Amended Statement of Claim | The Claimants' Amended Statement of Claim, dated January 4, 2017 |
Claimants | Mr. Michael Ballantine and Ms. Lisa Ballantine |
Claimants' Costs Submission | The Claimants' Submission on Costs, dated April 19, 2019 |
Contracting Parties | The Contracting Parties to DR-CAFTA |
DCF | Discounted cash flow |
DR-CAFTA | Dominican Republic-Central America-United States Free Trade Agreement, signed on August 5, 2004 |
EC Report | The environmental compliance report that must be submitted to the MMA every six months following the issuance of an environmental permit |
Enterprises | Jamaca de Dios S.R.L. and Aroma de la Montaña, E.I.R.L. |
Environmental Impact Statement | The environmental impact statement to be submitted to the MMA when requesting an environmental permit |
Environmental Law | General Law on the Environment and Natural Resources (Law No. 64- 00) of the Dominican Republic |
FET | Fair and equitable treatment |
Hearing | Hearing on jurisdiction, admissibility and merits conducted from September 3 to September 7, 2018, in Washington, D.C., United States of America |
ICJ | International Court of Justice |
ILC | International Law Commission |
Management Plan | The Baiguate National Park's management plan |
MFN | Most favorable nation |
MMA | Ministry of the Environment and Natural Resources of the Dominican Republic |
MST | Minimum standard of treatment |
NAFTA | North American Free Trade Agreement, signed on December 17, 1992 |
National Park | The Baiguate National Park created by the National Park Decree |
National Park Decree | Presidential Decree No. 571-09, published on August 7, 2009 |
Notice of Arbitration | The Claimants' Notice of Arbitration and Statement of Claim, dated September 11, 2014 |
Notice of Intent | The Claimants' Notice of Intent to Submit a Claim to Arbitration, dated June 12, 2014 |
Objection to Admissibility | The Respondent's Objection to Admissibility, dated November 8, 2017 |
Parties | The Claimants and the Respondent |
PCA | Permanent Court of Arbitration |
Phase 1 | Phase 1 of Jamaca de Dios, comprising the development of the lower portion of the project, as defined by the Claimants |
Phase 2 | Phase 2 of Jamaca de Dios, comprising the development of the upper portion of the project, as defined by the Claimants |
Project(s) | Each of the projects within the Jamaca de Dios development, as defined by the Respondent |
Rejoinder on Jurisdiction and Admissibility | The Claimants' Rejoinder on Jurisdiction and Admissibility, dated May 21, 2018 |
Rejoinder on Jurisdiction and Merits | The Respondent's Rejoinder on Jurisdiction and Merits, dated March 19, 2018 |
Reply Memorial | The Claimants' Reply Memorial, dated November 9, 2017 |
Reply on Bifurcation | The Respondent's Reply on Bifurcation, dated March 8, 2017 |
Reply to the Notice of Arbitration | The Respondent's Reply to the Notice of Arbitration, dated October 13, 2014 |
Request for Bifurcation | The Respondent's Notice of Intended Preliminary Objection and Request for Bifurcation, dated February 17, 2017 |
Respondent | The Dominican Republic |
Respondent's Costs Submission | The Respondent's Submission on Costs, dated April 19, 2019 |
Respondent's Amended Costs Submission | The Respondent's Amended Submission on Costs, dated May 15, 2019 |
Response to the Objection to Admissibility | The Claimants' Response to the Objection to Admissibility, dated November 17, 2017 |
Response to the Request for Bifurcation | The Claimants' Response to the Notice of Intended Preliminary Objection and Request for Bifurcation, dated March 6, 2017 |
SENPA | The Dominican Republic's National Service for Environmental Protection |
Statement of Defense | The Respondent's Statement of Defense, dated May 25, 2017 |
Submission of Costa Rica | Non-Disputing Party Submission by Costa Rica, dated July 6, 2018 |
Submission of the United States | Non-Disputing Party Submission by the United States of America, dated July 6, 2018 |
Surreply on Bifurcation | The Claimants' Surreply of Bifurcation, dated March 10, 2017 |
Technical Evaluation Committee | The technical evaluation committee belonging to the MMA in charge of reviewing Environmental Impact Statements |
UNCITRAL Rules | Arbitration Rules of the United Nations Commission on International Trade Law, as adopted in 2013 |
