TABLE OF ABBREVIATIONS AND DEFINITIONS | |
APREFLOFAS | Asociación Preservacionista de Flora y Fauna Silvestre / Association for the Preservation of Flora and Fauna (Costa Rica) |
APREFLOFAS's Petition | APREFLOFAS's Petition for Amicus Curiae Status filed on 15 September 2014 |
Arbitration Rules | ICSID Rules of Procedure for Arbitration Proceedings 2006 |
Arias Moratorium Decree | Moratorium on open pit mining declared by President Arias on 29 April 2010 |
BIT | Agreement between the Government of Canada and the Government of the Republic of Costa Rica for the Promotion and Protection of Investments, signed 18 March 1998, entered into force on 29 September 1999 |
C-[#] | Claimant's Exhibit |
C-CM Jur. | Claimant's Counter-Memorial on Jurisdiction dated 7 July 2016 |
C-Costs Jur. | Claimant's Statement of Costs on Jurisdiction dated 10 March 2017 |
C-Mem. Merits | Claimant's Memorial on the Merits dated 23 December 2015 |
C-Rej. Jur. | Claimant's Rejoinder on Jurisdiction and Observations on NonDisputing Party's Submission dated 16 December 2016 |
CL-[#] | Claimant's Legal Authority |
CER-[Name] | Claimant's Expert Report |
CER-Calzada 1 | First Expert Report of Ana Virginia Calzada dated 5 July 2016 |
CER-Calzada 2 | Second Expert Report of Ana Virginia Calzada dated 10 December 2016 |
CER-FTI Consulting 1 | First Expert Report of Howard Rosen and Chris Milburn of FTI Consulting Inc. dated 23 December 2015 |
CER-FTI Consulting 2 | Second Expert Report of Howard Rosen and Chris Milburn of FTI Consulting Inc. dated 5 July 2016 |
CER-Hernández-Rojas 1 | First Expert Report of Rubén Hernández and Erasmo Rojas dated 5 July 2016 |
CER-Hernández-Rojas 2 | Second Expert Report of Rubén Hernández and Erasmo Rojas dated 14 December 2016 |
CER-RPA 1 | First Expert Report of Graham Clow and Brenna Scholey of Roscoe Postle Associates Inc. ("RPA") dated 23 December 2015 |
CWS-[Name] | Claimant's Witness Statement |
CWS-Hernández 1 | First Witness Statement of Juan Carlos Hernández dated 23 December 2015 |
CWS-Hernández 2 | Second Witness Statement of Juan Carlos Hernández dated 5 July 2016 |
CWS-Hernández 3 | Third Witness Statement of Juan Carlos Hernández dated 16 December 2016 |
CWS-Rauguth 1 | First Witness Statement of Erich Rauguth dated 22 December 2015 |
Chinchilla Moratorium Decree | Decree issued by President Chinchilla on 8 May 2010 which expanded the Arias Moratorium Decree by also prohibiting all mining activities using cyanide and mercury in the processing of ore |
Concession or 2008 Concession | Industrias Infinito's exploitation concession granted by President Arias and MINAE on 21 April 2008 |
DCF | Discounted Cash Flow Method of calculating financial loss |
DGM | Directorate of Geology and Mines |
EIA | Environmental Impact Assessment |
FET | Fair and equitable treatment |
Hearing on Jurisdiction | Hearing on Jurisdiction held 19-20 January 2017 |
ICSID Convention | Convention on the Settlement of Investment Disputes Between States and Nationals of Other States dated 18 March 1965 |
ICSID or the Centre | International Centre for Settlement of Investment Disputes |
Las Crucitas Project | Gold mining project in the area of Las Crucitas, in Costa Rica |
MINAE | Ministry of the Environment and Energy |
Murillo Amparo | Constitutional challenge on environmental grounds filed on 1 April 2002 by environmental activists Carlos and Diana Murillo against the resolution that granted Industrias Infinito's 2002 concession to mine |
NDP Submission or APREFLOFAS's Submission | Non-Disputing Party Written Submission of Asociación Preservacionista de Flora y Fauna Silvestre ("APREFLOFAS") dated 19 July 2016 |
NDP-[#] | Non-Disputing Party Exhibit |
R-[#] | Respondent's Exhibit |
R-Costs Jur. | Respondent's Statement of Costs on Jurisdiction dated 10 March 2017 |
R-Mem. Jur. | Respondent's Memorial on Jurisdiction dated 8 April 2016 |
R-Reply Jur. | Respondent's Reply on Jurisdiction and Observations on NonDisputing Party's Submission dated 1 October 2016 |
RL-[#] | Respondent's Legal Authority |
RER-[Name] | Respondent's Expert Report |
RER-Ubico 1 | First Expert Report of Carlos Ubico filed on 8 April 2016 |
RER-Ubico 2 | Second Expert Report of Carlos Ubico dated 30 September 2016 |
RWS-[Name] | Respondent's Witness Statement |
SETENA | National Technical Environmental Secretariat |
SINAC | National System of Areas Conservation |
TCA | Contentious Administrative Tribunal |
Tr. Day [#] (ENG/SPA), [page:line] [Speaker(s)] | Transcript of the Hearing on Jurisdiction (as revised by the Parties on 27 February 2017) |
Tribunal | Arbitral Tribunal constituted on 29 September 2014 |
VCLT | Vienna Convention on the Law of Treaties of 23 May 1969 |
2002 Moratorium | Moratorium on open-pit mining decreed by President Abel Pacheco on 5 June 2002 |
2005 RFA | The Claimant's first Request for Arbitration of 3 June 2005 |
2008 Concession or Concession | Industrias Infinito's exploitation concession granted by President Arias and MINAE on 21 April 2008 |
2010 Constitutional Chamber Decision | Constitutional Chamber of the Costa Rican Supreme Court's decision denying UNOVIDA's and FECON'S amparo petitions and lifting injunction against forest-clearing operations |
2010 Moratorium or 2010 Executive Moratorium | Chinchilla Moratorium Decree together with the Arias Moratorium Decree |
2010 TCA Decision | Decision by the TCA on the annulment request file by Mr. Lobos and APREFLOFAS which declared that all requests for annulment had been granted. Oral summary of decision provided on 24 November 2010, written decision was provided on 14 December 2010 |
2011 Legislative Moratorium | Amendment to the Mining Code by the Costa Rican legislature, which entered into force on 10 February 2010 |
2011 Administrative Chamber Decision | Administrative Chamber of the Costa Rican Supreme Court's decision of 30 November 2011, denying Industrias Infinito's cassation request and upholding the main conclusions of the 2010 TCA Decision |
2012 MINAE Resolution | MINAE Resolution No. 0037 of 9 January 2012 |
2013 Constitutional Chamber Decision | Constitutional Chamber of the Costa Rican Supreme Court's decision of 19 June 2013, dismissing Industrias Infinito's unconstitutionality challenge deeming it inadmissible on account of the fact that the Administrative Chamber had already issued its ruling |
2015 TCA Damages Decision | TCA decision of 24 November 2015 which determined that Costa Rica, the SINAC and Industrias Infinito should pay compensation of USD 6.4 million for environmental damage |
Mr. John Terry
Ms. Myriam
M. Seers
Mr. Ryan Lax
Ms. Aria Laskin
Torys LLP
79 Wellington Street West, Suite 3000
Box 270, TD Centre
Toronto, ON
Canada, M5K IN2
Mr. Paolo Di Rosa
Mr. Raúl Herrera
Mr. Csaba Rusznak
Ms. Natalia Giraldo-Carrillo
Arnold & Porter Kaye Scholer LLP
601 Massachusetts Avenue NW
Washington, DC 20001-3743
United States of America
Mr. Dmitri Evseev
Mr. Patricio Grané Labat
Arnold & Porter Kaye Scholer LLP
Tower 42, 25 Old Broad Street
London, EC2N1Q
United Kingdom
Ms. Adriana González
Ms. Arianna Arce
Ms. Francinie Obando
Ms. Marisol Montero
Ministerio de Comercio Exterior de Costa Rica
Plaza Tempo, sobre la Autopista Próspero Fernández, contiguo al Hospital Cima
Piso 3
San José
Republic of Costa Rica
[...]
