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GLOSSARY OF TERMS
ACHR American Convention on Human Rights of 1969
Agreement with the Government Agreement between the Government of Potosi and the Community Members, dated May 9, 2012
Angulo’s First WitnessStatement Mr. Santiago Angulo’s Witness Statement of July 18, 2014
Angulo’s Second WitnessStatement Mr. Santiago Angulo’s Second or Rebuttal Witness Statement dated November 14, 2015
BIT Bilateral investment treaty
Bolivia Plurinational State of Bolivia
Bolivia’s Post-Hearing Brief Post-Hearing Brief from Bolivia dated October 31, 2016
Brattle The Brattle Group, Inc.
BSR Business for Corporate Responsibility
Chajmi’s Witness Statement Mr. Andrés Chajmi Rikusqnmanta Willakuy’s Witness Statement dated February 24, 2016
Claimant South American Silver Limited
Claimant’s Costs Submission Claimant’s Costs Submission dated November 28, 2016
Claimant’s Rejoinder Memorial on Jurisdiction Claimant’s Rejoinder Memorial to Respondent’s Objections to Jurisdiction and Admissibility dated May 2, 2016
Claimant’s Reply Memorial Claimant’s Reply to Respondent’s Counter-Memorial on the Merits and Response to Respondent’s Objections to Jurisdiction and Admissibility dated November 30, 2015
Claimant’s Reply on Costs Claimant’s Reply to the Respondent’s Costs Submission dated December 12, 2016
CMMK Compañía Minera Malku Khota
COMIBOL Corporación Minera de Bolivia
Company Compañía Minera Malku Khota
CONAMAQ Council of Ayllus and Markas of Qullasuyu
Cooper Report Mr. Barry Cooper’s Expert Report dated November 22, 2015

COTOA-6ACoordinadora Territorial Originaria Autónoma de los Seis Ayllus
Counter-Memorial Respondent’s Objection to Jurisdiction and Admissibility and Counter-Memorial on the Merits dated March 31, 2015
Dreisinger’s Witness Statement Mr. David B. Dreisinger’s Witness Statement dated November 23, 2015
FAOI-NPFederación de Ayllus Originarios Indígenas del Norte de Potosí
First Brattle Report Brattle’s First Expert Report dated March 30, 2015
First Dagdelen Report Dr. Kadri Dagdelen’s First Expert Report dated March 30, 2015
First FTI Report FTI’s First Expert Report dated September 23, 2014
First RPA Report RPA’s First Expert Report dated September 16, 2014
Fitch’s First Witness Statement Mr. Ralph G. Fitch’s First Witness Statement dated September 16, 2014
Fitch’s Second WitnessStatement Mr. Ralph G. Fitch’s Second Witness Statement dated April 29, 2016
FTI FTI Consulting Canada ULC
General Minerals General Minerals Corporation Limited, the name under which SAS was established in 1994
Gob. Gonzales’ First WitnessStatement Mr. Félix Gonzales Bernal’s First Witness Statement dated March 26, 2015
Gob. Gonzales’ Second WitnessStatement Mr. Félix Gonzales Bernal’s Second Witness Statement dated February 22, 2016
Gonzales Yutronic’s FirstWitness Statement Mr. Xavier Gonzales Yutronic’s First Witness Statement dated July 18, 2014
Gonzales Yutronic’s SecondWitness Statement Mr. Xavier Gonzales Yutronic’s Second Witness Statement dated November 13, 2015
Gonzales Yutronic’s ThirdWitness Statement Mr. Xavier Gonzales Yutronic’s Third Witness Statement dated April 27, 2016
Hearing Hearing on Jurisdiction and Merits held from July 11 to 22, 2016, except July 16 and 17, at the World Bank facilities in Washington D.C., U.S.A.
IACHR Inter-American Court on Human Rights
ICJ International Court of Justice
ICSID International Centre for Settlement of Investment Disputes

ICSID Convention Convention On The Settlement Of Investment Disputes Between States And Nationals Of Other States, signed on March 18, 1965
ILC International Law Commission
ILC Articles The International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts
ILO International Labour Organization
Indigenous Communities Indigenous Communities living in the area of the Project, jointly
Malbran’s First Witness Mr. Felipe Malbran’s First Witness Statement dated
Statement September 18, 2014
Malbran’s Second Witness Mr. Felipe Malbran’s Second Witness Statement dated
Statement November 12, 2015
Mallory’s First Witness Mr. W.J. Mallory’s First Witness Statement dated September
Statement 12, 2014
Mallory’s Second Witness Mr. W.J. Mallory’s Second Witness Statement dated
Statement November 14, 2015
Mallory’s Third Witness Mr. W.J. Mallory’s Third Witness Statement dated April 29,
Statement 2016
MedminFundación Medmin
Memorandum of Understanding Agreement dated July 7, 2012 to pacify the area of the Project
Metallurgical Process Metal extraction through a leaching of hydrochloric acid process
Mining Concessions The ten mining concessions owned by CMMK in the area of Malku Khota, where the Mining Project was conducted (Cobra, Daniel, Takhuani, Alkasi, Jalsuri, Takhaua, Silluta, Antacuna, Norma and Viento)
Minister Navarro’s Witness Mr. Félix César Navarro Miranda’s Witness Statement dated
Statement February 23, 2016
MTR Metal Transaction Ratio
Notice of Arbitration Notice of Arbitration dated April 30, 2013
OECD Organisation for Economic Co-operation and Development
Parties Claimant and Respondent jointly
PCA Permanent Court of Arbitration

PCIJ Permanent Court of International Justice
PEA Preliminary Economic Assessment
PEA 2009 Preliminary Economic Assessment Technical Report of the Malku Khota Project dated March 13, 2009
PEA 2011 Update of the Preliminary Economic Assessment Technical Report of the Malku Khota Project dated May 10, 2011
Prof. Uño Report Mr. Liborio Uño Acebo’s Expert Report dated March 26, 2015
Project CMMK’s mining project in Malku Khota
Protected Information Highly confidential information, protected by the Protective Order annexed to the Procedural Order No. 3, described in Annex A of the Protective Order and in the Procedural Orders No. 8 and 9
Protective Order Protective Order, Annex A of Procedural Order No. 3, issued on January 14, 2015
Quality Report Quality Audit Consultores y Contadores Públicos S.R.L’s Report dated June 27, 2014
RCA Reciprocal Cooperation Agreements
RDD Redfern Schedule for the Respondent
RDT Redfern Schedule for the Claimant
Respondent Plurinational State of Bolivia
Respondent’s Reply on Costs Respondent’s Comments on Claimant’s Costs Submission dated December 12, 2016
Respondent’s Costs Submission Respondent’s Costs Submission dated November 28, 2016
Respondent’s Rejoinder Respondent’s Rejoinder on the Merits and Reply to the Objections to Jurisdiction and Admissibility dated March 21, 2016
Response to the Notice ofArbitration Response to the Notice of Arbitration dated June 28, 2013
Reversal Supreme Decree No. 1308 issued on August 1, 2012, arranging the reversal of the Mining Concessions
RPA Roscoe Postle and Associates, Inc.
RPA Valuation Report Valuation Report of the Project, based on RPA’s comparable transactions

SAS South American Silver Limited
SAs’ Post-Hearing Brief Claimant’s Post-Hearing Brief dated October 31, 2016
SASC South American Silver Corporation
Second Brattle Report Brattle’s Second Expert Report dated March 21, 2016
Second Dagdelen Report Dr. Kadri Dagdelen’s Second Expert Report dated March 21, 2016
Second FTI Report FTI’s Second Expert Report dated November 30, 2015
Second RPA Report RPA’s Second Expert Report dated November 30, 2015
Statement of Claim Claimant’s Statement of Claim and Memorial dated September 24, 2014
Reversal Decree Supreme Decree No. 1308 issued on August 1, 2012, arranging the reversal of the Mining Concessions
Taylor Report Mr. Patrick R. Taylor’s Expert Report dated March, 18 2016
TMM TriMetals Mining Inc.
Treaty Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Plurinational State of Bolivia for the Promotion and Protection of Investments, signed May 24, 1988 and in force since February 16, 1990
TriMetals TriMetals Mining Inc.
UNCITRAL Rules UNCITRAL Arbitration Rules (as revised in 2010)
Vienna Convention The Vienna Convention on the Law of Treaties adopted on May 23, 1969
Witness X Witness, whose identity remains protected by the Protective Order, Annex A of the Procedural Order No. 14, issued April 1, 2016
Witness X’s Witness Statement Witness X’s Witness Statement dated February 23, 2016

I INTRODUCTION

A. The Parties

1.
The Claimant in these arbitration proceedings is South American Silver Limited (previously, General Minerals Corporation Limited), a corporate entity established under the laws of the Bermuda (the "Claimant" or "SAS"). The Claimant’s place of business can be found in Jardine House, 33-35 Reid Street, Hamilton, Bermuda.
2.
The Claimant is represented in these proceedings by the following persons:

Mr. Henry G. Burnett

Mr. Fernando Rodríguez Cortina

Ms. Verónica García

Ms. Caline Mouawad

Mr. Cedric Soule

Ms. Eldy Roche

King & Spalding LLP

1185 Avenue of the Americas, Floor 34

New York, NY 10036-2222

United States of America

Mr. Roberto Aguirre Luzi

Mr. Craig S. Miles

King & Spalding LLP

1100 Louisiana Street, Suite 4000

Houston, Texas 77002-5213

United States of America

Mr. Ramiro Guevara

Mr. Enrique Barrios

Guevara & Gutiérrez S.C.

Calle 15 No. 7715

esquina Calle Sánchez Bustamante

Ketal Tower, Floor 4 Office No. 2

Mailbox (Casilla Postal) 9332

La Paz

Bolivia

3.
The Respondent in the present arbitration proceedings is the Plurinational State of Bolivia ("Bolivia" or the "Respondent", and together with the Claimant, the "Parties").
4.
The Respondent is represented in the present proceedings by the following persons:

Dr. Pablo Menacho Diederich, Procurador General del Estado

Dr. Ernesto Rosell Arteaga, Subprocurador de Defensa y Representación Legal del Estado Dr. Waldo Alvarado Vasquez

Procuraduría General del Estado

Calle Martín Cárdenas No. 109

Zona Ferropetrol

El Alto, La Paz

Bolivia

Mr. Eduardo Silva Romero

Mr. José Manuel García Represa

Ms. Erica Stein

Mr. Álvaro Galindo

Mr. Juan Felipe Merizalde

Dechert (Paris) LLP

32 Rue de Monceau

Paris, 75008

France

B. Background to the Arbitration

5.
According to the Claimant, a dispute arose between the Parties under the scope of the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Plurinational State of Bolivia for the Promotion and Protection of Investments, signed May 24, 1988 and in force since February 16, 1990 (the "Treaty"), whose application was extended to Bermuda as of December 9, 1992 through an exchange of notes between Bolivia and the United Kingdom dated December 3 and 9, 1992.
6.
The Claimant commenced the proceedings against the Respondent by Notice of Arbitration dated April 30, 2013 ("Notice of Arbitration"), pursuant to Article 8 of the Treaty and Article 3 of the 2010 version of the Arbitration Rules of the United Nations Commission on International Trade Law (the "UNCiTRAL Rules").
7.
In accordance with Article 3(2) of the UNCITRAL Rules, the present arbitration proceedings commenced on April 30, 2013, when the Respondent received the Notice of Arbitration.
8.
The Respondent received the Notice of Arbitration on the same date and, pursuant to the agreement of the Parties, Bolivia submitted its Response to the Notice of Arbitration on June 28, 2013 ("Response to the Notice of Arbitration").1

C. Arbitration Agreement

9.
Article 8 of the Treaty provides:2

Article VIII

Settlement of Disputes between an Investor and a Host State

(1) Disputes between a national or company of one Contracting Party and the other Contracting Party concerning an obligation of the latter under this Agreement in relation to an investment of the former which have not been legally and amicably settled shall after a period of six months from written notification of a claim be submitted to international arbitration if either party to the dispute so wishes.

(2) Where the dispute is referred to international arbitration, the investor and the Contracting Party concerned in the dispute may agree to refer the dispute either to:

(a) The International Centre for the Settlement of Investment Disputes (having regard to the provisions, where applicable, of the Convention on the Settlement of Investment Disputes between States and Nationals of other States, opened for signature at Washington DC on 18 March 1965 and the Additional Facility for the Administration of Conciliation, Arbitration and Fact-Finding Proceedings); or

(b) The Court of Arbitration of the International Chamber of Commerce; or

(c) An international arbitrator or ad hoc arbitration tribunal to be appointed by a special agreement or established under the Arbitration Rules of the United Nations Commission on International Trade Law.

After a period of six months from written notification of the claim there is no agreement on an alternative procedure, the parties to the dispute shall be bound to submit it to arbitration under the Arbitration Rules of the United Nations Commission on International Trade Law as then in force. The parties to the dispute may agree in writing to modify these Rules.

II PROCEDURAL HISTORY

A. Constitution of the Tribunal

10.
In its Notice of Arbitration, the Claimant appointed Prof. Francisco Orrego Vicuña as the first arbitrator.
11.
By letter dated May 31, 2013, the Claimant informed the Permanent Court of Arbitration (the "PCA") that the Parties had decided to designate the Secretary-General of the PCA as appointing authority in the arbitration and to have the PCA administrate the proceedings.
12.
The Respondent appointed Mr. Osvaldo César Guglielmino as the second arbitrator in its Response to the Notice of Arbitration.

1. Challenge to arbitrator osvaldo César Guglielmino

13.
On July 12, 2013, the Claimant presented its Notice of Challenge to Osvaldo Cesar Guglielmino as Arbitrator. On July 26, 2013, the Respondent presented its Rejection of the Challenge to Osvaldo César Guglielmino as a Party-Appointed Arbitrator.
14.
By letter dated August 7, 2013, the Claimant requested the Secretary-General of the PCA to decide on its challenge to Mr. Guglielmino under Article 13(4) of the UNCITRAL Rules. On October 30, 2013, following the Parties’ and Mr. Guglielmino’s comments in regards to the challenge, the Secretary-General of the PCA issued his decision rejecting the challenge to the arbitrator Osvaldo César Guglielmino.

2. Challenge to arbitrator Francisco orrego Vicuña

15.
On July 31, 2013, the Respondent presented its Notice of Challenge to Francisco Orrego Vicuña. On August 14, 2013, the Claimant presented its Rejection to the Challenge as Arbitrator to Francisco Orrego Vicuña.
16.
By letter dated August 30, 2013, the Respondent requested the Secretary-General of the PCA to decide on its challenge to Mr. Francisco Orrego Vicuña under Article 13(4) of the UNCITRAL Rules. On October 30, 2013, following the Parties’ and Mr. Orrego Vicuña’s comments in regards to the challenge, the Secretary-General of the PCA issued his decision rejecting the challenge to the arbitrator Francisco Orrego Vicuña.