VCLT | Vienna Convention on the Law of Treaties, signed on May 23, 1969 |
Mr. Matthew G. Allison
Baker & McKenzie LLP
300 East Randolph Street
Chicago, IL, 60601
United States of America
Mr. Teddy Baldwin
Baker & McKenzie LLP
815 Connecticut Avenue, N. W.
Washington, DC, 20006
United States of America
Ms. Yahaira Sosa
(Vice-Minister of Foreign Commerce)
Mr. Marcelo Salazar
(Director of Foreign Commerce)
Ms. Leidylin Contreras
(Deputy Director of Foreign Commerce)
Ms. Raquel de la Rosa
(Legal Analyst, Investment Dispute Prevention and Resolution)
Lic. Maria Amalia Lorenzo
(Legal Analyst, Investment Dispute Prevention and Resolution)
Ministry of Industry and Commerce
Av. 27 de febrero No. 209,
Ensanche Naco,
Santo Domingo, 10121
Dominican Republic
Ms. Patricia Abreu
(Vice-Minister of Cooperation and Foreign Affairs)
Ms. Rosa Otero
(Director of Commerce and Environment)
Ms. Claudia Adames
(Attorney of Trade and Environment)
Ms. Johanna Montero
(Attorney of Trade and Environment )
Ministry of the Environment and Natural Resources
Av. Cayetano Germosén, Esq. Gregorio Luperón,
Sector El Pedregal,
Santo Domingo, 02487
Dominican Republic
Mr. Flavio Darío Espinal
(Counsel to the President)
Mr. Paolo Di Rosa
Mr. Raúl R. Herrera
Ms. Mallory Silberman
Ms. Claudia Taveras
Ms. Cristina Arizmendi
Arnold & Porter Kaye Scholer LLP
555 Twelfth Street N.W.
Washington, D.C. 20004
United States of America
On June 12, 2014, the Claimants notified the Respondent of their intent to submit a claim to arbitration (the "Notice of Intent"), in accordance with Article 10.16.1(b) of the Dominican Republic-Central America-United States Free Trade Agreement (the "DR-CAFTA"), signed on August 5, 2004 and entered into force on March 1, 2007 between its Contracting Parties (the "Contracting Parties").
On August 10, 2016, the Parties and the Tribunal signed a document entitled Terms of Appointment. Among other things, the Parties confirmed that all members of the Tribunal had been validly appointed in accordance with the Treaty and the UNCITRAL Rules. Additionally, each member of the Tribunal confirmed that they were and shall remain impartial and independent of the Parties and that they had disclosed, to the best of their knowledge, all current circumstances likely to give rise to justifiable doubts as to their independence and impartiality, and that they would disclose without delay any such circumstance that may arise in the future.
This Arbitration has been initiated pursuant to Articles 10.15 and 10.16 of DR-CAFTA:
Article 10.16: Submission of a Claim to Arbitration
1. In the event that a disputing party considers that an investment dispute cannot be settled by consultation and negotiation:
(a) the claimant, on its own behalf, may submit to arbitration under this Section a claim
(i) that the respondent has breached
(A) an obligation under Section A,
[…]
and
(ii) that the claimant has incurred loss or damage by reason of, or arising out of, that breach; and
(b) the claimant, on behalf of an enterprise of the respondent that is a juridical person that the claimant owns or controls directly or indirectly, may submit to arbitration under this Section a claim
(i) that the respondent has breached
(A) an obligation under Section A,
[…]
and
(ii) that the enterprise has incurred loss or damage by reason of, or arising out of, that breach.
