (ii) verification of the breach of any of the obligations agreed in the contract; (iii) that as a consequence of said breach, harm has been caused to the non-breaching party; and (iv) that there is a cause and effect relationship between the breach and the harm.
238.
Additionally, Dominicana Renovables explains that for the harm to be compensable under Dominican law, the harm must be true, direct, current, legitimate and personal.
239.
According to the Claimant, based on the expert report of Dr. Castaños, the damages claimed by Dominicana Renovables meet all these elements. The failure to sign the PPA Agreement by the CDEEE is a contractual breach that has affected the financial viability of the Project.132 Without a PPA Agreement, the construction of the Wind Farm is not viable for Dominicana Renovables.
240.
In relation to the requirement of causality, Dominicana Renovables objects to the arguments presented by the Dominican Republic in its Answer Statement.
241.
First, the Claimant maintains in the Reply that the case law cited by the Dominican State to support that the causal link has been broken due to the sole fault of Dominicana Renovables is not applicable to the case for various reasons: (i) they refer to civil liability derived from the crime; and (ii) were issued by courts that do not deal with civil matters or that analyze non-civil cases.
242.
Second, the Company rejects the allegation of the Dominican State according to which Dominicana Renovables contributed to causing the harm by not having entered the spot market or the wholesale market. For the Claimant, this argument is erroneous because the Wind Farm could not be built without the execution of a PPA Agreement.
243.
On the one hand, the formalization of the PPA Agreement is necessary to start the construction of the Project according to Article 4.2. On the other hand, the PPA Agreement is the instrument that allows the financing of the Wind Farm.
244.
As the Claimant explains, through the opinion of the expert Almonte, "it is impossible to obtain loans from international banks to build wind farms whose sales and income depend only on the spot [Market]."133
245.
Dominicana Renovables submits the following allegations about the spot market in the Dominican Republic:134

(i) The price depends on "arbitrary decisions of the political authorities;"135

(ii) The sale price of energy is not determined by market forces but by the Superintendency of Electricity (“SIE”);

(iii) Historically it has been unattractive to investors;

(iv) Due to the high volatility and the marked drop in prices on the spot market, no bank is willing to finance a generator to invest in the spot market;

(v) The examples presented by the Dominican State of other developers operating in the spot market are not comparable with Dominicana Renovables. The Los Cocos project was able to be financially viable because it was covered under the umbrella of a PPA Agreement. Additionally, it was a project that obtained additional fiscal benefits on the basis of being registered in the Clean Development Mechanism.

246.
Following this argument, the Claimant concludes that it is unreasonable for the State to allege that Dominicana Renovables could have entered the spot market and, by not doing so, contributed to the damages claimed.
247.
The Claimant adds that the conduct of the CDEEE was contrary to good faith and fraudulent. For Dominicana Renovables, the action of the CDEEE was deliberate since said entity was aware of its obligation to formalize the PPA Agreement. In this regard, based on Article 1150 of the Civil Code, Dominicana Renovables alleges that, due to fraud, the Dominican State must compensate for all the harm caused.
248.
Consequently, Dominicana Renovables, based on the provisions of Article 1.149 of the Civil Code, maintains that “the damages to which [..] is entitled, consist of amounts similar to the losses suffered and the earnings it has been deprived of."136

a) Losses suffered by Dominicana Renovables137

249.
Dominicana Renovables maintains that during the almost ten years it has been in the Dominican Republic, it has invested around two million dollars solely in studies and analyses carried out to determine the viability of the Project.
250.
The Claimant clarifies that it has also devoted considerable effort and time to obtaining the support of the community for the development of the Project and in signing the land lease contracts for the installation of the generators. However, Dominicana Renovables affirms that it is impossible to quantify the value of the time dedicated to the Project by its legal representative and the team of collaborators, as well as these people's transportation and operating costs.
251.
Regarding the statement by the Dominican State according to which the investment made by the Company is not duly proven, the Claimant affirms that the expert report prepared by Garrido Forensic SL establishes that Dominicana Renovables has invested US $2,644,021 in the Project, of which $2,343,832.39 have been audited as direct expenses of the Company or expenses incurred by other companies on behalf of Dominicana Renovables and for which it is in debt.138

b) Earnings lost by Dominicana Renovables

252.
Dominicana Renovables, through the expert report prepared by Dr. Martínez, director of AddVANTE FORENSE y CONCURSAL SLL (hereinafter "Addvante"), has presented in its Lawsuit two methodologies to calculate the profits that it has not received due to the breach by the Dominican State. First, Addvante has used the discounted cash flow method (Discounted Cash Flow) and, alternatively, has made the calculation based on the comparable transactions method.

(1) Valuation under the Discounted Cash Flow method139

253.
Under the first method, Dominicana Renovables calculates that the lost earnings as of January 5, 2018 are equivalent to two hundred eighty-seven million six hundred seven thousand dollars (US $ 287,607,000).
254.
To obtain this figure, Dr. Martínez calculated the cash flows that Dominicana Renovables would have been able to obtain if the PPA Agreement with the CDEEE had been concluded. The Claimant's expert took the ATA and UL reports to determine the energy production that the Company would have had during the Concession period. According to Dr. Martínez's analysis, the La Isabela Wind Farm would have had a net annual production of 331.769 MW.
255.
Assuming that the Park had entered into operation in mid-2015 and continued until 2040, the Claimant took the electricity rate offered by the State prior to the issuance of the Special Power in 2015 and calculated that the Projected cash flow of the Wind Farm would be of the order of seven hundred ninety-nine million twenty-seven thousand dollars (US $ 799,027,000).
256.
To this sum, Dr. Martínez applied a discount rate of 10.5% to arrive at the sum of two hundred eighty-seven million six hundred seven thousand dollars (US $ 287,607,000).
257.
The Claimant argues that the rate modified by the Special Power of the President to the CDEEE in 2015 is not applicable to Dominicana Renovables for various reasons. First, as of December 2013, the Special Power had not been issued. Second, for the Claimant, in accordance with Article 110 of the Political Constitution, the Special Power cannot modify the previously established situation of Dominicana Renovables, that is, a rate pre-established by Law 57-07 and its Regulations. Third, the Special Power did not repeal the Regulations as it is not a rule of an equal level. Lastly, Dominicana Renovables argues that the tariff amended through the Special Power is illegal because it violates the Claimant's right to receive the remuneration established in Law 57-07.
258.
Notwithstanding the foregoing, the Claimant's expert calculated the current value of the Project based on the tariff amended by the Special Power and estimated the lost earnings at one hundred eighty-eight million, four hundred and forty-two thousand dollars (US $ 188,442. 000).
259.
The Claimant responds to the argument of the Dominican State that, as the Farm has not been built, Dominicana Renovables would only have the right to receive the invested value. According to the Company, this argument ignores that La Isabela Wind Farm has the value of a ready to build project that it has been deprived of obtaining future lost profits precisely because of the State's contractual breach.140
260.
The Claimant affirms that the State's argument ignores that the Project has (i) a measurement and evaluation of the wind resource; (ii) a land lease; (iii) the work of social and municipal approval; and (iv) the corresponding permits such as environmental studies and authorization of the connection point to the power transmission grid.141
261.
Likewise, Dominicana Renovables maintains that the criticisms that the State has made of the Discounted Cash Flow valuation method are unfounded.
262.
Firstly, the Claimant insists that the Discounted Cash Flow method is suitable for quantifying the loss of Dominicana Renovables and, contrary to what the State has stated, the existence of a history is not required. financial.142 According to the Claimant, this method can be used because the Park is not a speculative project. The energy production of the Park has been measured for more than 8 years, it has been audited and certified and Dominicana Renovables has shown that it has the technical and financial capacity to develop the Project. Therefore, there are no undefined variables.143
263.
Second, Dominicana Renovables maintains that its expert, Addvante, has appropriately discounted the cash flows. The Claimant refers to the criticisms that the Respondent made to each of the cases as follows:144

(i) Wind Farm Construction Time Frame. The 24 month period estimated by the Dominican State to complete the construction of the Park is based on non-credible sources such as press releases or non-technical documents. Conversely the 14-month estimate by Dominicana Renovables was made by Grupo Cobra and is supported by the expert's experience.

(ii) Investment cost. The production costs presented by the Respondent's expert based on a ratio of US $ 2.41 million per MW, compared to the US $ 1.4 estimated by the Claimant, are based on non-technical journalistic reviews and therefore cannot be taken into account.

(iii) Wind Farm expansion recess. The Respondent's expert does not provide any evidence to support that it generally takes 24 months to go from the first 50 MW phase to the second 100 MW phase. According to the Claimant, it is possible to build 100 MW installations continuously.

