Héctor Silva Ávalos
Translated from: http://www.laprensagrafica.com/2014/09/23/pacrim-y-el-salvador-a-ultimo-round
Each of the parties had two hours to present their final arguments before the ICSID panelists. El Salvador argues that the multinational has no right to mine on national territory.
El Salvador and Pacific Rim Mining, which recently was acquired by Australian company Oceana Gold, closed the final episode of litigation yesterday at the International Centre for Settlement of Investment Disputes (ICSID) for the concession of exploitation in Salvadoran soil to which the transnational corporation claims to have the right. Salvadorans, meanwhile, argue that the concession never existed.
Yesterday’s proceedings were the latest in a series of arguments that began to unfold last week at the headquarters of the ICSID – a tribunal of the World Bank in Washington. According to sources close to the case, this last round was an opportunity for both parties to present closing arguments of their case.
In short, when presenting its case before the ICSID in September 2009, Pacific Rim argued El Salvador has disrespected a mining concession that the country had issued during the administration of President Antonio Saca on behalf of the foreign company. PacRim filed its claim under regulations of the Free Trade Agreement between the United States, Central America and the Dominican Republic (CAFTA-DR) and the Investment Law of El Salvador.
To this, the Salvadoran State replied, represented by the Washington law firm Foley Hoag, that PacRim had no right to utilize CAFTA regulations because it is not a company that has had verifiable operations on US soil. "We never found an address, a telephone number, a desk," said one of the agents representing the interests of El Salvador at the ICSID.
Also, and this has been the logic of El Salvador's argument at this late stage, PacRim never earned the concession; therefore its claim under the Investment Law has no place.
The corporation, meanwhile, has claimed that it always had the right to a concession as it had invested in El Salvador, for which it requested financial compensation to the Salvadoran State. PacRim has also argued that it has been subject to expropriation from El Salvador.
A stretch still to come
Yesterday marked the end of the last round of arguments of the parties before the panel, consisting of three adjudicators, but the final decision could still be months away: internal regulation do not give ICSID specific timelines to issue a resolution.
One party believes, based on the time ICSID panelists have taken resolve other claims in this case, that a decision could take more than six months.
"To resolve the jurisdictional issue relating to the tribunal and CAFTA it took almost a year, so we can only speculate," said by telephone attorney Luis Parada from Foley Hoag law firm.
During last week’s hearings, much of which was attended by the Salvadoran attorney general, Luis Martinez, El Salvador presented five experts: José Alberto Tinetti, on Salvadoran constitutional right; Karla Serati de Vega and José María Ayala, on administrative law; Carlos Penate, civil law; José Roberto Tercero, to discuss the Investment Law; and James Otto, as an expert in mining laws. Pacific Rim abstained from presenting specialists.
Before last week’s proceedings, however, the mining company had sought the support of several US congressmen to try to put its case in the political realm.
* The author is an associate researcher of the Center for Latin American Studies at the American University in Washington DC