(a) The presentation of an invalid waiver;

(b) The violation of the waiver;

(c) The lack of jurisdiction ratione temporis ;

(d) The violation of the Treaty's three-year limitation period;

(e) The failure to state a claim for breach of the investment agreement; and

(f) The failure to submit two factual issues for determination by a technical expert prior to commencement of the arbitration.

(a) Article 10.20(4) objections relating to the Tribunal's competence fall outside the mandatory scope of Article 10.20(4).

(b) Save for the preliminary objection that Renco had failed to state a claim for breach of the investment agreement, Peru's preliminary objections related to the Tribunal's competence and therefore fell outside the scope of Article 10.20(4). The Tribunal therefore declined to hear Peru's competence objections in the Article 10.20(4) phase of these proceedings.

(c) Peru's preliminary objection relating to the investment agreement should be briefed and heard as a preliminary objection in the Article 10.20(4) phase of these proceedings in accordance with a timetable to be set by the Tribunal following further submissions from the Parties.

Given the importance of this issue, and the urgency with which it has been pressed by Peru, the Tribunal has decided in accordance with Article 23(3) of the UNCITRAL Rules to grant Peru's request to hear and decide as a preliminary issue in the arbitration the question of whether Renco has violated the waiver requirement contained in Article 10.18 of the Treaty.

... that the Tribunal's December 18, 2015 Scope Decision in respect of Peru's waiver objection be reinstated [and that the Tribunal]... reconsider and reverse the portion of its June 2, 2015 Decision requiring full briefing on Peru's objection that Renco violated the waiver provisions of the Treaty, and reaffirm its previous ruling that such objection be brought by Peru together with its Counter-Memorial on Liability in accordance with the timetable set out in Annex A to Procedural Order No. 1.

On behalf of Renco:

Mr. Edward G. Kehoe King & Spalding, LLP

Mr. Henry G. Burnett (Harry) King & Spalding, LLP

Mr. Guillermo Aguilar-Alvarez King & Spalding, LLP

Ms. Margarete Stevens King & Spalding, LLP

Mr. David H. Weiss King & Spalding, LLP

Ms. Jessica Bees und Chrostin King & Spalding, LLP

Ms. Ashley Grubor King & Spalding, LLP

Ms. Veronica Garcia King & Spalding, LLP

Mr. Dennis A. Sadlowski The Renco Group, Inc.

On behalf of Peru:

Mr. Jonathan C. Hamilton White & Case LLP

Ms. Andrea Menaker White & Case LLP

Mr. Francisco X. Jijón White & Case LLP

Ms. Michelle Grando White & Case LLP

Ms. Jacqueline Argueta White & Case LLP

Mr. Guillermo Cuevas White & Case LLP

Mr. Alejandro Martínez de Hoz White & Case LLP

Mr. Carlos Natera White & Case LLP

Ms. María del Carmen Tovar Estudio Echecopar

Ambassador Luis Miguel Castilla Ambassador of Peru to Washington D.C

Mr. Carlos José Valderrama Bernal Republic of Peru

Mr. Rafael Suarez Republic of Peru

On behalf of the United States Government (as a non-disputing Party):

Ms. Lisa Grosh Assistant Legal Adviser

Ms. Alicia Cate Attorney-Adviser

Mr. John Blanck Attorney-Adviser

Ms. Anna Estrina Financial Economist

Mr. Brooks Allen Assistant General Counsel

Mr. Juan Millan Acting Assistant U.S. Trade Representative

for Monitoring & Enforcement

Court Reporters:

Mr. Dante Rinaldi Court Reporter - Spanish Language

Ms. Gail Verbano Court Reporter - English Language

Interpreters:

Ms. Judith Letendre English /Spanish

Ms. Stella Covre English /Spanish

Ms. Karin Ruckhaus English /Spanish

Any waiver, and by extension, that one which is now the subject of debate, implies a formal and material act on the part of the person tendering [the] same. To this end, this Tribunal will therefore have to ascertain whether Waste Management did indeed submit the waiver in accordance with the formalities envisaged under NAFTA and whether it has respected the terms of same through the material act of either dropping or desisting from initiating parallel proceedings before other courts or tribunals.