At this stage, the Tribunal is of the view that it cannot order the discontinuance requested by the Respondent. This request has been made under Rule 44 of the ICSID Arbitration Rules, which addresses discontinuance of the proceedings at the request of a party. According to the Explanatory Notes to Rule 44 in the 1968 version of the Rule (which is identical to its 2006 version), 'under this Rule the agreement (express or implied) of both parties must be secured for discontinuance' (Note C). The Claimant has not consented to the discontinuance, neither expressly nor impliedly. To the contrary, although it has not made a formal objection, it has stated that 'a discontinuance of the proceeding […] would cause significant prejudice to the Claimant.' The Tribunal understands this to be an implied objection.
That being said, the present state of uncertainty cannot last indefinitely. As noted in the Explanatory Notes cited above, 'this Rule provides that if either party wishes to discontinue the proceeding unilaterally, the acquiescence of the other party must be obtained; but, so as not to permit such party to block a discontinuance by inaction, intentional or unintentional, a time limit is to be set for its response' (Note B). The Tribunal already set one time limit for this purpose, of which the Claimant now requests an extension. Given the special circumstances surrounding the Claimant's corporate organization and management, the Tribunal is willing to extend this deadline for an additional three weeks, i.e. until 29 September 2015. If by then the Claimant does not indicate clearly whether it wishes to pursue this arbitration and present a formal objection to the discontinuance requested by the Respondent, the Tribunal will apply Rule 44 and deem that the Claimant has acquiesced in the discontinuance.
The Respondent's request for security for costs is deferred until the Tribunal's final ruling on the discontinuance, if at that stage the request remains applicable.
Tribunal:
Prof. Gabrielle Kaufmann-Kohler President
Prof. Bernard Hanotiau Arbitrator
Prof. Brigitte Stern Arbitrator
ICSID Secretariat:
Ms. Luisa Fernanda Torres Secretary of the Tribunal
For the Claimant:
Mr. John Terry Torys LLP
Ms. Myriam Seers Torys LLP
Mr. Ryan Lax Torys LLP
Ms. Aria Laskin Torys LLP
Mr. Erich Rauguth Infinito Gold Ltd.
Mr. Juan Carlos Hernández Infinito Gold Ltd.
Mr. Erber Hernández Torys LLP (paralegal)
For the Respondent :
Mr. Paolo Di Rosa Arnold & Porter Kaye Scholer LLP
Mr. Dmitri Evseev Arnold & Porter Kaye Scholer LLP
Mr. Patricio Grané Labat Arnold & Porter Kaye Scholer LLP
Ms. Natalia Giraldo-Carrillo Arnold & Porter Kaye Scholer LLP
Ms. Daniela Páez Arnold & Porter Kaye Scholer LLP
Mr. Kelby Ballena Arnold & Porter Kaye Scholer LLP
Ms. Adriana González Ministerio de Comercio Exterior
Ms. Arianna Arce Ministerio de Comercio Exterior
Court Reporter:
Mr. David Kasdan B&B Reporters
a. In 1996, Industrias Infinito completed an extensive pre-feasibility study,14 which was accompanied by several reports and reviews on the viability of the project.15
b. Industrias Infinito also commissioned other studies and reports addressing the environmental and socio-economic impact of the project.16
c. In 1999, Industrias Infinito completed a comprehensive feasibility study that allegedly proved the existence of a substantial gold deposit in the Las Crucitas area.17 According to the Claimant, under the Mining Code this gave Industrias Infinito the exclusive right to obtain an exploitation concession.18
d. In December 1999, Industrias Infinito submitted the feasibility study to the Directorate of Geology and Mines ("DGM"), a subdivision of the Ministry of the Environment and Energy ("MINAE"), and requested an exploitation concession to develop a surface gold mine at Las Crucitas.19
a. The SETENA resolution declaring the environmental viability of the project.
b. The SETENA resolution approving the modification of the Las Crucitas Project.
c. The MINAE resolution granting the 2008 Concession.
d. The Executive Decree declaring the project in the national interest.59
(i) Resolution No. 3638-2005-SETENA, through which the SETENA declared the environmental viability for the extraction phase of the Las Crucitas Project for a period of 2 years, under specific terms and conditions;
(ii) Resolution No. 170-2008-SETENA, through which the SETENA approved the amendment of the Las Crucitas Project;
a. The MINAE to cancel the 2008 Concession.72
b. Industrias Infinito and the Government to facilitate the restoration of the site, with the quantum of damages to be determined in a different TCA proceeding.73
c. The file to be transmitted to the prosecutor to determine whether criminal proceedings should be initiated against Government officials (including President Arias).
(iii) Resolution No. R217-2008-MINAE, through which the President of Costa Rica and the Minister of Environment and Energy awarded the mining concession to Industrias Infinito;
(iv) Resolution No. 244-2008-MINAE (the Tribunal notes that this document has not been referred to be either Party);
(v) Resolution No. 244-2008-SCH, through which the Arenal-Huetar Norte Conservation Area, through the sub-region San Carlos-Los Chiles, authorized the change of land use in forest areas of forest, in areas of agricultural use without forest, and in plantation areas;
(vi) Executive Decree No. 34801-MINAET, through which the President of Costa Rica and the Minister of Environment and Energy declared the Las Crucitas Project of public interest and national convenience.
