Cruising around investment cases against the Caribbean islands
- In Allard, the claimant alleged that Barbados’ failure to take necessary and reasonable environmental protection measures destroyed the value of his investment in the Graeme Hall Nature Sanctuary, an eco-tourism project on the wetlands on Barbados’ South Coast. However, the tribunal dismissed the claims for lack of evidence of environmental damage during the investment timeframe.
- In Corona, the investor sought to invest close to Sanchez, in the Samaná region in the Dominican Republic, to mine for aggregate materials to be shipped to the US. This project was allegedly hindered by the denial of environmental approvals. The tribunal declined jurisdiction without deciding the relevant environmental issues.
- In Ballantine, investors in an exclusive housing project on the Jamaca de Dios community in the Dominican hills of Jarabacoa claimed that they did not obtain environmental approval to develop the higher portion of their property, where most valuable residences were to be located. Proceedings are pending.
- In Corona, the tribunal declined jurisdiction under Article 10.18.1, which provides for a 3 years time bar to submit a claim, from the date on which the claimant first acquired, or should have first acquired, knowledge of the breach alleged and knowledge that the claimant or the enterprise incurred loss or damage. This tribunal considered the submission of the US as a non-disputing party dated 11 March 2016, which commented on the interpretation of DR-CAFTA’s statute of limitation rule. A similar time-bar was raised (but dismissed) in Allard, pursuant to Article XIII.3.d of the Barbados – Canada BIT. In Ballantine, the Dominican Republic equally alleged that some of the investors’ claims violate the same rule. TheCorona precedent has since been relied on by the Aaron C. Berkowitz, Brett E. Berkowitz and Trevor B. Berkowitz v Republic of Costa Ricatribunal, in its Interim Award of 30 May 2017, which declined jurisdiction on certain claims.
- In Ballantine, the Dominican Republic alleged that the claimants’ “dominant and effective nationality” was Dominican (not US) at the time of the alleged violations and at the start of the proceedings, in breach of DR-CAFTA Article 10.28. In its Procedural Order No. 2 dated 21 April 2017, the tribunal refused to bifurcate this issue, which remains pending.
Published April 29, 2018
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