(a) As to formal compliance:

(i) By its "reservation of rights" Renco has purported to reserve its right to bring claims in another forum for resolution on the merits if the Tribunal dismisses any claims on jurisdictional or admissibility grounds. As a consequence, says Peru, Renco's waiver is non-compliant.

(ii) DRP has failed to submit a waiver in the Amended Notice of Arbitration, despite the fact that Renco is submitting claims on behalf of DRP under the Treaty.

(b) As to material compliance, Peru contends that Renco has (through DRP) initiated and/or continued proceedings in the Peruvian courts concerning measures alleged to constitute a breach of the Treaty in this arbitration.

(a) As to formal compliance:

(i) The Treaty does not prevent a claimant from pursuing claims on the merits in another forum if its Treaty case is dismissed on jurisdictional or admissibility grounds. Therefore, Renco's waiver is compliant.

(ii) Renco is asserting its own claims under Article 10.16(1)(a) for loss and damage that it has suffered as a result, in part, of measures that Peru has inflicted on its enterprise, DRP. Such claims, Renco asserts, may be submitted under Article 10.16(1)(a) and do not require a waiver from DRP.

(b) As to material compliance:

(i) The Peruvian proceedings relate to defensive measures taken by DRP, and defensive measures taken by an investor to defend itself against claims asserted in local proceedings do not breach the waiver requirement in Article 10.18(2)(b).

(ii) The local proceedings do not relate to the same measures that are alleged to constitute a breach of Article 10.16(1)(a).

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,

(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,

provided that a claimant may submit pursuant to subparagraph (a)(i)(C) or (b)(i)(C) a claim for breach of an investment agreement only if the subject matter of the claim and the claimed damages directly relate to the covered investment that was established or acquired, or sought to be established or acquired, in reliance on the relevant investment agreement […]

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:

(a) Chapter II of the ICSID Convention (Jurisdiction of the Centre) and the ICSID Additional Facility Rules for written consent of the parties to the dispute;

(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."

Article 10.18: Conditions and Limitations on Consent of Each Party

1. No claim may be submitted to arbitration under this Section if more than three years have elapsed from the date on which the claimant first acquired, or should have first acquired, knowledge of the breach alleged under Article 10.16.1 and knowledge that the claimant (for claims brought under Article 10.16.1(a)) or the enterprise (for claims brought under Article 10.16.1(b)) has incurred loss or damage.

2. No claim may be submitted to arbitration under this Section unless:

(a) the claimant consents in writing to arbitration in accordance with the procedures set out in this Agreement; and

(b) the notice of arbitration is accompanied,

(i) for claims submitted to arbitration under Article 10.16.1(a), by the claimant's written waiver, and

(ii) for claims submitted to arbitration under Article 10.16.1(b), by the claimant's and the enterprise's written waivers

of any right to initiate or continue before any administrative tribunal or court under the law of any Party, or other dispute settlement procedures, any proceeding with respect to any measure alleged to constitute a breach referred to in Article 10.16.

3. Notwithstanding paragraph 2(b), the claimant (for claims brought under Article 10.16.1(a)) and the claimant or the enterprise (for claims brought under Article 10.16.1(b)) may initiate or continue an action that seeks interim injunctive relief and does not involve the payment of monetary damages before a judicial or administrative tribunal of the respondent, provided that the action is brought for the sole purpose of preserving the claimant's or the enterprise's rights and interests during the pendency of the arbitration.

4. (a) No claim may be submitted to arbitration:

(i) for breach of an investment authorization under Article 10.16.1(a)(i)(B) or Article 10.16.1(b)(i)(B), or

(ii) for breach of an investment agreement under Article 10.16.1(a)(i)(C) or Article 10.16.1(b)(i)(C),

if the claimant (for claims brought under 10.16.1(a)) or the claimant or the enterprise (for claims brought under 10.16.1(b)) has previously submitted the same alleged breach to an administrative tribunal or court of the respondent, or to any other binding dispute settlement procedure.

