Spence International Investments, LLC, Bob F. Spence, Joseph M. Holsten, Brenda K. Copher, Ronald E. Copher, Brette E. Berkowitz, Trevor B. Berkowitz, Aaron C. Berkowitz and Glen Gremillion v. The Government of the Republic of Costa Rica, UNCITRAL, Claimant's Reply on Merits and Counter-Memorial on Jurisdiction (October 4, 2014)
1. Costa Rica has breached and continues to breach international law. It has taken Claimants’ property rights without paying prompt or adequate compensation. Its expropriation process suffers from interminable delays and valuation inconsistency, with much of the former being the product of host State design. Nonetheless, Costa Rica stands before the Tribunal, asking the arbitrators to say that it owes nothing whatsoever to any of Claimants under the THE CAFTA1. This position should be rejected both because it is contrary to international law and unfair to Claimants.
2. What amount of compensation does Costa Rica owe to each Claimant, for directly expropriating or substantially interfering with (i.e. indirectly expropriating) it property rights in land, which it now considers to be inside the Parque Nacional Marino las Baulas (“PNMB”)? It is not complex. This claim is not about competing political values or moral principles. This is ultimately a dispute over how much compensation is required to make Claimants whole.
3. Costa Rica says this case is all about its sovereign authority to adopt measures to protect the environment generally, and the endangered Leatherback turtle in particular. This assertion is untrue. Claimants do not begrudge Respondent its sovereign right to designate a national park nor to change its mind about that park’s boundaries. They would note that the manner in which Costa Rica has gone about it in this case has been rather unorthodox, to say the least. Be that as it may, Claimants just wish to finally be paid their rightful compensation, and they will be on their way.
4. When they made their initial investments, Claimants were not alone in believing that their lots could be developed in a way that respected and protected the annual nesting practices of the Leatherback turtle on the nearby beach. Costa Rica believed it, too. In 1995, Costa Rica established a “marine” park, designed to protect the beaches on which turtles nested every winter, as well as the interior waters (“aguas adentros”) through which each Leatherback made its approach.