This opinion follows up on my previous opinion of June 18 th, 2009 ("the Mayora Report") in the matter of "Railroad Development Corporation" (Claimant) v. "The Republic of Guatemala" (Respondent), ICSID Case No. ARB/07/23. The principal object of the present is to address some of the views expressed by Maritza Ruiz de Vielman in her expert report of September 22, 2009 ("the Ruiz Report").
1. Main points in the Ruiz Report.
The Ruiz Report argues that the declaration of lesividad made by the President and his Cabinet:
Does not operate against the constitutional fundamental principles of the rule of law and of legal certainty guaranteed by the Guatemalan Constitution (Articles 2 and 12) but that, to the contrary, it is consistent with those principles and also the principle "of legality" (namely, that governmental officials have to act in accordance with the law, as prescribed by Article 154 of the Constitution);
1.2. Legal bases:
Was issued on the basis of solid grounds because there are several legal technical defects concerning the execution of Contracts 143 and 158, as well as a failure to provide for the protection of the cultural patrimony of the Republic, pursuant to constitutional and statutory regulations.