Claimant makes this submission in response to Respondent’s filing dated April 23, 2014 concerning the mandatory scope of Article 10.20(4) of the Peru/United States Trade Promotion Agreement (the “Treaty”), as requested by the Tribunal by letter of April 8, 2014. 

In its effort to avoid the good faith and ordinary meaning of the relevant text of the Treaty, Peru seeks to create ambiguity and achieve an unfair opportunity for itself in this arbitration by: i) dismissing as irrelevant the critically important text of the Treaty that confirms Claimant’s interpretation, ii) referring to Claimant’s prior statements in various misleading ways, including by failing to include complete text where to do so would contradict Peru’s assertion, iii) misstating the negotiating history of Article 10.20, and iv) continuing to misapprehend the procedural aspects and decisions of prior tribunals hearing disputes under the DR-CAFTA treaty.

I. Peru Dismisses as Irrelevant Critical Text of the Treaty, Thereby Confusing the Mandatory Aspects of Article 10.20(4) With The Tribunal’s Discretionary Authority To Decide Competence Objections as Preliminary Questions

The fundamental flaw in Respondent’s analysis, which permeates virtually its entire submission, is that the text of Article 10.20(4) treats objections to a Tribunal’s competence to hear a dispute differently than objections as to the legal sufficiency of claims. The decision by the Republic of Peru and the United States to treat the two types of objections differently is not surprising, because they are indeed different, as Claimant detailed in its submission dated April 3, 2014, and as addressed further below in response to Peru’s arguments. Respondent’s decision to blur this fundamental distinction, or its failure to appreciate it, is fatal to its arguments.