Michael Ballantine and Lisa Ballantine v. The Dominican Republic, Hearing Transcription - Day 2

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[Page 258]

IN THE MATTER OF AN ARBITRATION UNDER THE DOMINICAN
REPUBLIC-CENTRAL AMERICA-UNITED STATES FREE TRADE
AGREEMENT, SIGNED ON AUGUST 5, 2004 ("CAFTA-DR")

AND

UNDER THE UNCITRAL ARBITRATION RULES
(AS ADOPTED IN 2013)
(the "UNCITRAL Rules")

-x

In the Matter of Arbitration Between:
MICHAEL BALLANTINE, LISA BALLANTINE,
Claimants,
and
THE DOMINICAN REPUBLIC,
Respondent.

PCA Case No.
2016-17

-x

ORAL HEARING

Volume 2

Tuesday, September 4, 2018

The World Bank
1818 H Street, N.W.
MC Building
Conference Room 4-800
Washington, D.C.

The hearing in the above-entitled matter came
on, pursuant to notice, at 9:13 a.m. (EDT) before:

PROFESSOR RICARDO RAMÍREZ HERNÁNDEZ,
Presiding Arbitrator

MS. MARNEY L. CHEEK, Co-Arbitrator

PROFESSOR RAÚL EMILIO VINUESA, Co-Arbitrator

[Page 259]

ALSO PRESENT:

MR. JULIAN BORDAÇAHAR
Secretary to the Tribunal

Court Reporters:

MS. MARGIE DAUSTER
Registered Merit Reporter (RMR)
Certified Realtime Reporter (CRR)
B&B Reporters
529 14th Street, S.E.
Washington, D.C. 20003
United States of America

MR. DANTE RINALDI
MR. DIONISIO RINALDI
D.R. Esteno
Colombres 566
Buenos Aires 1218ABE
Republic of Argentina

Interpreters:

MS. SILVIA COLLA

MR. DANIEL GIGLIO

[Page 260]

APPEARANCES:

Attending on behalf of the Claimants:

MR. EDWARD "TEDDY" BALDWIN
MR. MATTHEW ALLISON
MS. LARISSA DIAZ
MS. SHAILA URMI
Baker & McKenzie LLP
815 Connecticut Avenue, N.W.
Washington, D.C. 20006
United States of America

Claimant Representatives:

MS. LISA BALLANTINE

MR. MICHAEL BALLANTINE

[Page 261]

APPEARANCES (Continued)

Attending on behalf of the Respondent:

MR. MARCELO SALAZAR
MS. LEIDYLIN CONTRERAS
MS. RAQUEL DE LA ROSA
Dirección de Administración de Acuerdos y
Tratados Comerciales Internacionales,
Ministerio de Industria y Comercio
MS. PATRICIA ABREU
MR. ENMANUEL ROSARIO
MS. ROSA OTERO
MS. JOHANNA MONTERO
MS. CLAUDIA ADAMES
Ministerio de Medio Ambiente y Recursos
Naturales

MR. PAOLO DI ROSA
MR. RAÚL R. HERRERA
MS. MALLORY SILBERMAN
MS. CLAUDIA TAVERAS
MS. CRISTINA ARIZMENDI
MR. KELBY BALLEÑA
MS. KAILA MILLETT
Arnold & Porter, LLP
601 Massachusetts Avenue, N.W.
Washington, D.C. 20001-3743
United States of America

Of Counsel:

MR. JOSÉ ANTONIO RIVAS CAMPO

[Page 262]

[Page 263]

PROCEEDINGS

PRESIDENT RAMÍREZ HERNÁNDEZ: Morning, everyone.

I think we will start with the witnesses. But the Claimant

wanted to say something or--

MR. BALDWIN: Yes, Mr. President. Good morning to

everyone. The Parties had a discussion right after the

hearing yesterday, and there was some question about the

timing issue. Because you had mentioned about, you know,

doing closings on Friday. According to the Procedural

Order, the Parties are allocated 12 hours each, so we

wanted to see if we could get some additional clarification

as to what you expected.

PRESIDENT RAMÍREZ HERNÁNDEZ: I guess that the

Tribunal's view is that we--of course you will have the 12

hours that you--for each Party. And the idea that we had

is that maybe we would need to go a little bit further in

time to finish up.

But if the question is whether you will keep your

allocated time, each Party--that's the question. The

answer is yes. Each Party will have their 12 hours.

MR. BALDWIN: Thank you, Mr. President. One other

question, just sort of a process question. In terms of the

experts, they're going to give their presentations. Are we

still going to introduce them and have them confirm their

Expert Reports prior to doing that?

[Page 264]

PRESIDENT RAMÍREZ HERNÁNDEZ: Yeah.

MR. BALDWIN: Okay. Thank you.

PRESIDENT RAMÍREZ HERNÁNDEZ: Please, could you

identify yourself and read the piece of paper you have

there. You have to identify yourself first.

THE WITNESS: My name is Michael Ballantine. And

I solemnly declare upon my honor and conscience that I will

speak the truth, the whole truth and nothing but the truth.

PRESIDENT RAMÍREZ HERNÁNDEZ: Thank you very much,

Claimant.

MICHAEL BALLANTINE, CLAIMANTS' WITNESS, CALLED

DIRECT EXAMINATION

BY MR. ALLISON:

Q. Good morning, Mr. Ballantine. Good morning

members of the Tribunal. I will be brief.

Mr. Ballantine, did you submit witness testimony

in this matter?

A. Yes.

Q. And how many Witness Statements did you provide?

A. Three.

Q. And do you affirm the testimony in those Witness

Statements are true and accurate to the best of your

knowledge?

A. With two modifications, but yes.

Q. And can you tell the Tribunal what those

[Page 265]

modifications are?

A. One of them states that my oldest son, Joshua,

left the Dominican Republic in 2010. That was, actually,

2007. And the second one, it said--I forgot which

number--but that I had all the titles in 2009.

In theory--in technicality, I did. But I had what

was called a Carta de Constancia, which was a government

document assuring that I owned the property, but then the

subdivision had to be done. So, I had the title, but then

I had to make the subdivision. So, the final titles

actually came out in August of 2010 as opposed to 2009.

Q. And Mr. Ballantine, did you submit a Witness

Statement that concerned the issue of your dual nationality

for this proceeding?

A. Yes.

Q. And do you stand by all the statements you made in

that document?

A. Yes.

Q. And why did you obtain dual nationality?

A. I obtained dual nationality because I was

concerned about our family and the investment. And in case

of my demise or Lisa's, I felt like that would be a better

process to leave with my children in terms of probate. And

I had faced discriminatory treatment prior to that and some

people wouldn't buy because I was an American, and I

[Page 266]

thought that would help for business purposes.

Q. And did your attainment of dual nationalization

reduce any of those biases?

A. No.

MR. ALLISON: Could we put up Exhibit C-175.

(Video played.)

BY MR. ALLISON:

Q. Mr. Ballantine, did it bother you when you were

repeatedly referred to as "the American" or "the gringo"?

A. No.

Q. And why is that?

A. Because that was the habit, and that's how I was

referred to.

Q. When did you take the citizenship oath?

A. February of 2010.

Q. And at that time, how many of your children lived

with you in Jarabacoa?

A. At that time, my youngest children--I have four

children. My youngest children, Josiah and Tobi, lived

there at that time.

Q. And where were your other two children?

A. Rachel was in Canada. I think she had just gotten

married. And my oldest son, Joshua, was at Florida

National University.

Q. And when did your two youngest children move back

[Page 267]

to the United States?

A. In June of 2010. Four months subsequent.

Q. Permanently?

A. Permanently, never to reside in the Dominican

Republic again.

Q. So, within six months of your citizenship oath,

all of your children had returned to the United States; is

that correct?

A. Yes.

Q. And then what happened in October of that year?

A. October of 2010, I--my wife and I, we rented a

townhouse in Elk Grove Village, Illinois.

Q. And why did you rent a home in Illinois in 2010?

A. By that time, my company was established, and we

wanted to spend much more time with our family and friends

and our social network.

Q. And how many times did you return to the United

States between 2010 and 2014?

A. 30 times or more.

Q. Yesterday we learned there was some confusion with

respect to some of the words you used in your

communications with the Respondent.

MR. ALLISON: Can we pull up Exhibit C-10. Can we

blow up the second half of that big paragraph.

BY MR. ALLISON:

[Page 268]

Q. I guess I should have you identify this document.

Can you identify what this document is, Mr. Ballantine?

A. It appears to be either my appeal for

reconsideration for either the second--or the first or

second denials.

Q. And you write, "The reason we were given is that

in accordance with Article 122 of Law 64-00, development is

not permitted in area where the slope is greater than

60 degrees and this is correct. However, the slope we are

trying to create--where we are trying to create a simple

access road is only 34 degrees, and it is therefore within

the permitted margin."

Do you see that?

A. Yes.

Q. And what were you communicating here?

A. I was communicating that I understood that there

was a law regarding 60. I subsequently--you know, I

understood it was 60 degrees. I wrote that at that time.

But I was clearly demonstrating that there was a ratio that

we were significantly under, but I used the term "degree"

as opposed to "percentage."

Q. And that was a mistake?

A. That was an innocent mistake, yes.

MR. ALLISON: Can we pull up Demonstrative Exhibit

17.

[Page 269]

BY MR. ALLISON:

Q. What is this document, Mr. Ballantine?

A. This is a Google image of Jamaca de Dios Phase 1

and Jamaca de Dios Phase 2.

Q. And Phase 2 is on the bottom, even though it's at

the top of the mountain?

A. That is correct.

Q. Could you have avoided areas with

60-degree--60 percent slopes in your development of

Phase 2?

A. Absolutely. And that is indicative by Phase 1, in

which we accomplished that. And Phase 1 is steeper than

Phase 2.

Q. And could you have built a safe road up to the top

of the mountain?

A. It would be very safe and easy.

Q. And in your communications with the MMA, did the

MMA ever tell you what percentage of your land exceeded the

slope law?

A. Never.

Q. Did any of the MMA rejection letters specifically

identify the road as the reason why your permit was being

denied?

A. Never.

Q. Do any of their denial letters even mention the

[Page 270]

road?

A. No.

Q. Did the MMA ever make any suggestions or

recommendations to you about your Phase 2 development

plans?

A. They never once made any recommendation.

Q. Did the MMA ever ask you to submit a different

plan for your Phase 2 land to address any of their

concerns?

A. No. They suggested I move the project.

Q. And were you willing to revise your development

plans if necessary?

A. I would have done anything possible to continue

the development.

Q. And did you continue that willingness to the

Dominican Republic?

A. I think we communicated that in most every

communication.

MR. ALLISON: Thank you, Mr. Ballantine.

PRESIDENT RAMÍREZ HERNÁNDEZ: Respondent.

MR. Di ROSA: Thank you, Mr. Chairman. Good

morning to you and Members of the Tribunal. Good morning

to everybody.

CROSS-EXAMINATION

BY MR. Di ROSA:

[Page 271]

Q. Mr. Ballantine, good morning.

A. Good morning.

Q. I'm going to be asking you a few questions. We

will periodically refer to different documents that you

will have in your--in the binder that's being handed to you

and other documents that will be handed to you from time to

time or put up on the screen as necessary.

Before we start, I wanted to mention a couple

things. First of all, the cross-examination is being

transcribed by a stenographer, and it's also being

translated. So the one thing we can't do is overlap in our

speech.

So, you know, you have to finish--you have to wait

until I finish my questions, and I have to wait until you

finish your answer; otherwise, that creates a problem for

the stenographers and the interpreters. So, we'll--it's

see to forget that. We'll try to be mindful of that. I'll

do the same.

Also, if you at any point don't understand a

question or just want me to repeat it for whatever reason,

feel free to ask me that. And if you ever want to take a

break, also feel free to ask me.

So let me start by asking you a couple of

questions about the attestations that you gave in the three

Witness Statements that you just mentioned along with your

[Page 272]

counsel. I notice that in two of those declarations, you

said, "I attest that this is correct," and then in the

third one you said, "I affirm that this is correct."

I just want to ask you: In your mind, was there a

difference--is there a reason that you used the word

"affirm" in the third one but "attest" in the previous two?

A. I looked at those as synonyms, I would say. I

don't think I was trying to manipulate anything.

Q. No, I'm not saying you were just--manipulating

anything. I just asked if there was a difference in your

mind since you used a different word. Maybe your lawyers

used a different word. I'm not sure.

A. No. I wrote my testimonies.

Q. You did. Okay. All right.

In any event, you know, since there conceivably

could be a difference between affirming something and

attesting to something and saying the whole truth and

nothing but the truth, as you did this morning with respect

to your testimony today, can I just ask you, did you tell

the truth, the whole truth, and nothing but the truth in

the three Witness Statements?