3. Appointment of the Presiding Arbitrator

17.
On December 5, 2013, the two co-arbitrators informed the Parties and the PCA that they had not reached an agreement concerning the appointment of the presiding arbitrator.
18.
By the Appointment of the Presiding Arbitrator dated January 22, 2014, the Secretary-General of the PCA appointed Dr. Eduardo Zuleta Jaramillo as presiding arbitrator.
19.
On January 22, 2014, Dr. Eduardo Zuleta Jaramillo accepted its appointment as arbitrator. On the same day, the Arbitral Tribunal was constituted.

B. Development of the Proceeding

20.
Throughout the arbitration proceedings, the Arbitral Tribunal issued 23 Procedural Orders, which will be summarized here below. For the purpose of brevity, the Tribunal refers to the specific background that motivated each decision, as described in the respective procedural orders.
21.
By letter of February 4, 2015, the Tribunal circulated to the Parties for comments drafts of the Terms of Appointment and Procedural Order No. 1.
22.
The Parties and the Tribunal concluded the Terms of Appointment on March 4, 2014.
23.
On May 13, 2014, the Parties and the Tribunal held the first procedural meeting in the facilities of the Centre of Arbitration and Conciliation of the Chamber of Commerce (Centro de Arbitraje y Conciliación de la Cámara de Comercio) of Bogotá, Colombia.
24.
The following persons participated in the first procedural meeting on behalf of the Claimant: Mr. Ralph Fitch, President and Director of SAS, and Mr. Henry G. Burnett and Mr. Louis-Alexis Bret, both lawyers from King & Spalding, LLP. On behalf of the Respondent was Dr. Carmiña Llorente, General Director of Jurisdictional and Arbitration Investment Defense (Director General de Defensa Jurisdiccional y Arbitral de Inversiones), and Dr. Paola Valeria Bonadona Quiroga, lawyer, both from the Attorney General’s Office (Procuraduría General del Estado).
25.
At the end of the meeting, the audio recording of the meeting was distributed to the Parties. At a later time, by letter dated August 7, 2014, the PCA distributed the final versions of the transcripts of the meeting in English and Spanish.
26.
On May 27, 2014, the Tribunal issued Procedural Order No. 1. Inter alia, the Procedural Order No. 1 fixed the place of arbitration at The Hague, The Netherlands and established a procedural calendar.
27.
On September 24, 2014, the Claimant submitted its Statement of Claim and Memorial ("Statement of Claim"), along with the witness statements of Ralph G. Fitch ("Fitch’s First Witness Statement"), Felipe Malbran ("Malbran’s First Witness Statement"), W. J. Mallory ("Mallory’s First Witness Statement"), Xavier Gonzales Yutronic ("Gonzales Yutronic’s First Witness Statement") and Santiago Angulo ("Angulo’s First Witness Statement"), the expert reports of FTI Consulting Canada ULC ("FTi", its report "First FTi Report", with annexes FTI-01 to FTI-55) and Roscoe Postle and Associates, Inc. ("RPA", its report "First RPA Report", with its reference annexes), annexes C-1 to C-94 and the legal authorities CLA-1 to CLA-94.
28.
By Procedural Order No. 2, dated December 1, 2014, the Tribunal accepted the Claimant’s application to classify certain information used by RPA as "highly confidential" and classified the information at issue, described in Exhibit A to Annex A of that Procedural Order. Additionally, the Tribunal issued a Protective Order, included as Annex A of Procedural Order No. 2, regulating the access of the Respondent’s external counsel and independent experts to the information classified as "highly confidential".
29.
On December 9, 2014, the Respondent informed that it had hired Dechert (Paris) LLP as its external counsel.
30.
On January 14, 2015, the Tribunal issued, by a majority vote, Procedural Order No. 3, that modified in its entirety the Protective Order attached to Procedural Order No. 2, replacing it with the Protective Order enclosed in Annex A of Procedural Order No. 3 (the "Protective Order").
31.
On January 26, 2015, the Tribunal issued Procedural Order No. 4 ordering the Claimant to submit to the Respondent some of the documents that the latter had requested. These documents were added to the record as annexes C-95 to C-100, by letter dated January 28, 2015.
32.
On February 17, 2015, the Tribunal issued Procedural Order No. 5, by means of which the Respondent was granted an extension of the deadline to submit its Counter-Memorial until March 31, 2015.
33.
On March 31, 2015, the Respondent submitted its Memorial of Objections to Jurisdiction and Admissibility and Counter-Memorial on the Merits ("Counter-Memorial"), along with the witness statements of Félix Gonzales Bernal ("Gob. Gonzales’ First Witness Statement"), the expert report of Liborio Uño Acebo ("Prof. Uño Report"), Kadri Dagdelen ("First Dagdelen Report", with its annexes DAG-0 to DAG-18) and The Brattle Group, Inc. ("Brattle", with its "First Brattle Report", with its annexes BR-01 to BR-73), annexes R-9 to R-146 and legal authorities RLA-1 to RLA-175.
34.
On April 14, 2015, the Tribunal informed the Parties of the new dates on the procedural calendar resulting from the change in the date of the Counter-Memorial’s submission.
35.
On April 21, 2015, the Tribunal issued Procedural Order No. 6, deciding that there were no circumstances at that time that could justify a further change in the procedural calendar, without prejudice to the Tribunal’s ability to amend it later in the proceedings if the circumstances so required.
36.
On June 19, 2015, the Tribunal confirmed the changes in the Procedural Calendar agreed by the Parties.
37.
On July 7, 2015, the Parties submitted their respective document production requests to the Tribunal for a decision. On July 21, 2015, the Tribunal issued Procedural Order No. 7, on Document Production, where it decided the pending requests in the Redfern Schedules of the Claimant (the "RDT") and the Respondent (the "RDD"). The Tribunal requested the Claimant to clarify certain details in relation to category 18 of the RDD and postponed the decision on the documents in this category until it had received such clarifications and the Respondent’s comments on these.
38.
By Procedural Order No. 8, dated August 26, 2015, the Tribunal: (i) classified as "highly confidential" one of the documents in category 18 of the RDD; (ii) confirmed that one of category 18’s documents already belonged to Protected Information; (iii) rejected the request to classify as "highly confidential" the rest of the documents in category 18; and, (iv) ordered the Claimant to produce the information in category 18 that had not yet been produced. In regard to Bolivia’s request concerning access to Protected Information, the Tribunal: (i) confirmed that the Respondent’s experts could take notes of the Protected Information as they considered necessary in order to produce their expert reports: (ii) rejected the rest of the Respondent’s requests; (iii) reiterated that, in case there were problems with access or differences arising between the Parties when receiving the Protected Information, these should be brought to the Tribunal curing the course of such review and not afterwards;3 and (iv) invited the Parties to decide on the venue for the Data Room.
39.
On October 2 2015, the Tribunal issued Procedural Order No. 9 confirming all the points of Procedural Order No. 8. The Tribunal confirmed that certain documents requested were already included among the Protected Information but only insofar as they constituted summaries of reports expressly included in Annex A of the Protective Order.
40.
On October 8, 2015, the Respondent submitted its request for Cautio Judicatum Solvi and Disclosure of Information, along with the annexes R-147 to R-154 and legal authorities RLA-176 to RLA-184. Pursuant to the Claimant’s request, the deadline to reply to the Respondent’s request was set for December 14, 2015.
41.
On November 30, 2015, the Claimant submitted its Reply to Respondent’s Counter-Memorial on the Merits and Response to Respondent’s Objections to Jurisdiction and Admissibility ("Claimant’s Reply Memorial"), along with the witness statement of David B. Dreisinger ("Dreisinger’s Witness Statement") and the further witness statements of Santiago Angulo ("Angulo’s Second Witness Statement"), Xavier Gonzales Yutronic ("Gonzales Yutronic’s Second Witness Statement"), Felipe Malbran ("Malbran’s Second Witness Statement") and W. J. Mallory ("Mallory’s Second Witness Statement"), the expert reports of Barry Cooper ("Cooper Report"), FTI ("Second FTI Report", with its annexes con FTI-56 to FTI-71) and RPA ("Second RPA Report", with its annexes RPA-01 to RPA-15 and Other Sources), the annexes C-101 to C-296 and the legal authorities CLA-14 (updated) and CLA-095 to CLA-163.
42.
On December 14, 2015, the Claimant submitted its Opposition to the Respondent’s Request for Cautio Judicatum Solvi and Disclosure of Information, along with its annexes C-297 to C-299 and the legal authorities CLA-164 to CLA-178.
43.
On January 11, 2016, the Tribunal issued Procedural Order No. 10: (i) rejecting Bolivia’s request for cautio judicatum solvi ; (ii) ordering the Claimant to provide to the Tribunal the names of the third parties that have provided financing to the Claimant in these arbitration proceedings; (iii) rejecting Bolivia’s request to add to the record the Claimant’s financing agreement between it and its third party funder.
44.
By letter dated January 19, 2016, the Claimant informed the Tribunal the identity of the third financer, stating that such information is confidential.
45.
By Procedural Order No. 11, dated January 28, 2016, the Tribunal, based on the requests of the Parties, granted Bolivia an extension until March 21, 2016 for the submission of its reply and ordered the Claimant to forward Bolivia a typewritten transcript of the notes requested by the Respondent.
46.
By Procedural Order No. 12, dated March 8, 2016, the Tribunal, inter alia, partially rejected the Respondent’s request for the Claimant to produce certain documents and confirm one category of information, as it considered the request untimely under Procedural Order No. 1.
47.
On March 16, 2016, the Respondent submitted to the Tribunal a Protection Request, requesting safety measures for a witness that had asked for protection for fear of retaliation as a result of his or her witness statement ("Witness X"), which was opposed by the Claimant by letter dated March 17, 2016. By Procedural Order No. 13, dated March 21, 2016, the Tribunal requested the Respondent to submit by the date for the submission of its Rejoinder, a complete unredacted version of Witness X’s witness statement solely to the Tribunal, and postponed its decision regarding the safety measure for Witness X, clarifying at the same that that this should not to be understood as an admission or acceptance of Witness X’s witness statement or of its contents.
48.
On March 21, 2016, the Respondent submitted its Rejoinder on the Merits and Reply to the Objections to Jurisdiction and Admissibility ("Respondent’s Rejoinder"), along with the witness statements of Félix César Navarro Miranda ("Minister Navarro’s Witness statement"), Andrés Chajmi ("Chajmi’s Witness statement"), RWS-5, RWS-6 and Witness X ("Witness X’s Witness statement") and the additional witness statement of witness Félix Gonzales Bernal ("Gob. Gonzales’ second Witness statement"), the additional expert reports of Kadri Dagdelen ("second Dagdelen Report", with its annexes DAG-19 to DAG-23) and Brattle ("second Brattle Report", with its annexes BR-74 to BR-122), and the expert report of Patrick R. Taylor ("Taylor Report", with its annexes TAY-0 to TAY-10), annexes R-155 to R-295 and legal authorities RLA-185 to RLA-280. In accordance with the Tribunal’s instructions, Bolivia submitted unredacted versions of Witness X’s witness statement only to the PCA and the Tribunal.
49.
By letter dated March 23, 2016, the Claimant objected the admissibility of four witness statements submitted by the Respondent with its Rejoinder and requested a 45-day extension to submit its Rejoinder to the Respondent’s Objections to Jurisdiction and Admissibility.
50.
By Procedural Order No. 14, dated April 1, 2016, the Tribunal approved the protection of Witness X’s identity and ordered the execution of a Protective Order (included as Annex A to the Procedural Order) before the Claimant, its agents, witnesses and experts could be provided with Witness X’s identity and witness statement.
51.
By Procedural Order No. 15, dated April 9, 2016, the Tribunal admitted into the record two of the four witness statements objected to by the Claimant (Minister Navarro’s Witness Statement and Chajmi’s Witness Statement) and excluded the other two (RWS-5 y RWS-6), and granted the Claimant an extension until May 2, 2016 to submit its Rejoinder to Respondent’s Objections.
52.
On April 22, 2016, by Procedural Order No. 16, the Tribunal rejected the Respondent’s request to reconsider the decision in Procedural Order No. 15 and confirmed said decision in its entirety.
53.
On April 29, 2016, by Procedural Order No. 17, the Tribunal rejected the Claimant’s request to adopt a specific procedure for the examination of two witnesses whose witness statements the Claimant intended to submit with its Rejoinder on Jurisdiction.
54.
On May 2, 2016, the Claimant submitted its Rejoinder Memorial to Respondent’s Objections to Jurisdiction and Admissibility ("claimant’s Rejoinder Memorial on Jurisdiction"), along the redacted versions of the two aforementioned witness statements (CWS-14 y CWS-15), the further witness statement of Ralph Fitch ("Fitch’s Second Witness Statement"), the third witness statements of W.J. Mallory ("Mallory’s Third Witness Statement") and Xavier Gonzales Yutronic ("Gonzales Yutronic’s Third Witness Statement"), annexes C-300 to C-335 and legal authorities CLA-129 (updated) and CLA-179 to CLA-200.
55.
By Procedural Order No. 18, dated May 6, 2016, the Tribunal rejected the Claimant’s request to adopt another special procedure to examine the two witnesses mentioned in Procedural Order No. 17.
56.
By Procedural Order No. 19, dated May 17, 2016, the Tribunal excluded from the record the two witness statements under consideration (CWS-14 and CWS-15) and authorized the Secretary to the Tribunal to destroy the unredacted versions which had been submitted.
57.
By letters dated May 26, 2016, the Parties communicated to the PCA and the Tribunal the list of witnesses and experts of their respective counterparties that each intended to summon to the Hearing. The PCA conveyed the lists of each Party to the other on May 27, 2016.
58.
On June 1, 2016, the Tribunal issued Procedural Order No. 20, which excluded from the record the documents the Claimant had submitted in its Rejoinder on Jurisdiction and whose exclusion the Claimant had consented to, rejecting at the same time the Respondent’s request to strike certain sections of the Rejoinder and other documents submitted with it.
59.
On June 6, 2016, the Parties, the Tribunal and the PCA held a conference call to discuss the organization of the Hearing, which the Parties had already been able to discuss among themselves and agree in part. The following individuals participated in the conference call: (i) on behalf of the Claimant, Henry G. Burnett and Cedric Soule, both from King & Spalding, LLP, and (ii) on behalf of the Respondent, Carmiña Llorenti, Pablo Menacho, Marcelo Fernández and María Virginia Martínez, all from the Attorney General’s Office (Procuraduría General del Estado), and Eduardo Silva Romero, José Manuel García Represa and Juan Felipe Merizalde, all from Dechert LLP. By e-mail dated June 7, 2016, the PCA made the audio recording of the conference call available to the Parties on the PCA’s website.
60.
On June 9, 2016, the Tribunal issued Procedural Order No. 21 concerning the Hearing.
61.
On June 30, 2016, the Tribunal issued Procedural Order No. 22 in which it rejected the Claimant’s request to strike certain information from the record but admitted the incorporation into the record of the proposed legal authorities. Additionally, the Tribunal observed that the photographs of the blank pages were already in the record and declared that, if the objection to the authenticity of these pages was maintained, the issue of their inspection would be dealt at the close of the Hearing. The Tribunal partially rejected the admission of certain documents requested by the Respondent, admitting certain new documents into the record.
62.
On June 28, 2016, the Respondent informed the Tribunal that it had received certain documents from the Canadian Government which might be relevant for the present arbitration proceedings. Bolivia had advised at the time of the submission of its Rejoinder that it had requested such documents and it had reserved its right to submit these documents once it received them. By letter dated June 28, 2016, Bolivia reiterated that it reserved its right to request the admission of such documents into the record.
63.
By e-mail dated July 5, 2016, the Claimant requested the Tribunal to order the Respondent to submit some of the documents that had been admitted by the Tribunal in its Procedural Order No. 22 with "R-" exhibit numbering, or, alternatively, to allow the Claimant to submit them, labelled with "C-" exhibit numbering.
64.
By letter dated July 6, 2016, the Tribunal, inter alia, invited the Claimant to submit the aforementioned documents that the Claimant had referred to in its prior e-mail, as exhibits with "C-" exhibit numbers. These documents were labelled as C-335 and C-336.
65.
By letter dated July 8, 2016, the Respondent requested the Tribunal to order the Claimant to produce, under category 11 of the RRDD, the unredacted versions of five of the documents that the Canadian government had produced to the Respondent in redacted form, whose versions had been annexed to said letter.4