[…] Costa Rica does not believe that the evidence available to date is sufficient to sustain such a jurisdictional objection, i.e., that the entirety of Infinito's investment was procured through fraud, corruption or other malfeasance such that it fails to qualify as a bona fide investment under the BIT and the ICSID Convention. As the summary provided by APREFLOFAS shows, the numerous investigations of public officials for corruption and other crimes in relation to the granting of the 2008 Concession are either still ongoing or have resulted in dismissal of the charges.109
The jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment, between a Contracting State (or any constituent subdivision or agency of a Contracting State designated to the Centre by that State) and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre. When the parties have given their consent, no party may withdraw its consent unilaterally.
a. There must be a legal dispute.
b. That dispute must arise directly out of an investment.
c. The dispute must be between a Contracting State (or any constituent subdivision or agency of a Contracting State designated to the Centre by that State) and a national of another Contracting State.
d. The parties to the dispute must have consented in writing to submit the dispute to the Centre. Once given, this consent may not be withdrawn unilaterally.
ARTiCLE XII
settlement of Disputes between an investor and the Host Contracting Party
1. Any dispute between one Contracting Party and an investor of the other Contracting Party, relating to a claim by the investor that a measure taken or not taken by the former Contracting Party is in breach of this Agreement, and that the investor has incurred loss or damage by reason of, or arising out of, that breach, shall, to the extent possible, be settled amicably between them.
2. If a dispute has not been settled amicably within a period of six months from the date on which it was initiated, it may be submitted by the investor to arbitration in accordance with paragraph (4). The investor will bear the burden of proof to demonstrate:
(a) that it is an investor as defined by Article I of this Agreement;
(b) that the measure taken or not taken by the Contracting Party is in breach of this Agreement; and
(c) that the investor has incurred loss or damage by reason of, or arising out of, that breach.
For the purpose of this Agreement, a dispute is considered to be initiated when the investor of one Contracting Party has delivered notice in writing to the other Contracting Party alleging that a measure taken or not taken by the latter Contracting Party is in breach of this Agreement, and that the investor has incurred loss or damage by reason of, or arising out of, that breach.
3. An investor may submit a dispute as referred to in paragraph (1) to arbitration in accordance with paragraph (4) only if:
(a) the investor has consented in writing thereto;
(b) the investor has waived its right to initiate or continue any other proceedings in relation to the measure that is alleged to be in breach of this Agreement before the courts or tribunals of the Contracting Party concerned or in a dispute settlement procedure of any kind;
(c) not more than three years have elapsed from the date on which the investor first acquired, or should have first acquired, knowledge of the alleged breach and knowledge that the investor has incurred loss or damage; and
(d) in cases where Costa Rica is a party to the dispute, no judgement has been rendered by a Costa Rican court regarding the measure that is alleged to be in breach of this Agreement.
4. The dispute may be submitted to arbitration under:
(a) The International Centre for the Settlement of Investment Disputes (ICSID), established pursuant to the Convention on the Settlement of Investment Disputes between States and Nationals of other States, opened for signature at Washington D.C. on 18 March, 1965 ('ICSID Convention'), if both the disputing Contracting Party and the Contracting Party of the investor are parties to the ICSID Convention;
or
(b) the Additional Facility Rules of ICSID, if either the disputing Contracting Party or the Contracting Party of the investor, but not both, is a party to the ICSID Convention; or
(c) an ad hoc arbitration tribunal established under the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL) in case neither Contracting Party is a member of ICSID, or if ICSID declines jurisdiction.
5. Each Contracting Party hereby gives its unconditional consent to the submission of a dispute to international arbitration in accordance with the provisions of this Article.
6. (a) The consent given under paragraph (5), together with either the consent given under paragraph (3), or any relevant provision of Annex II, shall satisfy the requirements for:
(i) written consent of the parties to a dispute for purposes of Chapter II (Jurisdiction of the Centre) of the ICSID Convention and for purposes of the Additional Facility Rules; and
(ii) an 'agreement in writing' for purposes of Article II of the United Nations Convention for the Recognition and Enforcement of Foreign Arbitral Awards, done at New York, June 10, 1958 ('New York Convention').
(b) Any arbitration under this Article shall be held in a State that is a party to the New York Convention, and claims submitted to arbitration shall be considered to arise out of a commercial relationship or transaction for the purposes of Article I of that Convention.
7. A tribunal established under this Article shall decide the issues in dispute in accordance with this Agreement, the applicable rules of international law, and with the domestic law of the host State to the extent that the domestic law is not inconsistent with the provisions of this Agreement or the principles of international law.
8. An investor of one Contracting Party may seek interim injunctive relief, not involving the payment of damages, before the judicial or administrative tribunals of the Contracting Party that is a party to the dispute, according to the latter's domestic legislation, prior to the institution of the arbitral proceeding.
9. A tribunal may award, separately or in combination, only:
(a) monetary damages and any applicable interest;
(b) restitution of property, in which case the award shall provide that the disputing Contracting Party may pay monetary damages and any applicable interest in lieu of restitution.
A tribunal may also award costs in accordance with the applicable arbitration rules.
10. An award of arbitration shall be final and binding and shall be enforceable in the territory of each of the Contracting Parties.
11. Any proceedings under this Article are without prejudice to the rights of the Contracting Parties under Articles [ sic ] XIII. Without limiting the generality of the foregoing, however, it is agreed that neither Contracting Party shall give diplomatic protection, or bring an international claim in respect of specific loss or damage suffered by an investor of that Contracting Party, where such loss or damage is, or has been, the subject matter of arbitration under this Article, unless the other Contracting Party fails to comply with the award rendered in such arbitration.
First, the Respondent submits that the claims are barred under Article XII(3)(d) of the BIT, which excludes claims if a "judgment has been rendered by a Costa Rican court regarding the measure that is alleged to be in breach of this Agreement":120
a. While the Claimant purports to challenge other acts by the Costa Rican judicial, executive and administrative organs, its complaint is directed to the effects of the 2010 TCA Decision, and as such this is the act that should be deemed to be the relevant "measure" in this case. As in 2011, the Administrative Chamber of the Supreme Court has already rendered a decision on the 2010 TCA Decision, the Tribunal has no jurisdiction to hear the Claimant's claims.
