presentadas por la demandada. La primera objeción planteaba que el tribunal carecía de
jurisdicción al haber prescrito la controversia conforme al art. XII.3.d) del APPRI
celebrado entre Canadá y Venezuela. Ambas partes reconocían que la “fecha de corte”
era tres años antes que la demandante presentara su solicitud de arbitraje, esto es, el 17-
7-2009. Según Venezuela, la demandante identificó en su solicitud de arbitraje distintas
medidas adoptadas por la demandada que “comenzaron en 2009” equivalentes a un
incumplimiento del APPRI (por ejemplo, las Resoluciones del “BCV” de abril y junio y
el Convenio Cambiario nº 12). Así las cosas, la demandante básicamente reclamaba que
las “Medidas de 2009” incumplieron la disposición sobre expropiación del art. VII del
APPRI. La demandante pretendía incluir las pérdidas de su reclamación por
compensación a partir de junio de 2009. En opinión de Venezuela, estas reclamaciones
estaban prescritas conforme al art. XII.3.d) del APPRI porque la demandante conoció la
supuesta violación y el daño ocasionado antes de la “fecha de corte”. En su respuesta a
esta objeción el tribunal señaló que:
“204. Paragraph 3 (d) of the same Article then creates a statute of limitations applicable to arbitrable disputes. An investor may only submit a dispute involving (one or more) claims for breach of the Treaty to arbitration, if “no more than three years have elapsed from the date on which the investor first acquired, or should have first acquired, knowledge of the alleged breach and knowledge that the investor has incurred loss or damage”.
Application of the time bar thus requires that more than three years have elapsed between
- the date when the investor for the first time obtained actual or constructive knowledge (i) of a breach of the Treaty and (ii) of a loss or damage caused by such breach and suffered by the investor, and
- the date of submission to arbitration of the dispute which involves claims for that breach of the Treaty.
(…)
206. The similarity of the wording of the provisions of the BIT applicable in the present case with that of the rules governing NAFTA arbitrations recalls the case law developed in the context of such arbitrations. The Tribunal is mindful in this respect that NAFTA jurisprudence is not at one in answering the question of how time concerning continuing and composite acts should be computed.”
213. The relevant date for time bar purposes is when Claimant obtained actual or constructive knowledge of the adoption of the 2009 Measures and of their consequences for Rusoro’s investment. It is undisputed that the 2009 Measures were published in the Gaceta Oficial of the Bolivarian Republic before the Cut-Off Date; thus by that date the Claimant was aware, or should have been aware, of the enactment of the 2009 Measures.
214. However, Art. XII.3 (d) requires, for the time bar to apply, not only that the investor knows about the alleged breach, but also that the investor is aware that such breach would cause loss or damage to its investment.
(…)
216. Respondent has drawn the Tribunal’s attention to a letter dated 30 June 2009 (i.e. before the Cut-Off Date), sent by Grupo Agapov to the Vice-President of the Republic. In this letter, Claimant complains about the June 2009 BCV Resolution and the Convenio Cambiario No. 12, and states that these measures establish “[…] new rules for the sale of gold which harm our gold production companies alone”. 217. In accordance with established NAFTA case law, what is required is simple knowledge that loss or damage has been caused, even if the extent and quantification are still unclear. The letter proves beyond any reasonable doubt that as of end of June 2009, and before the occurrence of the Cut-Off Date, Claimant was aware that 2009 Measures could cause loss or damage to its investment. (…)
231. (ii) For this reason, the Tribunal finds that, in the specific circumstances of this case, the better approach for applying the time bar consists in breaking down each alleged composite claim into individual breaches, each referring to a certain governmental measure, and to apply the time bar to each of such breaches separately. This approach is the one adopted by other investment tribunals and respects the wording of Art. XII.3(d), which defines the starting date for the time bar period as the date when the investor acquired knowledge that a breach had occurred and a loss had been suffered.”
232. The result is that breaches allegedly committed by Venezuela through the adoption of the 2009 Measures have become time barred, cannot result in enforceable claims and cannot be taken into consideration to decide whether a creeping expropriation has occurred (while claims relating to later breaches are not affected).
(…)
235. Claimant alleges that the 2009 Measures form part of the breaches which resulted in the Ancillary Claims.
236. The Tribunal has already found that any alleged breach committed by Venezuela and based solely on the 2009 Measures is time-barred. This principle also applies to the Ancillary Claims. To the extent that the Ancillary Claims
concern breaches of the Treaty supported by measures having occurred after the Cut-Off Date, such claims are enforceable and are not affected by Art. XII.3(d). The 2009 Measures may however have some relevance as background and context and to establish the legitimate expectations of the investor”.