C. Hearing

66.
From July 11 to 22, 2016 (excluding July 16 and 17, 2016) the Parties and the Tribunal held the hearing on jurisdiction and merits of the arbitration (the "Hearing"), in the World Bank facilities in Washington D.C., U.S.A.
67.
The following persons were present at the Hearing:

Arbitral Tribunal

Dr. Eduardo Zuleta Jaramillo, Presiding Arbitrator

Prof. Francisco Orrego Vicuña

Mr. Osvaldo César Guglielmino

claimant

Mr. Ralph Fitch, South American Silver Ltd.

Mr. Henry G. Burnett, King & Spalding, LLP

Mr. Craig Miles, King & Spalding, LLP

Mr. Fernando Rodríguez Cortina, King & Spalding, LLP

Mr. Cedric Soule, King & Spalding, LLP

Ms. Eldy Roche, King & Spalding, LLP

Ms. Veronica García, King & Spalding, LLP

Mr. Luis Alonso Navarro, King & Spalding, LLP

Mr. Enrique Barrios, Guevara & Gutiérrez

Mr. Rodrigo Rivera, Guevara & Gutiérrez

Mr. Richard J. Lambert, RPA Inc.

Ms. Katharine Masun, RPA Inc.

Ms. Brenna Scholey, RPA Inc.

Mr. Alexander Lee, FTI Consulting

Respondent

Mr. Héctor E. Arce Zaconeta, Procuraduría General del Estado

Ms. Carmiña Llorenti Barrientos, Procuraduría General del Estado

Mr. Pablo Menacho Diederich, Procuraduría General del Estado

Ms. María Virginia Martínez Mansilla, Procuraduría General del Estado

Ms. Mariana Daniela Arce Peñaloza, Procuraduría General del Estado

Mr. Karel Chávez Uriona, Ministerio de Minería y Metalurgia

Mr. Alejandro Balboa La Vieja, Bolivia’s Embassy in Washington D.C.

Mr. Eduardo Silva Romero, Dechert LLP

Mr. José Manuel García Represa, Dechert LLP

Mr. Juan Felipe Merizalde, Dechert LLP

Mr. Luis Miguel Velarde Saffer, Dechert LLP

Ms. Catalina Echeverri Gallego, Dechert LLP

Mr. Javier Echeverri Díaz, Dechert LLP

Ms. Ruxandra Esanu, Dechert LLP

Mr. Francisco Paredes, Dechert LLP

Ms. Madeline Tutman, Dechert LLP

Mr. Nathaniel Morales, Dechert LLP

Mr. Thomas Matthews, Gustavson & Associates

Mr. Alexis Maniatis, The Brattle Group, Inc.

secretary: Permanent Court of Arbitration

Ms. Hyun Jung Lee, Legal Counsel

Ms. Julia Solana Álvarez, Assistant Legal Counsel

interpreter

Ms. Silvia Colla

Mr. Daniel Giglio

stenographers

Mr. Dante Rinaldi (Spanish)

Mr. Leandro Iezzi (Spanish)

Mr. Dionisio Rinaldi (Spanish)

Mr. David Kasdan (English)

68.
The following witnesses and experts were examined at the Hearing:

Fact witnesses

Mr. Ralph Fitch

Mr. William James Mallory

Mr. Santiago Angulo

Mr. Xavier Gonzales Yutronic

Mr. Felipe Malbran

Mr. David Dreisinger

Mr. Félix César Navarro Miranda

Mr. Félix Gonzales Bernal

Mr. Andrés Chajmi Rikusqnmanta

Witness X

Experts

Dr. William E. Roscoe, RPA Inc.

Mr. Graham G. Clow, RPA Inc.

Dr. Kadri Dagdelen

Mr. Patrick R. Taylor

Mr. Howard N. Rosen, FTI Consulting

Mr. Chris Milburn, FTI Consulting

Mr. Barry Cooper

Mr. Graham Davis, The Brattle Group, Inc.

Mr. Florin A. Dorobantu, The Brattle Group, Inc.

69.
On the second day of the Hearing, July 12, 2016, the Tribunal ordered the Claimant to exhibit, under category 11 of the RDD, the unredacted versions of the documents communicated by the Canadian government to the Respondent contained in annexes 2 to 6 of the Respondent’s letter dated July 8, 2016 (see para. 65 supra).5 Three of these annexes were partially included in the record, unredacted, labelled as R-299 to R-301.

D.Post-Hearing Proceedings

70.
On August 11, 2016, the Tribunal issued Procedural Order No. 23, rejecting the Claimant’s request to admit into the record a document concerning a valuation based on the stock value.
71.
On September 19, 2016, the Parties informed the Tribunal that they had reached an agreement on revisions of the Hearing transcript and they recalled the agreement of the Parties to cite to transcripts in their original language.
72.
On October 31, 2016, the Parties each submitted their Post-Hearing Briefs.
73.
On November 28, 2016, the Parties each submitted their Costs Submissions.
74.
On December 12, 2016, the Parties each submitted their respective comments on the Costs Submission of their counterpart.
75.
On December 9, 2017, pursuant to a request from the Respondent which was not opposed by the Claimant, the Tribunal admitted into the record the award in Bear Creek Mining Corporation v. Republic of Perú.6

E.Closing of hearings

76.
By letter dated February 16, 2017, the Tribunal declared the hearings closed in this arbitration, pursuant to Article 31(1) of the UNCITRAL Rules.

III FACTUAL BACKGROUND

77.
On May 24, 1988, Bolivia and the United Kingdom signed the Treaty, which entered into force on February 16, 1990.7 In September 1990, Bolivia passed the Investment Law Act No. 1182 (Ley de Inversiones N° 1182);8 On December 9, 1992, the Treaty’s effects were extended to Bermuda.9
78.
In 1997, Bolivia carried out a reform of the legal framework of the mining sector through Law Act No. 1777 (Ley N° 1777), which - according to the Claimant - implemented several reforms to encourage investment in the mining sector.10

The Claimant’s Corporate Structure

79.
SAS was established in October 7, 1994, in Hamilton, Bermuda under the name General Minerals Corporation Limited ("General Minerals").11 According to the Claimant, the purpose of the company - created by a group of geologists, including Mr. Ralph Fitch, witness in this arbitration - was to identify, explore and develop mineral properties around the world, especially in South America.12
80.
On November 7, 2003, Mr. Felipe Malbran, Mr. Fernando Rojas and Mr. Carlos Ferreira incorporated in La Paz, Bolivia, the company Compañía Minera Malku Khota ("CMMK" or the "Company") "for the purpose of exploring, developing, managing and exploiting the Malku Khota Mining Project".13
81.
The shares of CMMK were subsequently transferred on December 12, 2003, to Malku Khota Ltd., on October 15, 2007, to Productora Ltd., and on October 16, 2007, to G.M. Campana Ltd.14

Malku Khota Ltd. was incorporated in Nassau, Bahamas, on October 27, 2003.15 General Minerals (now SAS) owns 100% of its share capital, since October 27, 2003.16

Productora Ltd. was incorporated in Nassau, Bahamas, on October 10, 1994. Its share capital was allotted to General Minerals (now SAS), on December 19, 1995.17

G.M. Campana Ltd. was incorporated in Nassau, Bahamas, on September 8, 1994. Its share capital was allotted to General Minerals (now SAS), on October 10, 1994, December 31, 1994 and December 5, 2003, respectively.18

82.
Thus, SAS is the owner of: (i) 100% of Malku Khota Ltd. and, so, it indirectly owns 96% of CMMK through that company;19 (ii) 100% of Productora Ltd. and, consequently, it indirectly owns 2% of CMMK through it;20 and (iii) 100% of G.M. Campana Ltd. and, so, it indirectly owns 2% of CMMK through G.M. Campana Ltd.21. Consequently, SAS indirectly owns 100% of CMMK.
83.
On September 28, 2006, four executives of General Minerals (now SAS) - Mr. Ralph Fitch, Mr. Felipe Malbran, Mr. William Filtness and Mr. Richard Doran - established South American Silver Corporation ("SASC"), a Canadian company focusing on the development and exploitation of silver mining projects in South America.22 On February 7, 2007, SASC listed its shares on the Toronto Stock Exchange.23
84.
On December 18, 2006, SASC acquired all the issued and outstanding common stock of General Minerals.24 On October 22, 2008, General Minerals changed its name to South American Silver Limited.25
85.
SAs’ organizational chart, submitted by the Claimant, is reflected below:26

Context

86.
SAS has been in Bolivia since 1994.27 According to the Claimant, over the years Bolivia’s government encouraged it to invest in the country and to continue carrying out exploration projects in Bolivia, which had resulted in SAs’ investments in Bolivia for 18 years.28 Before Malku Khota, SAS had been involved in 5 large scale mining projects in Bolivia.29
87.
On July 30, 2003, General Minerals Bolivia - one of the Company’s Bolivian subsidiaries -entered into a Unilateral Promise of Sale for the Daniel and Cobra mining concessions belonging to Patricia Urquiza de Kempff and Francisco Rolando Kempff Mercado, respectively.30 Later, General Minerals Bolivia yielded the Unilateral Promise of Sale to CMMK, who acquired the concessions on March 30, 2007.31
88.
On May 4, 2005, CMMK acquired the Alkasi, Takhuani, Takhaua and Jalsuri mining concessions from Mr. Malbran.32 Later, on September 22, 2006, CMMK acquired the Antacuna and Silluta mining concessions from Silex Bolivia S.A.33 Almost two years later, on April 22, 2008, CMMK acquired the Norma mining concession from Mr. Hugo Murillo Velazco.34 Finally, on April 5, 2007, the Regional Superintendent of Mines Potosí-Chuquisaca (Superintendencia Regional de Minería de Potosí-Chuquisaca) granted the Viento mining concession to CMMK.35
89.
These ten mining concessions (the "Mining Concessions") constituted 219 mining blocks located in over 5,475 hectares and formed almost the whole area of the Malku Khota mining project (the "project").36
90.
Between 2004 and 2005, CMMK conducted its first ground exploration campaign collecting and analyzing data.37 Later, in 2005, CMMK partnered with Silex Bolivia, S.A., a mining services company, to complete a substantial program of ground and underground sampling.38 These activities resulted in the identification of three aim areas: Limosna, Wara Wara and Sucre.39
91.
On October 5, 2006, the former Governor of Potosí, Mario Virreira Iporre, granted CMMK the Dispensation Certificate for Mining Exploration Activities (Certificado de Dispensación para las Actividades de Exploración Minera).40 Since 2005, CMMK has hired the Fundación Medmin ("Medmin"), a Bolivian environmental consultancy firm, to assist in the development of an environmental program and to secure an environmental license.41 Between 2006 and 2012, Medmin carried out "over eight environmental and socioeconomic studies, including compliance reports filed with the environmental department of the Government of Potosí".42
92.
From May 2007 until December 2010, CMMK has conducted an underground exploration program.43 On the basis of resource estimates as of November 2008, external mining consultants Pincock Allen & Holt completed a Preliminary Economic Assessment for the Malku Khota Project in March 2009 (the "PEA 2009").44
93.
On March 31, 2011, CMMK published the update results of the PEA by GeoVector and on May 10, 2011, it issued the corresponding completed technical report (the "PEA 2011").45 The PEA 2011 explained the additional recollected data and the company’s progress in the creation of a hydrometallurgical process to recover the different precious and other metals contained in the Malku Khota sandstone.46
94.
In order to extract these diverse metals from the sandstone mined in Malku Khota, the Claimant and its parent - SASC - invented and patented an exclusive hydrometallurgical process.47 For this purpose, SASC hired David Dreisinger, professor and Chair of Metallurgy at the University of British Columbia, as Vice President of Metallurgy.48
95.
On April 26, 2011, the Government issued Resolution DGAJ-0073/2001 declaring the area surrounding the Claimant’s Mining Concessions as an "Immobilization Zone - Area of Interest of COMIBOL", prohibiting the acquisition or concession of the zone to any other person.49
96.
On July 23, 2011, the Company met with former Governor of Potosí, Félix Gonzales, to organize a meeting with the local communities of the Project’s area.50 According to the Claimant, at the meeting the participation of the Government in the Project was considered for the first time, which was later reiterated in subsequent meetings.51
97.
According to the Claimant, on May 9, 2012, "an individual refusing to give his name, but claiming to be employed at the Bolivian Attorney General’s Office" delivered an internal memorandum from the Environmental Administration Unit Director (Directora de la Unidad de Gestión Ambiental) of Potosí’s Government to the Secretary of the Mother Earth Department of the Government of Potosí (Secretario Departamento de la Madre Tierra del Gobierno de Potosí), dated May 7, 2012, at the CMMK’s offices in La Paz.52 According to the Claimant, this memorandum stated that the Departmental Authority intended to revoke the environmental license on the basis of false arguments.53
98.
On May 15, 2012, Mr. Mallory met with the Vice-Minister of Mining Policy (Viceministro de Política Minera) who, according to Mr. Mallory, had requested on several occasions that the Company submit to him highly confidential information related to CMMK’s drilling and exploration works.54
99.
According to the Claimant, on May 18, 2012, a congressman called CMMK’s offices to advise that congressmen of President Morales’ party had met on that day and had decided to support the opposition in nationalizing the Project and expelling the Claimant from Bolivia.55
100.
According to Mr. Angulo’s witness statement, Governor Gonzales organized a meeting between the community members that supported CMMK in or around May 23, 2012, to which CMMK was not invited, but which he nevertheless attended as a community member.56 In that meeting, the Governor would have expressed that his government would never support a foreign company ("expu [esto] a los presentes que su gobierno nunca apoyaría a una empresa extranjera").57
101.
On May 28, 2012, a meeting took place between the Government’s officials and the communities, in which the Company was not present, but which Mr. Angulo nevertheless attended as community member.58 The meeting minutes record that CMMK would continue with its exploration activities and would resume the social programs in the communities.59 However, according to Mr. Angulo, the Minister of Mining told the attending community members that the Vice-President of Bolivia had suggested to stop supporting the Project and request the Government’s support in that respect.60
102.
On June 12, 2012, the authorities that created the Coordinadora Territorial Originaria Autónoma de los Seis Ayllus ("CoToA-6A") met with Mr. Saúl Reque, Mr. Guillermo Funes and Mr. Xavier Gonzales to convey the demands of collaboration and assistance to the organization and of aid at ensuring the security of the area.61
103.
On June 19, 2012, Xavier Gonzales met with the Vice-Minister of Mining (Viceministro de Minería), the Legal Director at the Ministry of Mining (Director Legal Del Ministerio de Minería) and the General Director of Environment at the Ministry of Mining (Director General de Medioambiente del Ministerio de Minería). According to Mr. Gonzales, at the meeting, they offered two options to overcome the opposition: either form a partnership with the Government or conduct a prior inquiry to the different parties interested ("[ellos] ofrecieron dos opciones para sobreponerse a [la] oposición: ya sea entrar en una asociación (Contrato de Asociación) con el Gobierno, o realizar una consulta previa a las diferentes partes interesadas").62

