the protection of Article III.2 of the Treaty goes beyond the simple direct contractual relationship between the investor and the host State, because such provision establishes that the State shall comply with the obligations undertaken "...related to investments by investors of the other Contracting Party...". Such drafting is sufficiently broad to interpret that the obligations contracted by Costa Rica with Riteve, a company controlled by the Claimant and created exclusively to hold the rights of the Contract, are included under the scope of protection of the Treaty. As a result, the Tribunal has jurisdiction ratione materiae over the dispute.
Award at ¶287. However, the majority then states that Co-Arbitrator Silva Romero does not believe that subject matter jurisdiction would apply in the absence of a direct contractual privity between Costa Rica and the foreign investor. Co-Arbitrator Silva Romero chooses a very narrow interpretation of subject matter jurisdiction, choosing not to extend the basis of jurisdiction to other than direct contracting parties, basically a standing issue.
First, as previously discussed, Riteve and SyC cannot be viewed as being identical.
Secondly, even if they were identical, the applications by Riteve to local tribunals did not and do not constitute an attempt to litigate the same issues that are presented here.