(iv) Lack of lease contracts. The assertion made by the Respondent's expert is not true. Dominicana Renovables has leased 100% of the land necessary for the development of the Project.

(v) Useful life of the Wind Farm. The Respondent's own expert acknowledges that the Park can have a useful life of 20 to 25 years. No However, the expert arbitrarily assumes that the Project will only last 20 years.

(vi) Wind Farm Production. The State proposes that the production be based on the studies of Normawind and World Watch Institute (which were used to obtain the Final Concession) and not the studies of ATA Renovables and AWS True Power, since the latter use generators with different characteristics. Although the generators used to calculate the production of the Park are different from those stipulated in the Concession Agreement, “it is usual to start the processing of a concession based on an existing wind turbine model at that time, and once the promotion is advanced and the time has elapsed, request the change of model to a more modern and developed one."145

On the other hand, the Respondent's assertion that the generation of the Wind Farm could not be greater than 30% cannot be taken into account. The conclusion of the expert of the Dominican Republic is based on generic data, whereas the Claimant relied on the exhaustive measurements of AWS True Power.

(vii) Applicable rates. The Claimant reiterates that Law 57-07 and the Regulations establish a fixed rate. The fact that the other generators have been forced to accept the CDEEE's unilateral rates only demonstrates the abuse of power by the entity.

(viii) Operation and Maintenance Cost. Although the Respondent affirms that the Claimant's estimate of US $ 2.7 million in OPEX is unreasonable, Dominicana Renovables' calculations are based on a proposal received by the Company, so this estimate reflects the reality of the market and is more than reasonable.

(ix) Availability of financing. The Claimant reiterates that the financial capacity of the Company is more than proven.

(x) Risk discount rate. The greatest difference between the discount rate proposed by the Claimant (10.05%) and the Respondent (16.9%) lies in the country risk discount. It is not admissible for the State to affirm that the country risk is much higher than 3.47 / 3.59 reflected in the Country's Performance. The Duff & Phelps survey used by the State to calculate the cost of callable capital in the Dominican Republic is exaggerated in terms of exchange risk and the stability of the Dominican market.

(xi) Discount rate for liquidity. The 18% illiquidity rate proposed by the Respondent is not appropriate since what is sought is to assess the impossibility of achieving a flow if the project has been carried out.

264.
Finally, the Claimant rejects the argument of the Dominican State according to which the return on investment projected at 44% by Dominicana Renovables is excessively high. Dominicana Renovables explains that the profitability of the Project is high in large part: (i) due to the high proven wind resource that the Wind Farm has; (ii) the high rates offered by the State to attract investment in the renewable energy industry and (iii) the financial leverage that allows the investor to double their gross profitability.146147

Thus, if we use the IRR or gross profitability of the La Isabela Wind Farm of 25.5% and. to this we add the financing of the project of up to 70%, this necessarily yields a shareholder IRR of 44.6%. Even assuming the rate established in the Special Power is used, the gross IRR of the La Isabela Wind Farm would be 20.1% and the leveraged IRR would be 31.8%.

(2) Valuation based on the Comparable Transactions method

265.
Alternatively, using the comparable transactions method, Dominicana Renovables, through the experts Astrom Technical Advisors, SL (“ATA”) calculated the value of the Project at one hundred fifty million nine hundred twenty thousand dollars (US $ 150,920,000).
266.
ATA started from the assumption that the PPA Agreement could be formalized with the CDEEE on December 31, 2013. The expert firm analyzed 327 operations in the energy market identified by the Deloitte firm from 2008 to 2018 and classified them into four stages: (i) initial (ready to build), (ii) under construction; (iii) installed; and (iv) in operation.
267.
To determine the value of the Project, ATA identified 108 projects that were in the initial phase, ready to begin construction, and used these operations as a reference. The average of these 108 operations yielded a sale price of US $ 59.46 per megawatt. This rate per megawatt was then adjusted by the expert firm based on (i) the power granted in the concession, (ii) the country risk, and (iii) the rate established in the Regulations.
268.
ATA compared the Project in two modalities, first with the average rate of the 108 "Ready to build" projects used, and the second, with the rate established in the Regulation. This comparison resulted in a comparator of 7.65, to which was later applied the price paid per megawatt for dissimilar projects. This amount was later reduced due to the country risk, with a premium of 6.75 for the Dominican Republic at the end of 2013.
269.
The expert firm concluded that, after applying the rate multiplier of the Regulation and the country risk, the value of the Project as of December 2013 amounted to one hundred fifty million nine hundred twenty thousand dollars (US $ 150,920,000).
270.
Additionally, ATA calculated the current value of the Project (that is, as of the date the Claim was filed) at three hundred twenty-one million one hundred sixteen thousand dollars (US $ 321,116,000) using the rate set out in the Regulations. Likewise, it calculated the current value of the Project based on the tariff modified in 2015 at one hundred ninety-four million one hundred eighty-one thousand dollars (US $ 194,181,000).
271.
Against the criticisms presented by the Dominican State of the valuation method of comparable transactions used by Dominicana Renovables, the Claimant argues that they are unfounded.148
272.
First, the Claimant maintains, contrary to what the Dominican Republic asserted, that the method in question is among the most widely used in the industry. Although the method has been rejected by various investment tribunals when it comes to developing projects, there are also relevant recent examples where multiple valuations were adopted in cases involving developing countries.
273.
Second, the Claimant maintains that the method can be reliable if the following conditions are met: (i) if there are truly comparable companies; and (ii) if sufficient information is available on these companies. In the present case, not only are there wind assets that are really comparable with the La Isabela Wind Farm, but there is also sufficient information available about them.
274.
Claimant not only proposes the comparable transactions method, but also the comparable multiples of listed companies. "Thus, according to this study, detailed in Section 3 of the Second Expert Opinion of ATA Renovables, the La Isabela Wind Farm, already in operation, would have a value of US $ 469 using the rate of Law 57-07 and US $ 316.75 using the rate of the Special Power 121-15 as of December 31, 2019."149
275.
Third, Dominicana Renovables clarifies that it is not true that ATA has not carried out any study and has dedicated itself to copying Deloitte's analysis. On the contrary, the Claimant's expert analyzed the 327 operations, adjusted the results to the capacity of the project, the electricity sales rate and the country risk.
276.
Fourth, the Claimant explains that the validation of the sample of comparable assets entails "a suitable combination of this method with other methods such as discounting of cash flows."150
277.
Fifth, Dominicana Renovables rejects the claim that the method is not reliable or that it results in subjective valuations. As the Claimant explains, "the comparable transactions method is being used to value a static project through the comparison of wind assets that generate a specific, recurring and highly predictable cash flow, without competitive pressures or possible growth."151
278.
Sixth, the Dominican State's argument about the difficulty of finding truly comparable companies is invalid. ATA analyzed enough companies and applied various filters to identify the projects most similar to the La Isabela Wind farm. For example, it used key factors such as: capacity, time and duration of operations, wind conditions, geography, etc. The results of these filters in fact demonstrate that the prices paid for the most similar transactions to the Farm have been considerably higher than that considered by ATA in its report.
279.
Seventh, Dominicana Renovables states that the Project cannot be categorized as an "early stage" with a value of zero, insofar as it was already an advanced project, which had all the pertinent permits, licenses and studies. The Project was waiting to formalize its PPA Agreement in order to finalize the EPC Agreement and the financing, matters that could only be concluded after the formalization of the PPA Agreement.
280.
Eighth, the Claimant clarifies that the comparable operations method is being used to assess the economic loss caused by the breach of contract by the Dominican Republic, not to sell the Project. The expectation of Dominicana Renovables was to develop the Park.

c) The compensation must include the payment of interest152

281.
Dominicana Renovables, based on Article 1153 of the Civil Code, requests that the Dominican State be ordered to pay compensatory interest from the date of the claim until the date of the arbitration award. The Claimant requests the Tribunal that the interest payment be made based on an interest rate that adequately and fully repairs the damage to Dominicana Renovables.
282.
Regarding the interest rate, the Claimant maintains that it should not be referenced to the risk-free asset, since the investment was not risk-free. If the Respondent has considered a discount rate of 16.90%, by definition that is the risk of the Project. In that regard, that should be the update rate of any compensation that is recognized by the Tribunal.153