2. At least 90 days before submitting any claim to arbitration under this Section, a claimant shall deliver to the respondent a written notice of its intention to submit the claim to arbitration ("notice of intent"). The notice shall specify:
(a) the name and address of the claimant and, where a claim is submitted on behalf of an enterprise, the name, address, and place of incorporation of the enterprise;
(b) for each claim, the provision of this Agreement, investment authorization, or investment agreement alleged to have been breached and any other relevant provisions;
(c) the legal and factual basis for each claim; and
(d) the relief sought and the approximate amount of damages claimed.
3. Provided that six months have elapsed since the events giving rise to the claim, a claimant may submit a claim referred to in paragraph 1:
[…]
(c) under the UNCITRAL Arbitration Rules.
4. A claim shall be deemed submitted to arbitration under this Section when the claimant's notice of or request for arbitration ("notice of arbitration"):
[…]
(c) referred to in Article 3 of the UNCITRAL Arbitration Rules, together with the statement of claim referred to in Article 18 of the UNCITRAL Arbitration Rules, are received by the respondent.
A claim asserted for the first time after such notice of arbitration is submitted shall be deemed submitted to arbitration under this Section on the date of its receipt under the applicable arbitral rules.
5. The arbitration rules applicable under paragraph 3, and in effect on the date the claim or claims were submitted to arbitration under this Section, shall govern the arbitration except to the extent modified by this Agreement.
6. The claimant shall provide with the notice of arbitration:
(a) the name of the arbitrator that the claimant appoints; or
(b) the claimant's written consent for the Secretary-General to appoint such arbitrator.
Article 10.17: Consent of Each Party to Arbitration
1. Each Party consents to the submission of a claim to arbitration under this Section in accordance with this Agreement.
2. The consent under paragraph 1 and the submission of a claim to arbitration under this Section shall satisfy the requirements of:
[…]
(b) Article II of the New York Convention for an "agreement in writing;" and
(c) Article I of the Inter-American Convention for an "agreement."
10. Transparency
10.1 The arbitration shall be conducted in accordance with the procedure set forth in Article 10.21 of the CAFTA-DR. The PCA shall make available to the public, on its website, the information and documents listed in Article 10.21(1) of the CAFTA-DR, unless the Tribunal decides otherwise in accordance with the provisions of that Article.
10.2 Pursuant to Article 10.21(2) of the CAFTA-DR, hearings shall be conducted open to the public and the PCA shall determine, in consultation with the Parties and the Tribunal, the appropriate logistical arrangements. If any of the Parties intends to use information designated as protected information in a hearing, it shall so advise the Tribunal, who shall make appropriate arrangements to protect the information from disclosure.
On October 21, 2016, the Tribunal issued Procedural Order No. 1, which, inter alia, addressed the points raised by the Claimants' letter dated October 5, 2016, and the Respondent's letter dated October 12, 2016.
On April 21, 2017, the Tribunal issued Procedural Order No 2, whereby the majority of the Tribunal rejected the bifurcation request and decided to hear the jurisdictional objection together with the merits of the Claimants' claim.
On July 17, 2017, the Tribunal issued Procedural Order No. 5, deciding on the Parties' requests for document production.
On December 22, 2017, the Tribunal issued Procedural Order No. 7, deciding to postpone the decision on both the admissibility and merits of the Respondent's Objection to Admissibility until a later stage of the proceedings. The Respondent was invited to answer to the Claimants' Response in its Rejoinder, and in turn, the Claimants were invited to submit their surreply in their Rejoinder on Jurisdiction.
As a result of certain issues that arose between the Parties in December 2017 when the Respondent intended to visit Jamaca de Dios, several exchanges of correspondence ensued between the Parties and the Tribunal. Consequently, Procedural Orders Nos. 8, 9, 10 and 13 were issued by the Tribunal on March 4, April 20, May 14, and August 30, 2018, respectively.3
A full account of those procedural events need not be reproduced in full here. However, the Procedural Orders themselves do contain a detailed account of the procedural and factual history, the Parties' positions and arguments, and the Tribunal's reasoning and decisions.