The Social Dimension of the Project

104.
The area where the Mining Concessions are located is principally inhabited by indigenous people, Aymara and Quechua, which are organized in communities, which in turn are grouped in ayllus.63 This organization has an established form of leadership and decision-making policy, which is mainly through consensus.64
105.
Since December 2003, the Company has hired workers coming from the Malku Khota, Ovejería and Kalachaca communities for the exploration phase of the Project.65
106.
SAS claims that since 2007 it has established a public relations programme with the community.66 Since then, the Company would have held several meetings with the communities, including those of Kalachaca and Malku Khota, to analyse the Project and its implications.67
107.
Between 2007 and 2011, the requests of the communities were written down in the "Actas de Compromiso", which later were registered into the "Actas de Cumplimiento" o "Actas de Entrega" when fulfilled.68 According to these minutes signed by the communities, SAs’ social projects would have included roadway improvements;69 renovation, construction and, building and transport materials70; assistance to fishing71 and scholarships.72
108.
In 2008, CMMK hired Cumbre del Sajama S.A., a Bolivian firm specialized in consulting services in the mining industry to support the Company’s efforts in its public relations programme.73 Part of the support entailed conducting workshops to "educate the communities on the social, mining, and environmental aspects of mining and the Malku Khota Project".74 The Claimant notes that 35 workshops were carried out with Cumbre del Sajama S.A. between July 2008 and September 2011.75 These workshops included (i) Introduction to mining;76 (ii) Mining development and community participation in the mine;77 (iii) Environmental assessment of the Project and how to protect the environment;78 and (iv) Identifying the communities’ needs and potential projects to develop.79 The Claimant indicates that CMMK also organized other additional workshops.80
109.
At the beginning of 2009, SASC hired Business for Social Responsibility ("BsR"), in order to evaluate its public relations programme and to support the Company at implementing programmes in the communities in the area of influence of the Project.81
110.
On May 16, 2009, in a meeting between Mr. Angulo and the Kalachaca community, the community members would have proposed the creation of a regional commission to represent the different ayllus in the area of influence to communicate with CMMK as one entity. The Claimant indicates that this proposal was a forerunner to the creation of COTOA-6A.82
111.
In May 2009, BSR issued a report evaluating the risks and social opportunities of the Project.83 The report identified some shortcomings in CMMK’s programmes and proposed guidelines to remedy them.84

Events in 2010

112.
In 2010, with the expansion of the exploration’s and drilling’s programmes, CMMK hired local members to work on site performing drilling activities.85
113.
On February 6, 2010, a trade union to which some community members belonged to, reported environmental pollution in the communities’ sacred places caused by CMMK’s activities.86
114.
On December 11, 2010, the Ayllus Sullka Jilatikani, Takahuani, Urinsaya y Samka approved a resolution vote indicating that CMMK should cease its mining activities, because, among other reasons, it had committed abuse of authority, contaminated, disrespected the indigenous authorities, deceived, threatened community members and it was responsible for the rape of women from the community.87
115.
On December 19, 2010, a resolution of the Town Hall (Cabildo) of the Ayllus Sullka Jilatikani, Takahuani, Urinsaya and Samka was passed, which stated, inter alia, that CMMK’s presence was illegal and it had violated the collective rights of the Indigenous Communities, that it would have had engaged in abuses, rapes and threats, and created division between the communities.88
116.
On December 21, 2010, CMMK requested by letter, the Government of Potosí’s intervention in regards to the resolutions.89 The Claimant maintains that Governor Gonzales did not answer to the letter.
117.
On December 22, 2010, CMMK’s activities were suspended temporarily.90
118.
On December 27, 2010, the Ayllu Jatun Urinsaya declared that ayllu authorities had been forced to sign the resolutions and also asked the regional and municipal Governments to take note of the situation.91 A similar communication was sent on January 7, 2011 from Ayllu Qullana.92

Events in 2011

119.
Since the beginning of 2011 and by CMMK’s request, officials from the Government of Potosí visited the Project’s zone to assess the seriousness of the conflict, as well as, possible alternatives for a solution.93
120.
On January 11, 2011, representatives of the Government of Potosí participated in a meeting called by the Federación de Ayllus Originarios Indígenas del Norte de Potosí ("FAoi-NP") and Mr. Fitch informed SASC’s directors that the Government continued to support the Company in its efforts to resolve the problem.94
121.
On the same day, the FAOI-NP passed a resolution stating CMMK’s presence was illegal and it had violated the community rights of the Indigenous Communities and it also had committed several other abuses.95
122.
On January 26, 2011, CMMK requested the Mayor and the councilmen of Sacaca to: (a) mediate in the controversy arising with the Ayllus Sullka-Jilatikani and Tacahuani in order to find a prompt solution, since they had the support of Ayllus Urinsaya and Samca in the area; (b) to enforce the State’s presence and the legal order that would guarantee the exploration activities of the owners of the mining concessions; and (c) allow CMMK to restart and continue with its mining activities in the mining concessions area, restoring its peaceful possession and the full exercise of its right to work.96 Additionally, it wrote to the Ministries of Presidency, and Mining and Metallurgy.
123.
On January 31, 2011, a similar communication was sent to the Minister of Mining and Metallurgy and to the Vice-Minister of Social Movements and Civil Society of the Ministry of Mining.97
124.
By letter dated February 10, 2011, the Vice-Minister of Social Movements and Civil Society provided CMMK with a legal opinion that it was not within the Vice-Minister’s competence to grant CMMK’s request ("no es competencia del [Viceministro] , dar curso favorable al petitorio efectuado por el representante de [CMMK]").98
125.
On February 15, 2011, the Ayllu Sullka Jilakitani issued a resolution reiterating that CMMK should leave definitively, as it had caused violence, political divisions in the organization, abuses and rapes to women (whose name were included), it also did not consult with the ayllus and it was destroying "Mother Earth".99
126.
Regarding the women who would have been victims of sexual violence, SAS claimed that it was "only aware of incidents involving four of the eight women listed in the February 11, 2011 resolution" and that, based on the information that was given to CMMK, these four cases were consensual relationships, with employees of the Bolivian contractors and with an employee of an electricity company.100 According to the Claimant, in one of the cases related to a CMMK’s contractor’s employees, they were having an extramarital affair which resulted in the woman getting pregnant.101 In that occasion, the Claimant affirms that it reached out to the contractor’s manager in order to address the situation. It claims that the employee was fired and that a written compensation agreement resolved the situation.102
127.
On February 28, 2011, the FAOI-NP passed a resolution in similar terms to the resolution of January 11, 2011.103
128.
In regards to CMMK’s communication dated January 31, 2011, on March 16, 2011, the Ministry of Mining and Metallurgy sent CMMK a report written by its Public Consultation and Citizen Participation Unit, in relation to the resolutions of FAOI-NP and of the Consejo Nacional de Ayllus y Markas del Qullasuyu ("CONAMAQ") dated December 19, 2010 and January 11, 2011.104
129.
As of April 2011, Jim Mallory became SASC’s Operations and Social Responsibility Vice-President105 and he increased the Project’s area of influence from 2.5 to 15 km to include all six ayllus communities.106
130.
According to the Claimant, "Jim Mallory presented the Company’s community relations program in May 2011 to the Communities and to the Director of Public Consultation of the Ministry of Mining and Metallurgy, Oscar Iturri".107
131.
On May 1, 2011, the Ayllu Sullka Jilatikani wrote to President Morales claiming that it had decided to not allow any companies, to perform any mining activities in their ancestral territory whatever the property title.108
132.
On May 10, 2011, officials from the Government of Potosí visited the new area and met with the community members, who stated that they would not admit CMMK as it was contaminating.109
133.
[REDACTED].110
134.
During 2011, CMMK negotiated Reciprocal Cooperation Agreements ("RCA"), signing the first one with Ayllu Jatun Urinsaya on July 3, 2011111 and other four before September of the same year.112 In September 2011, the Company hired land developers as full-time employees in each one of the six ayllus.113 In the RCA, the five ayllus expressed their support for the resumption of the Project and CMMK made commitments in human resources training, shift work, support in basic infrastructure projects, health and livestock, environmental training and support in education.114
135.
On July 23, 2011, a meeting between CMMK, the Indigenous Communities and former Governor Gonzales took place in Toro Toro.115 The minutes of the meeting reflect two proposals: (i) the establishment of an interinstitutional commission with the affected Indigenous Communities, the local, regional and national government and CMMK; and (ii) to form a corporation with Bolivia’s participation.116 According to Governor Gonzales, the second proposal was the only one that had a partial acceptance by the Kalachaca and Malku Khota communities ("contó con una aceptación parcial de las Comunidades de Calchaca [sic] y Mallku Khota"),117 the main objectors. At the meeting, it was decided to hold a second meeting.118
136.
On August 31, 2011, the second socialization meeting took place in Toro Toro.119 The Governor was represented by the Departamental Secretaries of Mining and Metallurgy, who prepared a report of the meeting.120 The Government of Potosí proposed meetings with smaller delegations in order to reconcile.121
137.
On September 25, 2011, a council meeting (cabildo) convened by FAOI-NP took place.122 The Mining and Development Director for the Government of Potosí drafted a report of the meeting in which he included the complaints of the Indigenous Communities before the FAOI-NP and the CONAMAQ in relation to CMMK’s actions and its relation with the Indigenous Communities.123
138.
At the beginning of October 2011, COTOA-6A appears as a new indigenous organization favorable to the Project that tries to make contact with the Government.124 The Parties dispute the legitimacy of the organization.125
139.
On November 17, 2011, another council meeting (cabildo) took place.126 The Parties differ on the representativeness of the council meeting and thus do not ascribe the same importance to the lack of participation of Malku Khota and Kalachaca in the council meeting and of opposition to the Project.127 This council meeting was presided by Vice-Minister for the Coordination of Social Movements and Civil Society, who requested the former Governor to coordinate the meeting with the leaders of the Malku Khota and Kalachaca communities.128 The minutes were notarized.129
140.
On November 24, 2011, a meeting took place between COTOA-6A, the Vice-Minister for the Coordination of Social Movements and Civil Society and the Vice-Minister of Mining Policy. At the meeting, COTOA-6A expressed its support to the resumption of the Project and the Vice-Minister proposed that the Minister of Mining and the Government would call the two opposing communities in order to achieve conciliation and consensus ("con el fin de conciliación y consenso").130 The Claimant points out that in the minutes of the meeting it says that in FAOI-NP’s opinion the inquiry should only be made with the six ayllus ("en el punto de la opinión de la FAOINP con respecto a la consulta solo se debe realizar a los seis Ayllus la dicha consulta").131
141.
On December 13, 2011, in a Government Council resolution, CONAMAQ reported and demanded that the Company cease its divisive activities ("deponer las acciones divisionistas a la empresa Mallku Qota").132
142.
On December 15, 2011, a briefing took place in La Paz convened by the Vice-Minister of Productive Development, and chaired by the Vice-Minister of Mining Policy, the Director of Public Inquiry and the Director of Environment of the Minister of Mining and Metallurgy.133 Although there were representatives of the Indigenous Communities, representatives of the Malku Khota and Kalachaca communities did not attend.134