B. Respondent's Position

283.
The Dominican Republic alleges that it has not breached any contractual or legal obligation in the present case. According to the Respondent: (i) the conduct of the CDEEE cannot be imputed to the Dominican Republic; (ii) the Concession Agreement does not impose any obligation on the State to enter into a PPA Agreement with Dominicana Renovables; and (iii) the execution of PPA Agreements is subject to a negotiation process. (Section 1).
284.
According to the Dominican State, the CDEEE tried to negotiate a PPA Agreement with Dominicana Renovables, but the latter did not accept the commercial conditions offered and did not show a serious interest in developing the Project. The Respondent explains that: (i) there was no arbitrary suspension of the negotiation process; (ii) the Company did not accept the commercial conditions offered by the CDEEE and refused to send the documentation required to sign the PPA Agreement; (iii) Dominicana Renovables did not meet the requirements established in the Protocol for the signing of the PPA Agreement; and (iv) the Claimant is distorting the nature of the MEM's involvement (Section 2).
285.
The Respondent alleges that, on the contrary, the one who breached the Final Concession Agreement was Dominicana Renovables by not building the Park within the contractually agreed terms. In that regard, the Tribunal must proceed to declare the termination of the Final Concession Agreement due to breach by the Claimant. (Section 3)
286.
Finally, the Dominican State alleges that if the Tribunal were to determine that there was a breach by the State, it must conclude that the compensation claimed by Dominicana Renovables is inadmissible under Dominican law. According to the Respondent, the Company has not demonstrated the damage suffered or the causal link between it and the alleged breach by the State. If it is found that the Claimant has suffered a loss, the compensation to Dominicana Renovables should be limited to the investment made. Finally, the Respondent concludes that, if any compensation is ordered, the interest must be at a short-term risk-free rate (Section 4).
287.
Consequently, the Respondent has requested the Tribunal: (i) to declare the non-existence of an obligation on the CDEEE to enter into a PPA Agreement; (ii) that it declare that the CDEEE complied with the Regulations; (iii) that it declare the termination of the Contract and; (iv) order Dominicana Renovables to reimburse the costs incurred in the arbitration.

1. The State has not breached its obligations under the Final Concession Agreement154

288.
The Dominican State affirms that the Claimant is wrong in assuming that by the mere fact of being the holder of the Final Concession, the State or the CDEEE is bound to enter into a PPA Agreement. According to the Respondent, Dominicana Renovables is unaware that Dominican law grants the CDEEE its own legal personality and broad autonomy to enter into PPA Agreements. Based on the foregoing, the Respondent maintains: First, it is not true that any conduct of the CDEEE constitutes a contractual breach by the State according to the Final Concession Agreement; second, even if it is considered that the conduct of the CDEEE could give rise to a contractual breach by the State, there is no obligation for the CDEEE to enter into a PPA Agreement with Dominicana Renovables; and third, the signing of PPA Agreements is subject to a negotiation process.

to) The conduct of the CDEEE does not constitute a contractual breach under the Final Concession Agreement.

289.
The Respondent asserts that the Dominican State did not assume, through the Final Concession Agreement, unlimited liability for the conduct of the CDEEE, nor did it regulate the powers of the CDEEE with regard to its autonomy in the negotiation and / or execution of PPA Agreements. For the Dominican Republic, the Final Concession Agreement is a separate contract from the PPA Agreement with the CDEEE.
290.
According to the Respondent, Dominicana Renovables bases its claim on two wrong premises: (i) that the CDEEE does not have its own legal personality; and (ii) that the Final Concession Agreement explicitly establishes that any breach of the CDEEE constitutes a contractual breach of the State.
291.
In relation to the first premise, the Dominican State alleges that, according to Dominican law, the CDEEE is an entity with its own legal personality that enjoys full autonomy for the management of its PPA Agreements.
292.
According to the Respondent, the CDEEE was created with the General Electricity Law, Law No. 125-01, promulgated on July 27, 2001 (hereinafter "General Electricity Law"). By virtue of this law, the CDEEE succeeded the CDE, a public law entity that had its own legal personality. Additionally, Decree No. 647-02 of August 31, 2002, recognized that the CDEEE had its own legal personality and assets "and may also issue its own obligations with the authorization required by the Constitution and the laws."155
293.
In the same vein, the Respondent maintains that the CDEEE's Operating Regulations, approved by Decree No. 648-02 of August 21, 2002, established that the entity exercises its functions with absolute independence, without the intervention of any other State agency.
294.
The Respondent highlights that the aforementioned regulations are in force and are applicable to the Final Concession Agreement, hence the Dominican Republic Renovables knew, or should have known, the content of the aforementioned decrees at the time of entering into the Concession Agreement with the CNE.
295.
On the other hand, the Respondent presents four arguments whereby it must be concluded that not any conduct by the CDEEE constitutes a breach of the Concession Agreement:

(i) The Final Concession Agreement was not signed "on behalf of the entire state apparatus", much less the CDEEE. The Contract was signed on behalf of the State, represented by the Executive Director of the CNE.

(ii) The Concession Agreement cannot be extended "to the entire state apparatus" because the principle of specialty and autonomy of public service companies such as the CDEEE would be annulled.

(iii) Only the acts of the bodies that make up the "central public administration" are attributable to the Dominican State. The central public administration is comprised of the President of the Republic, the Vice President of the Republic, the Council of Ministers and the ministries.

(iv) The Claimant confuses the concept of attribution under international law with that of Dominican law. International law is not applicable to the present case. According to the Dominican Constitution, the State is an administrative entity with its own legal personality under public law, distinct from the CDEEE, which is an autonomous and decentralized body.

296.
Regarding the second premise, the Respondent asserts that the Concession Agreement does not establish that any breach of the CDEEE constitutes a contractual breach by the State. According to the Dominican State, Article 8.3 (d) of the Final Concession Agreement invoked by Dominicana Renovables is not applicable in this case because it does not meet a fundamental requirement: that there be a contract signed between the CDEEE and the Company.
297.
For the above reasons, the Respondent alleges that Dominicana Renovables' claim should be rejected, insofar as the Concession Agreement does not govern the conduct of the CDEEE with regard to the execution of PPA Agreements, and such conduct cannot be attributable to the State according to Dominican law.
298.
In relation to the arguments presented by Dominicana Renovables in the Reply, the Dominican State reiterates that the Final Concession Agreement cannot impose obligations on the head of the CDEEE and that, in said Contract, the State did not assume the obligation to compensate the Claimant for the conduct of the CDEEE in relation to the negotiation and execution of PPA Agreements.156
299.
First, the Respondent rejects the Claimant's argument that, by virtue of the concept of unity of the State, the Respondent must take responsibility for the omissions of all entities of the administration. The State insists that the invoked rule could only be applied to central administration entities, which does not include the CDEEE because it is a decentralized entity.157
300.
Second, the State also rejects the argument that the State must take responsibility for the “legal omission of the CDEEE” because it is subject to the hierarchical control, supervision and protection of the State (that is, the president as the highest authority). The Respondent clarifies that this is not the case:158

(i) The President does not exercise any kind of control over decentralized entities according to Law No. 247-12 of August 14, 2012.

(ii) The ministry of each sector is in charge of exercising a supervisory control over the assigned entities. However, this control only began to take effect as of September 30, 2018; prior to this date the CDEEE enjoyed full autonomy and freedom to exercise its functions.

(iii) The authority exercised by the ministries over the attached entities allows them to guide their conduct, but not to revoke their actions.

301.
Third, the Respondent rejects the application of Article 148 of the Constitution to the present case as claimed by the Claimant. The Dominican Republic clarifies that this provision refers to the solidarity that exists in matters of responsibility between entities and their public officials, not between the State and another entity with independent legal personality, such as the CDEEE.159
302.
Fourth, the State affirms that the Claimant does not provide any evidence to support that the power to purchase and distribution is a state function that has been delegated to the CDEEE by the Dominican State, for said entity to act on behalf of and representing the State. The Respondent clarifies that the CDEEE, at the time of signing the Concession Agreements, acted in its own name and on its own behalf.160
303.
Fifth, the Dominican Republic states that it is in total disagreement with the theory that the CDEEE is party to the Final Concession Agreement as provided in Article 8.3 (d). For the Respondent, this argument is not sustainable because:161

(i) Article 8.3 (d) of the Concession Agreement does not define who are parties to it. This provision sets out to regulate the events that the State cannot invoke as exemptions of responsibility for the breach of its obligations according to the Final Concession Agreement.

(ii) When Article 8.3 (d) refers to the CDEEE as the signatory of the contract, it refers to the contract "necessary for the construction and operation of the Wind Farm in an economically viable manner."

(iii) The CDEEE is not a party to the Concession Agreement as shown by: (1) the fact that the Contract indicates that the parties are THE DOMINICAN STATE and THE CONCESSIONAIRE, so the Contract was only signed by the President of the CNE on behalf of the State; (2) the CDEEE is not empowered to sign final concessions; (3) Dominicana Renovables was always clear that the CDEEE was not its counterparty in the Final Concession Agreement, otherwise it would have filed the arbitration claim against the CDEEE; (4) the CDEEE did not sign the Concession Agreement either.