A. I believe I did to the best of my ability.

Q. Okay. Good.

We understand that you did not provide a CV or bio

with any of your submissions in this proceeding. So I

[Page 273]

wanted to ask you a few questions about your background.

First of all, did you obtain a university degree?

A. No, I did not, but I'm four classes short of

having a bachelor's degree.

Q. Okay. So you did go to college for a while and

then stopped? Or you took classes later in life? Or how

did that work?

A. I did both. But in college, my wife and I, we

ended up having our first child, and I committed myself to

my family.

Q. Okay. So after high school, can you just tell me

what your professional trajectory was, you know, what your

first job was and successively what you did professionally.

A. Yes. Being a new family and having a child, I got

a job as a production coordinator in a printing company.

Subsequent to that, I went to another printing company and

I saw that the people--that I was doing all the work. I

learned the business, but the people making the money were

the salespeople. And I felt like I had a personality to

sell, I knew the product, and so I got into sales.

I did quite well in sales at the company I

represented. And then I realized that they were limited in

what they could offer my clients. I had a very strong

client base, and so I decided to branch off on my own. And

I became a broker and developed a print brokerage company,

[Page 274]

which became one of the more successful ones in Chicago.

And it was a brokerage one. We didn't--I had a decision to

buy machinery and go that route, but I felt like that would

require a lot of overhead, and so I managed my accounts and

did it that way.

Q. Okay. So your first job was in the printing

industry?

A. That's all I ever worked prior to coming to Jamaca

de Dios.

Q. Oh, okay. So that--so you had a whole career

exclusively in the printing industry?

A. Yes, sir.

Q. And these first few jobs that you mentioned, how

long were you in each one of those?

A. The first two were two years, and then--and then I

became a salesman and a broker. And I did invest in what

became one of the largest advertising agencies in Boston as

a silent partner.

Q. Okay. And then at some point did you form your

own company? Is that what you--

A. Yes, it was my own brokerage company. It was

called Reconciled Images, and I was a 100-percent

shareholder.

Q. Okay. And all of these jobs were in the United

States; correct?

[Page 275]

A. That is correct.

Q. And you said Boston. Was it exclusively in Boston

or in other cities as well?

A. No, I was just an investor. There's three

partners, and I was part of that.

Q. But all in Boston. So, basically, your whole

professional career was in Boston or--

A. No, it was all in Chicago, but the operations of

the advertising agency was in Boston.

Q. Okay. Got it.

Prior to your business venture in the Dominican

Republic, then, you didn't have any experience doing

business in any foreign country?

A. Never. No, this was the first experience.

Q. And prior to your business venture in the

Dominican Republic, you didn't have any experience building

homes for commercial purposes, did you?

A. No, sir.

Q. And you also had no experience building roads; is

that right?

A. That is correct.

Q. And the same is true of building mountain lodges.

You had no experience with that?

A. That's correct.

Q. How about building hotels?

[Page 276]

A. No. But I would like to just simply say I'm 53

years old now. And when somebody becomes 53, they

recognize what they're good at and not so good. Everyone

has strengths and weaknesses. And I'm a pretty good

entrepreneur, and I'm very good at connecting people and

leadership and providing vision and getting people to

participate in that.

So the answer to all those questions is no.

Q. Okay. So no experience building hotels. But, you

know, you--I hear your answer.

How about apartment buildings? Any experience

with those--

A. No.

Q. --building those? No.

And same with restaurants?

A. No, that was the first venture.

Q. Did you have any experience in construction at

all, of any sort?

A. No.

Q. So you hadn't built anything at all for commercial

purposes or otherwise prior to your investment in the

Dominican Republic; is that right?

A. Yes, sir.

Q. How about operation as opposed to construction?

Did you have experience operating a hotel?

[Page 277]

A. To get to the point, I was only in the printing

industry. So I had no experience in operations nor

construction in any of these areas.

Q. Okay. So you didn't have any experience operating

a hotel or a spa or a restaurant; correct?

A. That is correct.

Q. Do you have any background in engineering?

A. I do now.

Q. But you didn't at the time that you went to the

Dominican Republic?

A. That is correct.

Q. Okay. And the same would apply to environmental

science or biodiversity, hydrology or soil management?

A. I learned considerably. However, prior to going

to the Dominican Republic, I had no knowledge.

Q. Okay. So you indicated in your Witness Statement

that at some point--and this is the First Witness Statement

at Paragraph 2. You're welcome to look at your Witness

Statements if you ever want to see--confirm what I'm

saying.

A. Are those contained in this binder? Are they?

Q. I guess she will hand you--my assistant here,

Kaila, will hand you the binder with your Witness

1 English Audio Day 2 at 00:18:49

[Page 278]

Statements.

A. Thank you.

Q. So, from time to time, I'm going to make reference

to your Witness Statements. But, you know, if--you're

welcome to check to confirm or to look at it in context.

Some of them, you know, you'll just know off the top of

your head but, you know, as you wish.

You did indicate in Paragraph 2 of your First

Witness Statement that you had developed a sense of

restlessness, that you had grown restless at some point in

your professional career; correct?

A. That is correct.

Q. And do you remember roughly what year that was?

A. That was after I purchased the mountain.

Q. Which--and what year was that?

A. I believe I made my first purchase in 2003.

Q. 2003. Okay.

And how old were you at that point?

A. 53 minus 15 would be 38 or 39. Something like

that.

Q. Okay. And you also indicated in the same

paragraph that you had developed this sense of restlessness

"after a successful career in the printing industry."

Do you remember saying that?

A. That is correct.

[Page 279]

Q. So to your mind, by age 38, you had already

completed a successful career in the printing industry; is

that right?

A. Yes. I had earned a substantial amount of money,

but I realized there was more important things in life, and

I felt bored, actually.

Q. Okay. I can relate to that.

You indicated in 2000 that you and your wife

decided to have a sabbatical and move to Jarabacoa in the

Dominican Republic with your children; is that right?

A. Yes, sir.

Q. And how did you happen to pick the Dominican

Republic?

A. At that time, I noticed within my children--and it

was primarily for them--that they just had a singular

mindset of America. And I recognized it was a big world.

I wanted them to learn another language, and I wanted them

to experience a bigger world.

Q. Right. But before that visit--

A. But the answer to that question--forgive me.

A friend of mine, we went down to the Dominican

Republic to Jarabacoa specifically because we felt like

that would be a baby step in terms of living

internationally, very close to Miami, and our closest

friends were the Pauls--Lynn and Larry Paul. And Lynn had

[Page 280]

actually served in Jarabacoa years prior--previous to that.

And there was a very large established expat community of

Americans, so we felt like that would be a good place to

go.

Q. Okay. Before that visit to the Dominican

Republic, had you been to any other Latin-American country?

A. Mexico.

Q. Okay.

A. And I don't remember if I was in any other

country.

Q. But you had never established residence in any

other country?

A. No, sir. Singular, America. Average citizen.

Q. Once you arrived in the Dominican Republic, you

indicated that you started doing missionary work; is that

correct?

A. Yes, I did.

Q. But when you first arrived for your missionary

work, you did not have any plan yet to invest in the

Dominican Republic, did you?

A. I did not have any plans, but I saw what I thought

were many opportunities. But I did not act on any of that

because I felt like I was singular in the focus of what we

were doing.

Q. Okay. On behalf of what church did you do

[Page 281]

missionary work?

A. Being an entrepreneur, we started our own group.

Q. You started your own church? Is that--when you

say "group"--

A. Well, we started a United States-based 501(c)(3)

with many friends and a board of directors and others. But

I was the director of it.

Q. Right. In your Amended Statement of Claim, you

said at Paragraph 18 that it was a ministry that you had

founded. Is that what you're referring to?

A. A ministry to reach out to people. Yeah, to help

minister to the needs of the community and people. Yes,

sir.

Q. I see.

And you indicated in your written testimony that

you put up a large blue and white tent in the middle of

Jarabacoa. Is that correct?

A. That was over the evolution of time. Yes, sir,

that is correct.

Q. And what was the purpose of that blue and white

tent?

A. To--the purpose of the blue and white tent was to

gather people together from the community in order to reach

out to them and encourage them and--

Q. Would you characterize these as religious services

[Page 282]

or not?

A. Yes. It was Christian and faith-based, yes, sir.

Q. I see.

So were you giving sermons or conducting services

at these events?

A. Oftentimes. But there was a team, and there was

native Spanish-speaking people that carried a bunch of that

burden, but then I would do that with a translator.

Q. You weren't ordained as a pastor anywhere, though,

were you?

A. I--no.

Q. Okay. So you mentioned this non-profit that you

formed. Is that the Jesus For All Nations--

A. Yes, sir.

Q. --organization? Okay. And one of the purposes of

that organization was to promote your religion; correct?

A. Well, I wouldn't say "my religion." I feel like

there's a universal religion of Christianity, and I was

part of that.

Q. What do you mean by "universal"? There are other

religions.

A. When you define "religion"--I'm not trying to be

argumentative nor parse words--there's different sects.

There's different groups. There's different institutions.

And ours was more, I would say, organic, providing hope and

[Page 283]

love and encouraging people. But it was definitely

Christian and faith-based, but it wasn't institutionalized

like oftentimes religions are.

Q. I see.

All right. So then you said after 14 months of

this sabbatical in the Dominican Republic, you returned to

the United States to your day-to-day business routine. Do

you remember saying that?

A. Yes, sir.

Q. And do you remember what year that was in that you

returned?

A. That was in 2001.

Q. And what was the day-to-day routine that you

returned to?

A. It was--the day-to-day return was I had an

established a company, I had production managers, I had an

office staff. And then what my job was, was to do client

management and account management and a lot of entertaining

and just being out with people securing business for my

company.

Q. This is still the printing company?

A. This is a print brokerage company.

Q. Print brokerage. Correct.

And you just mentioned that when you went to the

Dominican Republic, you said you saw a lot of business

[Page 284]

opportunities; right?

A. Yes. Being an entrepreneur, I can see those kinds

of things.

Q. And you also mentioned that in 2003, a friend of

yours showed you some property, a large tract of mountain

land in Jarabacoa with spectacular views; right?

A. Yes, sir.

Q. And you also indicated in your written testimony

that you and your wife agreed that this would make for an

excellent spot for a luxury gated community development;

correct?

A. That is correct. There--we felt like it was a

good investment, but the vision took--it wasn't like today

we're going to do this. It took a little bit of time to

mature, the vision. But yes, sir.

Q. But you just told us that--you just told us that

you had no experience in residential real estate or in

construction or in doing business in a foreign country.

So, on what basis did you make this assessment that a

luxury gated community development in that particular spot

would be a good investment or a very successful one, as you

put it?

A. In my life, I have never had experience in a lot

of endeavors that I created things from out of nothing in

terms of entrepreneurship. So I felt confident. I felt

[Page 285]

peace in my heart that this could be achieved.

Also, I recognized that in the City of Jarabacoa

itself, there was very high price points in the community

itself. And at that time, the mountain, which didn't have

any access--I felt if I could get a road and I could

develop it, the views are spectacular, and the price points

would be subsequently higher than what they are in the

city.

Q. I see. So if I understand correctly, you had no

business doing--had no experience doing business in any of

these fields that you would need to put up a residential

community. It's a foreign country. You go there. You see

this mountain. You have this vision. You just used that

word. We'll come back to that because it's a term that you

and your lawyers used a lot.

So you saw this mountain. You just had a vision

that there--it would be a great spot for a residential

community; correct? I mean, is that essentially what

happened?

A. That is exactly what happened, yeah.

Q. Exactly what happened. Okay.

A. And I saw something. And I actually got lucky.

Because Dominicans knew that that area was very violent,

and there was a lot of social problems in that community.

[Page 286]

And because I had no local knowledge or custom there, I

just saw the beauty of it and the potential, whereby people

that were in that culture were more afraid of that. So in

my being a little bit naive, I got lucky.

Q. And at this point in 2003, had you ever heard of a

community project--a residential project of this nature

being built on a mountain in the Dominican Republic?

A. At that time, what I saw was individual homes

going up throughout the mountains. And those required

individual roads, electric, security for the homes, as well

as all those aspects. And so I don't remember anything

like the concept that I conceptualized.

I had traveled extensively, and I had seen these

types of concepts in other areas, and I felt that that was

a prime location for something like that.

Q. Okay. So you just said that, you know, it had

pretty views and that you--based on your experience as an

entrepreneur, generally, you thought that this would be a

good opportunity?

A. Yes, sir.

Q. But you also said that you were aware that it was

a violent area; right?

A. No.

Q. You said--

A. I was unaware.

[Page 287]

Q. You were unaware.

A. And local knowledge was that it was. I was naive.

As a matter of fact, I remember I was on another mountain,

and I was talking to a family there, and they were telling

me what their price points were.

And I'm, like, "Well, I just bought that mountain

cheaper."

And they said, "You should know better. That's a

dangerous town."

I'm, like, "Well, I just thought it was

beautiful."