Events in 2012

143.
At the beginning of January 2012, CMMK’s officials held a meeting in La Paz. According to Witness X’s witness statement, the Respondent contends that in that meeting the existence of two plans was exposed: sell the exploration information to another mining company ('Plan A') or provoke the expropriation of the investment ('Plan B').135 The Claimant denies the existence of Plan B, or even the discussion of such plans but rather asserts that the meeting concerned practical aspects of the Project.136
144.
During the first half of 2012, the Indigenous Communities participated in several meetings (for example, on February 14 and 16, 2012, March 28, 2012 and May 28, 2012);137 the Parties do not agree on the description of the meetings.138 While the Claimant states that these meetings "confirm the Government’s strategy to seize control of the Malku Khota Project",139 the Respondent contends that they "show that, in spite of the increasing tensions caused by CMMK and COTOA-6A’s actions, the Departmental Government continued having the intention of creating scenarios for dialogue".140
145.
On February 1, 2012, the authorities of the Ayllu Sullka Jilatikani requested CONAMAQ and FAOI-NP to intervene to decide the existence of false leaders ("falsos líderes [sic]") regarding the CMMK.141
146.
On February 22, 2012, the Company requested help from the Government, reporting illegal mining in the area of the Project.142 According to the Claimant, the Government did not provide any significant support.143
147.
On April 1, 2012, the community members supporting CMMK abducted Benedicto Gabriel, another community member who was trying to call for a meeting in Malku Khota in order to support the creation of a cooperative.144 On the same day, members of the Malku Khota community took Saúl Reque, Coordinator of Community Relations, hostage.145 Mr. Reque was released in the morning of April 2.146 Benedicto Gabriel was released on April 3.147
148.
On April 11, 2012, Mr. Xavier Gonzales, General Manager of CMMK, brought a criminal action against the persons that Mr. Reque identified as his captors, on behalf and at the request of Mr. Reque.148 The case was closed on February 28, 2014.149
149.
On April 18, 2012, a meeting took place between the COTOA-6A and the Director of the Public Consultation and Citizen Participation Unit of the Ministry of Mining and Metallurgy. In the minutes of the meeting, it was recorded that the aim of the meeting was to discuss issues related to the process of public consultation.150
150.
In the early hours of May 5, 2012, community members and the police violently clashed in the area of the Project; two policemen were detained.151 On the same day, officials of CMMK met the Ministry of Mining and Metallurgy. At the meeting, Mr. Gonzales Yutronic rejected the proposal of giving the exploration a three-month pause in light of the circumstances.152 According to the Claimant, the tensions intensified on May 6, 2012, when Malku Khota community members attacked a drilling rig hired by the Company.153
151.
On May 9, 2012, an agreement between the Government of Potosí and the community members was signed ("Agreement with the Government"), which facilitated the release of the policemen by the community members and called for a meeting in Acasio on May 18, 2012.154
152.
On May 18, 2012, when the meeting was to be held in Acasio, violent clashes took place.155 The Respondent blames CMMK for the clashes and alleges that the Claimant financially supported the transport of a great number of community members affiliated to COTOA-6A.156 The Claimant contends that those who incited the violence were Malku Khota community members, including illegal mine workers, as well as outsiders, while CMMK had always acted peacefully.157
153.
On May 21, 2012, the Kuraka Cancio Rojas was arrested for allegedly participating in the clashes of May 18.158 At the time of his arrest, the Kuraka would have been detained by COTOA-6A community members in La Paz.159
154.
On May 25, 2012, CONAMAQ called for a march by community members that reached La Paz on June 7, where forceful riots occurred.160
155.
On May 28, 2012, a meeting was called by the Government of Potosí and the Ministry of Mining and Metallurgy in which the communities demonstrated strong great support for the Project. The communities who opposed the Project did not attend the meeting.
156.
On June 8, 2012, what the Claimant calls a "gran cabildo histórico" took place, in which 800 families of 42 Indigenous Communities would have participated.161
157.
On June 12, 2012, the objectors to the Project blocked the access road to the Project area and declared the place a "red zone" ("zona roja"), forbidding the access to CMMK employees and to those supporting the Project in the area.162
158.
On June 13, 2012, the case against Kuraka Cancio Rojas was dismissed for insufficient evidence ("en razón a que a la fecha del pronunciamiento del presente requerimiento las pruebas son insuficientes para fundamentar una acusación").163
159.
On June 27, 2012, the Ministry of Mining and Metallurgy called for a meeting in Cochabamba for July 2, with the objective of finding a final solution to the conflict between the community members who agree and disagree on the Project developed by the Malku Khota Mining Company ("encontrar definitivamente una solución al conflicto suscitado entre comunarios que están de acuerdo y desacuerdo con la actividad minera que desarrolla actualmente la Compañía Minera Malku Khota").164
160.
On June 28, 2012, Mr. Agustín Cáceres and Mr. Fernando Fernández, both CMMK officials, were abducted by the Indigenous Communities.165 The Respondent contends that at the time of the event they were trying to infiltrate the Indigenous Communities’ meetings,166 while the Claimant denies those allegations and explains that they were in the area of the Project gathering information and taking pictures of the environmental contamination caused by the illegal mining ("recolecta [ndo] información y toma [ndo] fotografías de la contaminación ambiental provocada por las actividades de minería ilegal").167
161.
On July 2, 2012, the objectors to the Project looted one of CMMK’s drillings camps.168 On the same day, the Ministry of Mining and Metallurgy had called for a meeting in which the opposing community members refused to participate at the last minute.169
162.
On July 5 and 6, 2012 the police intervened in the Malku Khota area. This intervention triggered violent clashes in which Mr. José Mamani, a Malku Khota community member, died and 13 persons were injured.170 In addition, three policemen were abducted and physically assaulted by the protestors.171 The death of said community member led to the intervention of an interinstitutional commission of the Government which had been established in Chiro Qh'asa since July 4.172
163.
On July 7, 2012, the interinstitutional commission of the Government established in Chiro Qh'asa and the Indigenous Communities came to an agreement to pacify the area. On July 8, 2012, the corresponding agreement (the "Memorandum of Understanding") was signed, which reflected an agreement to annul and revert the Mining Concessions.173

The Reversion

164.
The Memorandum of Understanding was made public on July 8, 2012.174
165.
The Memorandum of Understanding was endorsed on July 10, 2012, with the following points:

"A legal-technical committee will be constituted to draft the Supreme Decree for the reversal of all mining concessions registered in the name of Compañía Minera Malku Khota S.A. to the State; said committee will be made up of representatives of both sectors, representatives of the National Government, and representatives of the Government of Potosí.

All mineral exploration, prospecting and all forms of exploitation activities in this mineral field shall be suspended.

The State shall take over the entire production chain at the Mallku Qhota Mining Center.

Peaceful cohabitation, social peace, free transit between all communities, visitors and residents in the region are hereby guaranteed. Moreover, illegitimately occupied dwellings shall be returned to their lawful owners.

The Office of the Prosecutor shall, considering its specific duties, perform all relevant investigations on the events that took place in this region.

The prompt drafting and enactment of the Mining Law shall be promoted".175

166.
On July 14, 2012, Mr. Malbran met with COMIBOL’s President, who would have expressed his surprise at the decision of the Bolivian President, would have suggested that it may be mere threats and would have reiterated the possibility of establishing an association between the Company, COMIBOL and the Indigenous Communities.176
167.
On July 21, 2012, Mr. Malbran and Mr. Gonzales requested a meeting with Minister Virreira on behalf of CMMK allegedly in an attempt to prevent the nationalization ("en un intento por impedir la nacionalización").177
168.
On July 31, 2012, Mr. Fitch and Mr. Johnson wrote a letter from SAS to the Vice-President of Bolivia requesting a meeting to discuss potential solutions to the situation ("una reunión para discutir sobre una potencial resolución de la situación").178
169.
On August 1, 2012, Bolivia issued the Supreme Decree No. 1308 (the "Reversal Decree" or the "Reversion"), which the Claimant characterizes as an "expropriation".179 The Reversal Decree provides:

"Article 1. Effective upon publication of this Presidential Decree, the following Special Transitory mining Authorizations shall revert back to the original ownership of the State : [(b) "Jalsuri," "Alkasi," "Cobra," "Viento," "Takhuani," "Takhaua," "Daniel," "Antacuna," "Norma," And "Silluta,"] [...]

Article 2. I. Corporación Minera de Bolivia - COMIBOL shall take over the management and mining development of the [Mining Concessions] […].

Article.3.-I. […] COMIBOL shall perform the prospecting and exploration activities in coordination with SERGEOTECMIN [National Technical Mining and Geology Service] […]

Article 4.-I. […] COMIBOL shall hire the services of an independent firm to carry out a valuation of the investments made by [CMMK] […] , within a period not to exceed one hundred and twenty (120) business days.

II. Based on the findings of such valuation, COMIBOL shall define the amount and conditions under which the Government of Bolivia shall recognize the investments made by [CMMK] […]".180

170.
On August 8, 2012, the press reported statements from COMIBOL’s President, declaring his intention to partner with a foreign mining company to develop the mine in Malku Khota.181
171.
By letter dated August 24, 2012, which was received in the offices of CMMK on August 27, Mr. Córdova invited SAs’ representatives "to a meeting on Tuesday, August 28, 2012 at 9:00 a.m. in order for [CMMK] to hand-over of all relevant documents related to the development of the activities of [Malku Khota’s] mining deposit."182
172.
By letter dated September 4, 2012, SAS apologized for missing the meeting, stating that it was "not practicable for [them] due to the short time frame proposed and the fact that SAS personnel are not resident in La Paz".183 In addition, it requested COMIBOL to organize a meeting on a date in the near future that could be mutually acceptable for both parties in order to discuss the proposal.184
173.
The Claimant contends that COMIBOL never replied to this communication.185
174.
On October 22, 2012, SAS submitted its Notice of Dispute.
175.
On December 9, 2012, COMIBOL published in the press an invitation to submit expressions of interest in order to hire an independent valuation company.186 Between December 10 and 12, COMIBOL sent special invitations to nine companies for these to express interest.187 Only one company responded to the invitation.188
176.
On February 14, 2013, the Technical and Operations Management of COMIBOL received a new version of the Terms of Reference.189 After producing an inventory of the assets that CMMK had left in the area,190 COMIBOL issued a new invitation to receive offers, which was cancelled on March 31, 2013, due to technical errors that came up during the process of reformulating the terms of reference.191
177.
The new terms of reference were sent directly to the companies Mineral Processing S.R.L. and Quality Audit Consultores y Contadores Públicos S.R.L, who submitted their proposals on April 7, 2014.192 Following the analysis by the proposal evaluation committee,193 on April 23, 2014, COMIBOL awarded the contract for the independent valuation of the investments to Quality Audit Consultores y Contadores Públicos S.R.L.194 On May 8, 2014, this company and COMIBOL entered into a contract for the study and valuation of the investments made by the Malku Khota Mining Company and Exploraciones Santa Cruz LTDA. EMICRUZ LTDA. ("el Estudio y Valuación de las Inversiones Efectuadas por la Compañía Minera Mallku Khota S.A. y Exploraciones Santa Cruz LTDA. - EMICRUZ LTDA").195
178.
On June 27, 2014, Quality submitted its valuation report on the costs incurred by CMMK and EMICRUZ Ltda. until the date of the Reversion (the "Quality Report"), which estimates the value of the investment made at USD 17,047,190.01.196
179.
A year later, on June 5, 2015, the Ministry of Mining of Bolivia published the preliminary "Sectoral Plan for Metallurgic Mining Development 2015-2019",197 which establishes that the Malku Khota Project is "one of the largest undeveloped silver and indium reserves in the world".198 Their conclusion is based on "South American Silver’s 'prospecting and exploration studies", which "shed[] light on the massive scale of resources the deposit contains".199
180.
On October 2, 2015, Bolivia’s Geological Mineral Service (Servicio Geológico Minero) started the drilling of four holes in Malku Khota to verify the mineral reserves.200
181.
Shortly afterwards, on October 27, 2015, at a promotional investment event in New York cosponsored by Bolivia and the Financial Times, the Government of Bolivia promoted the Malku Khota Project to potential investors.201

IV RELIEF SOUGHT

A. The Claimant’s Relief

182.
The Claimant requests in its Statement of Claim that the Tribunal grant the following relief:

"(i) A declaration that Bolivia has violated the Treaty;

(ii) A declaration that Bolivia’s actions and omissions at issue and those of its instrumentalities for which it is internationally responsible are unlawful, constitute a nationalization or expropriation or measures having effect equivalent to nationalization or expropriation without prompt, adequate and effective compensation, failed to treat South American Silver’s investments fairly and equitably and to afford full protection and security to South American Silver’s investments and impaired South American Silver’s investments through unreasonable and discriminatory measures and treated South American Silver’s investments less favourably than investments of its own investors;

(iii) An award to South American Silver of full restitution or the monetary equivalent of all damages caused to its investments, including historical and consequential damages;

(iv) An award to South American Silver for all costs of these proceedings, including attorney’s fees: and

(v) Post -award interest on all of the foregoing amounts, compounded quarterly, until Bolivia pays in full."202

183.
In its Rejoinder Memorial on Jurisdiction, apart from repeating the relief included in the previous paragraph,203 SAS requested an award granting the following:

"(i) A declaration that the dispute is within the jurisdiction of the Tribunal;

(ii) A finding dismissing all of Bolivia’s objections to the admissibility of the claims and the tribunal’s jurisdiction".204

184.
During the Hearing, the Claimant withdrew its claim for restitution.205

B. The Respondent's Relief

185.
In its Rejoinder, the Respondent requests that the Tribunal grants the following relief:206

"9.1 On jurisdiction and admissibility

715. Declares:

a. That it lacks jurisdiction over all Claimant’s claims, as SAS has no investment protected by the Treaty as it has not proven to be the actual proprietor of the Mining Concessions;

b. alternatively, that these claims are inadmissible as SAS does not have "clean hands" and does not comply with the requirement of legality of the investment; and,

716. Orders:

a. SAS to reimburse Bolivia entirely for the costs incurred in the defense of its interests in the current arbitration, along with the interests at the reasonable commercial rate in the Arbitral Tribunal’s opinion from the moment the State incurred in such costs until the date of its effective payment; and

b. Any other satisfactory measure to the State as the Arbitral Tribunal deems appropriate.

9.2 On the Merits

717. If, par impossible, the Arbitral Tribunal decides that it has jurisdiction and the claims are admissible, declares:

a. that Bolivia has acted in accordance with the Treaty and the international law when declaring the Reversion;

b. that Bolivia has acted in accordance with its obligation of providing the investment a fair and equal treatment;

c. that Bolivia has acted in accordance with its obligation of not adopting arbitrary and discriminatory measures that impairs the use and benefit of the investment;

d. that Bolivia has acted in accordance with its obligation of not granting a less favorable treatment to the investments of SAS in regards to its own investors; and

e. that, in any case, SAS has contributed to the production of the damage that it claims and sets such contribution in, at least 75%, reducing in this sense the compensation that Arbitral Tribunal may provide; and

718. Orders:

a. SAS to entirely reimburse Bolivia for the costs incurred in the defense of its interests in the current arbitration, along with the interests at the reasonable commercial rate in the Arbitral Tribunal’s opinion from the moment the State incurred in such costs until the date of its effective payment; and

b. Any other satisfactory measure to the State as the Arbitral Tribunal may deem appropriate."