304.
According to the Respondent, it is incumbent on the Claimant to prove that the CDEEE in some way consented to be party to the Concession Agreement, but has not done so.
305.
Finally, the Dominican State indicates that the Claimant did not question in the Reply the requirements indicated by the Respondent for the State to be responsible under Article 8.3 (d), namely: “(i) the CDEEE has signed a contract with the Dominican Republic Renewable; (ii) such contract is necessary for the construction and operation of the La Isabela Wind Farm in an economically viable manner; and (iii) the CDEEE breaches said contract."162

b) There is no obligation on the CDEEE to enter into a Concession Agreement in accordance with the Final Concession Agreement or the Regulations of Law 57-07163

306.
The Dominican Republic alleges that, even if the Tribunal were to consider that the State assumed any responsibility for the conduct of the CDEEE, neither the Concession Agreement nor the Dominican regulations impose on the CDEEE the obligation to enter into the Concession Agreement with Dominicana Renovables (Section (/).) What the Final Concession Agreement does contain is an authorization for the Company to develop the Park "for its own account and benefit and at its own risk" (Section (2)).

(1) The Concession Agreement does not contain a guarantee of entering into a PPA Agreement with the CDEEE

307.
The Dominican State affirms: (i) Article 5 (d) of the Concession Agreement does not impose on the CDEEE the obligation to sign the Concession Agreement with the Claimant; (ii) Article 4.2 of the Final Concession Agreement does not establish said obligation either; and (iii) it is not true that the MEM supported Dominicana Renovables' position that the CDEEE was required to enter into a PPA with the Claimant.
308.
Regarding point (i), The Respondent maintains that the full text of Article 5 (d) of the Final Concession Agreement does not support the position of Dominicana Renovables. Specifically, the Dominican State emphasizes the following sections of the clause:164

Enter into energy sales contracts and / or sell their energy production in the SENI under the conditions set out in the current applicable regulations thereto, either within the framework of the provisions of sub-paragraph (a) of Article 65 of the Regulations for the Application of Law No. 57-07. or within the framework of Paragraph II of said Article 65. Regarding the understanding that the suspension, termination, or cancellation by any other means of an Energy Purchase Agreement within the framework of the previous provisions, will not entail the rescission, termination or revocation of this Final Concession Agreement.

309.
For the Respondent, Article 5 (d) mentions, directly and by reference to the second paragraph of Article 65 of the Regulations, the right that the Claimant has to enter into energy sales contracts not only with the CDEEE, but also in the spot market. with any other agent in the wholesale market.
310.
On the other hand, the Dominican State affirms that the term "shall establish" contained in Article 65 of the Regulations does not imply that the execution of the Concession Agreement is mandatory for four reasons:

(i) Law 57-07 and the Regulations use express language when they set forth contract obligations. By way of example, Article 64 of the Regulations, at the time of regulating the electricity grid connection contract, provides that: “[t] he distribution or transmission company will have the obligation to sign this contract even if there is no net generation at the facility."165

Another example mentioned by the Respondent is Article 20 of Law 57-07, which, when regulating the management of electricity surpluses, establishes that: “[the] Distribution Companies will be obliged to purchase their surpluses from them at prices regulated by the SIE following a study and recommendation of the CNE, to regulated and unregulated users to install systems to take advantage of renewable resources to produce electricity with the possibility of generating surpluses that can be sent to the SENI networks."166

(ii) The regulations that govern the functions of the CDEEE do not impose on it the obligation to enter into Concession Agreements. Article 138 of the General Electricity Law only indicates that the CDEEE is in charge of “the administration and application of the electricity supply contracts of the Independent Producers of Electricity (IPPs),” without making any mention of the obligation to purchase energy from the holders of a final concession.167

(iii) Paragraph I of Article 65 of the Regulations establishes that any Concession Agreement "will be negotiated by the parties based on their business interests."168 The conclusion of the contract cannot be guaranteed when it is expressly subject to a negotiation.

(iv) The similarity in the renewable energy regime of Spain with that of the Dominican Republic is in the regulation of the connection contract to the electricity grid, not in the signing of the Concession Agreement. Furthermore, the Spanish regulation does not subject the execution of Concession Agreements to a negotiation process, as is established in Paragraph I of Article 65 of the Regulation.