(b) For greater certainty, if a claimant elects to submit a claim of the type described in subparagraph (a) to an administrative tribunal or court of the respondent, or to any other binding dispute settlement procedure, that election shall be definitive, and the claimant may not thereafter submit the claim to arbitration under Section B.

(a) the claimant consents in writing to arbitration in accordance with the procedures set out in this Agreement; and

(b) the notice of arbitration is accompanied,

(i) for claims submitted to arbitration under Article 10.16.1(a), by the claimant's written waiver, and

(ii) for claims submitted to arbitration under Article 10.16.1(b), by the claimant's and the enterprise's written waivers

of any right to initiate or continue before any administrative tribunal or court under the law of any Party, or other dispute settlement procedures, any proceeding with respect to any measure alleged to constitute a breach referred to in Article 10.16.

Accordingly, an arbitration agreement will be formed under the Treaty only if the investor satisfies the formal and material waiver requirements of Article 10.18(2)(b). This is so because compliance with Article 10.18(2) is a condition and limitation upon Peru's consent to arbitrate. Article 10.18(2) contains the terms upon which Peru's non-negotiable offer to arbitrate is capable of being accepted by an investor. Compliance with Article 10.18(2) is therefore an essential prerequisite to the existence of an arbitration agreement and hence the Tribunal's jurisdiction.⁵

The act of waiver per se is a unilateral act, since its effect in terms of extinguishment is occasioned solely by the intent underlying same. The requirement of a waiver in any context implies a voluntary abdication of rights, inasmuch as this act generally leads to a substantial modification of the preexisting legal situation, namely, the forfeiting or extinguishment of the right. Waiver thus entails exercise of the power of disposal by the holder thereof in order to bring about this legal effect.

Whatever the case, any waiver must be clear, explicit and categorical, it being improper to deduce same from expressions the meaning of which is at all dubious.

On the basis of the foregoing, any waiver submitted pursuant to the provisions of NAFTA Article 1121(2)(b) must, depending upon the petition or request filed, be clear in all its terms with regard to abdication of given rights by the party proposing to make said waiver.

This waiver does not apply, however, to any dispute settlement proceedings involving allegations that Respondent has violated duties imposed by other sources of law, including the municipal law of Mexico.

Without derogating from the waiver required by NAFTA Article 1121, Claimants here set forth their understanding that the above waiver does not apply to any dispute settlement proceedings involving allegations that Respondent has violated duties imposed by sources of law other than Chapter Eleven of NAFTA, including the municipal law of Mexico.

of any right to initiate or continue before any administrative tribunal or court under the law of any Party, or other dispute settlement procedures, any proceeding with respect to any measure alleged to constitute a breach referred to in Article 10.16 (emphasis added).

(a) At the time the notice of arbitration is filed;

(b) During the pendency of the arbitration; and/or

(c) After the arbitration has concluded, whether or not the investor's claims are dismissed on jurisdictional or admissibility grounds or on the merits.

(a) In Waste Management Inc v United Mexican States (No I), the tribunal held that "when both legal actions [parallel domestic and NAFTA claims] have a legal basis derived from the same measures, they can no longer continue simultaneously in light of the imminent risk that the Claimant may obtain the double benefit in its claim for damages. This is precisely what NAFTA Article 1121 seeks to avoid".⁹

(b) In Waste Management Inc v United Mexican States (No II), the tribunal held that "[n]o doubt the concern of the NAFTA parties in inserting Article 1121 was to achieve finality of decision and to avoid multiplicity of proceedings".¹⁰

(c) In International Thunderbird Gaming Corp v United Mexican States, the tribunal observed that "[t]he consent and waiver requirements set forth in Article 1121 serve a specific purpose, namely to prevent a party from pursuing concurrent domestic and international remedies, which could either give rise to conflicting outcomes (and thus legal uncertainty) or lead to double redress for the same conduct or measure".¹¹

For greater certainty, if a claimant elects to submit a claim of the type described in subparagraph (a) to an administrative tribunal or court of the respondent, or to any other binding dispute settlement procedure, that election shall be definitive, and the claimant may not thereafter submit the claim to arbitration under Section B.