V APPLICABLE LAW

1. The Claimant’s Position

186.
The Claimant submits that its claims are based on Treaty provisions, as supplemented by international law.207 SAS claims that the applicable law in an investment dispute is the Treaty itself, as primary source of law208 and lex specialis, as supplemented by general principles of international law, as needed.209 The Vienna Convention on the Law of Treaties (the "Vienna Convention") provides that international law governs international treaties and prevails over domestic law in the area of international responsibility.210
187.
The Claimant opposes the Respondent’s argument that the Parties have not agreed on the law governing the dispute, as the Treaty, supplemented where appropriate by relevant principles of international law, was the law selected.211 SAS argues that by consenting to arbitrate disputes relating to the Treaty, the Parties have effectively designated the Treaty as applicable law, which constitutes lex specialis governing the relationship between SAS and Bolivia.212 Therefore, the Tribunal is not vested with broad discretion to determine the applicable law.213
188.
Second, the Claimant believes that the scope of indigenous community rights in international law is unclear and cannot take precedence over the protections granted by the Treaty. SAS contends that Article 31 of the Vienna Convention contains a general rule of interpretation of treaties that reflects customary international law, and implies a holistic approach to elucidate the real meaning of the terms of the Treaty, considering together its text, its context and, the object and purpose of the Treaty.214 The rule provided in Article 31(1) sets out the primary rule for the interpretation of treaties and, in that sense, Article 31(3)(c) is part of a larger interpretation process, resulting from considering first the plain meaning of the words in their context, and in the light of the object and purpose of the treaty.215
189.
In any case, SAS agrees with the notion that treaties should be construed in harmony with international law, but submits that Bolivia failed to demonstrate how the application of the systemic integration principle would effectively result in a reduction of the protections granted to SAS under the Treaty.216 Moreover, Bolivia fails to explain how the specific instruments it would have the Tribunal take into consideration fall within the purview of a truly systemic integration of the Treaty with customary international law.217 The Claimant asserts that there are three conditions that must be met for the application of other provisions under Article 31(3)(c) of the Vienna Convention: (i) that the human rights instrument constitutes a binding source of international law identified under Article 38 of the ICJ Statute (sine qua non condition ); (ii) that this rule is relevant, and (iii) that it is also applicable in the relations between the Parties.218
190.
The Claimant contends that three of the instruments relied upon by the Respondent are nonbinding, de lege ferenda, and lack the State practice and opinio juris elements that would transform them into embodiments of customary international law.219 Regarding the three conventions mentioned by the Respondent - the 1969 American Convention on Human Rights, the 1994 Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, and the International Labor Organization Convention No. 169 - the Claimant argues that they can only be binding if the Parties were contracting parties to the treaties relied upon,220 and the Claimant points to the fact that the United Kingdom is not a party to any of these three treaties.221 The Claimant argues that as the abovementioned documents do not constitute customary international law or general principles of law, the Tribunal could not rely on them as proper "rules" of international law pursuant to Article 31(3)(c) of the Vienna Convention.222
191.
The Claimant asserts that international arbitration tribunals have had an opportunity to make issues of indigenous peoples’ rights outcome-determinative, and have declined to do so.223 In particular, SAS relies on Grand River v. United States, Glamis Gold v. United States, and von Pezold v. Zimbabwe.224
192.
The Claimant concludes that the Respondent failed to meet its burden of proof that indigenous rights prevail over the protections granted to the Claimant under the Treaty in case of conflict.225 According to the Claimant, the case law of the Inter-American Court on Human Rights relied upon by Bolivia is inapplicable here because the United Kingdom is not party to the 1969 American Convention on Human Rights,226 and because the Respondent has not adduced any evidence establishing that erga omnes State obligations include the protection of indigenous rights.227
193.
Finally, the Claimant argues that Bolivian law is of limited relevance for the dispute.228 The Claimant does not dispute that Bolivian law may be relevant to certain limited areas of the dispute (such as the "legality doctrine"); but this does not meant that Bolivian law forms part of the law applicable to the merits of the arbitration proceeding.229 The Tribunal should treat Bolivian law as a factual circumstance to be taken into consideration when assessing whether Bolivia breached its obligations under the Treaty, as has been done in other investment arbitration decisions.230

2. The Respondent’s position

194.
The Respondent argues that given that the Treaty does not contain an "applicable law" clause, and there is no agreement between the Parties on this matter, the Tribunal is vested with broad discretion to determine the applicable law given the circumstances of the case. This power is envisaged in Article 35(1) of the UNCITRAL Arbitration Rules, and Article 1054 of the Netherlands Arbitration Act, the law of the seat of this arbitration.231 While exercising this broad discretion, the Tribunal must conclude that it will be appropriate and necessary to interpret the Treaty in light of the sources of international and domestic law that guarantee protection of the rights of the Indigenous Communities that inhabit the area of the Project.232
195.
First, the Respondent suggests a "systemic interpretation" of the Treaty based on Article 31(3)(c) of the Vienna Convention, interpreted broadly and not limited to rules that are binding for both Parties.233 Systemic interpretation allows for the supplementation of the Treaty with other international law norms234 and the application of a conflicts rule according to which the Treaty cannot breach the Parties’ international obligations; therefore, the Treaty must be interpreted consistently with those obligations.235 Consequently, according to the Respondent, the Tribunal should resort to the sources of law that protect the right of Indigenous Communities to provide content to certain concepts that are constantly evolving such as fair and equitable treatment, full protection and security, arbitrariness, and the legality or illegality of an expropriation.236 Bolivia notes that SAS adopts an excessively formalistic view of Article 31(3)(c) of the Vienna Convention and that Article 31 does not establish a hierarchy for its subsections.237
196.
In this connection, the Respondent, relying upon a case before the Inter-American Court of Human Rights and findings of the International Law Commission ("ILC ")238, asserts that in cases of conflict, when systemic interpretation cannot ensure harmony among norms, the Arbitral Tribunal must take into account that under public international law, obligations concerning the fundamental rights of the indigenous communities prevail over obligations concerning foreign investment protection.239 This primacy is supported by two factors identified by the ILC: Article 103 of the United Nations Charter and the erga omnes characteristics of the principles and the norms concerning fundamental human rights.240 In turn, respect for human rights implies respect for the fundamental rights of the indigenous peoples.241
197.
The Respondent argues that, in addition to international law, the Tribunal must apply and consider Bolivian law in interpreting the scope of the rights and obligations provided for in the Treaty,242 and asserts that this is particularly relevant in the absence of any inconsistency between international law and domestic law.243 Bolivia refers to some decisions of international tribunals that have applied the domestic law of the host State of the investment for certain issues.244
198.
According to the Respondent, Bolivia’s law is relevant to determine at least three fundamental issues of this case: (i) whether the obligation of providing fair and equitable treatment was complied with;245 (ii) whether there exists a public purpose in case of expropriation,246 and (iii) whether the investment was performed in accordance with the relevant rules under domestic law to establish the admissibility of SAs’ claims.247
199.
In order to guarantee the protection of the Indigenous Communities, the Tribunal must construe the Treaty in accordance with five Bolivian laws and international law instruments: (i) the 1969 American Convention on Human Rights;248 (ii) the 1994 Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women;249 (iii) ILO Convention No. 1 69;250 (iv) the 2007 United Nations Declaration on the Rights of Indigenous Peoples,251 and (v) the Political Constitution of the Plurinational State of Bolivia.
200.
Finally, the Respondent argues that, in the course of interpretation, the Tribunal should also take into consideration: (i) general principles of law, whose application is particularly important as the Treaty remains silent on the applicable law, including the principles of clean hands, good faith, and nemo auditur propriam turpitudinem and nullus commodum capere de sua injuria propria ;252 (ii) customary international law, which requires protection of the fundamental rights of the Indigenous Communities;253 and (iii) within applicable customary business practices and as evidence of international public order, instruments such as the United Nations Guiding Principles on Business and Human Rights, and the Organization for Economic Co-operation and Development Guidelines for Multinational Enterprises.254
201.
In the Rejoinder, Bolivia addressed the arguments presented by the Claimant on the application of the provisions on human and indigenous rights to the present dispute.
202.
First, the Respondent noted that such application was justified given the extraordinary nature of the factual circumstances underlying this dispute. Bolivian law, which must be applied to supplement the provisions under the Treaty, comprises, even under its highest-ranking instruments, the protection of Indigenous Communities and incorporates rules for the protection of human and indigenous rights which are binding on the State and on individuals; the State being legally responsible for reasonably preventing the violation of such rights.255 These international instruments have constitutional status under domestic law.256 Since 1967, the Bolivian legal and regulatory framework recognizes the autonomy and the right to self-government of indigenous peoples, and incorporates international treaties.257
203.
The Respondent alleges that these provisions of Bolivian and international law must be applied as supplementary rules, rather than elements of fact.258 In the cases cited by the Claimant, the tribunals did not have to analyze the applicability of these rules since the dispute was decided based on other legal arguments.259 Moreover, some of the cases cited by SAS confirm that domestic legislation and international law are applicable to matters not governed by the Treaty, provided that they do not entail independent claims.260
204.
At any rate, given the "unique and serious facts of this case,"261 the rules on the protection of human and indigenous rights are essential for the resolution of the dispute because: (i) the cases cited by SAS confirm that domestic legislation and international law are applicable to matters not governed by the Treaty, provided that they do not involve independent claims;262 (ii) it is beyond question that CMMK was obligated to comply with the law applicable to an extractive project in Bolivia, which includes rules on the protection of the communities;263 (iii) the Tribunal must consider Bolivia’s obligations under the rules cited in order to decide that, inter alia, the Reversion was a legitimate exercise of public power, involving a valid public purpose, and consistent with the legitimate expectations protected under the Treaty,264 and (iv) the Tribunal must endeavor to provide a harmonious interpretation of Bolivia’s international obligations.265 In this regard, Bolivia notes that the Tribunal must endeavor to provide a harmonious interpretation of Bolivia’s international obligations, and, if it is impossible to do so, it must prioritize the obligations related to the protection of human rights. Bolivia notes that the Treaty itself makes other sources of international law relevant in order to determine whether Bolivia effectively fulfilled its obligations, for example, when referring to the exercise of police powers.266

3. The Tribunal’s Analysis

205.
The Parties’ arguments on the applicable law touch upon three issues which the Tribunal must address at the outset of its analysis, namely: (i) whether the Parties have selected the applicable law to the dispute; (ii) what is the scope of the treaty interpretation rules that the Tribunal must apply when construing the Treaty; (iii) what is the relevance and scope of Bolivian law and of the instruments for the protection of human and indigenous rights which are applicable to the present dispute. The Tribunal will examine each one of these issues in the order in which they were raised.
206.
In the first place, the Parties disagree on whether they can determine the law applicable to the dispute. The Claimant contends that its claim are based on the Treaty, supplemented by the applicable law, and disagrees with Bolivia’s position that there exists no agreement between the Parties on the law applicable to the dispute.267 The Respondent, for its part, points out that in absence of an applicable law clause in the Treaty or an agreement of the Parties thereon, the Tribunal possesses broad discretion to decide on the applicable law, taking into account the special circumstances of this case, which militate in favor of interpreting the Treaty in light of the sources of international and domestic law that guarantee the protection of the Indigenous Communities’ rights.268
207.
Indeed, the Tribunal observes that the Treaty does not contain an express provision by which the Contracting Parties have decided on an applicable law to the disputes that may arise between them and nationals or companies of the other State. However, the Tribunal notes that, as the Claimant noted, the Parties agree that the starting point for the Tribunal is the Treaty.269 The Parties gave their consent to submit to arbitration their differences "concerning an obligation of the latter [Contracting Party] under this Agreement".270 For the Tribunal, the absence of an express choice of applicable law in the Treaty does not imply that the Contracting Parties have left it to the adjudicator to determine such law to the extent that it may cease to apply the Treaty or to give it priority as a primary source in order to apply other sources of law.
208.
Accordingly, the Tribunal finds that the Treaty is the principal instrument by which it must resolve the dispute between the Parties and on the basis of which it must decide (i) whether SAS is an investor protected under the Treaty; (ii) whether it has made an investment in Bolivia protected by the Treaty: (iii) whether SAs’ claims are admissible; (iv) whether Bolivia has violated the Treaty, and (v) whether, as a result of the above, Bolivia has to pay compensation to SAS.
209.
The claims of the Parties and the following issues show that the core of the dispute between the Parties on the applicable law does not focus on the application of the Treaty for the settlement of this dispute, but rather on the applicable rules of interpretation and the scope and relevance of Bolivian law and instruments of human and indigenous rights in these proceedings.
210.
Indeed, the Parties agree that Article 31 of the Vienna Convention sets forth the rules of interpretation for the Treaty. The Respondent considers that these rules point towards a systemic interpretation which allows the integration and harmonization of other international and domestic obligations with the text of the Treaty, and in case of conflict, grants priority to the rules for the protection of human and indigenous rights.271 The Claimant, for its part, argues that Article 31 of the Vienna Convention provides for an interpretative process in which the meaning of the language, understood in good faith and in the context of the treaty and in accordance with its object and purpose, must prevail.272 The Claimant does not deny that a systemic interpretation shall be sought, but it contends that Bolivia did not manage to demonstrate that the rules of protection of human and indigenous rights actually had the alleged priority.273
211.
Article 31 of the Vienna Convention contains the rule of interpretation of international treaties, which forms part of the rules of customary international law.274 According to this provision, international treaties must be interpreted in good faith, according to the ordinary meaning of the language, in its context and in accordance with the object and purpose of the treaty.275 Article 31(2) indicates what is to be understood as the context of an international treaty and Article 31(3) describes other elements to be taken into account together with the context, including" (c) [a]ny relevant rules of international law applicable in the relations between the parties". Article 31(4) refers to the special meaning to be given to the terms defined by the Parties.
212.
The Tribunal finds that the different elements that Article 31 refers to are part of the same hermeneutic operation, which is in no way limited to defining in a literal manner the meaning of each of the words used in the treaty. As pointed out in the heading of Article 31 of the Vienna Convention, it is a single rule of treaty interpretation. In this sense, the Tribunal shares the Parties’ understanding that systemic interpretation exists as a tool for treaty interpretation. This tool, however, is not limitless and must be applied with caution.
213.
The Parties submitted articles by well-known authors that extolled the virtues of the systemic interpretation in order to harmonize rules of international law, but they at the same time remarked on some of the challenges and difficulties a tribunal may face when applying Article 31(3)(c) of the Vienna Convention.
214.
In particular, the Parties referred to an article by a prominent author regarding the principle of systemic interpretation and Article 31(3)(c) of the Vienna Convention. In that article, the author points out a specific difference between the task of interpretation and the existence of rules for the settlement of disputes: in his opinion, the task of interpretation precedes the application of rules for the settlement of the dispute.276 Thus, the interpretation approach adopted by Article 31(3)(c) of the Vienna Convention is not designed to settle autonomously conflicts between norms in international law,277 notwithstanding that it may contribute to avoid conflicts and harmonize the rules of international law by way of interpretation.278 This understanding seems to be shared by another author mentioned by the Parties, Judge Bruno Simma, who warned that systemic interpretation allows for harmonization through interpretation but it cannot be used to modify a treaty.279
215.
Additionally, Bolivia referred expressively to the Oil Platforms Case (Iran v. United States), in which the International Court of Justice used Article 31(3)(c) of the Vienna Convention to interpret Treaty of Amity and bring in the provisions on the use of force in international law.280 Some of the authors relied on by the Parties consider that this decision must be treated with caution281 and, referring to some of the declarations, indicate some of the difficulties that may arise from applying Article 31(3)(c) of the Vienna Convention in matters of jurisdiction and normsative conflict. Indeed, the ICJ’s jurisdiction cannot be extended to cover other treaties via Article 31(3)(c) of the Vienna Convention if the States have not consented to such jurisdiction, nor can they be brought in to the dispute "through the back door".282 It is equally forbidden to alter the applicable law through rules of treaty interpretation.283
216.
Based on the above, the Tribunal finds that the principle of systemic interpretation is part of the rules of interpretation of international treaties foreseen in Article 31 of the Vienna Convention. However, this principle must be applied in harmony with the rest of the provisions of the same article and cautiously, in order to prevent the tribunal from exceeding its jurisdiction and applying rules to the dispute which the Parties have not agreed to.
217.
It is not disputed that Article 31(3)(c) of the Vienna Convention is a rule applicable to the interpretation of the Treaty. Based on this provision, Bolivia argues that the Tribunal must apply certain international rules on human rights protection. However, it has not justified why the Tribunal must apply in this particular case various rules that do not constitute customary law, nor has it shown that either of Bolivia or the United Kingdom are parties to the human rights treaties invoked. The Respondent also fails to explain how these rules conflict with the Treaty or why they should prevail over its provisions.
218.
The final issue that the Tribunal must assess in regard to the applicable law is the scope to be given to Bolivian law. The Parties agree that Bolivian law may be relevant for certain issues in this arbitration (e.g., the decision on the legality of the investment).284 There is no doubt for the Tribunal that Bolivian law - including those international treaties incorporated in it - is relevant to the analysis of certain issues in this arbitration, which will be discussed in the following sections of this award. However, the Tribunal does not find support for a general rule that the provisions of Bolivian law should always prevail over those of the Treaty.