311.
Additionally, the Respondent maintains that the main objective of Article 5 (d) of the Final Concession Agreement and Article 65 of the Regulations was not to ensure that Dominicana Renovables obtained a Concession Agreement, but rather to ensure that the CDEEE had the possibility of acquiring renewable energy on a priority basis and ensure the supply of energy in the Dominican Republic. The State affirms that Article 65 establishes a guarantee in favor of the CDEEE and not of the Claimant, which gives the CDEEE the priority option to purchase the electricity production of the developers, if this is in accordance with the entity's business interests.
312.
Contrary to what was affirmed by Dominicana Renovables in the Reply, the State assures that its interpretation is fully supported by the text of the Regulation to which Article 5 (d) of the Concession Agreement refers, in which it is established that it was issued in order to "ensure the national energy supply, reducing dependence on oil imports; as well as diversifying energy sources to increase energy security by developing the production of renewable sources and achieve the satisfaction of the country's energy needs."169
313.
The Dominican State also rejects the argument presented by the Claimant according to which on June 13, 2011, the CDEEE indicated in a certification issued to the CNE that it did not find "technical difficulties for the negotiation of a PPA-type contractual agreement”with Dominicana Renovables, which for the Company translates into a legal presupposition or acquired right to enter into the Concession Agreement.170 On the contrary, the Respondent maintains that the certification only found that there were no technical difficulties in negotiating the Contract; it was in no way a guarantee that the negotiations would be successful and that the PPA would be signed. The certification did not entail a pronouncement on the suitability of the PPA from a business point of view. The Respondent insists that a negotiation process should have been followed.
314.
Similarly, the Dominican Republic denies that the draft of the Concession Agreement sent by the CDEEE to Dominicana Renovables recognizes the alleged right of Dominicana Renovables to obtain the PPA Agreement. For the Respondent, the fact that Article 13.2 of the draft established that the PPA Agreement was signed “by mandate of Law No. 57-07 and Article 65 of the Regulations,”is a simple allusion to the provisions that recognize the role of the CDEEE in the signing of PPA Agreements. The Respondent reiterates that Article 65 of the Regulations recognizes the CDEEE's prerogative to have a priority option to negotiate with the developers, if it is consistent with its business interests. On the other hand, the Respondent adds that the draft sent to Dominicana Renovables was for informational purposes only and was not binding between the parties.
315.
In relation to the penalty (ii), The Dominican State maintains that Article 4.2 of the Final Concession Agreement does not establish the obligation of the CDEEE to enter into a PPA Agreement with the Company. According to the Respondent, this clause of the Contract imposes a burden on Dominicana Renovables, not the CDEEE, to "present evidence of the formalization of a PPA Agreement."171
316.
The State maintains that Article 4.2 of the Concession Agreement must be interpreted in accordance with the ultimate purpose of Law 57-07 which, according to the Respondent, is to overcome the energy deficit of the Dominican Republic. In that regard, the article seeks to give the CDEEE, after negotiation, a priority option to enter into a PPA Agreement with the Claimant, if this is in line with the entity's commercial interests.
317.
The Dominican State adds that in the event that the negotiations fail, the Concession Agreement in that same article provides for the two alternatives that the developer had to sell energy: either to other agents of the wholesale market or in the spot market. In that regard, Dominicana Renovables could fulfill the obligation set forth in Article 4.2 by presenting proof of formalization of any instrument that would allow it to sell all of its energy either with the CDEEE, or with other agents of the wholesale market and / or the spot market.
318.
On this point, the Respondent points out that, although Dominicana Renovables maintains that the Company is the one who has the power to decide if it wants to sign an energy sale contract with other market agents, this argument is not related to whether the CDEEE is or is not under an obligation to enter into a PPA Agreement with the Company.172
319.
Additionally, the Respondent rejects the argument of Dominicana Renovables according to which Article 4.2 of the Contract imposes the signing of the Concession Agreement as a necessary condition to be able to start the construction of the Park for two reasons.
320.
First, for the Respondent, the aforementioned clause of the Contract does not prohibit starting the works before the presentation of the evidence of the formalization of a Concession Agreement. The State points out that precisely the final concession is defined in Law 57-07 as the “[authorization of the Executive Power that grants the interested party the right to build and operate electrical works"173 In the same vein, the Concession Agreement expressly “authorizes THE CONCESSIONAIRE, to construct [...] at its own risk and expense ONE (1) wind farm for electricity generation, with a maximum initial authorized installed capacity of FIFTY (50) MW."174
321.
Second, for the Dominican Republic, Article 4.2. establishes a maximum term to start the work and not a condition. According to the Respondent, the objective of the clause is to ensure the operation of the Concession and that it is not merely left on paper.
322.
Additionally, the Respondent maintains that the argument of Dominicana Renovables does not make sense according to which if the Concession Agreement provides a term for the Concession Agreement, it is because there will not be a refusal by the CDEEE, "unless there are justified grounds."175
323.
On the one hand, the Dominican State maintains that the Claimant itself recognizes with this argument that the State can refuse to sign the Concession Agreement if there are justified grounds. It further maintains that Dominicana Renovables has recognized in the Lawsuit that the non-acceptance of the commercial terms is a justified cause for the CDEEE not to sign the Concession Agreement.
324.
On the other hand, the Respondent alleges that Dominicana Renovables knew or should have known at the time of signing the Concession Agreement, that the signing of the Concession Agreement was conditional on the success of a negotiation process in accordance with the business interests of the parties, as stated in paragraph I of Article 65 of the Regulations. Dominicana Renovables, by accepting the regulatory framework, also accepted the inherent risk that the negotiations would fail.
325.
Finally, the Dominican State alleges that the Claimant had other alternatives to sell its energy in the event that the Concession Agreement with the CDEEE did not materialize.
326.
Likewise, the Dominican Republic rejects the Claimant's allegation that the non-formalization of the Concession Agreement constitutes a breach of an "obligation necessary for the economically viable operation of the concessioned wind farm."176 For the Respondent, the fact that the Concession Agreement provided for different types of energy sales proves that the Concession Agreement with the CDEEE was not a “necessary obligation” for the operation of the Concession. When Dominicana Renovables agreed to sign the Concession Agreement, it accepted the different alternatives for the sale of energy and, therefore, should have realized their economic viability; this was a risk assumed by the Company.
327.
In this vein, the Respondent concludes that there is no provision that obliges the CDEEE to enter into a Concession Agreement with Dominicana Renovables, “since this does not follow from Articles 5 (d) or 4.2 of the Final Concession Agreement, nor from the applicable regulations."177
328.
The Respondent highlights in the Rejoinder that Dominicana Renovables did not refute the statement of the Legal Director of the CNE, Juan Luis Villanueva, who participated in the negotiation of the Concession Agreement and explained what was the interpretation that the Parties had of the obligations of the Concession Agreement at the time it was signed.178
329.
Likewise, the State highlights that Dominicana Renovables did not refer either in its Reply to the arguments made by the Respondent regarding the fact that Article 4.2 of the Concession Agreement does not impose on the CDEEE the obligation to enter into a Concession Agreement with the Claimant.179
330.
Finally, in relation to the point (iii), The Dominican State affirms that the MEM did not support the position of Dominicana Renovables in the Opinion issued by the lawyer Susana Gautreau.180
331.
The Respondent states that the MEM's Opinion was based on the partial and incomplete information provided by Dominicana Renovables. According to the Dominican State, Gautreau never indicated that there was an obligation on the CDEEE to enter into a PPA Agreement with the Company. The Opinion only recommended to the CDEEE that it was “prudent” to give the Claimant the opportunity to “discuss the negotiation terms” aimed at signing the Concession Agreement. However, the Respondent maintains that the Opinion was based on an erroneous impression of the facts conveyed by Dominicana Renovables.
332.
Additionally, the State adds that it is not true that the MEM tried to convince the CDEEE to sign the Concession Agreement with the Company. For the Respondent, the Opinion was only sent to the CDEEE for the latter to evaluate it. On this point, the Dominican Republic maintains that at the time the events occurred, the MEM did not have administrative protection over the CDEEE, since the entity has only been considered attached to the Ministry since 2018. Following that line of reasoning, the Dominican State maintains that the CDEEE was the only entity responsible for "the administration and application of the electricity supply contracts with the Independent Electricity Producers" of the PPA Agreements.181
333.
The Respondent categorically rejects the serious accusations that the Claimant has made in its Reply against the Dominican Republic and the attorney Gautreau, by maintaining that the witness is "controlled" by the State.182
334.
Contrary to what was stated by Dominicana Renovables, the Respondent explains: (i) the resignation of Ms. Gautreau from the position of Legal Director of the MEM was voluntary and was not related to this arbitration; (ii) the tapping of her telephone is not related to this case either (what happened was the result of an investigation carried out by the Office of the Attorney General of the Republic in which the tapping of the telephones of 17,637 more people was ordered); (iii) her appointment as Deputy Minister is not surprising, much less was it done in order to exert control over her testimony.183
335.
Additionally, the State indicates that the Claimant intends to mislead the Tribunal by stating that the Opinion was not of an internal nature and by claiming that the same Legal Director of the MEM sent said communication to Dominicana Renovables.184 First, the Respondent states that the Claimant has manipulated the PDF to add pages not found in the original document. Second, in Exhibit D-78 it can be verified that in the letter of June 21, 2017, the Opinion was not sent to the Claimant as it falsely alleges.185.
336.
The Respondent insists that the Opinion was obtained by Dominicana Renovables in an illegitimate manner. The document was addressed solely to the Vice Minister of Energy for his consideration.186
337.
On the other hand, the State affirms that Dominicana Renovables is wrong in stating (i) that Ms. Gautreau had at her disposal the communication by which the CDEEE sent the Protocol to the Company in January 2015; and (ii) that, in any event, Gautreau's analysis of Dominicana Renovables is not altered by the fact that the Company had concealed from the MEM that the CDEEE sent it the Protocol on that date.187
338.
First, the Respondent clarifies that the MEM did not have access to all the communications of the CDEEE, nor was it aware in detail of all the negotiations.188 Second, the State states that Ms. Gautreau's Opinion was not purely legal; it was made based on the information provided by the Company. Gautreau considered that it was prudent to give Dominicana Renovables the opportunity to discuss the terms of the Concession Agreement, without knowing that this opportunity had already been given. Therefore, this information does change the conclusions of the author of the Opinion.189
339.
Finally, the Respondent makes a pronouncement on the two communications prepared by Ms. Gautreau, provided by Dominicana Renovables with the Reply dated May 11, 2017 (Communication No. MEM-DJ-I-788-2017 addressed to Ernesto Vilalta) and of June 16, 2017 (Communication No. ME-DJ-I-1061- 2017 addressed to Milagros Santos). For the State, these two communications do not demonstrate that the State has breached the Concession Agreement as asserted by the Claimant.190
340.
In the first place, the State affirms that these communications are unrelated to Dominicana Renovables since they do not make a specific pronouncement on the negotiations with the Company.191
341.
Second, both letters confirm that the CDEEE has no obligation to enter into Concession Agreements with entities holding a final concession.192
342.
Third, the Respondent maintains that the MEM only presented its opinion regarding the possibility that entities that do not have a final concession enter into a Concession Agreement with the CDEEE. Although it is a different opinion from the opinion of the CDEEE, the MEM did not have administrative supervision over this entity on the date the letters were drafted.193
343.
Fourth, the MEM's conclusions in the aforementioned letters do not establish the State's civil liability for the conduct of the CDEEE. The MEM did not have jurisdiction over the management of the Concession Agreements, nor did it exercise jurisdictional functions, therefore they cannot declare the State responsible; that statement can only come from the judge.194

(2) The Concession Agreement does contain an authorization for Dominicana Renovables to develop the Park “at its own expense and benefit and at its own risk. "

344.
Firstly, the State emphasizes that the Claimant assumed the burden of exploiting the Project “on its own account and at its sole risk," for which reason it cannot transfer the risks associated with the development of the Farm to the State.
345.
In that sense, the Respondent rejects the argument of Dominicana Renovables according to which the Company has not been able to develop the Project because it is not financially viable without a PPA with the CDEEE, since the CDEEE is the only one that pays the fees set forth in the Regulations, and the spot market or alternative market do not have the capacity to absorb the 100 megawatts granted in concession. Therefore, they are not viable options in financial terms.
346.
In this regard, the Dominican Republic indicates:

(i) Dominicana Renovables has a maximum authorized installed capacity of 50 MW and not 100MW.

(ii) The Claimant has not provided evidence to support that the wholesale market did not have the capacity to absorb the 100 MW (which were not such).

(iii) If Dominicana Renovables believed that the other energy sales alternatives were not economically viable, it should not have accepted them in the negotiation of the Final Concession Agreement.

(iv) It is not true that the CDEEE pays the rates established in the Regulations. On the contrary, it paid lower prices. For example, in 2016, it paid 11.50/100 USD per kWh and in 2018, it paid 10.00 - 10.50/100 USD per kWh). The Respondent adds that Dominicana Renovables has not demonstrated that a remuneration lower than the benchmark rates of the Regulations will generate the economic unviability of the Project.