Arbitral Tribunal
Prof. Ricardo Ramírez Hernández (Presiding Arbitrator)
Ms. Marney L. Cheek
Prof. Raúl Emilio Vinuesa
Claimants
Mr. Michael Ballantine
Ms. Lisa Ballantine
Mr. Edward "Teddy" Baldwin, Baker & McKenzie LLP
Mr. Matthew Allison, Baker & McKenzie LLP
Ms. Larissa Diaz, Baker & McKenzie LLP
Ms. Shaila Urmi, Baker & McKenzie LLP
Mr. Eric Kay, Kay Associates
Mr. James Farrell, Berkeley Research Group
Ms. Drew Lehmann, Berkeley Research Group
Mr. Graviel Peña
Ms. Jayne Baldwin
Ms. Leslie Gil Peña
Respondent
Mr. Marcelo Salazar, Ministry of Industry and Commerce
Ms. Leidylin Contreras, Ministry of Industry and Commerce
Ms. Raquel De La Rosa, Ministry of Industry and Commerce
Ms. Patricia Abreu, Ministry of Environment and Natural Resources
Mr. Enmanuel Rosario, Ministry of Environment and Natural Resources
Ms. Rosa Otero, Ministry of Environment and Natural Resources
Ms. Johanna Montero, Ministry of Environment and Natural Resources
Ms. Claudia Adames, Ministry of Environment and Natural Resources
Mr. Paolo Di Rosa, Arnold & Porter
Mr. Raúl Herrera, Arnold & Porter
Ms. Mallory Silberman, Arnold & Porter
Ms. Claudia Taveras, Arnold & Porter
Ms. Cristina Arizmendi, Arnold & Porter
Mr. Kelby Ballena, Arnold & Porter
Ms. Claudia Boscan, Arnold & Porter
Ms. Kaila Millett, Arnold & Porter
Mr. Jose Antonio Rivas
Mr. Zacarías Navarro
Prof. Eleuterio Martinez
Mr. Jose Roberto Hernández
Mr. Peter W. Deming, Mueser Rutledge Consulting Engineers (MRCE)
Mr. Pieter N. Booth, Ramboll
Mr. Timothy H. Hart, Credibility International
Ms. Laura Connor Smith, Credibility International
Ms. Tyler Smith Khoury, Credibility International
Registry: Permanent Court of Arbitration
Mr. Julián Bordaçahar, PCA Legal Counsel and Secretary to the Tribunal
Interpreters
Ms. Silva Colla
Mr. Daniel Giglio
Court Reporters
Ms. Margie Dauster, Dauster|Murphy
Mr. Virgilio Dante Rinaldi, D-R Esteno
Mr. Dionisio Rinaldi, D-R Esteno
Witnesses
Mr. Michael Ballantine
Mr. Zacarías Navarro
Mr. Jaime David Fernández Mirabal5
Prof. Eleuterio Martinez
Mr. José Roberto Hernández
Experts
Mr. Graviel Peña
Mr. Eric Kay, Kay Associates
Mr. James Farrell, Berkeley Research Group
Mr. Timothy H. Hart, Credibility International
Mr. Peter W. Deming, Mueser Rutledge Consulting Engineers (MRCE)
Mr. Pieter N. Booth, Ramboll
Notice of Arbitration, ¶ 38; Amended Statement of Claim, ¶ 42.
