I. INTRODUCTION

1. In its Counter-Memorial of 11 July 2008, Claimant argues that it has complied with its obligations under CAFTA-DR Article 10.18. As the Republic will demonstrate in the present submission, however, Claimant has failed to comply with these obligations, because Claimant’s ongoing arbitrations in Guatemala involve measures also alleged in the claims before this Tribunal. Accordingly, unless Claimant abandons the local arbitrations, i.e. dismisses those proceedings with prejudice, per the requirements set forth in Article 10.18, this Tribunal lacks jurisdiction over the claims before it.1

2. In Section II.B below the Republic explains that Article 10.18 of CAFTA-DR (“CAFTA” or “the Treaty”) represents an express limitation on the consent to arbitrate given by the State parties to the Treaty, whereby the parties consent to arbitrate exclusively those investment disputes not already being adjudicated in other fora. This is a common restriction among investment protection treaties, and the reasons for its incorporation include preventing a State from being held liable multiple times for the same acts and, similarly, preventing a claimant from seeking relief or collecting reparations more than once for the same state acts.

3. In Sections II.C and II.D below the Republic discusses how the State parties to CAFTA effected this limitation on consent: through the Article 10.18 requirement that claimants choose between adjudicating a dispute either before local tribunals or before international tribunals, but not before both simultaneously, in order to, inter alia, avoid a situation where a claimant would be permitted to obtain relief under multiple proceedings for the same measures. Per Article 10.18, claimants must thus waive their right to initiate or continue proceedings concerning State acts for which claimants also seek relief in the Treaty claims and must take actions consistent with that waiver by dismissing with prejudice the local proceedings.2 If such proceedings are not abandoned, the State’s consent to arbitrate under the Treaty does not exist, and the tribunal lacks jurisdiction over the claims before it.