Q. I mean, did it concern you at all that, you know,

you had no experience at all? You didn't really speak the

language. You just said you had no local knowledge of the

local customs and so forth or local culture.

Did it worry you at all to just decide, like, I'm

going to buy this mountain? You know, I mean, I admire

your courage. I would never go to some country that I had

never been to before really, or that I had only lived

briefly in, and, you know, just do it on an impulse like

this.

A. Impulse, that word--I wouldn't use that word.

"Impulse" implies perhaps immaturity and impetuousness.

There was an abiding peace and a vision. And being an

entrepreneur, I felt confident that we could do this. And

[Page 288]

so I felt peace about it. I felt like let's go for it.

It's going to be a new adventure, and it's something

totally different and it would shake up my world view and

stimulate me in a way that the printing industry had become

boring.

Q. Okay. So you just--you went for it and you bought

land; is that--

A. Yes, sir.

Q. At that point you're still living in the U.S.,

though?

A. That is correct.

Q. But you were visiting the Dominican Republic

periodically?

A. That is correct. We had set up some churches and

there was pastors, and we were part of a group that we had

founded, and we were just providing support and friendship.

Q. So in 2003, when you bought this land on the

mountain, you hadn't commissioned any engineering studies

concerning a potential real estate project on the building,

had you?

A. No, sir.

Q. And at that point when you bought the land, you

also had not commissioned any ecological or environmental

studies concerning a potential real estate project on the

mountain; right?

[Page 289]

A. No, sir.

Q. How about a commercial feasibility study?

A. Just a gut feeling.

Q. Just a gut feeling. So no legal memorandum.

Did you consult with any government official

about, you know--it's on a mountain. It's a tropical

country with, you know, ecological sensitivities,

environmental sensitivities. Did it occur to you that

maybe you should check with, you know, the environmental

authorities or at least the municipal authorities to see

like, you know, could I actually do this? Could I put a

residential community on this mountain?

A. I would say no. But let me just respond by saying

at that time, there was absolutely no formality. It was

the Wild West. And at that time, I don't think one company

had any type of environmental permit whatsoever.

And I was highly encouraged--I had met with the

then-president, Hipólito Mejía. He invited me to lunch at

his estate in Jarabacoa. He gave me great encouragement.

He felt like it would be good for the area. I met with the

mayor, Joselito Abreu, and he said that this type of thing

was needed in Jarabacoa.

So I had oral encouragement from both the

president of the country as well as the mayor of the town.

Q. But that was after you bought the land, though;

[Page 290]

right?

A. That was after I bought the land. And I felt even

if we didn't develop it, with the boom-up that was going on

in Jarabacoa, even if I just land bank it through the

appreciation, it would be a good investment.

Q. Sure.

So you just--you just referred to it as "the Wild

West." I mean, what do you mean by that? Was it your

understanding that there were no laws or regulations, for

example, in the environmental space?

A. I have found in the Dominican Republic there are

laws and regulations; however, they're arbitrarily applied.

So I recognized that this was happening in the Dominican

Republic as well at that time.

Q. Okay. So there were laws and regulations; you

just feel that they weren't applied properly. Is that it?

A. Yes. And nobody, as far as I know, ever had an

environmental permit at that time. I think the first one

in the history of Jarabacoa was Paso Alto in 2006, and I

think we were the second one to even go through that

process even though the law was on the books from--law

64-00 in the year 2000.

Q. So when you went--when you first had this vision,

did you--were you able to perceive that the area seemed

violent or not?

[Page 291]

A. No, because people thought "Man, there's a gringo

in our neighborhood and they were nice to me." So I had no

idea. I wasn't there at night. I wasn't getting drunk

with them. I didn't see all the domestic problems and the

sociological problems. I just thought, "Wow." I was just²

absolutely naive.

Q. So you didn't ask anybody about the area or--

A. No, I did not.

Q. So it was all about the mountain and the views and

the beauty of it; is that right?

A. Yes.

Q. You also said in your First Witness Statement at

Paragraph 18, "I had heard from people that the Dominican

Republic can be a difficult place to do business and a

risky place to invest."

A. Yes.

Q. Do you remember saying that?

Did that worry you at all? I mean, had you never

done business anywhere outside of the U.S.

A. Sure, it worried me.

Q. But you didn't--you didn't--I mean, you didn't

care? I mean, didn't--

A. "Didn't care" is not the right word. I tried to

2 English Audio Day 2 at 00:35:54

[Page 292]

manage my risk. But I felt like it was the right thing to

do. I felt a vision. I felt an awakening within my

spirit. And I felt like it was the right thing to do.

And a man in his life needs to follow the leading

that is put in his soul. And so I did exactly what was

going on internally.

Q. Okay. Who was it who had given you this warning

that it was a difficult place to do business and a risky

place to invest? Do you remember that?

A. No, sir. That was so long ago. But it was a

genuine--people had expressed to me that, but I don't know

who specifically. We are talking 14 years ago. But there

was an undertone about some of the risks involved.

Q. So you said that you didn't quite apprehend the

violence. But did you perceive that it was an economically

depressed area?

A. Oh, it was. There was no electricity in that town

until the year 2000. There was no access to the mountain.

It was a very poor area.

Q. I see.

And that didn't worry you either in connection

with your investment?

A. No. It did not worry me.

3 English Audio Day 2 at 00:37:21

[Page 293]

Q. Lack of infrastructure, that sort of thing.

You said no electricity?

A. Yeah. I felt by bringing those services, it would

add value. I know it might sound strange, but that's

exactly what happened.

Q. So in your Third Witness Statement at Paragraph 7,

you quote from a letter in which you had said, "The

community outside of Jamaca de Dios has a horrible

reputation of being the most violent community in

Jarabacoa."

And then similarly, one of your own witnesses,

Mr. Francisco Rivas, stated in his Witness Statement at

Paragraph 2, "I met Michael Ballantine in 2006. He

mentioned to me that he was working to develop a project in

the mountain in an area called Palo Blanco in Jarabacoa. I

was very surprised and thought that he did not know that

this neighborhood had a history of violence and conflict."

Do you--by the time that you met Francisco Rivas,

do you recall if you were already aware of that history of

conflict and violence?

A. I don't think so, because I was living primarily

in the United States at that time. But I might have--I

might have, but I don't recall that exactly.

I did know that people thought I was absolutely

insane to put a restaurant and a development in that

[Page 294]

community, and they never--nobody thought it would work.

And I was warned, "Don't do it because it's going to fail,"

and I went ahead anyway.

And this was not government people. These are

just local people from Jarabacoa.

Q. So when do you think you first became aware that

it was, you know, sort of a violent area?

A. When I came home and heard that somebody was

stabbed right outside our gates. When I heard other people

were killed. When I heard--

Q. When was that in relation to your purchase of the

land?

A. Perhaps 2008, I would guess, somewhere around

there. After we lived in Jarabacoa.

Q. So you bought land in 2003 and you didn't realize

until five years later that it was a violent area?

A. That's when I knew firsthand about the violence.

Q. When do you think you heard about it? At what

point did you--at any point did you sort of worry, okay,

shoot, I bought this land, but it turns out it's kind of a

risky area?

A. No, I wasn't worried about that, because we were

building a gated community. We were intending to have

security.

Q. You mentioned that you--a lot of people told you

[Page 295]

you were insane. I think that's the word you used.

A. That's an overstatement. Maybe it was

"imprudent." I don't remember the words that were used.

Q. I mean, I think the word "crazy" was used in one

of the Witness Statements, I think from Lisa. But you also

mentioned that people didn't think you would succeed in

opening a restaurant, and one of those people was your

witness, Mr. Rivas, who stated in Paragraph 2 of his

Witness Statement, "The truth is, I did not believe that he

would succeed in opening a restaurant in Palo Blanco."

A. Many people said that.

Q. Okay. And Mr. Rivas also said, "Mr. Ballantine

made a decision to open a restaurant in Palo Alto without

seeking good advice."

That's paragraph 2. Do you recall him saying that

in his Witness Statement?

A. I don't recall him saying that. I'm sure

that--but that is correct, yes. There was numerous people

that said, "That's not going to work."

Q. And when you say that is correct, do you mean also

that you did this without seeking good advice? I mean, you

didn't seek advice, basically. I mean, it sounds like it

was more internal.

A. It was totally internal, and I heard from people

that it wouldn't work, but I believed it would, and that's

[Page 296]

what I endeavored to do. And that's the nature of being a

pioneer and an entrepreneur. You push forward.

And I saw a vision, and it didn't bother me that

local people didn't see what I saw. I was--my target

market were not people from Jarabacoa. They were people

from the capital primarily. And I went forward.

If the business model was so clear and so clean

and black and white, we would have seen what Jamaca de Dios

was all over the place. That only sprung up after.

Q. Okay. In her First Witness Statement at Paragraph

4, your wife, Lisa, made the following comment. She said,

"When we began, it seemed that most of the government and

community just thought we were crazy."

And that sort of tracks the word "insane." You

used "imprudent," whatever it may be.

A. Yes, sir.

Q. But then you stated in your Witness Statement--and

this is consistent with what you're saying here today--that

you were "determined to develop the property."

That's correct, isn't it?

A. Yes, sir.

Q. So you decided to create this luxury mountain

resort in the heart of the Cordillera central mountain

range; correct?

A. Yes, sir.

[Page 297]

Q. Before we move on, I just want to probe this

vision issue. That's something that gets repeated over and

over. You know, your wife said that, you know, it was a

perfect location for our vision of a luxury residential

community.

It said a lot in the pleadings. The Notice of

Arbitration said "They had a vision for a residential

project. The Ballantines' vision was to develop a mountain

residential project," you know, on and on and on in

Paragraphs 30, 31. 38 has one too. 34--44. Sorry. And

then the pleadings continue.

And most recently, in the Rejoinder on

Jurisdiction, the Ballantines went to the Dominican

Republic to pursue Michael's vision of creating a beautiful

mountain resort or--sorry--mountain residential

community--literally from the ground.

Explain this vision to me a little more. I'm

still having trouble understanding it. And forgive me for

this, but--so it's like an inspiration that you had when

you saw--was it this particular mountain, or was it just--I

mean, was that what triggered it? Was it just the beauty

of the Dominican Republic generally? Was this one spot

that just kind of captured your imagination?

A. It was specifically that one spot.

And I would just like to make the aside--and I am

[Page 298]

in no way comparing myself to this person, but Walt Disney

saw something in Florida in a swamp and created something

out of nothing. It's been shown by sociologists that in

all cultures of the world, 10 percent of the population are

visionaries or entrepreneurs, and I have that ability to

see something and create something out of nothing.

And having confidence in that, having confidence

in my abilities--and I have great weaknesses too, but I do

recognize that I've got an ability to start something out

of nothing.

Q. I see. So--I mean, so you consider that because

you're a visionary and you have this sort of intuitive

sense about business that you could just go to a foreign

country and buy this mountain, set up a big residential

project there?

A. That is correct.

Q. Okay.

A. And I was encouraged by President Hipólito Mejía.

I was encouraged by the local mayor. And I recognized that

what our plans were would be in harmony with the

socioeconomic goals and impact of a very needy community.

Q. All right. So this vision and this conclusion

that you arrived at that you could do this business venture

led you to buy more land over time in Jarabacoa; is that

right?

[Page 299]

A. Yes, because I didn't want our efforts to drive up

the valuations, and so I bought the land cheap, and I told

my assistant--I said, "Line up everybody you can. Offer

them this price." There was nobody in line behind me

offering what I was offering.

And so I bought up as much as I could at the time,

because I recognized that once the infrastructure started

coming in, those prices naturally, as a result of our

efforts, would be increased. So I continued to acquire the

property that was available.

Q. All right. So after you first--after you bought

the first piece of land, how much time elapsed before you

bought another parcel?

A. I think it was less than a year. I would have to

check the exact dates. They're in the record in terms of

the purchases. But it was quickly thereafter.

Q. And in the course of that year, did you consult

with any environmental consultants or government officials

about a potential project there, or not yet at that stage?

A. Well, as I had said, I had spoken with the

president of the country as well as the mayor of the city.

But beyond that, I do not recall.

Q. And at this point you're still not living in the

Dominican Republic. You just bought the land, kept coming

back and forth, and then you bought more land--

[Page 300]

A. Yes, sir.

Q. --about a year later?

So let's talk about the project itself for a

while. From the very outset of the project, you were--or

the planning of the project, you were aware of the

importance of the construction of the road up the mountain;

correct?

A. Yes. Yes, sir.

I would add as well, we didn't even have titles to

this property.

Q. I'm sorry, say that again?

A. I would add, we did not have titles to this

property.

Q. You didn't have titles?

A. I just had a letter of ownership rights, and we

had to do a process on parcel 1541 called "saneamiento⁴" to

determine who actually owned what and--so, yeah, it does

seem absurd, but that's exactly what happened.