b. Even if one were to consider that the relevant measure is the 2011 Administrative Chamber Decision (which the Respondent denies), the latter submits that "there exist multiple judgments of Costa Rican courts related to that measure within the meaning of BIT Article XII(3)(d)," in particular because "the 2011 Administrative Chamber Judgment is itself a judgment of a Costa Rican court and is inextricably related to another judgment of a Costa Rican court, i.e. the 2010 TCA Judgment."121 As a result, "Article XII(3)(d) must […] be understood to preclude any challenge either to the 2010 TCA Judgment or to the 2011 Administrative Chamber Judgment, especially given that the challenge is ultimately based on a disagreement with the legal conclusions reached by the Costa Rican courts on matters of domestic law."122
c. Likewise, all of the other measures of which the Claimant complains "(a) are nothing more than vehicles for Claimant's indirect challenge to the 2010 TCA Judgment, and (b) constitute acts regarding which the Costa Rican judiciary has already rendered judgment, and are therefore beyond the Tribunal's jurisdiction pursuant to Article XII(3)(d) of the BIT."123
a. The 2011 Administrative Chamber Decision, which upheld the 2010 TCA Decision.
b. The 2013 Constitutional Chamber Decision, which denied a separate challenge on constitutional grounds against the 2010 TCA Decision.
c. The 2012 MINAE Resolution, which executed the 2010 TCA Decision's order to cancel the 2008 Concession and remove it from the Mining Registry.
d. The 2011 Legislative Moratorium consolidating the open-pit mining ban implemented in 2010 through the 2010 Executive Moratorium, which the Claimant alleges deprived it of the right to seek a new concession after its existing concession was annulled by the 2010 TCA Decision.125
Third, the Respondent submits that the Tribunal lacks jurisdiction ratione temporis, i.e. that the claims are time-barred under the three-year statute of limitations contained in Article XII(3)(c) of the BIT.130 According to the Respondent, "much of Claimant's case depends on challenges to measures that predate 6 February 2011," which the Claimant accepts is the cutoff date for purposes of assessing the applicability of this provision (the dispute having been submitted to arbitration on 6 February 2014).131 More specifically:
a. The Respondent contends that "the main pillars of Claimant's arguments about Costa Rican law were thoroughly rejected by the 2010 TCA Judgment, which was officially rendered on 14 December 2010, as well as by earlier decisions of the Constitutional Chamber that Claimant either ignores or plainly misrepresents."132 However, this Tribunal has no jurisdiction ratione temporis to review the substantive correctness of any of these court decisions, and "[i]t would also be improper for the Tribunal to find that later-occurring judicial or administrative acts that merely left in place or applied the 2010 TCA Judgment to constitute independently justiciable breaches of the BIT."133
b. Nor can the Claimant escape the "fatal implications of the statute of limitations" for its claim related to the 2010 Moratorium: although Infinito focuses on the mining code amendment (or 2011 Legislative Moratorium) adopted in late 2010 and effective from 10 February 2011 (i.e., within the limitation period), it ignores the fact that the 2010 Moratorium was already in force as a result of two earlier presidential decrees.134
R-Mem. Jur., ¶¶ 16-19. Article XII(3)(c) of the BIT provides: "An investor may submit a dispute as referred to in paragraph (1) to arbitration in accordance with paragraph (4) only if: […] not more than three years have elapsed from the date on which the investor first acquired, or should have first acquired, knowledge of the alleged breach and knowledge that the investor has incurred loss or damage[…]" Exh. C-0001, Canada-Costa Rica BIT, Art. XII(3)(c).
a. With respect to the 2011 Administrative Chamber Decision, under the relevant BIT provisions the Claimant must prove that the judicial acts challenged amount to a denial of justice, which it has failed to do. Nor could the Claimant have acquired any legitimate expectations from the 2010 Constitutional Chamber Decision that could later have been violated by the 2011 Administrative Chamber Decision.136
b. With respect to the 2013 Constitutional Chamber Decision, the Claimant appears to recognize that the rejection of its unconstitutionality complaint was based on valid procedural grounds. And while it complains of the time that it took to resolve the case, it does not claim prejudice or damage arising from the delay.137
c. With respect to the 2012 MINAE Resolution, the Claimant "fails to present an intelligible theory for how this Resolution went beyond the 2010 TCA Judgment, which expressly ordered MINAE to expunge the concession from the Mining Registry," nor has it shown that this decision cancelled any of the Claimant's additional rights.138
d. Similarly, the 2015 TCA Damages Decision simply implemented the 2010 TCA Decision by imposing joint liability on the defendants for environmental remediation of the Las Crucitas site. The Claimant does not argue that this decision violated Costa Rican law or was inconsistent with the 2010 TCA Decision. Nor does it claim any damage arising from that decision.139
e. As to the ban on open pit-mining, the Claimant has not alleged that the 2011 Legislative Moratorium or the executive decrees that preceded it were illegal or improperly implemented as a matter of Costa Rican law. In addition, while these decrees precluded the granting of new mining rights, the Claimant has not explained how they could have infringed on any right already held by Infinito (indeed, the Costa Rican courts had found that these decrees did not violate the petitioners' acquired rights). Nor has the Claimant shown that it would have been entitled to obtain a new concession and all the necessary permits to develop the Las Crucitas Project in the absence of the 2011 Legislative Moratorium.140
a. The 2011 Administrative Chamber Decision, which the Claimant alleges confirmed the 2010 TCA Decision, "thereby rendering final and irreversible the annulment of the exploitation concession, environmental approvals, the declaration of public interest and national convenience, and the land use change permit."147
b. The 2013 Constitutional Chamber Decision, which Infinito alleges declined to resolve, on admissibility grounds, the conflict between its earlier decision upholding the constitutionality of the Las Crucitas Project approvals and the 2010 TCA Decision.148
c. The 2012 MINAE Resolution, which Infinito alleges cancelled the 2008 Concession and expunged all of Industrias Infinito's mining rights from the mining registry, going further than what was ordered by the Administrative Chamber.149
d. The 2011 Legislative Moratorium on open-pit mining, which the Claimant alleges replaced the 2010 Executive Moratorium, prohibiting Industrias Infinito from applying for new permits.150
a. It expropriated the Claimant's investments by definitively precluding Infinito from building and operating the Crucitas gold mine.152
b. It breached Costa Rica's obligation to provide FET to Infinito's investments, by violating its legitimate expectations and denying both procedural and substantive justice to Infinito.153
c. It failed to grant Infinito's investments full protection and security.154
d. It breached two substantive obligations imported into the BIT through the BIT's MFN clause from other bilateral investment treaties signed by Costa Rica: (i) Costa Rica's obligation to do "what is necessary" to protect Infinito's investments, imported from the Costa Rica-France bilateral investment treaty, and (ii) the "umbrella clause" requiring Costa Rica to "comply with [or observe] any obligation assumed regarding investments of investors of the other Contracting Party," found in Costa Rica's bilateral investment treaties with Taiwan and Korea.155
Fourth, while purporting to require the Tribunal to assess whether Infinito has made a prima facie case on the merits, the Respondent is in fact asking the Tribunal to determine the merits of the dispute and thus to determine contentious issues of fact and law that are inappropriate at the jurisdictional stage. According to the Claimant, "[a] prima facie analysis requires the Tribunal to accept the facts pleaded as true and assess whether they could support a claim for breach of the BIT."163 The Claimant asserts that it "has demonstrated Costa Rica's breaches of the BIT on a balance of probabilities," and has thus "more than met its burden to establish prima facie breaches of the BIT."164 Specifically:
a. With respect to the FET standard in Article II(2)(a) of the BIT:
i. The Claimant argues that no investment tribunal has ever dismissed a claim for breach of the FET standard because the claimant failed to show a prima facie case. This is because the determination of the standard is fact-specific and flexible, and must be assessed in the context of the facts and evidence, which are a matter for the merits.