VI OBJECTIONS TO JURISDICTION AND ADMISSIBILITY

219.
The Respondent argues that the Tribunal lacks jurisdiction because the Claimant is not the owner of a protected investment under the Treaty (A). Likewise, the Respondent alleges that, even if the Tribunal decided that it has jurisdiction, the Claimant’s lack of clean hands and the violation of the principle of legality would render the Claimant’s claims inadmissible (B).

A. The Tribunal Lacks Jurisdiction to Decide Any of the Claims as Sas Does Not Have a Protected Investment under the Treaty since It Has Failed to Prove That It Is the True Owner of the Mining Concessions

220.
The Parties do not dispute that the Claimant is a company according to the terms of Article 1(d) of the Treaty285 and that the shares in CMMK and the Mining Concessions fit the definition of "investment" under the Treaty.286 However, the Respondent argues that the Treaty does not protect SAS, and that SASC is the real entity that owns the investment, which is not protected by the Treaty since it is a Canadian entity. The Respondent argues that the Claimant is a mere shell company which is not protected under the Treaty. The Respondent bases its objection in particular on the text of Article 8(1) of the Treaty.

1. The Respondent’s position

(a) Scope of Article 8(1) of the Treaty

221.
The Respondent alleges that ownership is a sine qua non requirement for the jurisdiction of the Tribunal287 and that the Claimant is not the real owner of the investment.288
222.
Article 8(1) of the Treaty provides for international arbitration for the settlement of "disputes between a national or company of one Contracting Party and the other Contracting Party concerning an obligation of the latter under this Agreement in relation to an investment of the former".289 The Respondent argues that requirement of ownership is shown by the use of the preposition "de", denoting ownership, in the Spanish phrase "en relación con una inversión de la primera" ("concerning an investment of the former"). The preposition "of", in the English version of the Treaty also denotes ownership.290 The Respondent claims that the prepositions "de" and "of '" necessarily imply a direct connection between the investor and the investment.291
223.
The Respondent argues that the Tribunal lacks jurisdiction as CMMK’s shareholders are Malku Khota Ltd., G.M. Campana Ltd. and Productora Ltd., all of which are companies incorporated in the Bahamas, and CMMK, holder of the Mining Concessions, is a company incorporated in Bolivia. None of these companies has protection under the Treaty since they are not incorporated in the United Kingdom. There is no direct link between the Claimant and the investment,292 and it is not disputed that the direct owners of the investment in this case are companies that are not protected under the Treaty.293
224.
The Respondent contends that a reading of Article 8(1) in accordance with the ordinary meaning to be given to the terms of the Treaty, under Article 31 of the Vienna Convention,294 leads to the finding that a fundamental requirement for jurisdiction is the Claimant’s ownership of the investment295 and that such ownership be direct.296 Respondent contends that "the text [of Article 31 of the Vienna Convention] , coupled with Article 8(1) […] confirms that the intention of the Contracting Parties to the Treaty was to protect direct investments. In claris non fit interpretatio."297
225.
The Respondent understands that for the term "ownership" to include relatively modern concepts such as ownership through intermediary companies, using sophisticated corporate structures, the Treaty would need to make express reference to 'indirect' ownership.298 Otherwise, it would imply rewriting the Treaty, as if it read "concerning a [direct or indirect] investment of the former". The parties have included the terms they wanted to include and have agreed, and omitted the terms they did not wish to include and on which no agreement was reached.299
226.
The Treaty does not mention indirect investments when establishing the Parties’ consent to arbitration; had Parties to the Treaty intended to grant such jurisdiction to a Tribunal, they would have done so expressly.300 The Respondent argues that, contrary to the Claimant’s contention, "the ICJ in ELSI made it clear that all of a Party’s claim must meet the requirements to be eligible for jurisdiction and be admissible, unless there is a manifest waiver."301
227.
The Respondent alleges that, as a principle of customary international law, tribunals only have jurisdiction over disputes for which there is express consent302 and, thus, following the reasoning of the ICJ in ELSI, the Tribunal could depart from applying this principle if there were "words making clear and intention to do so", which is not the case.303
228.
The Respondent suggests that even if the interpretation pursuant to the rules of the Vienna Convention did not clarify the meaning of the preposition "of", by applying Article 32 of the Vienna Convention the same conclusion would be reached taking into consideration the circumstances under which the Treaty was concluded.304 According to the Respondent, when Bolivia accepts to protect indirect ownership, it does so expressly as evidenced through the comparison of various contemporaneous treaties.305 Such choice by the parties must have legal effects.306
229.
The Respondent notes that, contrary to the Claimant’s argument, the above-mentioned Article 32 of the Vienna Convention does not limit the sources to the travaux préparatoires, rather states that "the circumstances of its conclusion" be taken into consideration and, given the ambiguity of the Treaty text, as stated by the Claimant,307 other contemporaneous treaties concluded by Bolivia would be relevant under the same rule of interpretation of the above-mentioned Article 32 of the Vienna Convention.308
230.
Upon referring to the awards cited by the Claimant, the Respondent concludes that the Claimant cannot enjoy protection under the Treaty since CMMK, the direct owner of the Mining Concessions, is a Bolivian company309 and the direct company owners of the alleged investment, i.e. CMMK’s shareholders (Malku Khota Ltd., Productora Ltd., and GM Campana Ltd.),310 are incorporated under the laws of the Bahamas,311 a territory to which the Treaty does not apply.

(b) On the protection of indirect investors under the Treaty

231.
The Respondent argues that the Tribunal would not have jurisdiction even if the Treaty afforded protection to indirect ownership (quod non), as in this case the real indirect owner of the alleged investment affected by the Reversion is a Canadian company.312 The Respondent claims that SASC uses SAS - a company incorporated under the laws of Bermuda - to access Treaty protection and that this is a "treaty shopping" maneuver that ignores the text of the Treaty and should be rejected by the Tribunal.313
232.
According to the Respondent, the ultimate owner is the one that can benefit from the treaties that protect indirect ownership.314 The Respondent alleges that only then it would be justified that it is not relevant "if the investor of one country owns [...] an investment [...] through one or more intermediary corporate entities", as stated by the Claimant. This mediate ownership relation presupposes the existence of intermediary entities being merely instrumental and with no free will of their own, and for that reason their existence does not affect the asset’s disposition by the indirect owner.315
233.
The Respondent bases its argument on the following three premises:

(a) First, the Respondent notes that the Tribunal is compelled to interpret the Treaty "in good faith in accordance with the ordinary meaning to be given to the terms of the Treaty in their context and in the light of its object and purpose " (emphasis added by the Respondent)316, and that the object and purpose of the Treaty is to promote the flow of capital from the United Kingdom, and not from another country, to Bolivia.317

(b) Second, the Respondent claims that when protecting indirect ownership, such ownership cannot be merely formal, as investment protection treaties seek to transfer value from a State party to the Treaty to another, as acknowledged by the tribunal in the Standard Chartered Bank v. Tanzania case.318

(c) Finally, the Respondent argues that the cases SAS relies on319 demonstrate that when a Treaty protects indirect ownership, it solely protects the beneficiary or ultimate owner of the investment.320 The Siemens tribunal conferred protection to the ultimate owner of the investment since the Treaty "[did] not require that there [were] not interposed companies between the investment and the ultimate owner of the company" (emphasis added by Respondent).321 Relying on Siemens, the Rurelec and Kardassopoulos tribunals granted protection to the claimants in those cases as the ultimate owners of the investment.322 Additionally, in the BG Group v. Argentina case, the tribunal granted protection to the claimant despite the fact that it was not directly linked to the investment as it was its ultimate owner.323

234.
Thus, the indirect owner of the investment is not the Claimant but SASC, a Canadian company and, therefore, the Tribunal must decline its jurisdiction and dismiss the claim.324 The Claimant must establish the convergence of the elements on which the jurisdiction of the Tribunal is based,325 such as ownership.326
235.
The Respondent insists that Article 8(1) of the Treaty confers jurisdiction only to investments "of a company of one Contracting Party" (emphasis added by Respondent)327 and for an asset to constitute an investment of a company, that company must have an objective link with that asset: it must have been actively involved in the realization of the investment in the host State (emphasis added by Respondent).328
236.
Invoking the "Salini test", the Respondent explains that the act of investing implies the verification of four elements: (i) the acquisition of the investment with a corresponding contribution of resources; (ii) the assumption of risks in order to obtain returns; (iii) a minimum time duration; and (iv) the contribution to the economic development of the host State.329 The Respondent further contends that, in addition to these factors, the form an investment can take is established by the treaty itself, which is added as another requirement next to the ones listed in Salini.330
237.
The Respondent relies on the decision in the Quiborax case to state that the mere holding of shares is insufficient to prove an investment in currency or in kind.331 Moreover, it cites the Caratube and Standard Chartered Bank cases to underscore that the object and purpose of the investment treaties require that jurisdiction of the tribunals be limited to those assets that have contributed to the stimulation of capital flows between certain States, the signatories of the BIT in question.332 Otherwise, one would be interpreting the Treaty against the principle of the relative effect of treaties.333
238.
The Respondent argues that the only indirect owner of the investment is SASC, while the Claimant "is simply one of the numerous instruments in the chain that leads to the actual indirect owner of the investment"334 since SAS is not the owner of an investment pursuant to the Salini335 factors because:336

(a) SAS did not make a financial contribution or provide know-how, contacts, or expertise,337 or assume any of the risks associated with the investment,338 such that it had no expectation of a return on investment. The risk and potential benefit accrued exclusively to SASC.339

(b) FTI admits in its report that any amount invested in Bolivia has been contributed by Canadian SASC and not by the Claimant.340 The President and CEO of SASC acknowledges that the share issuances of SASC allowed them to finance exploration activities in Malku Khota.341 Moreover, SAS only communicated the interim consolidated financial statements for SASC but not their own, and these documents do not establish whether SAS is the source of the cash flows.342

(c) The Claimant admits that SASC invented and patented the metallurgical process,343 which belongs to SASC.344 Thus, there is no evidence that such transfer of know-how would come from the United Kingdom.345

(d) The Respondent also lists a series of contracts and arrangements entered into with various consulting firms for the development of the Project under which, according to the Respondent, SASC held rights for Malku Khota,346 and it was SASC who entered into contracts, negotiated and agreed to consultancies.347

(e) The Respondent further contends that the SASC Board of Directors made the key decisions on the Project348 and SASC did not hesitate to describe the Project as a Canadian investment before Canadian authorities to request diplomatic protection.349

(f) The Respondent also contends that press releases show SASC as the ultimate owner of the investment350 and that SASC is funding the costs of this arbitration.351

(g) The Respondent concludes that any contribution to the economic development of Bolivia would have been made by SASC,352 although it questions whether the Project should be considered as economic development given the negative impact it had on public order and the Indigenous Communities.353

239.
Consequently, if the Tribunal would interpret the Treaty to confer protection to indirect ownership, SAs’ claim must be dismissed due to lack of standing as SAS did not make the investment whose protection is claimed: neither does it hold the legal title, nor is it the beneficiary of the investment.354 Otherwise, the Tribunal would be creating an investment protection treaty between Canada and Bolivia, which is "illegal, absurd and unfair."355

(c) On whether SAS is an interested party in this dispute

240.
The Respondent argues that the object of jurisdiction in investment arbitration cannot be the protection of a shell company.356 According to the Respondent, the Claimant does not deny being a shell company, nor has it refuted the evidence presented by the Respondent in this regard.357
241.
First, the Respondent alleges that the dispute submitted by a shell company cannot be settled under the Treaty if there is no jurisdiction over the parent company.358

(a) First, the Treaty grants jurisdiction only with respect to those companies whose interests are in dispute.359 The Respondent argues that as shell companies do not exist as an independent economic reality, they have no interest in a dispute.360 The Respondent asserts that this does not imply adding a jurisdictional requirement to the Treaty as stated by the Claimant,361 since the Treaty provides verbatim that the dispute must be between a company of a Contracting Party and the other Contracting State. Therefore, concluding that there is no jurisdiction is applying the text of the Treaty, since the dispute in this case is with a Canadian company, and not with one of the United Kingdom.362

(b) Second, the Respondent argues that the object and purpose of the Treaty confirm this requirement as the promotion and protection of investments applies solely to investors from the United Kingdom and Bolivia. Based on Article 31 of the Vienna Convention, the object and purpose of a treaty are as relevant as its provisions for the interpretation of its meaning.363 The Respondent argues that the object and purpose of the Treaty, as stated in the preamble, are not to provide investment protection and arbitral jurisdiction to any foreign company, and notes that Bolivia has not concluded an investment treaty with Canada to protect Canadian companies, such as SASC.364 Thus, the Respondent concludes that to allow the use of a shell company to establish jurisdiction would violate the consent granted by Bolivia.365

(c) Third, the Respondent notes that arbitral case law (the Loewen, Venoklim Holding and TSA Spectrum cases) has also confirmed that the content, object, and purpose of the Treaty preclude jurisdiction over a dispute raised by a shell company.366 The Respondent refers to the Loewen case, wherein the claimant changed nationality while the arbitration was ongoing and the tribunal found that the party concerned was no longer protected by the treaty,367 and the Venoklim Holding case, in which the tribunal pierced the corporate veil in order to ascertain the real party to the dispute, leading the tribunal to conclude that it lacked jurisdiction.368 The Respondent further argues that, notwithstanding the fact that these are ICSID cases, it is relevant that these tribunals ordered the piercing of the corporate veil as the ICSID Convention contains a provision analogous to the one found in the Treaty.369 The Respondent holds that SAS invokes decisions of tribunals that declared themselves competent; however, the cases cited do not support its position as they do not deal with the same legal issue to be resolved by the Tribunal in this case.370

