Reproduced from www.worldbank.org/icsid with permission of ICSID.
1. This case concerns a dispute submitted on the basis of the Agreement on Reciprocal Promotion and Protection of Investments contained in Annex III of the Agreement Establishing the Free Trade Area between the Caribbean Community ("CARICOM") and the Dominican Republic, signed on August 22, 1998 and which entered into force on February 5, 2002 (the "Treaty"), and the 1976 Arbitration Rules of the United Nations Commission on International Trade Law (the "UNCITRAL Rules").
This dispute has its origin in the Concession Agreement entered into on March 1, 2007 between the Dominican company Lajun Corporation, S.R.L. ("Lajun") and the Municipality of Santo Domingo Norte ("ASDN", by its acronym in Spanish) for the administration and operation of the Duquesa Landfill, in which final disposal of urban solid waste was carried out in the area of the Gran Santo Domingo in the Dominican Republic. According to Claimant, the Concession Agreement also provided for Lajun's right, and not only the eventuality, to build a waste to energy plant ("WTE Plant", by its acronym in English).
VIII. DECISION ON JURISDICTION
222. For the foregoing reasons, the Tribunal decides:
(i) To declare that this dispute is within the jurisdiction of the Tribunal;
(ii) To reject the jurisdictional objections filed by Respondent;
(iii) To continue the arbitral proceeding as per the calendar to be fixed in consultation with the Parties in accordance with Option I of the Procedural Timetable (Revised Annex A190 to Procedural Order No. 1);
(iv) To defer the adoption of the decision on costs.
Dissenting Opinion of Professor Marcelo Kohen
1. I regret not being able to concur with the vote of the majority of the Tribunal which gives rise to the Partial Award on Jurisdiction ("Partial Award"). The question at stake is of utmost importance in the field of international arbitration. It is the need of consent to be able to resort thereto. This Tribunal had the task to interpret for the first time the State-investor dispute settlement clause ("Article XIII") of the Agreement on Reciprocal Promotion and Protection of Investments contained in Annex III of the Free Trade Agreement between the Caribbean Community and the Dominican Republic (CARICOM) ("the Treaty"). To my knowledge, it is also the first time an UNCITRAL/ICSID tribunal shall interpret a clause drafted in the way Article XIII is.
2. Claimant invokes the clause in Article XIII as basis of the Tribunal's jurisdiction and, as an argument in the alternative, the most-favored nation clause contained in Article III for the UNCITRAL arbitration. Respondent invoked two jurisdictional objections: that Article XIII does not allow the investor to trigger international arbitration directly and that, in any event, Claimant is not a direct investor and, therefore, his action falls outside the scope of the Treaty. The majority of the Tribunal analyzed and rejected both objections. In this dissenting opinion I explain my disagreement. Additionally, I shall consider Claimant's alternative argument and explain why the most-favored nation clause contained in the Treaty cannot establish this Tribunal's jurisdiction either.