Pac Rim Cayman LLC v. Republic of El Salvador, ICSID Case No. ARB/09/12, Claimant's Post-Hearing Submission (June 11, 2011)
1. Despite its protestations against the Tribunal’s jurisdiction to hear Pac Rim Cayman’s claims, El Salvador has not succeeded in establishing a single one of its objections to jurisdiction. Instead, it has continued to press the Tribunal to dismiss Pac Rim Cayman’s claims as a purported “abuse of process,” even to the point of suggesting to the Tribunal that it could ignore its treaty-based objections to jurisdiction altogether. Respondent set itself a tall task. If it was not already obvious before the 2-4 May 2011 hearing on jurisdiction (“Hearing”) that Respondent had failed in that task, its presentations at the hearing have made this abundantly clear.
2. The cornerstone of Respondent’s objections to the Tribunal’s jurisdiction is that Pac Rim Cayman supposedly opportunistically and disingenuously attempted to avail itself of a forum to which it has no right, because it is only a “shell company” with no genuine ties to its ostensible home state, the United States. In reality, both Pac Rim Cayman itself and its investment in El Salvador have been closely tied to the United States from the very inception of the project. All managerial and strategic decisions were primarily made by Mr. Shrake in Nevada. Much of the funding for the investment came from the Pacific Rim companies’ Nevada mining investments, and the technical experts hired to develop the project were also employed in Nevada. Pac Rim Cayman was later moved to Nevada in order to rationalize the companies’ organizational structure (as well as to save money). The fact that Respondent’s de facto ban on metallic mining subsequently came to light does not somehow cast a retrospectively sinister pall over these preexisting facts. To deny Claimant access to this Tribunal’s jurisdiction and to the substantive protections of CAFTA would be to deny the genuine equities in this case; that is, those associated with the destruction of a multi-million dollar investment that was made in good faith over a number of years.