Background: real estate development comes to a halt absent necessary environmental approval

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Background: US and Dominican dual-nationals initiate DR-CAFTA arbitration over denial of environmental permits

Mr. Hernandez and Ms. Cheek split the arbitration costs between the parties

Tribunal identifies burden of proof and standard of interpretation

Ms. Cheek reasons that, when examining the claimants’ ties to the US and the Dominican Republic “over the course of their lifetimes”, the Ballantines US nationality (and not their Dominican nationality) is dominant and effective

After involvement of a funder is mentioned in hearing testimony, claimants were ordered to disclose identity and date of funding agreement

DR-CAFTA’s dual nationality requirement must be met at the time of the alleged breach, and also when the claim was submitted to arbitration

Majority takes into account the specific context of DR-CAFTA

Majority finds that, at the critical dates, the Ballantines’ Dominican nationality was dominant and effective

Procedural orders reveal US intention to submit non-disputing party brief

Claimants use DCF method to establish quantum, while respondent finds no causation and only speculative damages

Tribunal orders claimants to grant respondent access to their property, and orders state to “facilitate” visits by claimants to similar projects

Parties disagree on timing and on criteria for determining the Ballantines’ “dominant” nationality under DR-CAFTA

Alleging new evidence, the Dominican Republic raises time-bar issue after filing statement of defense

Respondent cites DR-CAFTA environmental carve-out

Claimants argue that permit denials and enforcement measures breach national treatment; state says ‘likeness’ includes environmental impact

Investors claim illegal expropriation of their phase 2 projects

According to claimants, respondent failed to provide full protection and security to their investment when townspeople tore down their gates

Same measures also breach minimum standard of treatment, claimants say

Respondent alleges that transparency claim is outside scope of investor-state dispute settlement under DR-CAFTA

Tribunal adopts Glamis Gold three-part test for bifurcation

Determining ‘dominant and effective nationality’ would require examination of facts central to merits case

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