Q. And so what point did you actually acquire title?

A. Well, there's a--and I'm sure the Dominican

lawyers here would know much better what I'm talking about,

that there's a letter called a "Carta de Constancia," and

parcels 1541 and 1542 were assigned back in probably the

4 English Audio Day 2 at 00:48:31

[Page 301]

'40s that this person owned a certain amount. He would

pass away and then leave that to his children or his wife,

and they would pass away. So 1541 or 1542, which are large

parcels, would be portioned off and given to children.

But the land process was quite antiquated.

Ownership rights were not real clear. And then there was a

land reform in 2009 which--which really helped the

Dominican Republic in terms of making sure the titles had

GPS coordinates and helped to modernize that process.

Q. But you don't remember exactly when you actually

owned the land, when you first acquired title to it? Or do

you?

A. Well, I owned it in the sense that I bought

ownership rights. So that person that had an ownership

right that was registered by the government had transferred

that ownership right to me.

And another thing that was a real obstacle for

sales in the beginning, some of the difficulties, is I was

an American doing business there, on land that I

technically didn't have a title to, and I would not sell to

anybody who would come in unless they came in and they

committed to start construction in two years, which was a

huge obstacle that I'm expecting somebody to not only pay

5 English Audio Day 2 at 00:49:45

[Page 302]

for the land, but then also to commit to building houses on

land that I couldn't even produce title to, nor did I have,

and they had to just trust that I was going to get that to

them.

And that's why you'll see in our prices that

the--that in the beginning the prices were very low. But

then subsequent to gaining titles actually in August of

2010, there was a great uptick in terms of valuation.

Because without a title, you can't get a bank

loan. You don't technically own the property. And there's

a high degree of risk for the buyer, especially buying

property from a foreigner.

Q. Okay. Let me return to this subject of the road.

So in your Witness Statement, you emphasize

that--and you said, for example, in Paragraph 11 of your

First Witness Statement, "I knew the primary thing I needed

to do was build a great road."

Is that correct?

A. Yes, sir.

Q. And then same in Paragraph 12 of the First Witness

Statement, "I was very conscious that the key to success

for Jamaca de Dios was the road."

What you had in mind was not just a narrow

mountain path, but a fairly big road up the mountain;

correct?

[Page 303]

A. Well, there's mountain roads, such as the

Odebrecht Road, that connects Jarabacoa and Constanza,

which is quite wide. And that's a mountain road.

We designed a road that we felt was appropriate to

convey the traffic to substantiate the traffic for weekend

homes for both Phases 1 and 2. I think that's

approximately 6 meters wide on average, which is enough for

two trucks to pass.

I knew that the road for Phase 1 would have to be

a little bit wider than Phase 2 because there would be more

traffic. And that Phase 1 road would have to also

facilitate the access for Phase 2 as well.

Q. But this is not a dirt or a gravel road. It's a

fully paved road; correct?

A. It's not paved. It's--there's--it was gravel in

the beginning, but then there's a thing called--a process

called double-berm, which means that it's almost like an

asphalt spray. And it's not as high of a quality as an

asphalt road, not as expensive, but it does provide a very

nice surface area.

And there was actually a lot of people in my

client base, primarily from the capital, that remember

going to Jarabacoa from their youth where there weren't

asphalt roads and they felt like they wanted to go into the

country.

[Page 304]

And so in the beginning, people loved just the

gravel road. But then we decided to--through the homeowner

association to--everybody chip in and do this next stage

which is a lower stage than asphalt. Not as durable.

Won't last as long.

Q. Right. And you just mentioned, then, you had

emphasized also in your Witness Statement that it had to be

wide enough for two large trucks to pass each other in both

directions at all points.

That's how you phrased it in Paragraph 11 of your

Witness Statement; is that right?

A. Yes, because I anticipated a lot of construction

with the homes, and for trucks--they'll pass each other as

opposed to having to stop and wait for one guy to come by,

but then they could both comfortably drive by. That road

actually, in reality, that was my goal. But there are a

couple of areas where it's a little bit thinner and, you

know--narrower. I'm sorry. But in general, that is

correct, and that's what exists today.

Q. And you believed at the time that the mountain

road that you were planning to construct was unprecedented

in the Dominican Republic; correct? There was no similar

road to the one that you were planning to construct?

A. I would say for a private road, yes. Because what

I saw was most Dominican developers would just take a

[Page 305]

bulldozer, race it up the mountain without any planning.

And what I wanted to do was something of substance and

quality.

Because it wasn't just the land sales I wanted.

That adds no value to the property. I wanted people to

invest a half a million dollars in a home. And if they

don't have good access and competent and sure access,

they're not going to buy the land, nor will they make a

significant investment, in order to have problems accessing

their properties.

So that was the key. That is the lifeline to the

project.

Q. You actually emphasized that in your Witness

Statement at Paragraph 15. The first one, you said, "I do

not believe that the type of mountain road we were creating

had ever been attempted by a private enterprise in the

Dominican Republic."

Do you remember saying that?

A. Yes. And I was referring specifically to our

Phase 1 road. And from my knowledge, I--at that time, I

did not think it had been. And I never observed anything.

And I'm very familiar with the entire area.

Q. All right. Did it worry you at all that no road

like this had ever been built?

When you say "private road," you mean constructed

[Page 306]

by a private party as opposed to the government or what?

You said "private road."

A. No. It was energizing. It was fun. It was

something I really wanted to do.

Q. I understand that, but I'm asking you about this--

A. You asked me if I was worried, and I was not

worried.

Q. No. Let's back up a little bit. Let me probe

first this word "private" that you used. You said, you

know--here earlier you said that it was a private--you

know, the largest private road of this sort that you

had--that you were aware of.

And you said the same thing in your Witness

Statement. You said the type of mountain road we were

creating had--"I don't believe that the type of mountain

road we were creating had ever been attempted by a private

enterprise in the Dominican Republic."

Is that a distinction you're drawing between a

private individual or a company as opposed to the

government or as opposed to what?

A. Yes. I'm referring to--there's companies such as

Falcondo. There's companies such as Barrick Gold. These

are large multinational corporations, and they have

significantly more capital at their disposal to build a

wider road in the mountains.

[Page 307]

Q. But they did not have a wider road? I mean,

you're saying--

A. No. I'm saying--I specifically said "a private

road."

Q. Right.

A. And so what I mean by "private road" is a private

individual versus a corporation.

Q. I see.

A. I don't know exactly--I didn't do all the

demographics and the studies of the multinational

corporations that had built mountain roads. I was

referring specifically to one family building a road.

Q. I see. And the reason that you needed a road that

was big enough to have two trucks going back and forth was

because you were planning to build a real estate

development on the mountain; right?

A. That is correct, sir.

Q. And your goal was to build a road that avoided

significant steepness while still gaining altitude? That

was the goal, the objective; correct?

A. Yes, because a steep road is unsafe, and

therefore, I felt it would be an obstacle to sales.

Q. So even though the mountain itself was steep, the

road that you had to construct had to be not too steep;

right?

[Page 308]

A. Yes. That way any car can drive. It didn't

matter how hard it rained. And the quality of engineering

and the quality of the road, I can now say, 14 years later,

I'm not aware of one accident or incident as a result of

the safeness and the security of that road.

Q. So to turn the road into a relatively flat road on

a steep mountain, you needed to cut into the mountain quite

a bit, in other words, to excavate a certain amount of

earth, because you essentially needed to carve the road out

of the side of the mountain; correct?

A. In some places, yes. In many places, no. But

being a mountain, the angle or the slope, whatever term you

use, varies. And so in some areas there's more; in some

areas there's less.

Q. But when you're carving a road into the mountain,

you necessarily have to dig out earth and excavate trees

and vegetation and strip off soil from the surface of the

mountain; correct?

A. That is correct. In every single development,

there is some level of human intervention into the--in the

nature.

Q. So that means that necessarily, if you're

constructing a paved two-lane road, you're inevitably

altering the face of the mountain to some extent; correct?

A. That's the case of every mountain development on

[Page 309]

the planet.

Q. Right. Let me just ask you a few other questions

about this vision. I'm still troubled by the vision thing.

So you were obviously aware that it was a tropical

island; correct?

A. Yes.

Q. And tropical islands are subject to hurricanes and

huge storms, as we just saw with the Puerto Rico and the

storms a couple years ago. Did that aspect of it trouble

you at all?

I mean, you have this mountain. You're not really

aware of a project of this sort that you are envisioning.

You hadn't really consulted with anybody. It's a new

country. It's a tropical country. And you just have this

vision for a big residential project on a mountain, but

it's--you know, it's a hurricane-prone area.

Did that aspect of it worry you?

A. It was a concern. But knowing that we were in the

mountains and a Category 5 hurricane that would possibly

pass maybe once every 20 years, or a Category 4 maybe every

10 years is significantly broken down by the mountain

ranges, most people--you know, as we've heard about the

hurricanes in the past 10 years, as they hit landfall they

significantly reduce their velocities.

But there were never--I think it would be nearly

[Page 310]

impossible that a Category 5 or Category 4 hurricane would

not be greatly diminished as it passed inland through the

mountain range. So that was--

Q. I see. So that aspect didn't worry you?

A. It did not worry me, no.

Q. And speaking of rain outside the big storms, the

hurricanes and such, you were aware--I mean, it's a

tropical island, so it rains a lot; correct?

A. Yes.

Q. And were you aware that Jarabacoa in particular is

one of the rainiest, if not the rainiest, part of the

Dominican Republic?

A. At the time, I did not--I was not aware. And

actually--I mean, what I've learned and I did not know at

the time, that it's not the hurricanes that do the damage.

It's what's called a tropical depression that parks over the

island and provokes a lot of rain. But at that time I was

not aware.

Q. And when it rains, the earth gets soaked; right?

So rain makes soil more unstable than when it's dry. Is

that fair to say, just as a matter of common sense?

A. Yes. That's right.

Q. And unstable soil is more susceptible to

landslides; correct?

A. Correct.

[Page 311]

Q. Constructing a two-lane road on a mountainside

would make it more susceptible to erosion and landslides

than if you didn't build a road. Is that fair to say too?

A. That is fair to say.

Q. In your First Witness Statement, you stated the

following with respect to the road that you built, that

that it needed to be no more than an 8-degree slope."

That's at Witness Statement Number 1, Paragraph

11. That is correct.

Q. And what troubles me about that statement is you

just told us that you don't have any of that--you didn't

and don't have--well, you don't have any background in

engineering or construction or road construction,

specifically. And no real formal education in any of the

fields that I mentioned to you. So how did you--how did

you decide that it had to be precisely 8 degrees slope?

A. And I was taking on a very large investment, as I've

said. And I can't understate--overstate the importance of

the road. Before investing huge amounts of sums, I did

some private investigation in terms of what needs to be

done to make it safe and correct. When I'm referring to the 8-degree slope, I'm

talking about the horizontal grade.

Q. Right.

A. Whenever you drive in America and you go through a

[Page 312]

steep area, it'll--there will be warning signs, "Oh, steep

grade up ahead, 12 percent/10 percent." And I knew that

8 percent was the number necessary. I didn't

just willy-nilly run a bulldozer up the mountain. And I

have also stated that we tried many different routes using

a flexible rod and animals to determine the safety

and the one that was the least invasive. And I probably

spent at least $50,000 throwing plans in the garbage in

order to find the one that we chose. But that is not a

hard exercise.

Q. What's not a hard exercise?

A. To determine that an 8 percent grade is

appropriate and safe.

Q. Really?

A. Yes.

Q. I mean, doesn't it depend on the actual

topography? I mean, you know, a road in Kansas where it's

super flat would be different than a road on a steep

mountain; is that not correct?

A. That is correct. But if you refer to

Mr. Navarro's statement, he says, "It's 7 percent grade,

maximum 12 percent grade in areas."

And there's a lot of written information about

building roads. And so I very much acquired the knowledge

necessary of what the standards are and what I should be

[Page 313]

looking for to accomplish the goal that I had. Knowing

that I was spending a very significant amount of money, I

did do the research necessary and the due diligence about

what it takes to build a road.

Q. I see. So when you say you did research, did you,

like, Google it or what? I mean--

A. Yeah, pretty much.

Q. Okay. At some point you hired an environmental

lawyer, Mr. Freddy González from Jarabacoa; right?

A. That is correct.

Q. Do you recall when it was that you first retained

him?

A. Probably 2004, I would guess. 2005, something

like that.

Q. Okay. And you hired him to advise you on certain

aspects of the lower mountain road construction that you

were planning; is that right?

A. Yes. What I needed to do in terms of the

permitting process; that's right. I talked to him about

what I needed to do and I--because I didn't know what I needed to

do. And he's a very well-respected lawyer in Jarabacoa and

with forestry and forestry law. And he has a lot of experience

Q. Okay. So you didn't know what you--you said you

didn't know what I needed to do with respect to

[Page 314]

environmental regulation, but you did know about the road

construction? Is that it? How did you decide--

A. I don't know about the timing of that. I

just--when I learned. I just don't know the correct answer

to that. But I know that I solicited with--to Mr. González

on what would be the process. How do I do this?