242.
Second, the Respondent alleges that the facts of this case demonstrate that the dispute is not with the Claimant (SAS), but with SASC, which has an economic interest ab initio in this arbitration and has sought and guaranteed funding agreements.371 The Respondent further argues that SASC issued a special class of shares with returns dependent on the outcome of this arbitration.372 The Respondent notes that based on the agreement with the third-party funder of the arbitration, this party could also have a direct interest in the decision of the Tribunal.373
243.
The Respondent concludes that SASC is the only company that performed an alleged investment and the only one that has an interest in this arbitration. However, given that SASC is a Canadian company, it is not protected under the Treaty because it does not meet the nationality requirement provided for under the Treaty.374

2. The Claimant’s Position

(a) Scope of Article 8(1) of the Treaty

244.
The Claimant argues that the Treaty broadly defines an 'investment' and that international arbitration tribunals and legal authorities acknowledge that the notion of 'investments’ in bilateral investment treaties extends to both direct and indirect investments.375
245.
In the case of indirect investments through intermediary corporate entities incorporated under the legislation of the host State, the protected investment will consist of the investor’s shares in the local company as well as the assets of that local company.376
246.
The Claimant submits that Article 8(1) of the Treaty "clearly applies to both the direct and indirect owners of a qualifying investment".377 The Claimant argues that the Respondent inaccurately applies the interpretative principles of the Vienna Convention "relying exclusively upon dictionaries to inform its reading" and looks into the text of Article 8(1) of the Treaty alone to address the question of "which entities are entitled to treaty protection for covered 'investments'".378 Citing the decision in Aguas del Tunari v. Bolivia, the Claimant submits that the proper interpretation of Article 8(1), taking full account of the different elements set forth in Article 31 of the Vienna Convention -text, context, and object and purpose- is that direct as well as indirect owners of qualifying investment are covered by the Treaty.379
247.
The Claimant submits that direct ownership is not the only ordinary meaning of the phrase "investment of the former,"380 and the phrase may equally be indicative of a contributory relationship between the claimant and the investment.381 The Claimant argues that "[w]ithout further qualifying language, the phrase 'investment of the former' in Article 8(1) can be read as a purely textual matter requiring that the ownership link be either direct or indirect, as Bolivia itself acknowledges".382
248.
Citing CEMEX v. Venezuela, the Claimant argues that the language of the bilateral investment treaty applicable to this case was very similar to Article 8(1) of the Treaty and that the tribunal in that case noted:

The Tribunal further notes that, when the BIT mentions investments 'of' nationals of the other Contracting Party, it means that those investments must belong to such nationals in order to be covered by the Treaty. But this does not imply that they must be directly owned by those nationals.383 (emphasis added by Claimant).

249.
Similarly, citing Rurelec, the Claimant alleges that the tribunal, which applied the same treaty as the one applicable in this arbitration, affirmed the interpretation of the CEMEX v. Venezuela tribunal, finding that it had jurisdiction in respect of Rurelec’s indirect investments.384
250.
The Claimant concludes that the ordinary meaning of the phrase "investment of the former" in Article 8(1) of the Treaty is that the investment in question may be owned whether directly or indirectly by the investor, and there is no textual reason for the restrictive interpretation suggested by the Respondent.385
251.
The Claimant notes that the context, the object and purpose of the Treaty support the view that Article 8(1) applies equally to direct and indirect owners. Regarding the context, the Claimant argues that, following Article 31(2) of the Vienna Convention, the text of the entire Treaty, not only Article 8(1), is highly relevant, as it forms part of the context informing the proper interpretation of the phrase "investment of the former".386
252.
The Claimant submits that a first contextual element is Article 1(a) of the Treaty, and that is particularly instructive, as pursuant to it, 'investments’ are interpreted very broadly, including necessarily, by virtue of the phrases "every kind of asset" and "any form of participation in a company", indirect investments of the kind the Claimant made.387
253.
The Claimant submits that a second contextual element that is relevant is the fact that there is no express exclusion of indirect investments in the Treaty.388 According to the Claimant, the Respondent is wrong when concluding that the inclusion of a reference to indirect ownership would have been necessary if the intent was to include indirect investments.389 The Claimant relies on the ICJ decision in the ELSI case390, the reasoning of the tribunal in Tza Yap Shum v. Peru, 391 and the Rurelec decision, which held as to the application of the Treaty that "the BIT would require clear language in order to exclude coverage of indirect investments - language that the BIT does not include".392 The Claimant argues that investment treaty tribunals have refused to exclude indirect investments from treaty provisions when there is no express language to that effect.393
254.
The Claimant submits that in the absence of clear and specific exclusionary language, and in light of the broad definition of investments in Article 1(a) encompassing indirect investments, the more jurisprudentially-consistent interpretation of Article 8(1) is that it applies equally to direct and indirect owners of qualifying investments.394
255.
The Claimant submits that, contrary to the Respondent’s proposition,395 it is not suggesting to ignore the principle that tribunals have jurisdiction over disputes for which there is express consent.396 Rather, the Claimant submits that the parties to the Treaty "have expressly consented to arbitration in relation to indirect investments because Article 8(1) refers to such investments" (emphasis added by the Claimant).397
256.
Next, the Claimant criticizes the relevance of those legal authorities relied upon by the Respondent to support its position.398 As to Judge Read’s dissent in Anglo-Iranian Oil, the Claimant argues that setting aside the fact that his individual opinion did not reflect the majority view of the ICJ, his discussion of the effect of omitting the terms "directly or indirectly" is speculative obiter dicta included in his dissent, which Claimant asserts "is hardly persuasive evidence and should be disregarded".399
257.
In connection with the Brown v. Scott case, the Claimant submits that the Respondent conveniently cited the reasoning in that case, omitting that, according to the Claimant, it noted that the general assumption on which the Respondent relies "does not mean that nothing can be implied into the [European Convention on Human Rights] . The language of the Convention is for the most part so general that some implication of terms is necessary, and the case law of the European court shows that the court has been willing to imply terms into the Convention when it was judged necessary or plainly right to do so."400 The Claimant argues that, "this concern of overbroadness simply does not exist in the case of bilateral investment treaties whose overt purpose is to protect foreign investment, and where an interpretation that the phrase 'investment of the former' as covering investments that are owned directly or indirectly by the investor is entirely consistent with the context of the Treaty".401
258.
Finally, the Claimant addresses Professor Douglas’ opinion that there must be a limitation on the tribunal’s ratione personae jurisdiction if the terms "direct or indirect" are not expressly included in a treaty.402 According to the Claimant, the Respondent fails to square this view with Rule 33 of Douglas’ own treaty, which according to the Claimant’s assertion contains a more direct statement that "[i]f an investment treaty stipulates that the investment can be held directly or indirectly by the claimant, then it is immaterial that the investment is held through an intermediate legal entity with the nationality of a third state".403 The Claimant contends that it is telling that Professor Douglas does not include the converse as a rule, and further asserts that he refers to two cases where the tribunals held that they had jurisdiction over the claimants that indirectly owned qualifying investments, despite the fact that the underlying treaties did not contain the terms "direct or indirect".404 The Claimant asserts that there are many more cases in this respect, which are referred to above, than the opposite.405
259.
The Claimant submits that the object and purpose of the Treaty also support the view that Article 8(1) applies equally to direct and indirect owners.406 The Claimant refers to the title of the Treaty,407 its preamble,408 and Article 2(1)409 to note that these provisions suggest that the parties to the Treaty wished to maximize the flow of investments which, according to the Claimant, would include indirect investments in the absence of language to the contrary.410
260.
The Claimant concludes that its position regarding Article 8(1) "remains largely unchallenged" and that this should lead the Tribunal to conclude that it properly has jurisdiction over the claims in this arbitration.411
261.
The Claimant believes that the recourse to supplementary means to interpret the Treaty is unnecessary412 in this case. Article 32 of the Vienna Convention does not refer to alternative or autonomous means of interpretation, but only an aid to the general interpretative rule.413
262.
In this case, "the general rule of interpretation (Article 31, Vienna Convention) yields a reading of Article 8(1) of the Treaty that applies to direct as well as indirect owners of qualifying investments, and there is simply no scope to argue that this reading is in any way 'ambiguous or obscure' or leads to 'manifestly absurd or unreasonable' results."414 Thus, according to the Claimant, there is no reason to resort to supplementary means of interpretation.
263.
But even if the Tribunal decided to rely upon supplementary means of interpretation, which would include "the preparatory work of the treaty and the circumstances of its conclusion" based on Article 32 of the Vienna Convention,415 the treaties invoked by the Respondent are not part of such circumstances.416 The circumstances referred to under the provision mentioned are contemporaneous circumstances "and the historical context in which the treaty was concluded"417 and, thus, it cannot cover treaties concluded after the date the Treaty was signed.418
264.
Regarding treaties signed before the conclusion of the Treaty, the Respondent has not established that they are part of these circumstances419 since it has not demonstrated that the parties to the Treaty discussed the Bolivia-Switzerland and Bolivia-Germany bilateral investment treaties in their negotiations, or that the United Kingdom was aware (or should have been aware) of these two treaties. The Claimant considers telling that the Respondent has failed to submit the travaux préparatoires, despite the fact that the Claimant had already noted their absence in its Reply Memorial.420
265.
The Claimant further contends that the case law in investment arbitration has regularly refused to rely on other treaties when interpreting the provisions of a specific treaty421 and concludes by noting that, consequently, Article 32 of the Vienna Convention is of no assistance to the Respondent’s flawed interpretation of Article 8(1) of the Treaty.422

(b) On the protection of indirect investors under the Treaty

266.
The Claimant submits that for the jurisdiction of the Tribunal to be established, it is sufficient for the Claimant to show that it satisfies the Treaty definition of 'national' or 'company' (Articles 1.c o 1.d), that its investment meets the requirements set forth at Article 1(a), and that it owns, directly or indirectly, the investment.423 There are no other requirements under the Treaty and the Respondent has admitted that SAS is a protected company under the Treaty and that owns qualifying investments in Bolivia.424 The Claimant further states that: "investment treaty tribunals have consistently held that it is not open to them to impose additional jurisdictional requirements on claimants which the parties to the underlying treaty could have added but did not".425
267.
The Claimant maintains that ultimate ownership is irrelevant for purposes of the jurisdiction of the Tribunal.426
268.
First, the Respondent does not identify which provision of the Treaty would require the investor to be the ultimate owner, and the preamble, cited by the Respondent,427 does not provide for such requirement.428 The award of the Lemire case, which according to the Claimant applied a BIT with a preamble similar to the Treaty, found that an origin-of-capital requirement cannot be required or inferred. 429 Regarding the other arbitral awards cited by the Respondent that interpreted the definition of "investment", all are ICSID cases that are wholly irrelevant to this UNCITRAL Rules arbitration proceeding pursuant to the UK-Bolivia Treaty.430
269.
In brief, the Treaty protects indirect owners even when they are not the ultimate owners of the qualifying investments, because there is no requirement in the Treaty stating otherwise.431
270.
Second, the Claimant contends that none of the awards the Respondent relies on, provide, as Bolivia alleges, that an investment treaty that protects indirect ownership only protects ultimate owners.432 The Claimant submits that the tribunals in Siemens v. Argentina, Kardassopoulos v. Georgia, or BG Group v. Argentina, and even more so in Rurelec, did not state that ultimate ownership was a mandatory condition that needed to be satisfied in order to benefit from a treaty that protects indirect ownership. On the contrary, several tribunals have held that they had jurisdiction over claimants that were the indirect owners of qualifying investments without at the same time being the ultimate owners of those investments.433
271.
Further, as the party asserting this jurisdictional objection, the Respondent has the burden to demonstrate that only ultimate indirect owners have protection, and the Respondent has yet to articulate a cogent argument for why the Treaty, when protecting indirect ownership, would limit itself to the protection of ultimate owners.434
272.
The Claimant notes that the Respondent, in its Rejoinder, appears to have abandoned its claim on the absence of protection for the ultimate owner under the Treaty. Instead, it raised a new allegation that the Tribunal lacks jurisdiction because SAS has not "made" any investment in Bolivia.435 The Claimant criticizes the Respondent’s interpretation that the terms "investment of the former" in Article 8(1) of the Treaty require the Claimant to have been actively involved in the realization of the investment.436 Article 8(1) requires that the investment belongs to a claimant directly or indirectly, but not an active participation in the realization of the investment.437
273.
Nor does the Treaty contain such a requirement, and the Caratube and Standard Chartered Bank cases do not support the position of the Respondent because the underlying treaties in such cases are not sufficiently similar to the BIT in this arbitration and the facts were also different.438 Indeed, in this arbitration the issue of foreign control is not addressed as it was in the Caratube case,439 nor does the Treaty contain language which provides that an investment has to be "made" in the territory of the Contracting Party, such as in the Standard Chartered Bank case.440 The Claimant further states that "[h]ere, there can be no dispute that South American Silver Ltd. 'did something as part of the investing process',"441 unlike Standard Chartered Bank, where the connection between the claimant and the investment was highly attenuated.442
274.
Finally, the Claimant rejects the existence of the so-called objective definition of 'investment'443 and states that the Salini test is not recognized or accepted in the terms indicated by the Respondent.444 The test was developed within the framework of ICSID arbitrations445 and it is not even always adopted even in said arbitrations.446 Furthermore, out of the two cases that the Respondent cites -as non-ICSID arbitration cases having relied upon the Salini test- one in fact never even mentioned the test, whereas the second was criticized for doing so (Romak).447 The Claimant further states that the Romak case involved factual circumstances and policy considerations that are not present here.448
275.
In sum, there is no reason for the Tribunal to apply the Salini test in this case. The Tribunal need only ensure, in order to ascertain its jurisdiction, that SAs’ investments satisfy the definition of 'investment' at Article 1(a) of the Treaty.449 And even if the requirements of the Salini test were applicable (which the Claimant repeats is not the case), then it is not possible to dispute that the shares in CMMK and the Concessions, i.e. the investment at issue in this case, satisfy the test criteria of resource contribution, risk, duration, and contribution to the economic development of the host State (Bolivia, in this case).450

(c) On whether SAS is an interested party in this dispute

276.
The Claimant contends that accepting the Respondent’s argument to pierce the corporate veil would add a further requirement for the jurisdiction of the Tribunal that is not provided for under the Treaty.451 The Claimant argues that neither Article 8(1) nor the preamble of the Treaty requires the Tribunal to consider the nationality of SAs’ ultimate owner to decide on its jurisdiction.452
277.
The Claimant submits that tribunals have unanimously held that, when considering the nationality of the claimant for purposes of jurisdiction, the corporate veil should not be pierced except in exceptional circumstances such as fraud.453 The Claimant notes that no such circumstances exist or have been alleged in this case.454 Moreover, as to the awards relied upon by the Respondent, the Claimant holds that they are irrelevant as they are based on a set of legal elements that are absent in this arbitration.455