Summary

Introduction

1. The main issue before the Tribunal concerns the application of the limitation period prescribed by Article 10.18 of the Peru-United States Trade Promotion Agreement (the "TPA" or the "Treaty"). I regret to say that I cannot agree with the decision reached by my distinguished colleagues. I believe that they have erred by focusing on the wrong question.[1]

2. As the Decision recounts, the present proceeding is not the first time in which the two parties have been in dispute. In a prior proceeding ("Renco I"), initiated in 2011, a tribunal found that the Claimant failed to comply with the second condition expressed in Article 10.18 of the Treaty (which requires a claimant to file a waiver of other remedies at the time the claim is submitted to arbitration).[2] The Tribunal held that, "if no compliant waiver is served with the notice of arbitration, Peru's offer to arbitrate has not been accepted; there is no arbitration agreement; and the Tribunal is without any authority whatever."[3] The claim was therefore dismissed.

3. By the time that the Renco I tribunal rendered its Partial Award, over four years had elapsed since the purported submission of the claim to arbitration. Given the Treaty's three-year limitation period, this posed an obvious difficulty for the Claimant. A new claim would raise serious questions as to what measures alleged to breach the Treaty could be put before the new tribunal. Recognizing this, the Renco I tribunal stated that while it "cannot prevent Peru from exercising in the future what it considers to be its legal rights," if the claim were to be submitted to a new tribunal, the Respondent should bear in mind "Renco's submission that Peru's conduct with respect to the late raising of the waiver objection constitutes an abuse of rights."[4] The tribunal found no abuse by Peru by its having raising the waiver objection in that proceeding, but said it was troubled by what it considered to be the late raising of the objection. Accordingly, "justice would be served if Peru accepted that time stopped running for the purposes of Article 10.18(1) when Renco filed its Amended Notice of Arbitration on August 9, 2011."[5]

4. After Renco I's dismissal, settlement discussions were held pursuant to a "Consultation Agreement" and then a "Framework Agreement".[6] The parties agreed, without prejudice to their respective positions as to the effect of the effluxion of time since the commencement of the Renco I arbitration, that the time taken up by such negotiations would not be held against either party:

"The Parties waive their respective rights to assert any statute of limitations, laches or other limitations argument or defense based on the passage of time between 10 November 2016 and the end of the Consultation Period with respect to the claims asserted in each of the respective Notices. For clarity, this wavier is strictly limited as set forth herein and is only prospective, and does not impact the timeliness, or untimeliness, of any claims as of the date hereof or other rights or defenses, temporal or otherwise, except as set forth herein."[7]

5. After negotiations failed, on 23 October 2018, the Claimant filed two new claims: (i) a new Treaty claim; and (ii) a contract claim with which this Tribunal is not concerned.[8]

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Footnotes

[1] To be clear, this dissent is concerned solely with the majority's treatment of the limitation period.

[2] Article 10.18.2 states:

2. No claim may be submitted to arbitration under this Section unless:

(a) the claimant consents in writing in accordance with the procedures set out in this Agreement; and

(b) the notice of arbitration is accompanied,

(i) for claims submitted to arbitration under Article 10.16.1 (a), by the claimant's written waiver, and

(ii) for claims submitted to arbitration under Article 10.16.1 (b), by the claimant's and the enterprise's written waivers of any right to initiate or continue before any administrative tribunal or court under the law of any Party or other dispute settlement procedures, any proceeding with respect to any measure alleged to constitute a breach referred to in Article 10.16.

[3] The Renco Group v. Republic of Peru, ICSID Case No. UNCT/13/1 ("Renco I"), Partial Award on Jurisdiction, 15 July 2016 (L. Yves Fortier, Toby T. Landau, Michael J. Moser (President)), ¶ 158 (C-3/R- 8/RLA-24).

[4] Id., ¶ 188.

[5] Id.

[6] Dated 10 November 2016 and 14 March 2017, respectively.

[7] Framework Agreement, ¶ 2(c) (R-10).

[8] The two proceedings are separate proceedings (registered as PCA Case No. 2019-46 and PCA Case No. 2019-47). The parties to each dispute decided to appoint the same arbitrators to hear each case.