Q. You said earlier that nobody really had permits

and it was sort of the Wild West. Why did you feel that

you had to get a permit if nobody else really had permits?

A. Because I wanted to do things correctly, and I

didn't want to be exposed to future problems.

Q. So with respect to the legal aspects, you felt

that you needed informed or professional advice but not

with respect to the construction of the road at the

beginning; is that--

A. No, that's not what I'm saying. I said that I

went to a lawyer and I solicited from him what I needed to

do from a legal perspective.

Q. And I'm saying--right. But, you know, I'm saying

on the legal stuff you felt that you were on sort of shaky

ground on your own so you needed professional advice but

not with respect to, you know, the road, at least at the

beginning of the construction of the road?

A. Yeah. At that point there was a

Dominican-certified engineer. His name is Rafeal Peralta.

[Page 315]

And he's got a CODIA certificate, which is a Dominican--I

forgot what it's called. It's recognized. It's a code for

topographers and engineers. I don't know the exact wording

of that.

So he was a licensed engineer to oversee the

production or the work. And there was also a man named

Merito who had a lot of firsthand experience in building

roads. And then there was also an American engineer, his

name was Chad Wallace, who was living in Jarabacoa at the

time. And so I felt confident between this team we

could--and my topographer, who did all the computer models,

that we could execute the road properly.

Q. I mean, there were all these people, but had you

hired them? Were they--had you hired them?

A. I hired them subsequent to getting the permit to

do that.

Q. I see. So kind of further down the road, so to

speak. So later in time. But when you first started

constructing the road, at that point you were just basing

stuff on your own research. Is that what you said?

A. No, I didn't say that. I said that we had done a

lot of computer models. I had studied. I had spoken with

them. It was all staked out. And then I hired them for

the execution.

And just a step ahead, that was the process we did

[Page 316]

in Phase 1. By then we had acquired a ton of knowledge at

ARK, and I thought it would be the same simple process for

Phase 2.

Q. Okay. Let's go back to your lawyer, Freddy

González.

A. Yes, sir.

Q. So you hired him after you had already purchased a

significant amount of land; correct?

A. Yes, sir.

Q. And this lawyer, Mr. González, advised you on the

permit application process for the construction of the

lower mountain road; right?

A. Of the permitting process. Not the construction.

Q. Did I say construction? I'm sorry. Yeah,

permitting process.

The lower mountain road was the first stage of the

development of your project; is that correct?

A. Yes, sir.

Q. And your lawyer, Mr. González, specifically told

you, and I'm quoting from his First Witness Statement--from

your First Witness Statement at Paragraph 14--that your

lawyer told you that "the road would have the biggest

environmental impact."

Do you remember that?

A. Yes, that is what he told me.

[Page 317]

Q. And what did you mean by "biggest"? Bigger than

what?

A. A road would have more environmental impact than

building low-density houses.

Q. By "low density," do you mean light materials or

what?

A. I mean by any international standard, one house

per acre is a low-density development.

Q. I see. Okay.

So the road--the road is a bigger deal in a sense

than the actual houses. Is that roughly what you're

saying, or am I misinterpreting?

A. Bigger deal?

Q. This says, "Biggest environmental." That's your

and his term, your lawyer, "biggest"--

A. I was just referring to the word "deal."

Yes, there is more environmental impact in cutting

a road than building a home.

Q. All right. So at what point did you first go to

the Ministry of Environment to ask whether or not you could

build this road? Do you remember that?

A. I don't know, and I don't recall if I went to the

Ministry of Environment. Because at that time--and I can

be incorrect and I can be wrong because there's

environmental lawyers here. But I think at that time there

[Page 318]

was a--like a Ministry of Forestry. And, please, I might

be wrong on this.

The Ministry of Forestry wasn't like formally

involved with the Ministry of Environment, and they merged

together. So I do--I think I went to the Ministry of

Forestry or the Department of Forestry and got the permit

through them, but I might be wrong on that.

Q. Do you remember roughly what year that was?

A. Well, it was in 2005. That's when we started.

Q. All right. So you said that you bought the land

in 2003, and then you bought more land in about 2004, and

then periodically you bought--

A. Yes, sir.

Q. --bits and pieces of land?

A. I would just simply add, I wasn't even sure--I

felt like it was a good investment even if I just held the

land. So I felt confident in making that purchase. But as

time went on, that's what I said. You know, "I want to do

this." It took a couple years to really--

Q. Okay. So that confuses me because you said at the

beginning that from the very first moment you saw this

mountain, it was the vision that you and Lisa had to put up

a residential project up there.

A. That is correct. But I needed to do due

diligence, the research, make sure I felt secure on the

[Page 319]

investment. I just wasn't going to willy-nilly cut up, you

know, subdivide land.

Q. But you just told us that you sort of did it

willy-nilly. I mean, you said that you bought it without

any studies/without any due diligence when you first bought

the land. I'm talking about the purchase of the land, you

know, the--that part of the investment. Is that right?

A. The purchase of the land is one thing. That's a

land investment. And it took maybe 18 months to formulate

and mature the actual vision, what it would like look like,

the concept. And I felt like I was managing my risk in the

sense that if through legal aspects/if through the

economics of it I determined later it was not viable, I

still felt like it was a very good investment just in the

land itself. That's what I'm referring to.

Q. Okay. And I understand that.

But the vision was from the outset someday to put

up a residential real estate project. So that's in 2003.

You buy the land. Then you buy more land, 2004, 2005. And

then finally in 2005 you approach the Ministry of

Environment or Forestry, whatever government authority it

is that you first resorted to. And do you remember what

you told them about your project and what they said?

A. I do not remember. I specifically remember that I

did not personally have any contact. But that was from my

[Page 320]

lawyer, Freddy González, and he approached them.

Q. I see. So you yourself never went to the

authorities and said "Hey, I'm thinking about putting up

this project on this mountain?"

A. No, I wasn't living in the Dominican Republic at

the time and so--

Q. So you just--okay. Didn't do it.

And Mr. González also put you in touch with this

German foundation called PROCARYN; correct?

A. Yes. But there was⁶ also another man named Pablo

Pérez who worked with me. And between the two of them,

they did that.

Q. And this foundation, PROCARYN, was doing a

reforestation project in the area; correct?

A. That is correct.

Q. So you entered into a contract with PROCARYN to

plant trees on your property; correct?

A. Yeah. They were really promoting reforestation,

and they were giving subsidies. So people that

were--interested in reforesting, they would participate so

they have a vested interest. But then PROCARYN would

provide a subsidy to participate in the cost.

6 English Audio Day 2 at 01:14:51
7 English Audio Day 2 at 01:15:18

[Page 321]

Q. All right. And this project for the planting of

the trees was supposed to complete--to be completed within

the span of a year; is that right?

A. I don't remember the time limit, but that might

have been. I don't--I'm sorry.

Q. That sounds about right to you?

A. That seems reasonable, yes, sir.

Q. So it was only after you entered into this

contract with PROCARYN that you approached the Ministry of

the Environment in connection with the road; is that right?

A. That is correct. Well, not--I don't know if I

was--I don't know if I remember--I don't know if I

approached the Ministry of Environment for a permit for the

road because the road was built, but I did approach them

specifically for the permit for subdividing some homes and

build homes. But I might be--I might be off on that. I

don't have the records in front of me.

Q. Okay. So you just said, "I don't know if I

approached the Ministry of Environment for a permit for the

road because the road was built." What do you mean?

A. We received permission from Forestry--I think it

was Forestry--to build the road and to do the reforestation

project in accordance with the German foundation, which the

Dominican government was appreciative that the German

foundation was doing this throughout the country.

[Page 322]

And from what I recall, I was granted permission

to build the road along with doing the reforestation

project.

This process was specifically related to the steps

that by--doing new to the country that my environmental

lawyer told me that I had to do at that time.

Q. Right. But you also just said that your

environmental lawyer warned you that building the road

would have the biggest environmental impact. But you

didn't seek a permit from the Ministry of Environment

despite that?

A. I don't remember if I sought a permit from the

Ministry of Environment. He was managing that. I think it

was through the Ministry of Forestry which at that time,

from what I remember--and I might be wrong. From what I

remember, they were the independent authority

to grant the cutting of a road in conjunction with

reforestation.

Q. So in conjunction with reforestation, did you tell

the Ministry--I mean the Forestry Ministry--is it for a

Ministry of Forestry Department?

A. Yeah.

The forestry authorities, did you inform them that

you were planning on building a real estate development?

A. I do not believe we did.

[Page 323]

Q. And did you inform the forestry authorities that

you were planning on building a two-lane road paved or

asphalted?

A. Well, a two-lane road--I didn't say "asphalted."

I mean, I didn't--I never did an asphalted road. At that

time I was just getting a permit to subdivide and do properties. After--and he said to me

specifically, "The biggest environmental impact is the

road." And the perception is, once that's done, that we've

done a good job with that process, the process from the

Ministry of Environment is going to be much more simple."

And so I just simply followed his advice. That's

specifically what he told me, and that was the guidance

that I was given, being new to the country.

Q. So, you--I mean, you approached the forestry

officials with this plan to--I mean, what did you say?

And so you told them "I need a road to go up the mountain

to plant trees essentially"; is that?

A. That's specifically what we did.

Q. Right. But the road that one would need to just

go up the mountain to plant trees would not need to be a

paved road, really; correct? I mean, you would just

need essentially like a dirt road for a pickup truck to

take a bunch of seeds in the back.

I don't know what you--what you transport to a

[Page 324]

reforestation project, but I imagine it's not heavy

machinery; correct?

A. The road we built was--as a matter of fact, I do

think the Ministry of Environment came out and inspected

what we were doing, and there was never any obstacle,

problem either directly or indirectly, to the work that we had--we

were doing.

Q. All right. But you didn't tell the forestry

officials that you were planning on building a two-lane

road--I mean a road that was wide enough to have two trucks

pass each other?

A. It's not necessarily a very wide road. It's

6 meters, and that accomplishes the exact same goal.

Q. Okay. But my question is, did you tell them that

you were going to build a 6-meter road, if that's what

you're saying it was, or not?

A. I don't believe I did.

Q. All right. Let me go back to the environmental

consultants. From the outset, did you have any

environmental consultants advising you at the time of

this--you know, the first road and the first permit

application? At what point did you first involve--

A. Well, I started with Freddy. Freddy González.

Q. Who's a lawyer.

[Page 325]

A. The lawyer. And he was--had very good

relationships with a certified environmental company

called Antilles--I believe is the name of it. And so he

made the connection between me and them. And then what

they did is they did the work necessary with the

environmental authorities to provide--you know, to get the

referenced terms to do the Environmental Impact Study in

order to get the--secure the permit for the first phase of

development.

Q. All right. So when you first proposed this road,

you did not yet have an environmental consultant hired

directly; correct?

A. I don't think I did. I don't--I'd have to check

the dates. I don't think we did.

Q. And did it occur to you that it might be prudent

to--even without a lawyer, to just say that, you know,

you, "Hey, you know the road is what is the big deal here,

what has the biggest environmental impact," at that point,

did it occur to you that it might be a good idea to hire an

environmental consultant to see what the deal would be with

the road and the construction and the--you know, the soil

and so forth?

A. I don't even know if there was--I was aware that

[Page 326]

there was a Ministry of Environment at that time. I was

working with my lawyer, and he guided me through the

process to get the permit and the road. I don't recall

exactly. This is 13, 14 years ago, so I'm sorry.

Q. So you didn't even know there was a Ministry of

the Environment?

A. I don't recall. I was doing exactly what I was

told to do by my lawyer. Maybe I was aware. I just don't

recall that. I'm sorry.

Q. All right. Okay.

A. But the forestry area--and that might have been

the part of the Ministry of Environment at the time. But

they were authorized--they were the government institution

authorized to allow me to build the road.

Q. And you mentioned an environmental consultant that

your lawyer had a relationship with called--you said

something like an Antilles or some such.

A. Yes. And I would have to check the documents to

see if they were involved at that time. I do not recall

the time sequence at that time.

Q. You hired them at some point directly, did you

not?

A. I did, yes, through the recommendation of Freddy

8 English Audio Day 2 at 01:22:04

[Page 327]

González, a lawyer, who had relationships with them, to do

the environmental impact study for the approval for

Phase 1.

Q. But you don't remember their actual name?

A. Antilis or Antiles or Antilas. It's something

like that.

Q. Yeah. It's Antilia.

A. Oh, Antilia.

Q. Just a reminder.

A. I think I only worked with them for that permit

and then decided to move to Empaca Redes, who we've worked

with for ten years now.