(1) declare that Respondent has breached its obligations under the [DR-CAFTA] and international law;
(2) award Claimants monetary damages of not less than US$20 million (twenty million U.S. dollars) in compensation for losses sustained as a result of Respondent's breaches of its obligations under the CAFTA-DR and international law, including, inter alia, reasonable lost profits, direct and indirect losses (including, without limitation, loss of reputation and goodwill), losses of all tangible and intangible property, and moral damages;
(3) award all costs (including, without limitation, attorneys' fees and all other professional fees) associated with any and all proceedings undertaken in connection with this arbitration, including all such costs undertaken to investigate this matter and prepare this Notice of Arbitration and Statement of Claim, and all such costs expended by Claimants in attempting to resolve this matter amicably with Respondent before serving this Notice of Arbitration and Statement of Claim;
(4) award pre- and post-judgment interest at a rate to be fixed by the Tribunal;
and
(5) grant such other relief as counsel may advise or the Tribunal may deem appropriate.215
a. That the Tribunal dismiss all of the Ballantines' claims, on the basis of lack of jurisdiction, inadmissibility, and/or lack of merit;
b. That, in the event that it were to decide that one or more claims are meritorious, the Tribunal decline to grant any damages to the Ballantines, on the basis that their damages calculations are unreliable, erroneous, and/or speculative;
c. That the Tribunal grant to the Dominican Republic all of the costs of the proceeding, as well as the full amount of the Dominican Republic's legal fees and expenses; and
d. That the Tribunal award to the Dominican Republic such other relief as may deem just and proper.219
Statement of Defense, ¶ 9; Spence International Investments, LLC and others v. Costa Rica, ICSID Case No. UNCT/13/2, Interim Award, (October 25, 2016), ¶ 239, Exhibit RLA-3 ; Tulip Real Estate Investment and Development Netherlands B.V. v. Turkey, ICSID Case No. ARB/11/28, Decision on Bifurcated Jurisdictional Issue, (March 5, 2013), ¶ 48, Exhibit RLA-4 ; National Gas S.A.E. v. Egypt, ICSID Case No. ARB/11/7, Award (April 3, 2014), ¶ 118, Exhibit RLA-5 ; Hearing Transcript, Day 1, 181:4-15 (English).
Article 10.16 explains which types of claims can be submitted to arbitration, by whom, and how. It provides that
(a) the claimant, on its own behalf, may submit to arbitration under this Section a claim
(i) that the respondent has breached
(A) an obligation under Section A,
(B) an investment authorization, or
(C) an investment agreement; and
(ii) that the claimant has incurred loss or damage by reason of, or arising out of, that breach; and
(b) the claimant, on behalf of an enterprise of the respondent that is a juridical person that the claimant owns or controls directly or indirectly, may submit to arbitration under this Section a claim
(i) that the respondent has breached
(A) an obligation under Section A,
(B) an investment authorization, or
(C) an investment agreement; and
(ii) that the enterprise has incurred loss or damage by reason of, or arising out of, that breach.221
DR-CAFTA, Article 10.16, Exhibit R-10.
The Respondent focuses on two aspects. First, that only a claimant, as defined by DR-CAFTA Article 10.28 has the right to submit a claim to arbitration under Chapter 10, Section B. Second, that the only type of claim that can be submitted by a claimant is one according to which a respondent has breached an obligation under Articles 10.1 to 10.14. Accordingly, there is no consent if either the party submitting a claim to arbitration is not a "claimant" as defined by DR-CAFTA, or the claims asserted are not connected to the obligations set out in Articles 10.1 to 10.14. The Respondent argues that in this case neither the Ballantines are "claimants" under the purposes of the DR-CAFTA, nor do their claims involve any obligations under Articles 10.1 to 10.14, due to the fact that neither at the time they submitted their Notice of Arbitration, nor at the time of the alleged violations, their dominant and effective nationality was that of the U.S.222
means a Party or state enterprise thereof, or a national or an enterprise of a Party, that attempts to make, is making, or has made an investment in the territory of another Party; provided, however, that a natural person who is a dual national shall be deemed to be exclusively a national of the State of his or her dominant and effective nationality.225
DR-CAFTA, Article 10.28, Exhibit R-10.
DR-CAFTA, Article 10.28, Exhibit R-10.