ii. In any event, the Claimant rejects the Respondent's argument that the FET standard of the BIT is equivalent to the minimum standard of treatment under customary international law ("MST"), and argues that it would be premature for the Tribunal to determine this question during the jurisdictional phase.
iii. Whether the FET standard is autonomous or limited to the MST, the Claimant contends that it has "demonstrated that its claims are capable of breaching the FET standard in Article II(2)(a)," and therefore it has established a prima facie case that this provision was breached:165
■ With respect to its legitimate expectations claim, the Claimant argues that the Government provided repeated assurances to Infinito, upon which Infinito reasonably relied for more than a decade in deciding to continue investing in the Las Crucitas Project.166 Specifically, "Industrias Infinito was granted an exploration permit, an exploitation concession, and several other permits and approvals over the course of the project's life," and "[a]t each step, it was encouraged and induced to continue investing in the project."167 The Claimant further alleges that "[t]he legality of the Crucitas project's exploitation concession and approvals was confirmed in multiple judicial decisions including by the country's highest court."168 That after "these repeated and far-reaching assurances" "the Administrative Chamber retroactively applied the 2002 moratorium, nine years after it was adopted, and after Infinito had spent millions developing and building the project in reliance on its mining rights and that the 2002 moratorium did not apply to its project," amounts to a breach of the Claimant's legitimate expectations, regardless of whether the standard is autonomous or limited to the MST.169
■ Likewise, the Claimant submits that it has made a prima facie case of a procedural and substantive denial of justice. Procedurally, the Claimant contends that the Respondent denied justice to Infinito by failing to provide a legal system capable of protecting Infinito's investments, because it lacked a mechanism to resolve the inconsistency between the decisions of different chambers of the Supreme Court. Substantively, the Claimant argues that the Administrative Chamber denied justice to Infinito by incorrectly and retroactively applying the 2002 Moratorium to the 2008 Concession and other project approvals.170
b. With respect to expropriation, the Claimant contends that it has demonstrated both on a balance of probabilities and on a prima facie basis that Costa Rica expropriated its investments both directly and indirectly.171 In particular, the Claimant advances the following arguments:
i. The sole effects doctrine applies to judicial expropriations in the same manner as it does to other expropriatory measures.172
ii. Costa Rica cannot argue that the Administrative Chamber was applying the 2002 Moratorium as a defense. This amounts to arguing that Costa Rica legitimately exercised its police powers, but this defense is not available to Costa Rica because the application of the 2002 Moratorium was neither necessary nor proportionate to any legitimate objective and was in breach of the FET standard.173
iii. Compliance with domestic law is not a defense to expropriation, particularly where the domestic law in question (the 2002 Moratorium) post-dates the investment.174
iv. A court decision that applies domestic law may be expropriatory where the domestic law applied is itself expropriatory or breaches a rule of international law.175 Here, the Claimant alleges that, as applied by the Administrative Chamber, the 2002 Moratorium was in itself expropriatory.
v. The Respondent's argument that a denial of justice is a prerequisite for a judicial measure to be expropriatory cannot succeed on a prima facie basis.
vi. The Claimant has established beyond a prima facie standard that it had investments capable of being expropriated. The Respondent's argument that Infinito's rights were not capable of expropriation because they were deemed invalid by the 2011 Administrative Chamber Judgment should be rejected: Infinito's investments extended beyond the 2008 Concession and other approvals annulled by the Administrative Chamber and were not capable of being "invalidated" by it. In addition, the validity of the Concession and other approvals must be assessed independently from the 2011 Administrative Chamber Decision, because this is the very measure that the Claimant alleges breached the BIT. In any event, "Costa Rica is estopped from asserting that the 2002 moratorium rendered Industrias Infinito's rights invalid when its own Constitutional Chamber and authorities represented over the course of more than a decade that the moratorium did not apply to the project."176
C-CM Jur., ¶ 28 (emphasis in original).
C-CM Jur., ¶ 28 (emphasis in original).
C-CM Jur., ¶ 34 (emphasis in original).
C-CM Jur., ¶ 32.
C-CM Jur., ¶ 32.
C-CM Jur., ¶ 32.
C-CM Jur., ¶ 32.
C-CM Jur., ¶ 33.
C-CM Jur., ¶ 35.
C-CM Jur., ¶ 35.
C-CM Jur., ¶ 35.
C-CM Jur., ¶ 36.
C-CM Jur., ¶ 36.
C-CM Jur., ¶ 37.
The Parties dispute whether Article XII sets out only jurisdictional requirements, or also admissibility requirements. The Respondent submits that all of the requirements set out in Article XII are jurisdictional, because they establish the scope of Costa Rica's consent to arbitration.185 By contrast, the Claimant argues that the relevant jurisdictional requirements are found in Article XII(2), in conjunction with Costa Rica's unilateral consent to arbitrate provided under Article XII(5), while those in Article XII(3) are conditions for admissibility.186
1. Any dispute between one Contracting Party and an investor of the other Contracting Party, relating to a claim by the investor that a measure taken or not taken by the former Contracting Party is in breach of this Agreement, and that the investor has incurred loss or damage by reason of, or arising out of, that breach, shall, to the extent possible, be settled amicably between them.
2. If a dispute has not been settled amicably within a period of six months from the date on which it was initiated, it may be submitted by the investor to arbitration in accordance with paragraph (4). The investor will bear the burden of proof to demonstrate:
(a) that it is an investor as defined by Article I of this Agreement;
(b) that the measure taken or not taken by the Contracting Party is in breach of this Agreement; and
(c) that the investor has incurred loss or damage by reason of, or arising out of, that breach.
For the purpose of this Agreement, a dispute is considered to be initiated when the investor of one Contracting Party has delivered notice in writing to the other Contracting Party alleging that a measure taken or not taken by the latter Contracting Party is in breach of this Agreement, and that the investor has incurred loss or damage by reason of, or arising out of, that breach.