For greater certainty, if an investor of the United States elects to submit a claim of the type described in paragraph 1 to a court or administrative tribunal of a Party other than the United States, that election shall be definitive, and the investor may not thereafter submit the claim to arbitration under Section B.

[I]t seems that the waiver contemplated by Article 1121(1)(b) is definitive in its effect, whatever the outcome of the arbitration. The waiver concerns the right "to initiate or continue" domestic proceedings for damages or similar relief. A dismissal of the NAFTA claim would, it seems, be final not only with respect to NAFTA itself but also any domestic proceedings with respect to the measure of the disputing Party that was alleged to be a breach of NAFTA. Such proceedings may not be initiated or continued (except as permitted by Article 1121) at any time after the claim has been submitted to arbitration. (emphasis added)

An investor in the position of the Claimant, who had eventually waived any possibility of a local remedy in respect of the measure in question but found that there was no jurisdiction to consider its claim at the international level either, might be forgiven for doubting the effectiveness of the international procedures. The Claimant has not had its NAFTA claim heard on the merits before any tribunal, national or international; and if the Respondent is right, that situation is now irrevocable. Such a situation should be avoided if possible.

Neither does a claim which fails for want of jurisdiction prejudice underlying rights: if the jurisdictional flaw can be corrected, there is in principle no objection to the claimant re-commencing its action. This applies equally to claims which fail on (remediable) grounds of inadmissibility, such as failure to exhaust local remedies.

Thus there is no doubt that, in general, the dismissal of a claim by an international tribunal on grounds of lack of jurisdiction does not constitute a decision on the merits and does not preclude a later claim before a tribunal which has jurisdiction. The same is true of decisions concerning inadmissibility. The point is simply that a decision which does not deal with the merits of the claim, even if it deals with issues of substance, does not constitute res judicata as to those merits.

(a) Peru has not breached the Stock Transfer Agreement because Peru is not party to that Agreement;

(b) Peru has not breached the Guaranty Agreement because it is void under Peruvian law; and

(c) Renco has failed to submit factual issues to a technical expert.

(a) The reservation of rights is not permitted by the express terms of Article 10.18(2)(b);

(b) The reservation of rights undermines the object and purpose of Article 10.18(2)(b);

(c) The reservation of rights is incompatible with the "no U-turn" structure of Article 10.18(2)(b); and

(d) The reservation of rights is not superfluous.

(a) Whether Renco should be permitted to cure its defective waiver by withdrawing the reservation of rights;

(b) Whether the Tribunal can sever the reservation of rights so as to decide that Renco's waiver complies with Article 10.18(2)(b); and

(c) Whether Peru's arguments and conduct in relation to its waiver objection constitutes an abuse of rights.

Each is discussed in turn below.

Although Thunderbird failed to submit the relevant waivers with the Notice of Arbitration, Thunderbird did proceed to remedy that failure by filing those waivers with the [Particularised Statement of Claim]. The Tribunal does not wish to disregard the subsequent filing of those waivers, as to reason otherwise would amount, in the Tribunal's view, to an over-formalistic reading of Article 1121 of the NAFTA. The Tribunal considers indeed that the requirement to include the waivers in the submission of the claim is purely formal, and that a failure to meet such requirement cannot suffice to invalidate the submission of a claim if the so-called failure is remedied at a later stage of the proceedings. The Tribunal joins the view of other NAFTA Tribunals that have found that Chapter Eleven provisions should not be construed in an excessively technical manner.