The Respondent emphasizes the importance of the date of submission.228 First, it argues that should DR-CAFTA be silent on the relevant timing for the question of nationality, the Tribunal would be required to decide the issue on the basis of international law, in accordance with Article 10.22. Under international law, one of the relevant dates for purposes of jurisdiction is the date on which "the moving party avails itself of a remedy".229 Accordingly, jurisdiction must exist at the time the claim was filed, and at the time of the alleged treaty breach, and a State cannot be subject to claims raised by its own dominant and effective nationals before an international forum.230
Third, the Respondent rejects the Claimants' assertion232 that the issue of dominant and effective nationality only becomes relevant if the investor holds dual nationality at the time of making the investment in the host State. The definition of "claimant" in Article 10.28 would support the position that the relevant time period cannot be earlier than the time when the investment dispute arose.233
Fourth, the Respondent alleges that even if the Tribunal were to focus on DR-CAFTA's definition of "investor of a Party", it would not find any support for the Claimants' claim that the question on the nationality refers to the date the investment was made. Article 10.28's definition of "investor of a Party" has two cumulative requirements: (i) there must be a "national of a Party"; and, (ii) the national must attempt to make, is making or has made an investment in the territory of another Party. The notion of dominant and effective nationality is only related to the first requirement. The Respondent does not contest that the second requirement is disjunctive, since it allows for three different options to define someone as an investor.234 However, if one would follow the Claimants' arguments not all the options would be relevant. Therefore, the Claimants' assertion must be rejected.235
Nottebohm Case (Liechtenstein v. Guatemala) Second Phase, ICJ, Judgment, (April 6, 1955), p. 22, Exhibit RLA-6 ; Hearing Transcript, Day 5, 1265:18-24 (English).
Since the DR-CAFTA does not include any standard for determining it, the Respondent proposes to approach the question applying international law. The Respondent relies on case law from the International Court of Justice (the "ICJ"), the Italian-United States Conciliation Commission and the Iran-U.S. Claims Tribunal to argue that the adjudicator must take into account several factors, such as the State of habitual residence, the circumstances in which the second nationality was acquired, the subject's personal attachment for the country, and the center of a person's economic, social and family life.241 The Respondent notes that in Procedural Order No. 2 the Tribunal recognized these factors.242
Nottebohm Case (Liechtenstein v. Guatemala) Second Phase, ICJ, Judgment, (April 6, 1955), p. 22, Exhibit RLA-6 ; United States v. Italy, It.–U.S. Conciliation Commission, Decision, (June 10, 1955), p. 247, Exhibit RLA-7 ; Case No. A/18, IUSCT Case No. A/18, Decision No. DEC 32-A18-FT, (April 6, 1984), p. 12, Exhibit RLA-8.
Rejoinder on Jurisdiction and Merits, ¶ 47; Procedural Order No. 2, ¶ 25.
[n]aturalization is not a matter to be taken lightly. To seek and to obtain it is not something that happens frequently in the life of a human being. It involves his breaking a bond of allegiance and his establishment of a new bond of allegiance.265
The Respondent contends that the second takeaway from Article 10.16 of the DR-CAFTA is that an arbitration is only permissible under the DR-CAFTA if the claim refers to obligations breached under Articles 10.1 to 10.14.302 The Claimants contend that the Respondent has breached its obligations under Articles 10.3 (National Treatment); 10.4 (Most-Favored-Nation Treatment); 10.5 (Minimum Standard of Treatment); 10.7 (Expropriation and Compensation); and 10.18 (Transparency).303
As a threshold matter, the Respondent points out that Article 10.18 is titled "Conditions and Limitations on Consent of Each Party" – not "Transparency". The Respondent presumes that the Claimants refer to Article 18 but in that case, the claim exceeds the scope of the Respondent's consent to arbitration.304 The Claimants have amended their claims and state that it actually refers to a violation of Article 10.5 with Chapter 18 as a guide.305 The Respondent argues that the contents of Chapter 18 cannot be imported to Chapter 10 if the Contracting Parties did not provide for it. To do so would be going against the interpretative principle expressio unius est exclusio alterius.306