Q. When you say "that permit," which permit?

A. For the--the permit to subdivide through our

resort.

Q. Just to be clear, for the permit authorization for

the construction of the first road, the lower mountain

road, you did not have an environmental consultant

involved?

A. I might have. I don't remember. If I could

review the documents if they're here, that would answer

that question. I do not remember specifically on that, but

I do know that my lawyer worked with the Forestry

Department. But I don't if that was in conjunction with

the environmental company as well. I just do not remember

[Page 328]

that.

Q. But it wouldn't surprise you if I told you that

there's nothing in the record--

A. No, that would not surprise me. That would not

surprise me.

Do you have the dates in terms of my engagement

with Antilles or Antilia?

Q. We might get to that.

A. Okay.

Q. I'm not sure if we have a specific date, but we

will talk about Antilia in a second.

A. Okay.

Q. So, sorry to insist on this, but I'm still

troubled by this a little bit.

So you had a lawyer who told you that the road is

the big deal in these environmental--I mean on a mountain,

the road is the big environmental impact thing. And you

didn't have an environmental consultant.

Did you have an engineer involved in the

construction of the first road, the reforestation road?

A. Yes. I've already said that. A man named Rafael

Peralta who is the--who is a licensed engineer recognized

by the Dominican Republic. I also had a man named Merito

who has--although not an engineer, has tremendous amount of

experience in mountain roads. And I worked with an

[Page 329]

American engineer whose name is Chad Wallace, who had been

living there at the time who is also a certified engineer

from Texas A&M University. So they were the ones that

built the road.

Q. Is there a reason that you didn't mention any of

these people in your Witness Statements or anywhere?

A. Because we're discussing the issues of Phase 2, I

didn't--

Q. I mean, we talk a lot about Phase 1 as well, do we

not, in your Witness Statement and this whole business of,

you know, the first road and the lower mountain project and

the environmental impact assessment and so forth. It's

all--that's all Phase 1; is it not?

A. Well, I feel like you're trying to say something

I'm not trying to say. There was a lot of history in Phase

1. This is a lot of development. And so the fact that I

don't mention that in the Witness Statement does not imply

that there's any deception on any level.

Q. No, I'm not suggesting deception. I'm just asking

you why that wasn't mentioned. You just didn't think it

was relevant to this proceeding?

A. That's exactly right. Yeah.

Q. So that's also why none of these people are

witnesses in this proceeding?

A. No, I just didn't think it was relevant, important

[Page 330]

and--I mentioned Eric Kay because he had significantly more

experience. And some of my problem areas he fixed and gave

me good advice. And he was the one that was planning Phase

2 along with the development of Paso Alto. And so I felt

at this proceeding Eric Kay would be more appropriate,

especially in light of the fact that there was no obstacle

whatsoever from either Forestry nor the Ministry of

Environment on what we had done on Phase 1 at all.

Q. All right. So let's go back to the lower mountain

road and the forestry authorization.

So you said you--(a) you did not have an

environmental consultant at that point and (b) you had not

checked with the Ministry of the Environment. In fact, you

are not even sure you knew of the existence of the Ministry

of the Environment.

So when you built this road, were you just kind of

hoping for the best in terms of the environmental impact of

the road even though your lawyer had told you that the road

has the biggest environmental impact, or you were confident

from your research that it would be okay?

A. The mountain at that point was largely deforested,

and that was the reason why PROCARYN agreed to subsidize

the reforestation. There was slash-and-burn agriculture

throughout the mountain through the former farmers. And I

also felt very confident in the engineers and the design to

[Page 331]

make a minimal environmental impact while preserving the

commercial values of the property as well as building a

safe road.

So we were juggling all those aspects at one time

while avoiding steep slopes, which are indicated by both

experts in the mapping.

Q. You know, when you say--yeah, you said you were

confident that the design was going to have a minimal

environmental impact. How would you know that if you

didn't have an environmental consultant and you weren't

consulting with the Ministry of the Environment?

A. I was consulting with my environmental lawyer who

is probably--I would--I don't want to overstate it, but one

of the--one of the most respected lawyers in Jarabacoa,

which is a large forestry area, and he was consulting me

and guiding me along the way.

Q. But he's an environmental lawyer, though. I mean,

what does he know about slopes and soils and such like? I

mean, he doesn't know about those, does he?

A. I'm sure he does.

Q. Really? Like about the technical things? So he's

not just a lawyer but like, you know, a biodiversity

expert, for example, or a soil expert?

A. I can't speak for him on his knowledge. But there

are different lawyers. There's international arbitration

[Page 332]

lawyers, there's divorce lawyers, there's civil claims

lawyers, and they all have their specialty. And being a

forestry expert, I'm sure his knowledge is very broad.

Q. Right. But, you know, there are lawyers who

specialize in medical malpractice, but they're not doctors,

you know.

A. Yes, sir, you're correct.

Q. Is there a reason that your lawyer didn't provide

a witness testimony in this proceeding? He comes up a lot

on your Witness Statements.

A. We brought forth 20 witnesses, and I felt if we

brought forth 100, maybe we wouldn't have an efficient

process. There was no reason--there's no reason why I

didn't--

Q. But you thought the headmaster of the school where

your children went was the more relevant witness than your

environmental lawyer, the only environmental counsel you

had in connection with the first part of the project?

A. The Respondent had brought forth a jurisdictional

argument requesting bifurcation, and we felt that it was

very important to address that, the first question.

Q. All right. So you said that your environmental

lawyer was one of the most respected, et cetera. And I

don't have a basis to doubt that.

But if--you know, you would expect a prudent

[Page 333]

environmental lawyer to tell you--if he's telling you that

the road has the biggest environmental impact, you would

expect him to say, "So if you're going to put up a road,

maybe you should hire an environmental consultant and/or

maybe you should consult with the Ministry of the

Environment since it's an environmental thing."

Did he not do that?

A. I don't think he did. The results speak for

themselves. The Ministry of Environment approved fully

Phase 1, and we have done 18 environmental reports since

then. The only company in Jarabacoa to do that. And not

one time was anything mentioned about our road and the

execution of it.

MR. Di ROSA: All right. Mr. Chairman, I'm about

to move to another subject. I don't know if you want to

take a break now.

PRESIDENT RAMÍREZ HERNÁNDEZ: I think it's good to

take a break. I will advise the witness that--to refrain

from discussing anything with counsel, please.

THE WITNESS: Oh, okay.

PRESIDENT RAMÍREZ HERNÁNDEZ: Thank you.

(Brief recess.)

MR. Di ROSA: Thank you, Mr. Chairman.

BY MR. Di ROSA

[Page 334]

Q. Mr. Ballantine, before we move on from the subject

of the reforestation road, I just wanted to ask you a

couple questions about--about that--the formal process for

that. And let me take you, if I can, to a document in your

binder, which is C-033. It's also on the screen if that

helps you, but you would have to blow it up.

(Comments off microphone.)

BY MR. Di ROSA:

Q. Do you see that document?

MR. BALDWIN: Do you have an English version?

THE WITNESS: I do have an English version, yes.

BY MR. Di ROSA:

Q. All right. So this is your request for

authorization to build the reforestation road; is that

right? I mean, this person who signs this letter, Pablo

Pérez Abreu, was acting on your behalf; correct?

A. I don't see the signature page, but I'm assuming,

yes.

Q. Okay. Well, you see the name at the bottom. If

you want to look at the Spanish and--

A. Oh, Pablo. I see that, yes, sir.

Q. Okay. And he was your representative or adviser?

A. He was a man from Jarabacoa that was--while I was

living in the States, he--you know, he kind of oversaw

things when we didn't have any--

[Page 335]

Q. Right. But when he writes this letter he's acting

on behalf of your project, right, Jamaca?

A. Yes.

Q. All right. And so here what they're saying is--or

what you're saying was that you were requesting a road of a

length of 2200 meters. Do you see that in the first

paragraph?

A. Yes, sir.

Q. And then in the second paragraph it says, "It is

necessary to state that this"--and I'm quoting. "It is

necessary to state that this farm is being reforested in a

large part of its area, and that in order to carry out this

work, it is necessary to build the aforementioned access

road."

Correct? Do you see that?

A. Yes, sir.

Q. So you were--and in your First Witness Statement,

you said that "After finalizing"--I'm quoting here again.

"After finalizing the reforestation agreement, the Forestry

Department granted us the permission to build a 3-kilometer

private main road plus an additional 1-kilometer public

road to access the property."

That's at Paragraph 14 of your First Witness

Statement. Do you remember saying that?

A. I believe I did say something like that. I'd have

[Page 336]

to look at that. But, yes, something like that I did say.

Q. All right. So let's--let's take a look at the

letter that the government authorities sent to you in

response to this, which was C-034, which is also in your

binder. Exhibit C-034. Do you see that? It should be the

next one.

And here what they're saying is, in the first

sentence, "We inform you that this office has no objection

to you being able to build an access road inside the

Applicant's property. The Commission has no objection to

granting the charge of use of the land if there will be no

cutting of trees."

And then in the final paragraph it says, "There

being no objection does not signify an authorization for

any activity of cutting, removal and/or transplanting of

trees of any type nor the extraction and transport of sand

or gravel."

Do you see that?

A. Yes, sir.

Q. So, basically, they were agreeing to the

construction of the road but with a good number of

conditions; right? And earlier you said that, you know,

you can't construct a road without cutting trees and moving

earth and such.

I mean, do you--was that something that you just

[Page 337]

sort of did afterwards, or were you planning all along to

put up this--you know, this--you said it's a 3-kilometer

road, and you had initially asked for a 2.2-kilometer road.

And then you say in your Witness Statement "plus an

additional 1 kilometer public road to access the property."

But I don't see that anywhere either in your

request or their response. So what accounts for that

difference, like the additional kilometer road and the

3 versus 2.2 length of the road?

A. Well, first of all, I was living in the United

States at that time. And from what I remember regarding

the kilometer public road--this is just what I

remember--Pablo went through the Ministry of Public Works,

and then they solicited permission from the landowner

saying, "Look, we're going to build a nice road here."

And then every landowner thought that that was a

good idea because they would have an actual road, and all

the neighbors gave a few meters of land on both sides of

the road.

And from what I recall--I was living in

Chicago--that was authorized by the Ministry of Public

Works locally in Jarabacoa with the approval of the local

property owners. Regarding the 2.2 or 3, I don't have an

answer for you.

Q. All right. But you--I mean, is--none of those

[Page 338]

1 documents that you're mentioning are in the record, are
2 they? I mean, is that because also you didn't think they
3 were relevant or what?

4 A. These--well, they are in the record. They're the
5 Claimant documents that you're citing here.

6 Q. Oh, so you're referring just to these?

7 A. I thought that's what you were--I'm sorry.

8 Q. I mean, you made reference to other--other things
9 in the Statement that you just made. You know, like Pablo
10 went through the Ministry of Public Works and then
11 solicited permission from the landowners, et cetera. I
12 mean, those were presumably written permissions, were they
13 not?

14 A. No, I don't believe they were.

15 Q. Oh, I see. Okay.

16 A. I think they were just happy they were going to
17 get a road built and they took down the barbed wire, and we
18 built the road.

19 Q. All right.

20 A. So I don't think there was anything formally
21 written, but that might have been. I don't have those.

22 Q. So you're not sure what the--accounts for this
23 difference between what you say here about the 3-kilometer
24 road and the additional 1-kilometer road as compared to
25 what was actually requested and authorized; is that right?

[Page 339]

1 A. That is correct.

2 Q. All right. Let's talk a little bit about permit
3 application process for project 2, which is the lower
4 mountain housing development and restaurant. Is that--I
5 mean, that's what we refer to as project 2, I guess. It's
6 the first part of--is this the first part of your Phase 2;
7 is that fair to say?

8 A. Yes, sir, that's fair.

9 Q. First of all, did your permit application for
10 Phase 2 request authorization for any road?

11 A. I don't--I don't recall. I think the road was
12 built.

13 Q. For Phase 2.

14 A. Well, my Phase 2.

15 Q. Right. So the road--

16 A. The permit application itself did not. However,
17 the letter of solicitation after the first inspection, it
18 did indeed on several occasions.

19 Q. But what about for the Phase 1 housing
20 development? When you first requested the permit for the
21 housing development in the lower mountain, was there a
22 permit application for that, for the road that was there?
23 I mean, you said that it was already constructed; right?
24 It's the same road that you had that was authorized in the
25 reforestry--reforestation project we just saw; right?

[Page 340]

1 A. That's correct. Are you asking--I solicited to
2 build the road a second time?

3 Q. No, no, no. I'm saying--I guess what I'm saying
4 is, the Ministry of Environment never authorized that road
5 that you built. It was the forestry officials; correct?

6 A. I believe so. I was out of the country, and I'm
7 just making a guess because I remember them talking about
8 forestry.