(v) In the Dominican energy sector, there are concessionaires that sell their energy by means other than the PPA with the CDEEE.

347.
Faced with the foregoing, Dominicana Renovables has insisted in the Reply that the formalization of a PPA with the CDEEE was the only possibility for Dominicana Renovables (i) to be able to obtain financing for the development of the Project and (ii) exploit the Project in an economically viable manner.195 The State believes that the Claimant's position is unfounded for the following reasons:196

(i) Dominicana Renovables fails to refer in its Reply to the attribution of risks established in the Concession Agreement; Claimant's silence confirms its inability to rebut this argument.

(ii) Contrary to what is stipulated in the Concession Agreement, the Claimant intends to transfer the risks by suggesting that the State should guarantee the financing, as well as an exorbitant profitability.

(iii) Dominicana Renovables focuses on arguing that the spot market is not viable without a PPA, but does not comment on the possibility of selling its energy to unregulated users of the market. Profitable deals can be struck in this segment of the market.

(iv) Regarding the financial unviability of the spot market, the State declares: (1) it is not true that the price of energy in that market is determined by the SIE. This entity sets a ceiling price that is different from the market price; (2) it is incorrect to state that the spot market price is characterized by being volatile - from August 2015 to November 2017, the sale prices were profitable for generators; (3) the fact that renewable energy does not receive remuneration for firm capacity does not make the spot market unviable, since on the one hand, the sale prices are higher than the generation costs and, on the other, Law 57-07 has incentives to compensate for the effect of not receiving that remuneration; (4) the Claimant has not been able to dispute that there are two wind farms that are financially viable operating only in the spot market. On the one hand, it did not rule on the Quilvio Cabrera farm and, on the other, the distinctions it has made on the Los Cocos farm are irrelevant; (5) the Respondent's expert has demonstrated that La Isabela Wind Farm could have generated reasonable profitability by selling its energy on the spot market - the Project would have a value of US$147 million if it had been financed, or US$199.2 million if it had been built with own funds.

(v) It is not true that the Concession Agreement or the legal framework granted Dominicana Renovables a guarantee of access to financing. The purpose of Article 65 of the Regulation was not such. The purpose of the aforementioned provision was to allow the CDEEE to purchase energy as a priority to resolve the energy deficit.

(vi) Claimant's position according to which without the formalization of a PPA there is no financing, and therefore there is no wind farm, is exaggerated for the following reasons: (1) to claim that without the PPA there is no financing is to implicitly admit that the Company had not yet secured the financing; (2) it is not “impossible” to obtain financing without the PPA - there are agreements in the Dominican Republic to finance this class of companies; (3) the Project can also be financed with own resources; (4) it is not true that a PPA immediately guarantees financing.

348.
Secondly, the Respondent argues that the Final Concession provides a number of important benefits and incentives to energy developers that make renewable energy projects an attractive business. For example: (i) duty and tax exceptions are granted; (ii) they are given preference in the connection and dispatch of energy through the transmission network; (iii) they are reimbursed for connection costs with the Dominican Electrical Transmission Company (“ETED”); (iv) they are given the right to remain in their name throughout the term of the concession; (v) they are granted the right to operate and exploit generation facilities under their sole and direct ownership; and (vi) they have the right to build at their own cost a 138 KV transmission line up to the connection of the ETED networks.
349.
The Respondent then concludes that both the Final Concession Agreement and the applicable regulation granted Dominicana Renovables a series of benefits, which did not include the guarantee of signing a PPA with the CDEEE, or a predetermined remuneration rate.

c) Entry into PPAs is subject to a negotiation process that must be carried out according to the commercial interests of the parties197

350.
The Respondent argues that Article 65 of the Regulations sets forth, “directly, that any PPA 'will be negotiated by the parties based on their respective commercial interests.'”198 It even argues that the Claimant and its legal expert admit that, at best, the Company has a right to negotiate a PPA with the CDEEE.
351.
For the Dominican State, it is not sustainable to argue, as the Claimant does, that the signing of the PPA was a mere administrative procedure, a formalization that the CDEEE could not deny, since the negotiation is an obligation of means and not of results. The State emphasizes that the Claimant's own expert recognizes that the CDEEE can refuse to enter into a PPA if there is any just cause.
352.
According to the Respondent, it constitutes a just cause for not signing the PPA that said contract does not fit the commercial interests of the CDEEE.
353.
The State explains, through the testimony of the Vice President of Legal Affairs of the CDEEE, that first the CDEEE must determine if there is a commercial interest. To do this, the authority analyzes issues such as: (i) the hiring needs of distribution companies; (ii) the technical limitations of the electrical system for the intake/dispatch of the energy generated by renewable energy projects; (iii) the CDEEE's annual budget; and (iv) the strategy determined by the Government in energy matters.
354.
Once there is a commercial interest on the part of the CDEEE, the authority selects the “best partners,” weighing two aspects. First, that the partner accredits through reliable documentation that it has the resources or financing to carry out the Project and, therefore, comply with the obligations of the PPA. Second, the CDEEE seeks to "ensure a competitive base purchase price consistent with market conditions."199
355.
The State rejects the argument raised by Dominicana Renovables in its Reply, according to which in the PPAs the elements of price and item sold are already determined by Law 57-07 and the Concession Agreement and, therefore, these elements are not subject to negotiation.200 According to the Company, only the collateral elements of the PPA can be negotiated. The State considers this argument to be wrong for three reasons:201
356.
First, the Claimant's argument would invalidate Paragraph I of Article 65 of the Regulations by concluding that nothing is subject to negotiation. This position, in addition to being unsupported, goes against the principle of interpretation of utility.
357.
Second, Dominicana Renovables does not deny that in the event that the CDEEE considers that its demand has already been satisfied, it cannot be forced to enter into PPAs since it would no longer have commercial interest in continuing to make contracts. The Claimant simply argues that the CDEEE had not satisfied its commercial interests as it had not met the renewable energy goal set forth in Article 21 of Law 57-07.
358.
On this point, the Respondent states that: (i) it is up to each party to determine its commercial interests - only the CDEEE can determine what they are; (ii) the goal established in Article 21 of Law 57-07 is aspirational and is not a determining factor when defining the commercial interest of the CDEEE; (iii) Article 21 does not force the CDEEE to purchase a predetermined [amount of] renewable energy. Even if that were the case, in 2015 the goal established therein was met.
359.
Third, As explained below, it is not true that the price is fixed or is predetermined by the Regulations.
360.
Regarding the purchase price, the Respondent clarifies that there is no purchase price guarantee in the Final Concession Agreement; the price of energy is one of the components that must be negotiated with the CDEEE. According to the Dominican Republic, this fact is supported by three circumstances:

(i) For the CDEEE, the purchase price is an essential component of the authority's commercial interests.

(ii) Article 66 of the Regulations sets forth that developers will have the right to receive the remuneration provided for in the PPA. Therefore, one of the points that were not determined in the draft PPAs circulated by the CDEEE was Article 4.1 that regulated the sale price of the energy.

(iii) Article 5 of the Final Concession Agreement only sets forth the right that developers have to receive as remuneration "the wholesale market price."202 Similarly, Article 11 of the Concession Agreement sets forth that the concessionaire has the right to collect the price of the rate "according to what is set forth in the current regulations that are applicable to it."203

361.
In accordance with the foregoing, the Respondent maintains that Law 57-07 established "a remuneration scheme based on a rate established for a period of 10 years with a variable premium at marginal cost."204 However, the Dominican State clarifies that Law 57-07 and the Regulations did not guarantee a fixed price for the purchase of energy as Dominicana Renovables argues. Article 110 of the Regulations established benchmark prices according to the renewable energy source.
362.
The Respondent clarifies, firstly that the aforementioned prices could vary according to production costs, demand and supply, among other items. Secondly, the objective of the renewable energy regime was to stimulate the development of wind projects and gradually adjust the purchase price to competitive market conditions. Thirdly, the rates of the PPAs negotiated by the CDEEE demonstrate that the benchmark prices of Article 110 are not mandatory. For example, in 2016 the rate was 11.50/100 USD per kWh, while in 2018 the rate was reduced to 10.00-10.50/100 USD per kWh.
363.
In relation to the arguments presented by Dominicana Renovables in the Reply, the State affirms that the Claimant is wrong in affirming that Law 57-07 adopts a fixed remuneration rate known as feed-in tariff.205
364.
According to the Respondent, it is not true that Law 57-07 has set a fixed rate in order to attract investors, as is applied in Spain. The Dominican Republic insists that its renewable energy regime is different from the Spanish one. Law 57-07 was implemented to reduce the energy deficit and the costs associated with the purchase of electricity. On the other hand, while incentives in Europe are associated with the tariff, in the Dominican Republic these were mainly of a tax nature. Even if it were accepted that the Spanish and Dominican regimes are comparable, Dominicana Renovables did not prove that the Spanish regulation imposes a fixed rate for the sale of renewable energy.
365.
In the same way, the Dominican State points out that the Company is wrong in insisting that the level of remuneration set forth in Article 110 of the Regulations is mandatory, fixed and not subject to negotiation, since the remuneration is a fixed value determined in said provision, while the premium is a variable value. For the Respondent, there are four reasons to maintain that this is not the case:

(i) Dominicana Renovables itself acknowledges that Article 110 sets forth a “recommended” level of remuneration: "A recommendation differs substantially from an obligation;"206

(ii) Although the premium of Article 108 of the Regulations is variable, this does not imply that the remuneration value "R" is fixed. Article 110 of the Regulations refers to an annual benchmark, but not mandatory, remuneration. The benchmark remuneration "R" is adjusted taking into account the variations in CAPEX and the efficiencies in technology.