In construing Article 1121 of the NAFTA, one must also take into account the rationale and purpose of that article. The consent and waiver requirements set forth in Article 1121 serve a specific purpose, namely to prevent a party from pursuing concurrent domestic and international remedies, which could either give rise to conflicting outcomes (and thus legal uncertainty) or lead to double redress for the same conduct or measure. In the present proceedings, the Tribunal notes that the EDM entities did not initiate or continue any remedies in Mexico while taking part in the present arbitral proceedings. Therefore, the Tribunal considers that Thunderbird has effectively complied with the requirements of Article 1121 of the NAFTA.

This being a matter pertaining to the consent of the Respondent to this arbitration, the Tribunal has no jurisdiction without the agreement of the parties to grant the Claimant an opportunity to remedy its defective waiver. It is for the Respondent and not the Tribunal to waive a deficiency under Article 10.18 or to allow a defective waiver to be remedied, as the United States did in Methanex.

The discretion whether to permit a claimant to either proceed under or remedy an ineffective waiver lies with the respondent as a function of the respondent's general discretion to consent to arbitration.²⁵ Therefore, while a tribunal may determine whether a waiver complies with the requirements of Article 10.18, a tribunal itself cannot remedy an ineffective waiver. Accordingly, a claim can be submitted, and the arbitration can properly commence, only if a claimant submits an effective waiver. The date of the submission of an effective waiver is the date on which the arbitration commences for purposes of Article 10.18.1.

In any event, the existence of a material breach of the waiver requirement is independent of Renco's formal violation, either one of which alone is fatal to Renco's claims. Contrary to Renco's suggestion, the formal requirement is as important, if not more important, than its material counterpart. In fact, it is the formal requirement that is expressed in the language of the Treaty itself: while the Treaty expressly provides in what form a waiver must be submitted, and specifically provides for the sole reservation that may be made by a claimant, the Treaty does not expressly state that the State's consent is conditioned upon the claimant's compliance with the terms of the waiver. Rather, that condition can be discerned from reading the language of the waiver requirement in context and in light of the Treaty's object and purpose and, thus, tribunals consistently have so interpreted the requirement, as reflected in the jurisprudence. Accordingly, there is no basis to construe the so-called "formal" requirement of the waiver any less strictly than the "material" requirement; if a violation of the latter requires dismissal, as tribunals unanimously have found, then a violation of the former does as well, as the Treaty expressly states and as both Parties to the Treaty have confirmed.

Canada's contention that [the submission of a waiver with the Notice of Arbitration is] a precondition to jurisdiction, as opposed to a prerequisite to admissibility, is not borne out by the text of Article 1121, which must govern. Article 1121(3), instead of saying "shall be included in the submission of a claim to arbitration" — in itself a broadly encompassing concept — could have said "shall be included with the Notice of Arbitration" if the drastically preclusive effect for which Canada argues truly were intended. The Tribunal therefore concludes that jurisdiction here is not absent due to Claimant's having provided the consent and waivers necessary under Article 1121 with its Statement of Claim rather than with its Notice of Arbitration.

Even assuming that before that time the Court had no jurisdiction because the international obligation referred to in Article II was not yet effective, it would always have been possible for the applicant to re-submit his application in the same terms after the coming into force of the Treaty of Lausanne, and in that case, the argument in question could not have been advanced. Even if the grounds on which the institution of proceedings was based were defective for the reason stated, this would not be an adequate reason for the dismissal of the applicant's suit. The Court, whose jurisdiction is international, is not bound to attach to matters of form the same degree of importance which they might possess in municipal law. Even, therefore, if the application were premature because the Treaty of Lausanne had not yet been ratified, this circumstance would now be covered by the subsequent deposit of the necessary ratifications.

What matters is that, at the latest by the date when the Court decides on its jurisdiction, the applicant must be entitled, if it so wishes, to bring fresh proceedings in which the initially unmet condition would be fulfilled. In such a situation, it is not in the interests of the sound administration of justice to compel the applicant to begin the proceedings anew — or to initiate fresh proceedings — and it is preferable, except in special circumstances, to conclude that the condition has, from that point on, been fulfilled.