For the Tribunal, not all of the conditions set out in these provisions go to its jurisdiction. Only the following are jurisdictional requirements:
a. There must be a dispute (Article XII(1)). Read together with Article 25(1) of the ICSID Convention, this dispute must be legal in nature.
b. The dispute must be between one Contracting Party to the BIT and an investor of the other Contracting Party (Article XII(1)).
c. The dispute must relate to a claim by the investor that a measure taken or not taken by the host State is in breach of the BIT (Article XII(1)).
d. The dispute must also relate to a claim "that the investor has incurred loss or damage by reason of, or arising out of, that breach" (Article XII(1)).
e. A period of six months must have elapsed from the date on which a notice of dispute has been delivered in accordance with the final paragraph of Article XII(2)), during which the Parties must have attempted to settle the dispute amicably, before the claim can be submitted to arbitration (Article XII(2)).187
Exh. C-0001, Canada-Costa Rica BIT, Art. XII(1)-XII(2).
3. An investor may submit a dispute as referred to in paragraph (1) to arbitration in accordance with paragraph (4) only if:
(a) the investor has consented in writing thereto;
(b) the investor has waived its right to initiate or continue any other proceedings in relation to the measure that is alleged to be in breach of this Agreement before the courts or tribunals of the Contracting Party concerned or in a dispute settlement procedure of any kind;
(c) not more than three years have elapsed from the date on which the investor first acquired, or should have first acquired, knowledge of the alleged breach and knowledge that the investor has incurred loss or damage; and
(d) in cases where Costa Rica is a party to the dispute, no judgement has been rendered by a Costa Rican court regarding the measure that is alleged to be in breach of this Agreement.
Article XII(3)(a) is clearly a jurisdictional requirement, as there can be no jurisdiction without a party's consent. Article XII(3)(b) is also jurisdictional in nature: the host State has not consented to arbitrate if the investor has not waived its right to initiate or continue other proceedings before the courts of the host State.
The Parties dispute whether the conditions set out in sub-paragraphs (c) and (d) of Article XII(3) constitute jurisdictional requirements or go to admissibility. As explained in Section IV.C.4.c infra, in what pertains to Article XII(3)(c) the Tribunal defers this discussion to the merits phase, should it become relevant at that stage; and in what pertains to Article XII(3)(d), the Tribunal observes that the matter is of no consequence (Section IV.C.4.a(iii) infra).
Accordingly, for the Tribunal to have jurisdiction over this dispute, the following conditions must be met:
a. There must be a dispute (Article XII(1)). Read together with Article 25(1) of the ICSID Convention, this dispute must be legal in nature. The Parties agree (and rightly so) that there is a legal dispute in this case.
b. The dispute must be between one Contracting Party to the BIT and an investor of the other Contracting Party (Article XII(1)). Here, the dispute clearly involves one Contracting Party (Costa Rica). The notion of "investor", on the other hand, is defined in Article I(h) as:
(i) any natural person possessing the citizenship of one Contracting Party who is not also a citizen of the other Contracting Party; or
(ii) any enterprise as defined by paragraph (b) of this Article, incorporated or duly constituted in accordance with applicable laws of one Contracting Party;
who owns or controls an investment made in the territory of the other Contracting Party.188
Article I(b) defines "enterprise" as:
(i) any entity constituted or organized under applicable law, whether or not for profit, whether privately-owned or governmentally-owned, including any corporation, trust, partnership, sole proprietorship, joint venture or other association; and
(ii) a branch of any such entity;
For further certainty, 'business enterprise' means any enterprise which is constituted or organized in the expectation of economic benefit or other business purposes.
In turn, Article I(g) defines "investment" as:
[…] any kind of asset owned or controlled either directly, or indirectly through an enterprise or natural person of a third State, by an investor of one Contracting Party in the territory of the other Contracting Party in accordance with the latter's laws and, in particular, though not exclusively, includes:
(i) movable and immovable property and any related property rights, such as mortgages, liens or pledges;
(ii) shares, stock, bonds and debentures or any other form of participation in an enterprise;
(iii) money, claims to money, and claims to performance under contract having a financial value;
(iv) goodwill;
(v) intellectual property rights;
(vi) rights, conferred by law or under contract, to undertake any economic and commercial activity, including any rights to search for, cultivate, extract or exploit natural resources;
but does not mean real estate or other property, tangible or intangible, not acquired in the expectation or used for the purpose of economic benefit or other business purposes.
For further certainty, investment does not mean, claims to money that arise solely from:
(i) commercial contracts for the sale of goods or services by a national or enterprise in the territory of one Contracting Party to a national or an enterprise in the territory of the other Contracting Party; or
(ii) the extension of credit in connection with a commercial transaction, such as trade financing, where the original maturity of the loan is less than three years.
Without prejudice to subparagraph (ii) immediately above, a loan to an enterprise where the enterprise is an affiliate of the investor shall be considered an investment.
For the purpose of this Agreement, an investor shall be considered to control an investment if the investor has the power to name a majority of its directors or otherwise to legally direct the actions of the enterprise which owns the investment.
Any change in the form of an investment does not affect its character as an investment.
For greater clarity, returns shall be considered a component of investment. For the purpose of this Agreement, "returns" means all amounts yielded by an investment, as defined above, covered by this Agreement and in particular, though not exclusively, includes profits, interest, capital gains, dividends, royalties, fees or other current income.
The Respondent does not dispute that the Claimant is an investor under this definition. Indeed, it is undisputed that Infinito is an enterprise duly constituted in accordance with the applicable laws of Canada, being incorporated in that country. Nor does the Respondent dispute that Infinito owns or controls an investment made in the territory of Costa Rica. The Claimant asserts that it owns or controls the following assets in the territory of Costa Rica: "(i) its shares in Industrias Infinito; (ii) the money it invested in Industrias Infinito through intercompany loans; (iii) the exploitation concession; (iv) the pre-existing mining rights underlying the exploitation concession; (v) the other approvals for the Crucitas project; (vi) the physical assets associated with the project, including the half-built mining infrastructure; and (vii) the intangible assets associated with the project."189 The Respondent does not contest this. However, as noted in Section IV.A.3 supra, APREFLOFAS has argued that the Claimant's investment was not obtained in accordance with Costa Rican law, and therefore does not meet the definition of investment at Article I(g) of the BIT. As explained in that same Section, the Tribunal has deferred this matter to the merits.
c. The dispute must relate to a claim by the Claimant that a measure taken or not taken by Costa Rica is in breach of the BIT (Article XII(1)). Here, there is no dispute that the Claimant claims that measures taken by Costa Rica are in breach of the BIT, but the Parties dispute what those measures are and whether they qualify as "measures" for the purposes of the BIT. This dispute is at the heart of several of the Respondent's objections to jurisdiction.