(iii) The standards that the Claimant cites to argue the existence of a financial guarantee establish that any incentive depends on “the situation of the fossil market and its determination in the average and marginal costs of the local market.”207 Both the prices of hydrocarbons and the CAPEX to build a wind farm that existed in 2007 have decreased significantly.

(iv) Maintaining the benchmark price of the Regulations, as claimed by the Claimant, means ignoring the efficiency and savings in CAPEX that are being achieved over time. Precisely, the CNE in the National Energy Plan for 2010-2025 set forth that one of the most important aspects of the price incentive strategy was "the gradual adjustment of the purchase price of energy to the conditions of a competitive market."208

366.
Based on the foregoing considerations, the Dominican State believes that Dominicana Renovables's claim that the price set was arbitrary has no basis whatsoever. As the production price decreased, the sale price decreased.
367.
The Respondent explains that it also did not act illegally by offering prices lower than those of the Regulations. These prices did not threaten the stability or profitability of the developers, as is well recognized by Dominicana Renovables when stating that the price offered by the CDEEE is “a great deal, reflecting a highly profitable return on investment over the 25 contract years.209
368.
In this vein, the Respondent insists that the applicable regulations establish a benchmark value and that the final rate is defined based on the negotiations carried out by the parties according to their commercial interests.

2 . Dominicana Renovables had the opportunity to negotiate a possible PPA but did not accept the commercial conditions of the CDEEE or show seriousness during the negotiations210

369.
The Respondent denies that the CDEEE acted maliciously in the negotiation of the PPA with Dominicana Renovables and that it arbitrarily refused to enter into said Agreement to favor other companies. On the contrary, the Dominican State affirms that it was the Company that did not accept the commercial conditions of the CDEEE, nor did it show seriousness during the negotiations.
370.
In particular, the Dominican Republic argues that: (i) there was no arbitrary suspension of the negotiation process of the PPA; (ii) it was Dominicana Renovables who refused to send the documentation required by the CDEEE; (iii) the Company did not meet the requirements established in the Protocol; (iv) the Claimant distorts the nature of the Special Power; (v) the Claimant has not proven and could not prove that there was bad faith in the negotiation by the CDEEE; and (vi) Dominicana Renovables' refusal to participate in the public tender is unjustified.

a) The CDEEE did not arbitrarily suspend the negotiation process of the PPAs211

371.
The Dominican State argues that Dominicana Renovables has fabricated the argument that the CDEEE arbitrarily suspended the negotiation process in order to hide the fact that, from 2013 until before the issuance of the Protocol, this is September 2014, the Company never submitted proposals on the commercial conditions that it was willing to accept and, on the contrary, the Claimant undertook to delay the negotiations until they had failed.
372.
According to the Respondent, during the first six months of 2013, Dominicana Renovables "simply expressed their interest in meeting the CDEEE team, and in introducing themselves, without showing any interest in discussing a PPA with the CDEEE."212
373.
Additionally, the Dominican State maintains that, in order to demonstrate an apparent proactivity, Dominicana Renovables requested the documentation required to start the negotiation process of the PPA from the CDEEE several times, which it never submitted in its entirety as explained below.
374.
According to the Respondent, the differences between the CDEEE and the Company arose at the moment in which the tentative prices of the possible PPA began to be discussed. The CDEEE stated that it was willing to negotiate “a price between 12/100 and 13/100 USD per kWh, to which they replied that 'they were crazy,' and insisted on a sale price of 14/100 USD per kWh.213However, the Claimant never submitted in writing any concrete proposal on the commercial conditions that it was willing to accept. According to the Respondent, this was due to the fact that they did not have the resources to develop the Farm and that they were not diligent enough, circumstances that were admitted in 2017 by the same legal representative of Dominicana Renovables to the Deputy Minister of Energy.214
375.
Dominicana Renovables has presented in its Reply a series of objections against the transcript of the conversation that its legal representative had with the Deputy Minister of Energy in January 2017. The Claimant has requested that the evidence be inadmissible as illegal, at the same time it states that the transcript is not reliable and that, in any case, Mr. Fernández's assertions were taken out of context.
376.
In this regard, the Dominican State maintains that none of these objections can succeed:215

(i) The recording was obtained at a public institution, it concerned issues of public relevance and at no time has it been used to violate the right to privacy of Mr. Fernández;

(ii) The reasons presented by the Claimant to maintain that the recording is not reliable are irrelevant. The third person who is not mentioned in the transcript is the assistant to the Deputy Minister whose job it was to draw up the minutes.

(iii) It is not true that Mr. Fernández's statements have been taken out of context. In said conversation, Dominicana Renovables admitted that the PPA was not entered into due to its lack of insistence and diligence, and it is not acceptable that the Claimant now intends to justify said assertion by arguing that the legal representative was referring to the payment of bribes.

377.
The Respondent argues that the negotiation processes were not arbitrarily suspended or suspended exclusively for Dominicana Renovables.
378.
The Dominican State explains that, during the years 2013 and 2015, the CDEEE carried out a process of unification and standardization of the negotiation and contracting conditions of renewable energy. This whole process arose as a result of the energy deficit that the Dominican Republic was going through in 2013.
379.
As part of the strategy to solve the crisis, the CDEEE began an exhaustive review of the contracting processes of the PPAs with two objectives: first, to ensure the execution of renewable energy projects within the established deadlines; second, to adjust the purchase price of energy to the situation the market was going through at that time.
380.
To achieve the first objective, the CDEEE decided to condition the negotiation of new PPAs and amendments to the existing PPAs on the submission of documents by the developer that would make it possible to prove that it had the necessary financing to execute the project.
381.
Regarding the second objective, the Dominican State wanted to update the benchmark prices that had been established in the Regulation, taking into account that the costs of generating wind energy had drastically decreased after the first half of 2008. In this vein, the CDEEE carried out a study in which it determined that wind energy developers were capable of selling their energy for between 12/100 and 13/100 USD/kWh.
382.
The Respondent explains that the implementation of the new contracting conditions occurred in three stages:

(i) The CDEEE prepared a draft or standard format of the PPA.

(ii) The CDEEE decided to issue the Protocol in order to facilitate the negotiation process and reaffirm that it was granting equal conditions to all interested parties. The Protocol established, on the one hand, that the price that the CDEEE was willing to pay would be 12.50/100 USD per kWh. On the other hand, it reaffirmed the obligation of the developer to submit reliable documentation that would demonstrate that it had the solvency or access to financing to develop the project.

Specifically, the Respondent indicates that, according to the Protocol, the developers “had to submit not only a letter of intent from the institution that would be in charge of financing the project (the “Letter of Intent), but also a term sheet. and conditions, indicating the amount of the credit, the term and the payment conditions.”216

(iii) In mid-2015, the CDEEE decided to reduce energy sale prices even further. Similarly, the CDEEE realized that some concessionaires were “using the concession as a basis of financial speculation."217 Consequently, the authority established three points for the negotiation of the PPAs. First, it reduced the base price for the purchase of energy from 12.50/100 to 11.50/100 USD/kWh. Second, it regulated the scenarios in which the developer could assign its rights and obligations under the PPA. Third, it limited the validity of the PPAs to a term of 20 years from the start date of the energy supply.

On October 6, 2015, the CDEEE requested authorization from the President of the Republic to implement these three new points.

According to the Respondent, these conditions were not reflected in any document and were reported directly by the CDEEE to the developers during the negotiation process.