... retroactively validate several months of proceedings during which the Tribunal wholly lacked jurisdiction but had some kind of potential existence that might have been realized if it had acquired jurisdiction at some subsequent date. The lack of a valid waiver precluded the existence of a valid agreement between the disputing parties to arbitrate; and the lack of such an agreement deprived the Tribunal of the very basis of its existence.

... it is legitimate—and perhaps obligatory—to sever an invalid condition from the rest of the instrument and to treat the latter as valid provided that having regard to the intention of the parties and the nature of the instrument the condition in question does not constitute an essential part of the instrument. Utile non debet per inutile vitiari. The same applies also to provisions and reservations relating to the jurisdiction of the Court. It would be consistent with the previous practice of the Court that it should, if only possible, uphold its jurisdiction when such a course is compatible with the intention of the parties and that it should not allow its jurisdiction to be defeated as the result of remediable defects of expression which are not of an essential character.

To apply the proposed "principle of severability" in order to sever an invalid reservation of rights in a claimant's waiver would defeat the purpose of the Agreement's arbitration provisions. It would alter the conditions of the respondent's offer to arbitrate and deprive the waiver provision of its intended purpose, thereby exposing the respondent to the risk of having to litigate, even temporarily, concurrently in multiple fora.

The reasonable and bona fide exercise of a right implies an exercise which is genuinely in pursuit of those interests which the right is destined to protect and which is not calculated to cause any unfair prejudice to the legitimate interests of another State, whether these interests be secured by treaty or by general international law.

[I]n all legal systems, the doctrines of abuse of rights, estoppel and waiver are subject to a high threshold. Any right leads normally and automatically to a claim for its holder. It is only in very exceptional circumstances that a holder of a right can nevertheless not raise and enforce the resulting claim. The high threshold also results from the seriousness of a charge of bad faith amounting to abuse of process. As Judge Higgins stated in her 2003 Separate Opinion in the Oil Platforms case, there is "a general agreement that the graver the charge the more confidence must there be in the evidence relied on."

As Peru will discuss and amplify in its submissions, Renco has presented an invalid waiver in this proceeding because it does not conform with the language required by the Treaty, and that Doe Run Peru S.R.Ltda. ("Doe Run Peru") was required to submit a waiver and improperly purported to withdraw its waiver submitted with Claimants' Notice of Arbitration and Statement of Claim of April 4, 2011. In addition, through the initiation and continuation of certain proceedings with respect to measures alleged to constitute a breach by Renco, both Renco and Doe Run Peru also have violated the waiver requirement.

Pursuant to the Treaty, Peru's consent, and therefore the Tribunal's jurisdiction, is subject to the submission of valid waivers by Renco and Doe Run Peru, which are lacking here. This objection thus clearly falls within the scope of Article 10.20.4.

(i) Renco and its affiliate, Doe Run Peru, filed waivers that impermissibly reserved the right to bring claims in other fora; (ii) Renco later filed a separate waiver that contained the same reservation...

(a) Renco has failed to comply with the formal requirement of Article 10.18(2)(b) by including the reservation of rights in the waiver accompanying its Amended Notice of Arbitration because:

(i) The reservation of rights is not permitted by the express terms of Article 10.18(2)(b);

(ii) The reservation of rights undermines the object and purpose of Article 10.18(2)(b);

(iii) The reservation of rights is incompatible with the "no U-turn" structure of Article 10.18(2)(b); and

(iv) The reservation of rights is not superfluous.

(b) Renco cannot unilaterally cure its defective waiver by withdrawing the reservation of rights.

(c) The Tribunal has no power to sever the reservation of rights from Renco's waiver and remedy Renco's non-compliance with Article 10.18(2)(b).

(d) Peru's waiver objection is not tainted by any ulterior motive to evade its duty to arbitrate Renco's claims.

(e) It follows that Renco has failed to establish the requirements for Peru's consent to arbitrate under the Treaty.

(f) Renco's claims must therefore be dismissed for lack of jurisdiction.