d. The dispute must also relate to a claim "that the investor has incurred loss or damage by reason of, or arising out of, that breach" (Article XII(1)). Again, the Claimant claims that it has incurred loss or damage arising out of the breaches it alleges, but the Respondent disputes that this damage could have arisen from the measures identified by the Claimant as being in breach of the BIT. This dispute is also central to one of the Respondent's objections.
e. The Claimant must have consented in writing to submit the dispute to arbitration (Article XII(3)(a)). There is no dispute that Infinito and Industrias Infinito190 have both consented in writing to arbitrate this dispute by filing the Request for Arbitration and providing written consents to arbitration,191 with the exception of the objection directed to the claim regarding the 2015 TCA Damages Decision, a claim that the Claimant has in any event withdrawn, and an objection that the Respondent does not presently pursue, as discussed at paragraphs 154 and 167 and note 142 supra. It is noted in this context that the Respondent's consent is found at Article XII(5), which provides that "[e]ach Contracting Party hereby gives its unconditional consent to the submission of a dispute to international arbitration in accordance with the provisions of this Article."
f. A period of six months must have elapsed from the date in which a notice of dispute has been delivered in accordance with the final paragraph of Article XII(2), during which the Parties must have attempted to settle the dispute amicably, before the claim can be submitted to arbitration (Article XII(2)). There is no dispute that this requirement has been met, with the same exception as the one noted in subparagraph (e) above.
g. The Claimant must have waived its right to initiate or continue any other proceedings in relation to the measures that are alleged to be in breach of the BIT before the Costa Rican courts or tribunals or in a dispute settlement procedure of any kind (Article XII(3)(b)). There is no dispute that both Infinito and Industrias Infinito have provided the required waiver,192 with the exception of the objection directed to the claim regarding the 2015 TCA Damages Decision mentioned in subparagraph (e) above.
The Tribunal has omitted the additional definition regarding the term "natural person possessing the citizenship of one Contracting Party" for Canada, as the Claimant is not a natural person.
C-Mem. Merits, ¶ 219.
In this context, the Tribunal notes that Section II of Annex II of the BIT provides:
"II. Damage Incurred by a Controlled Enterprise
1. A claim that a Contracting Party is in breach of this Agreement, and that an enterprise that is a juridical person incorporated or duly constituted in accordance with applicable laws of that Contracting Party has incurred loss or damage by reason of, or arising out of, that breach, may be brought by an investor of the other Contracting Party acting on behalf of an enterprise which the investor owns or controls directly or indirectly. In such a case:
(a) any award shall be made to the affected enterprise;
(b) the consent to arbitration of both the investor and the enterprise shall be required; […]."
C-Mem. Merits, ¶ 232; Exh. C-0289, Request for Arbitration (6 February 2014); Exh. C-0002, Consent to Arbitration and Waiver of Infinito (3 February 2014); Exh. C-0003, Resolution of the Board of Directors of Infinito Authorizing the Consent to Arbitration and Waiver and the Submission of the Request for Arbitration (4 February 2014); Exh. C-0005, Consent to Arbitration and Waiver of Industrias Infinito (3 February 2014).
C-Mem. Merits, ¶ 232; Exh. C-0289, Request for Arbitration (6 February 2014); Exh. C-0002, Consent to Arbitration and Waiver of Infinito (3 February 2014); Exh. C-0003, Resolution of the Board of Directors of Infinito Authorizing the Consent to Arbitration and Waiver and the Submission of the Request for Arbitration (4 February 2014); Exh. C-0005, Consent to Arbitration and Waiver of Industrias Infinito (3 February 2014).
In addition, the following two requirements must also be met (whether as a matter of jurisdiction or admissibility, a debate over which the Tribunal does not presently rule):
a. Not more than three years must have elapsed from the date on which Infinito first acquired, or should have first acquired, knowledge of the alleged breach and knowledge that it had incurred loss or damage (Article XII(3)(c)). The Respondent disputes that this requirement is met.
b. No judgment has been rendered by a Costa Rican court regarding the measure that is alleged to be in breach of the BIT (Article XII(3)(d)). Compliance with this requirement is also disputed by the Respondent.
The disagreements noted at (c) and (d) of the preceding paragraph are at the heart of several of the Respondent's objections. Specifically:
a. Underlying virtually all of the Respondent's objections is the argument that the Claimant is formally challenging certain measures, when its case is "really" about other (previous) measures. The question thus arises whether, for jurisdictional purposes, the Tribunal must focus on the measures as pleaded or whether it can re-characterize them, including by determining whether the acts impugned qualify as "measures" for purposes of the BIT at all.
b. The Respondent also submits that the claims amount to a disagreement with Costa Rican courts on matters of domestic law, rather than a genuine claim under the BIT. While it does not expressly ground this objection on a particular provision of Article XII, the Tribunal understands that this is related to the jurisdictional requirement that the dispute must relate to a claim by the Claimant that a measure taken or not taken by Costa Rica is in breach of the BIT (Article XII(1)).
c. The Respondent further argues that the Claimant fails to show a prima facie case of any of the alleged breaches of the BIT. This objection also appears to be grounded on the jurisdictional requirement that the dispute must relate to a claim that a measure taken or not taken by Costa Rica is in breach of the BIT (Article XII(1)), as well as on Article XII(2)(b).
d. In addition, the Respondent contends that the Claimant has failed to articulate how it suffered losses from the challenged measures. Again, this objection appears to be based on the jurisdictional requirement that the dispute must relate to a claim that the investor has incurred loss or damage by reason of, or arising out of, the breaches alleged (Article XII(1)), and on Article XII(2)(c), according to which the Claimant bears the burden of proving that it has "incurred loss or damage."
R-Mem. Jur., ¶ 163, quoting Exh. RL-0007, Phosphates in Morocco (Italy v. France), PCIJ Series A/B Fascicule No. 74, Decision on Preliminary Objections, 14 June 1938 ("Phosphates"), p. 22.