383.
Regarding the second stage, the Dominican Republic states that the CDEEE Board of Directors gave the instruction to suspend all negotiations of PPAs until the issuance of the Protocol. The Respondent reiterates that the suspension was a general decision that did not affect only Dominicana Renovables. However, it clarifies that as soon as the Protocol was delivered to the Company, on January 20, 2015, Dominicana Renovables was absent from the negotiations and remained silent.

b) Dominicana Renovables did not accept the commercial conditions of the CDEEE and refused to send the documentation required for the signing of the PPA218

384.
The Respondent argues that, from the beginning of the negotiations, Dominicana Renovables did not show a serious intention to enter into the PPA. The Dominican State describes the Company's initial approaches as: “erratic [,] [] they were characterized by a lack of definition when the CDEEE made concrete proposals.219
385.
Although Dominicana Renovables insists in its Reply that it was ignored by the CDEEE in its initial communications and that the Company was ready to sign the PPA in 2013, this was not the case. The same legal representative of Dominicana Renovables informed the CDEEE that they did not intend to formalize the aforementioned agreement until had the financial resources to develop the Project.220
386.
Based on the testimony of the Director of Energy Management of the CDEEE, Santa Ramos, the Respondent argues that, contrary to what was stated by Dominicana Renovables, the CDEEE did respond to the different requests and met on several occasions with the legal representative of the Company from the moment the Claimant requested to start the negotiations, that is, on April 10, 2013. However, it was Mr. Fernández who showed no interest in discussing the specific conditions for the negotiation of the PPA.
387.
The Dominican State puts forth that, in mid-2013, the CDEEE informed Dominicana Renovables that the CDEEE was willing to buy energy at a price between 12/100 and 13/100 USD/kWh, to which Dominicana Renovables responded that “they were crazy” and insisted on a price of 14/100 USD/kWh.221
388.
To that extent, the Respondent rejects the allegation that Dominicana Renovables makes in its Reply, according to which the Company never objected to the price offered by the CDEEE, because it was not the case.222 This is corroborated by the simple fact that Dominicana Renovables insists in this arbitration that it has the right to sign a PPA with the rate of 14/100 USD/kWh established in the Regulations.
389.
In turn, the CDEEE indicated to Dominicana Renovables that it had to submit the documents proving that it had the financial capacity to develop the Project, because, at that time, the Company had only submitted a letter from WestLB AG dated September 17, 2009 “in which the bank only [sic] offered to organize and coordinate possible lines of financing with other lenders and not to unconditionally finance the Project.”223
390.
The Respondent maintains that on October 29, 2013, it sent the draft PPA to Dominicana Renovables to initiate the negotiation process. According to the Dominican State, the aforementioned document set forth that the PPA contractor needed to submit: (i) the audited financial statements for the last three years; (ii) two bank reference letters; and (iii) a "Letter of Intent from the financial institution that would be providing the financing, indicating amounts and potential term of the financing.”224
391.
The Respondent clarifies that the draft PPA was only sent to Dominicana Renovables for informational purposes and did not contain the final terms of the agreement. Proof of this is that the document still lacked blank spaces to fill out. In this regard, the Dominican State rejects the Claimant's allegation that the PPA could have been signed on December 31, 2013.
392.
On the contrary, the Dominican State affirms that Dominicana Renovables never submitted remarks on the draft or confirmed to agree with its terms. Nor did it present evidence of having the necessary financing to carry out the development of the Farm.
393.
The Respondent denies that the CNE letter of January 2014 in which it granted the extension to Dominicana Renovables to formalize the PPA proves in any way the alleged negligence of the CDEEE. According to the Respondent, the CNE was not aware of the particularities of the negotiation.
394.
The Dominican State adds that, in February 2014, the Company, in order to be falsely proactive, again requested the necessary documents from authority to sign the PPA. The CDEEE again sent the information and even recommended that Dominicana Renovables send the offer in advance in order to advance the negotiation. However, the Claimant never provided the information, nor did it submit an offer for the sale price of energy.
395.
Regarding the documentation sent by Dominicana Renovables on August 12, 2013, the Respondent argues that it did not receive that communication on that date. According to the State, the CDEEE only learned of the existence of that letter on January 13, 2017.
396.
Regarding the information provided with that communication, the Dominican Republic states:

(i) The Company only submitted the financial statements for the years 2011 and 2012 on May 1, 2014. The Claimant did not provide the financial statements for 2013 as required by the draft PPA.

(ii) Banesto's letter of January 2013 did not confirm the financing of the Project. According to the Respondent, the letter indicated that it was the Spanish Export Credit Insurance Company (“CESCE”) that would cover the credit risk, the financing terms of which were subject to its approval. In other words, the possible financing required not only the approval of Banesto but also the CESCE. Finally, by the time the CDEEE became aware of Banesto's communication, that is in January 2017, the letter was no longer in force.

397.
In relation to the Claimant's position presented in the Reply, according to which it delivered to the CDEEE the documents required to prove its financial capacity to sign the PPA, namely, BTD's financial statements and Banesto's letter dated February 13, 2013, the Respondent clarifies and contextualizes:225

(i) The Claimant has not refuted that it did not submit the financial statements for the 2013 fiscal year, despite knowing the mandatory nature of this requirement;

(ii) the letter from the Banesto bank was not submitted directly and in a timely manner to the CDEEE, but only alluded to in a chronological summary of the project's actions presented by Dominicana Renovables to the CDEEE on January 13, 2017;

(iii) the fact that at that time the CDEEE did not have a specific file on Dominicana Renovables is not enough to infer that the CDEEE received the letter but did not review it (intentionally or unintentionally), since in any case there is a system for the receipt and cataloging of communications.

398.
In particular, with regard to the Claimant's allegations regarding the CDEEE's improper evaluation of Banesto's letter, the Respondent clarifies that the letter had such shortcomings that it did not even permit a substantial analysis of its content, and that there was not unequal or discriminatory treatment in comparison with the evaluation that the CDEEE had made of letters of commitment submitted by other companies.226
399.
Regarding the first point, the Respondent maintains that the letter did not establish a firm commitment by Banesto, as it was subject to the conditional approval of CESCE and, additionally, the letter had been issued on February 13, 2013, for which reason it was to be concluded that by January 2017, any offer enshrined in the letter would have expired.227 For the CDEEE, the extemporaneousness of the letter was also evident for Dominicana Renovables, who did not mention it at the meeting of January 27, 2017, a meeting in which instead other possible financiers were mentioned who did not make any commitment either.228
400.
Regarding the second point, that is, the unequal and discriminatory treatment given by the CDEEE to Dominicana Renovables compared to other companies, the Respondent points out that the letters of financial commitment submitted by these others did not have the same substantial flaws as the letter of Banesto. In addition to having appropriate letters of financing, these other companies had shown interest in CDEEE's economic proposals, so it was natural to maintain a constant exchange of communications with them, while it would not be natural or necessary to maintain an active correspondence with a company that had not complied with fundamental financial requirements or been open to the economic conditions proposed by the CDEEE.229
401.
On the other hand, for the Respondent, the existence of the Concession Agreement did not or does not serve the Claimant as evidence of its financial capacity to enter into the PPA. The Dominican State clarifies that the economy, requirements, times and parts of a concession agreement and a PPA are due to different reasons and principles, for which it is not possible to conclude that the financial capacity requirements are the same or are transferable from one contract to another.230
402.
Finally, the Respondent explains that on August 4, 2014, Dominicana Renovables again requested the CDEEE to send it the draft of the PPA. However, by that date the Board of Directors of the authority had already ordered a general suspension of the PPA negotiation processes until the Protocol was issued.
403.
The Dominican State indicates that the Claimant, because it has not been able to demonstrate that it accepted the price offered by the CDEEE and that it submitted the necessary documentation for the formalization of the PPA, uselessly claims in its Reply to transfer the responsibility to the CDEEE that it had not been possible to sign it. According to the Claimant, the draft PPA could have been signed had it not been because (i) the CDEEE was prioritizing concessions to coal plants; (ii) the authority decided to suspend the negotiation process of this class of contracts.231 The Dominican Republic rejects this argument.232
404.
The State clarifies that the priority was to solve the country's energy deficit through the increase and diversification of energy sources. This meant not only increasing coal plants but also renewable energy plants. That is why it sent Dominicana Renovables the draft of the PPA in October 2013.233
405.
According to the Respondent, it is not true that the CDEEE suspended the negotiation process of the PPAs as soon as it sent the draft to Dominicana Renovables on October 29, 2013. Precisely, the Claimant itself argues that in 2014 it was in talks with the CDEEE. Nor is it true that the template PPA was to be amended. The fact is that the Claimant had 10 months from the delivery of the draft PPA until September 2014 to submit its comments or accept the commercial conditions of the CDEEE, and yet the Claimant remained silent.234
406.
Finally, the Dominican State highlights that Dominicana Renovables did not question the reasons that led to the suspension of the negotiation process. For the Respondent, this is reason enough to reject the claims that the Company made in its Petition that the suspension was arbitrary and intentional.235