According to the Respondent, almost all of the claims are based on alleged State actions that supposedly took place between November 30, 2010 – when the Claimants requested permission from the MMA to expand Jamaca de Dios –, and March 11, 2014 – six months after the events giving rise to the claim occurred.307 These claims exceed the scope of the Dominican Republic's consent because (i) its consent only applies to claims that hold that the Respondent breached an obligation under Articles 10.1 to 10.14; (ii) a State action can only be deemed to have breached an international obligation if the State is bound by it at the time the breach occurred; and (iii) at the time of the acts alleged by the Claimants, the Dominican Republic was not bound by the obligations invoked by the Claimants.308
All the DR-CAFTA provisions invoked by the Claimants apply only to "covered investments" and "investors of another Party".309 The term "covered investment" is defined in Article 2.1 as an investment in the territory of one of the Contracting Party owned by an investor of another Contracting Party.310 In the present case, "the investor of another Party" is a person attempting to make, making or who has made an investment in the Dominican Republic and whose dominant and effective nationality is the U.S. nationality. Therefore, the Claimants have to demonstrate that their U.S. nationality was their dominant and effective nationality at the time the alleged illegal State conduct took place, in order to establish the Dominican Republic's consent to arbitration.311
DR-CAFTA Article 2.1, Exhibit R-10.
Again, the Claimants argue that the Tribunal must look at the nationality the Claimants held at the time they made their investment in the Dominican Republic.313 The Respondent rejects this allegation on the basis of the same arguments raised in the previous section.314 Previous investment arbitration tribunals have concluded that the date of an alleged treaty violation is a fundamental jurisdictional requirement.315 In Pac Rim, the tribunal held that under DR-CAFTA the nationality requirements must be fulfilled at the time of the alleged breach.316 Furthermore, Article 44 of the Articles on State Responsibility states that "[t]he responsibility of a State may not be invoked if: (a) the claim is not brought in accordance with any applicable rule relating to the nationality of claims".317
Their claims were submitted (i) on their behalf under DR-CAFTA Article10.16(1)(a); and (ii) on behalf of their enterprises incorporated in the Dominican Republic, directly or indirectly owned or controlled by the Claimants under DR-CAFTA Article 10.16(1)(b). The Claimants own or control several Dominican enterprises such as Jamaca de Dios SRL, Aroma de la Montana, E.I.R.L., Pino Cipres Investments SRL, Pina Aroma Investments SRL, and Upper Dreams Investments SRL but they also have other ownerships and concessions.320 These investments qualify as such under Article 10.28.321
Response to the Request for Bifurcation, ¶ 16; Reply Memorial, ¶ 21; Hearing Transcript, Day 5, 1221:2-7 (English).
The Claimants agree with the Respondent that for the purposes of Article 10.28 there is no test to decide which of the two nationalities should be considered dominant. DR-CAFTA Article 10.28 simply sets out a non-exhaustive list of qualified investments. The Claimants claim that their investments are listed in Article 10.28.328 By contrast, to determine which of the two nationalities should be considered dominant the Tribunal should resort to international law.329
Reza Said Malek v. Iran, IUSCT, Interlocutory Award, (June 23, 1988), Exhibit CLA-51.
Response to the Request for Bifurcation, ¶ 23.
a) From March 1, 1994 through August 18, 2011, the Ballantines owned a residence at 33w231 Brewster Creek Circle in Wayne, Illinois;
b) On October 1, 2010 through December 31, 2011, the Ballantines rented a home at 1163 Westminster Avenue in Elk Grove Village, Illinois;
c) On December 2, 2011, the Ballantines purchased a home at 850 Wellington Avenue, Unit 206, in Elk Grove Village, Illinois, and sold this home in November of 2015;
d) on April 19, 2012, the Ballantines purchased a home at 3831 SW 49th Street, in Hollywood, Florida, and sold that home on March 28, 2014;
e) on July 15, 2015, the Ballantines rented a home at 505 N. Lake Shore Drive, Unit 4009, in Chicago, Illinois.349