[I]t is for the investor to allege and formulate its claims of breach of relevant treaty standards as it sees fit. It is not the place of the respondent State to recast those claims in a different manner of its own choosing and the Claimants' claims accordingly fall to be assessed on the basis on which they are pleaded.207
a. The November 2011 Administrative Chamber Decision, which the Claimant alleges confirmed the 2010 TCA Decision, "thereby rendering final and irreversible the annulment of the exploitation concession, environmental approvals, the declaration of public interest and national convenience, and the land use change permit."209
b. The June 2013 Constitutional Chamber Decision, which Infinito alleges declined on preliminary admissibility grounds to resolve the conflict between its earlier decision upholding the constitutionality of the Las Crucitas Project approvals and the 2010 TCA Decision.210
c. The January 2012 MINAE Resolution, which Infinito alleges cancelled the 2008 Concession and expunged all of Industrias Infinito's mining rights from the mining registry, going further than what was ordered by the Administrative Chamber.211
d. The 2011 Legislative Moratorium on open-pit mining, which the Claimant alleges replaced the 2010 Executive Moratorium, prohibiting Industrias Infinito from applying for new permits.212
An ICSID Tribunal will not act as an instance to review matters of domestic law in the manner of a court of higher instance. Instead, the Tribunal will accept the findings of local courts as long as no deficiencies, in procedure or substance, are shown in regard to the local proceedings which are of a nature of rendering these deficiencies unacceptable from the viewpoint of international law, such as in the case of a denial of justice.227
a. The arbitrariness claim fails in the face of correct (or even good-faith) application of domestic law.
b. The legitimate expectations claim fails because the expectation of engaging in an activity cannot be legitimate if it is illegal under domestic law.
c. The expropriation claim fails because no wrongful taking can result from the legitimate application of Costa Rica's legal system.
a. Neither the legitimate expectations nor the expropriation claim depend on whether Costa Rican courts correctly applied Costa Rican law (in particular, the 2002 Moratorium). Although the Respondent relies on its domestic law as a defense, it is well-established that a State cannot rely on its internal law to justify an internationally wrongful act.246
b. The procedural denial of justice claim, the claim for breach of FET because the 2011 Administrative Chamber Decision was arbitrary, and the full protection and security claim are based on expert evidence that the 2011 Administrative Chamber Decision conflicted with binding decisions of the Constitutional Chamber. As explained in paragraph 163 supra, the Claimant asserts that there is no mechanism available in Costa Rica to resolve that conflict. While the Administrative Chamber considered that there was no conflict, under Costa Rican law only the Constitutional Chamber is empowered to make that decision, but there is no mechanism allowing it to do so.
c. The substantive denial of justice claim is the only claim which implies that the Tribunal find that the Administrative Chamber incorrectly applied Costa Rican law by applying the 2002 Moratorium to Industrias Infinito's 2008 Concession and other project approvals. The Claimant submits that, "in the context of a substantive denial of justice claim, the Tribunal has the power to determine whether the Administrative Chamber's failure to properly apply Costa Rican law also amounts to breaches of the BIT."247 Citing Dolzer and Schreuer, the Claimant submits that the Tribunal is not bound by the findings of the Administrative Chamber in deciding whether its decision was arbitrary, or whether Infinito was denied justice or legal security.248 The Claimant accepts that the task of applying and interpreting domestic law lies primarily with the courts of the host country, but this is not exclusively so: where domestic law is applied in a manner that is evidently arbitrary, unjust or idiosyncratic, or in breach of a fundamental right, international liability arises.249 Citing Chevron, the Claimant further contends that "the defectiveness of internal law, the refusal to apply it, or its wrongful application by judges [can] constitute elements of proof of a denial of justice, in the international understanding of the expression."250
R-Reply Jur., ¶ 121 citing Exh. RL-0007, Phosphates, p. 21.
a. The facts and law that are necessary to determine jurisdiction may be assessed rigorously. At the jurisdictional stage, tribunals may definitively determine questions of fact that relate to jurisdiction, such as whether there was an investment, or an investor, but these questions do not arise in this case. The cases on which the Respondent relies all relate to this type of inquiry.
b. By contrast, the facts and law that are relevant to the merits must be considered on a prima facie standard. The Tribunal must accept the Claimant's factual allegations relating to the merits unless they are plainly without foundation. The Respondent cannot cite a single arbitral decision where the tribunal engaged, at the jurisdictional stage, in a detailed review of the factual evidence to determine whether a substantive BIT standard had been breached. Nor is it appropriate for the Tribunal to engage in a detailed analysis of the BIT's substantive provisions at this stage.
c. The Tribunal's analysis should be based on the Claimant's allegations, not on the Respondent's reformulation of the case. The Claimant submits that "Infinito is free to plead its claims as it deems appropriate," and "is entitled to provide facts and legal theory in support of its arguments. In response, Costa Rica is entitled to provide its own facts and legal theory. The Tribunal then considers both sides' positions, in light of the allegations made by the claimant. The claimant's facts and argument are not shielded from arbitral review; but the Tribunal's analysis must be based on the claimant's case, not the respondent's recasting of it."284
i. Whether there is a legal dispute (Article 25(1) of the ICSID Convention, and Article XII(1) of the BIT).
ii. Whether that dispute arises directly out of an investment (Article 25 of the ICSID Convention).
iii. Whether that investment qualifies as such under Article I(g) of the BIT, including whether it is owned or controlled in accordance with Costa Rican Law (Article I(g) of the BIT in connection with Article 25 of the ICSID Convention and Article XII(1) of the BIT).
iv. Whether the Parties qualify as a Contracting State (or any constituent subdivision or agency of a Contracting State designated to the Centre by that State); and an "investor" of another Contracting State (Article 25 ICSID of the ICSID Convention, and Article XII(1) of the BIT).
v. Whether the Parties have consented in writing to ICSID arbitration (Article 25(1) of the ICSID Convention, and Article XII(3)(a) of the BIT).
vi. Whether the dispute relates to a claim that a measure breaches the BIT (Article XII(1) of the BIT).
vii. Whether the dispute relates to a claim that the investor has incurred a loss or damage (Article XII(1) of the BIT).
viii. Whether a period of six months has elapsed since the notice of dispute and the Parties have attempted to settle the dispute amicably (Article XII(2) of the BIT).
ix. Whether the Claimant has waived its right to other proceedings in relation to the measures (Article XII(3)(b) of the BIT).
x. Whether more than three years have elapsed from the date on which the Claimant first acquired, or should have first acquired, knowledge of the alleged breach and knowledge that it had incurred loss or damage (Article XII(3)(c) of the BIT).
xi. Whether a judgment has been rendered by a Costa Rican court regarding the measure that is alleged to be in breach of the BIT (Article XII(3)(d) of the BIT).
[T]he task of the Tribunal at the stage of determining whether it has jurisdiction to hear a claim under an investment treaty merely consists in determining whether the facts alleged by the claimant(s), if established, are capable of constituting a breach of the provisions of the BIT which have been invoked [...]. In performing this task, the Tribunal applies a prima facie standard, both to the determination of the meaning and scope of the relevant BIT provisions invoked as well as to the assessment of whether the facts alleged may constitute breaches of these provisions on its face.289
a. First, the Claimant has asserted that its investment in Costa Rica lost all value as a result of the 2011 Administrative Chamber Decision (indeed, on the Claimant's damages theory, this is the only cause asserted for the Claimant's alleged damage). However, the Respondent contends that the 2011 Administrative Chamber Decision was not the true cause of the Claimant's loss; the true cause was the 2010 TCA Decision, which annulled the Claimant's 2008 Concession.294
b. Second, ev