9 Q. And was that--I mean, your Witness Statement also
10 referred to your lawyer, Freddy González, advising you that
11 the way to do this would be kind of in two phases; right?
12 You would have the reforestation project, shall we call it,
13 and a road for that, and then after that to apply for the
14 housing lot subdivision.

15 Do you remember saying that?

16 A. Yes, that's what he advised me.

17 Q. And so that's pretty much what happened; right?
18 You applied for the reforestation road for a project that
19 was just to plant trees, essentially. You got that permit
20 to build that road. And then you--you know, you put up the
21 road that you put up. And then when you applied to the
22 Ministry of the Environment for the first housing project,
23 the road was already there. It was a fait accompli; right?

24 A. It was what complete?

25 Q. Sorry. It was already there?

[Page 341]

1 A. Yes, sir, I believe so. I believe if you look at
2 the dates, I think so.

3 Q. So the Ministry of Environment, as such, never
4 actually received an application for authorization from you
5 to build the road because it was already built at that
6 point; is that right?

7 A. I don't remember. But that could be plausible.

8 Q. Right.

9 A. I don't have those documents. I don't know for
10 sure.

11 Q. Okay. I mean, I'm just asking you from your
12 memory whether--when you applied for the permit for the
13 housing launch, did that--did that application also request
14 authorization for the road, as such?

15 A. I don't know.

16 Q. Okay. All right. Let's--so you have the lower
17 mountain road at this point, and you presented an
18 application for a permit to construct a lower mountain
19 housing development. So we're still in Phase 1. I want to
20 get through the Phase 1 part first.

21 A. Yes, sir.

22 Q. And so--you know, this is what we call Project 2.
23 It's still Phase 1 of your thing, the lower mountain
24 housing development and the restaurant. Is that--that was
25 the first permit that you asked for in terms of the housing

[Page 342]

1 development from the Ministry of the Environment; correct?

2 A. Yes, for Phase 1.

3 Q. And so when you presented this permit application
4 for the housing development, you received what's called
5 "Terms of Reference" from the Ministry; correct?

6 A. Yes, sir.

7 Q. All right. So let's take a look at that document
8 which is C-036 in your binder. And this is a letter that's
9 dated 18 August 2006 from the Ministry of the Environment
10 and--which at that time was called the Secretariat of State
11 of the Environment as well as--

12 And this is the letter through which they
13 transmitted to you the terms of reference for the lower
14 mountain housing project. Is that a fair characterization?

15 A. I'm on C-36. Is that what I'm looking at?

16 Q. Yeah, C-036. Correct?

17 A. These are the reference terms?

18 Q. No, it's just the cover letter for the reference
19 terms.

20 A. Okay. Yes. It seems like that's what it is.
21 Uh-huh.

22 Q. All right. And in the second paragraph, the first
23 sentence says, "According to the documentation deposited,
24 the project consists of the development of division into
25 lots where cabins will be constructed oriented towards

[Page 343]

1 relaxation and recreation in an area of 550,000 square
2 feet." Do you see that?

3 A. Yes.

4 Q. Now, when it says--

5 A. Meters, but yes.

6 Q. Sorry. Square meters, correct.

7 And then when it says "according to the
8 documentation deposited," that would have been deposited by
9 you or by Jamaca; correct? That's what they're referring
10 to?

11 A. Yes, I believe that we solicited the reference
12 terms in order for--to provoke the Ministry to analyze the
13 site and then determine the magnitude of the study, what we
14 needed to undertake to ultimately obtain permission. This
15 is what it's referring to.

16 Q. So here the Ministry is expressing the
17 understanding that what you were going to construct there
18 were cabins. In Spanish, that's "cabañas"; right?

19 A. Yes, sir. Uh-huh.

20 Q. And that's because you had told the Ministry that
21 the project would consist of mountain cabins; correct?

22 A. Yes, sir.

23 Q. All right. So after you received the terms of
24 reference, you prepared an Environmental Impact Assessment;
25 correct?

[Page 344]

1 A. Yes.

2 Q. And an Environmental Impact Assessment--and for
3 convenience, let's call it EIA. That's a document that a
4 proponent of a project submits to the Ministry of the
5 Environment; correct?

6 A. Yes, sir.

7 Q. And in an EIA, the promoter of the project
8 explains the potential impact of the project on different
9 aspects of the environment; is that right?

10 A. That's correct.

11 Q. And so Jamaca first submitted to the Ministry a
12 five-page EIA in February--on February 14th of 2007. Do
13 you recall that?

14 A. I do not recall that.

15 Q. The precise date is not important. But you do
16 remember that there was a first EIA submitted that was a
17 short five-pager?

18 A. I do not remember that.

19 Q. You don't remember that? Okay. All right. I'm
20 going to represent--we don't need to go there because I
21 don't want to ask you about that one. But I'm going to
22 represent to you that there was this document and that
23 it--there's a cover letter for it in the--in the record at
24 C-037.

25 So--but, you know, that--you know, that was an

[Page 345]

1 Environmental Impact Assessment that you submitted to the
2 Ministry in February of 2007, and that was rejected. Do
3 you remember that at all, that they rejected your first
4 EIA?

5 A. I do not remember that it was rejected. My
6 environmental company was handling all aspects of that, and
7 I was not aware it was rejected. So if it was, they were
8 still managing it internally between the company and the
9 Ministry of Environment.

10 Q. All right. I'm just going to read from the
11 rejection letter to your first EIA from the Ministry, which
12 is in the record at R-064. It says, "You are hereby
13 informed that the final review of your EIA for Jamaca de
14 Dios has yielded the determination that it has omissions
15 and defects--and relevant defects impeding a decision from
16 being made for the processing of the corresponding
17 environmental permit. In this sense, we are returning the
18 study that was given that some fundamental aspects of the
19 assessment process must be improved such as"--and it
20 includes a long list of things that needed to be addressed
21 in the Environmental Impact Assessment.

22 A. Excuse me. I heard you say C-064, and that
23 appears to be a different document.

24 Q. It's R-064.

25 A. Oh, R. Okay. Is that in this binder?

[Page 346]

1 Q. Yeah. Feel free to take a look at that.⁹

2 A. I just have C documents, I think.

3 Q. Underneath there's a binder with the R.

4 A. Oh, this other binder. I'm sorry.

5 Yes, sir.

6 Q. And so in this letter--does this refresh your
7 recollection about the first Environmental Impact
8 Assessment that you submitted?

9 A. No, it does not.

10 Q. Do you remember this letter, though?

11 A. I do not remember this letter.

12 Q. Okay. So, in this letter, though, they said that
13 the Environmental Impact Assessment that you submitted the
14 first time, in February 2007--which is the one that I'm
15 representing to you was a five-pager which we have, but
16 it's not in the record so I'm not going to refer to it--had
17 certain deficiencies, and this letter does refer to those
18 deficiencies.

19 And they say you have to improve the EIA by
20 addressing issues such as description and calculations for
21 the wastewater treatment plant, drinking water,
22 construction and operational activities, the environmental
23 monitoring program, including monitoring parameters,

9 English Audio Day 2 at 02:04:27

[Page 347]

1 mechanisms and frequency; restructuring of the
2 identification and assessment of impacts caused by
3 construction and operational activities, and restructuring
4 of the description of the impacts. And that's all done
5 pursuant to the Environmental Law. Do you see that?

6 A. I do.

7 Q. And this letter was addressed to you personally,
8 in addition to Mr. Pérez, but you don't recall it?

9 A. It appears to me that it was signed for by the
10 environmental company. And so I do not recall the specific
11 letter. But I do believe there's a high likelihood since
12 they were managing it. They went to the Ministry of
13 Environment and they received it. They realized there were
14 deficiencies. They were under contract with us to complete
15 and do what was necessary to obtain the environmental
16 permit.

17 So it is plausible that they realized that there
18 were some deficiencies, they themselves, and then they
19 worked directly with the Ministry of Environment to get
20 into compliance.

21 So I don't recall seeing this letter. We might
22 have, but that might be a plausible explanation as well.

23 Q. So you--okay, fair enough. So you just weren't
24 involved really with this. I mean, you were--

25 A. I was not.

[Page 348]

1 Q. All right. So after this was rejected due to the
2 lack of detail, you then had to present a new Environmental
3 Impact Assessment. And for that project--for that
4 assessment, you hired this company that you were referring
5 to earlier called Antilia. Do you remember that?

6 A. I don't know--I thought I hired them for the whole
7 thing.

8 Q. But for this one as well? So you mean the first
9 one was prepared by Antilia as well?

10 A. Yes. From what I recall, they were my
11 environmental company. I entered into a contract with
12 them, and they were preparing the Environmental Impact
13 Study, and then they brought it to completion. And they
14 were the ones that actually delivered to us the license.

15 Q. Okay. All right. So they did the five-pager.
16 They got this letter. They said, "Okay. We're going to
17 have to redo this thing."

18 And they prepared a revised Environmental Impact
19 Assessment that was then submitted in August of 2007. And
20 my question to you is, were you involved at all in the
21 preparation of the Environmental Impact Assessment that was
22 submitted in August, the revised one?

23 A. I don't think I was involved on any level
24 whatsoever in that process. I might have been. I don't
25 recall. From what I remember, I hired that company, and

[Page 349]

1 they brought it through to the end. They managed the
2 entire thing, from what I recall.

3 Q. Okay. So they prepared this document, the new
4 EIA, which we'll--might as well go to it. It's Exhibit
5 R-103 in your binder.

6 Do you see that?

7 A. Yes.

8 Q. Okay. So this is a--the revised EIA, and it's 119
9 pages long, at least in the Spanish version.

10 So your environmental impact--your environmental
11 consultants went from presenting a five-page EIA to
12 119-page EIA.

13 Do you recognize this as the EIA that was
14 submitted in August 2007?

15 A. It appears to be. I do remember seeing the
16 Environmental Impact Study. So from--yes, this seems like
17 the one that was approved.

18 Q. So this EIA, like the one before that that was
19 rejected, related to your application for a permit for the
20 lower mountain housing project; correct? Including the
21 restaurant.

22 A. I thought that this was the one that was approved.
23 Maybe it was rejected and they continued to get it right.
24 I'm not sure.

25 Q. This one was approved. The one you're looking

[Page 350]

1 at--

2 A. Yeah, this one was approved.

3 Q. Yeah, that's the one that was approved. There was
4 a previous one that was rejected, but they both related to
5 the lower mountain road?

6 A. Yes, sir.

7 Q. All right. So let me--and at this point in time,
8 the only permit that you had received was for the
9 construction of the road on--the only authorization you had
10 received was the one for the construction of the road on
11 the lower mountain that you had received from the forestry
12 officials; is that right?

13 A. I believe so. Yes, sir.

14 And I think maybe the City at this point had given
15 me a no-objection letter, I think.

16 Q. Let me direct your attention to Page 7 of this
17 document that you have before you.

18 Using the numbering on the far lower right, the
19 extreme lower right where it says "Page 7 of 119." Do you
20 see that?

21 A. Yes.

22 Q. All right. At Point 8 of this page--in the middle
23 of the page in the English version, it says--there's a
24 heading that says "Type of Project." Do you see that?

25 A. Yes.

[Page 351]

1 Q. And there your EIA describes the project as
2 follows in the first paragraph. It says, "Jamaca de Dios
3 is a subdivision project consisting of 82 lots of land for
4 sale to be used for the purpose of building homes in the
5 mountain villa style."

6 And then it goes on. Do you see that part?

7 A. I do. It's in Spanish, but I--

8 Q. Well, but you have an English version, as well, do
9 you not?

10 A. But I'm 75 percent good.

11 Q. You're comfortable in Spanish. Okay. Either way.

12 MR. Di ROSA: It should be behind him.

13 THE WITNESS: Oh, okay.

14 BY MR. Di ROSA:

15 Q. Are you there?

16 A. Yes. In English.¹⁰

17 Q. It says "mountain villa style" in the English.
18 And the Spanish, just to be clear, it says "viviendas tipo
19 villas de montaña"¹¹ (in Spanish.)

20 Do you see that?

21 A. Yes.

22 Q. All right. Now, by "mountain villa," did you mean

10 English Audio Day 2 at 02:12:19
11 English Audio Day 2 at 02:12:27

[Page 352]

1 mountain cabin?

2 A. I meant--I'm unsure.

3 Q. All right. Because you said--you know, we saw
4 earlier that you--that you have characterized to the
5 forestry officials that you were going to do mountain
6 cabins; right? Is that what you told somebody before, the
7 government officials before, that you were going to do
8 mountain cabins? We saw a reference to that earlier.

9 A. Are you referring to the first rejection that we
10 received from the Ministry of Environment that was not
11 complete?

12 Q. Let me just--what did you understand by "mountain
13 villa" when you used it here?

14 A. I meant houses--in the mountains.¹²

15 Q. Because, I mean, what troubles me about that--you
16 know, when most people think of a mountain cabin, they
17 think of like a rustic wooden structure surrounded by
18 trees. Is that--I mean, am I wrong about that being kind
19 of a general understanding of what a mountain cabin is? Or
20 can it just be any kind of house?

21 A. Well, I think in English, a cabin might refer to
22 primarily a wood structure.

23 Q. Primarily a wood structure. Yeah. Most English

12 English Audio Day 2 at 02:13:34

[Page 353]

1 dictionaries would define the term "cabin" as a--and this
2 is when you look at different dictionaries. It has
3 different variations of the following: A small, roughly
4 constructed, shelter or house typically made of wood and
5 typically situated in a wild or remote area.

6 A. A villa would have a different connotation.

7 Q. Okay. Let's take a look at the next paragraph
8 here, which is on Page 8, the following page of the English
9 version. So Page 8 of 126. Do you see that?

10 A. Yes.

11 Q. All right. So there too--I mean, there, you know,
12 there's a reference to mountain cabin-type structures;
13 right?

14 So you just told me that in your mind, mountain
15 villas are different from mountain cabins in that mountain
16 villas can be--can be houses.

17 A. I'm sorry. What paragraph?

18 Q. Point 13 there. Do you see where it says "The use
19 of the land will be for the development of a semi-urban
20 real estate project with construction of mountain
21 cabin-type structures being expected, no more than two
22 stories high with designs and materials that maintain
23 affinity and harmony with the natural environment."
24 Right?

25 A. Yes, sir.

[Page 354]

1 Q. And then--and, you know, earlier--and the part
2 that we saw on the preceding page in the--under the
3 subheading "Type of Project" that we just saw, there was
4 something similar. In fact, that one said--and you can
5 refer back to the previous page if you want.

6 The second paragraph says, "The architectural
7 guidelines for construction are intimately associated with
8 the environment, with wood and other lightweight materials
9 prevailing as the structural and construction elements."

10 And then it says, "Colors and forms are also
11 adapted to the environment, in order to create a harmonic,
12 integrated whole."

13 So here you are telling the Ministry that
14 basically it's going to be, you know, kind of wooden
15 mountain cabins type thing or lightweight materials anyway.
16 Were you not?

17 A. Yes.

18 Q. And that's consistent with this sort of composite
19 that I made of the dictionary definitions of a cabin;
20 correct?

21 A. Yes.

22 Q. And it's sort of consistent with what I initially
23 told you was the--my understanding of the general
24 conception of a mountain cabin; correct?

25 A. Correct.

[Page 355]

1 Q. All right. So let's take a look at R-2. We'll
2 project it on the screen as well. Oh, yeah, it's not in
3 the binder. Are you at R-2? You're not on R-2 because
4 it's not in the binder.

5 A. It's here. I was just handed it.

6 Q. So--and just--you know--by the way, there were
7 several references to the term--the term "cabin" in the
8 Environmental Impact Assessment, including--sorry, I'm
9 losing my voice--including at Page 7, Point 14; at Page 32
10 Point 1.1.1, the first paragraph, and on Page 54, 1.5.2 in
11 the second paragraph. These are all references to the EIA
12 that we were looking at, which is our R-103.

13 So with respect to R-2, let me ask you first--I
14 mean, based on¹³ what you said here in the EIA, the Ministry
15 reasonably believed or interpreted that you were planning
16 to build mountain cabins made of wood and other lightweight
17 materials; correct?

18 A. Yes.

19 Q. And the Ministry, in fact, granted you a permit
20 for this project; correct?

21 A. Correct.

22 Q. So let's take a look at that permit. And that's
23 what's at R-2. This permit was granted on December 7,

13 English Audio Day 2 at 02:19:22

[Page 356]

1 2007. That appears on the bottom of Page 2.

2 And it says here on Page 1, "The Ministry of
3 Environment and Natural Resources grants this environmental
4 permit for the construction of the project Jamaca de Dios."

5 Do you see that?

6 A. Yes.

7 Q. But then immediately below it says, and it
8 cautions, "with the following specifications."

9 Do you see that?

10 A. Yes.

11 Q. And after that, it describes the specific location
12 of the project followed by a section entitled,
13 "Characteristics." Are you there where it says
14 "Characteristics"?

15 A. Is that in the same paragraph, "Pursuant to
16 Article 45"?

17 Q. It's right--right, you know, on the second
18 paragraph. It's highlighted on the screen, if that helps
19 you.

20 A. Okay. Yes.

21 Q. All right. And there the permit says--under the
22 heading "Characteristics," it says, "The project has as its
23 objective the construction of buildings of a mountain cabin
24 type with two levels."

25 Do you see that?

[Page 357]

1 A. Yes, sir.

2 Q. All right. And it doesn't say anything at all
3 about the road, does it?

4 A. I don't see that, so I would assume no.

5 Q. Just see if I understand this right. You first
6 told the Ministry in the permit application that we saw
7 earlier that you were going to be building mountain cabins.
8 In the Spanish "cabañas de montaña." That's the document I
9 was referring to earlier.

10 On that basis, the Ministry then issued you terms
11 of reference. And then, you know, in the cover letter for
12 the terms of reference, the Ministry expressly mentioned
13 its understanding that they were going to be--that you were
14 going to be building mountain cabins.

15 And then in your Environmental Impact Assessment,
16 which is R-103, you once again told the Ministry that you
17 were going to be building "mountain cabins." And on that
18 basis, the Ministry issued you a permit for a housing
19 project for mountain cabins; correct?

20 A. Yes.

21 Q. And that permit also, in fact, expressly
22 articulated the Ministry's understanding that they would be
23 mountain cabins; right? That's what we just saw?

24 A. That's what it says, yes, sir.

25 Q. All right. So after you received this permit, you

[Page 358]

1 began the process of developing the lower mountain project;
2 correct?

3 A. Correct.

4 Q. So you sold a bunch of lots then, and houses were
5 built on them; correct?

6 A. Yes.

7 Q. Would you characterize the houses that were built
8 on them as mountain cabins?

9 A. I would characterize the first ones were more like
10 that, and then there were others that were not subsequent.

11 Q. So some of them were and some of them weren't; is
12 that it?

13 A. Yes, sir.

14 Q. Do you think it's something that was in your
15 discretion to decide, okay, the Ministry authorized me to
16 make--to construct mountain cabins, but some of them could
17 be and some of them couldn't be? Did you feel that you had
18 that discretion?

19 A. No.

20 Q. So it's basically illegal to disregard a condition
21 that's imposed on one of these permits; is it not?

22 A. When I received my environmental permit, I
23 believed it allowed me to build the houses that I was
24 requesting. I wasn't parsing the word "villa" or "cabin."
25 I wasn't thinking at that time that that was the

[Page 359]

1 authorization.

2 Q. Well, you weren't--

3 A. So I was assuming that I was allowed to build
4 that.

5 Q. Well--but they said mountain cabins, and earlier
6 we saw that you had said that they were going to be wooden
7 structures, lightweight structures that blended well into
8 the environment, et cetera, et cetera; right?

9 I mean, that was part of the application that you
10 submitted to the Ministry. And we just saw--I just walked
11 you through all the instances in which the Ministry said,
12 you know, "We understand this is going to be mountain
13 cabins so you're authorized to build mountain cabins."

14 A. Yes, sir.

15 Q. All right. Let's just take a few--a look at a few
16 of these photographs. Again, this is from C-28. And we'll
17 put some on the screen. I mean, so this one, would you say
18 that counts as a mountain cabin?

19 A. I would say that I wouldn't classify that as a
20 cabin.

21 Q. You would?

22 A. I would not classify it as a cabin.

23 Q. You would not? Okay.

24 How about--

25 MR. Di ROSA: Do you have others?

[Page 360]

1 BY MR. Di ROSA:

2 Q. How about this one. Mountain cabin?

3 A. A big mountain cabin. No.

4 Q. This is a mountain cabin?

5 A. I would--I would say no.

6 Q. No. Okay.

7 A. So we have two.

8 Q. We have two, neither of which is a mountain cabin.
9 We showed a bunch of them--you showed a bunch of them
10 earlier. We saw videos, et cetera.

11 A. Yes.

12 Q. I mean, most of them really are like this, are
13 they not? I mean, we can--we don't have to go back through
14 them. I think the Tribunal can look at the pictures that
15 were shown in the openings.

16 But the bottom line is a lot of these houses are
17 not wooden structures. They're not lightweight structures.
18 I mean, would you say this blends naturally into the
19 environment, into the surrounding area?

20 A. Kind of, yeah. It's beautiful. It's nature.
21 It's open. Beautiful views. It opens up the views. In
22 many ways, I would.

23 Q. I agree with you that the views from the house
24 must be beautiful. But does the structure itself blend
25 nicely into the surrounding--for somebody--say you're like

[Page 361]

1 a naturalist, a person who really loves the outdoors and
2 loves nature and natural beauty, and they sort of come up.
3 Do you think that they would think of this as blending into
4 the natural surroundings? I mean, do you think this is
5 part of nature?

6 A. I would not say that that would qualify as a
7 mountain cabin, according to my understanding of mountain
8 cabin.

9 Q. Well, we agreed on that earlier. But I'm asking
10 you now if it blends into the surroundings, and you said
11 sort of because of the beauty and so forth.

12 And I'm just saying, it's not a--it's not a piece
13 of nature. I mean, you said--yeah, you said, "It's
14 beautiful. It's nature."

15 But this structure is not nature, though, is it?

16 A. Yeah, I would agree with you.

17 Q. Okay. Now, in your First Witness Statement at
18 Paragraph 62, you said, "Juan José Domínguez was destroying
19 the mountain."

20 And I wanted to show the Tribunal exactly what it
21 is that Juan José Domínguez did.

22 And he's the owner of the Aloma project; correct?

23 A. Yes, sir.

24 Q. The one that's right next--adjacent to your
25 project; correct?

[Page 362]

1 And--all right. So are we going to do this? It's
2 Exhibit C-129. It's a video that we're going to show you
3 of the Aloma Mountain--it's not a project. That's part of
4 the issue that we want to explore. It's property. It's
5 the Aloma property.

6 MR. Di ROSA: Okay. So let's go with this video
7 here.

8 (Video played.)

9 BY MR. Di ROSA:

10 Q. So they have a dirt road, other dirt roads. You
11 know, that's--this is Aloma, is it not?

12 A. Yes.

13 Q. And do you see any housing structures of the sort
14 that you had?

15 A. I do not.

16 Q. Do you see a road there that's comparable to your
17 road?

18 A. No.

19 Q. Do you see any housing project on this mountain?

20 A. There is a housing project on the mountain.

21 Q. Oh, really? Is it not--is it a commercial real
22 estate project?

23 A. To my understanding, it is. There is years of
24 attempted sales without success.

25 Q. They have lots. How many houses do they actually

[Page 363]

1 have? You must know.

2 A. I believe there's three houses.

3 Q. Three houses. And one of them is owned by
4 Domínguez; right?

5 A. Yes, sir, from what I understand.

6 Q. Right. And would it surprise you if the other
7 structures are not actually houses as such?

8 A. I think there's a--like a clubhouse, and I do
9 believe there's two other houses, but I might be wrong
10 because I haven't been on that property for several years.

11 Q. Would it surprise you if I told you there's
12 Mr. Domínguez's house, and then there's a clubhouse and a
13 gazebo?

14 Do you know what a gazebo is?

15 A. I know what a gazebo is, yes.

16 That would surprise me, because I'm pretty sure
17 when I was up there, I saw two or three houses. But I
18 might be wrong.

19 Q. I mean, there are two or three structures for
20 sure.

21 But he didn't get to build a real estate project
22 because he didn't get authorization; isn't that right?

23 A. I would not characterize it as that. I would
24 characterize it as he has a failed commercial project
25 because he built a horrible road.

[Page 364]

1 Q. But he did get his permit denied, though, did he
2 not?

3 A. That was subsequent to many institutions bringing
4 much pressure on the Ministry of Environment.

5 Q. Right. But his permit was denied?

6 A. There was no choice.

7 Q. It was denied?

8 A. It was denied in 2017 or '18, it appears.

9 Q. My assistant here says that it's December 2013.
10 He asked for reconsideration and then the project--the
11 application was not closed until 2017. But the permit
12 itself was denied in December 2013.

13 I mean, does that surprise you?

14 A. No. I think there was no other choice for the
15 Ministry but to formally close his file or deny his permit.

16 Q. Right. So, basically, he applied, got his permit
17 denied. He asked for reconsideration. That too was
18 denied, just like you. And they closed his file, just like
19 you, except you got an extra two reconsiderations.

20 I mean, is that factually correct?

21 A. I don't know how many reconsiderations he has.
22 But, yes, I did get three reconsiderations.

23 Q. Right. And he had at least one, is what I'm
24 representing to you.

25 A. At least one, yes, sir.

[Page 365]

1 Q. Do you call this "destroying the mountain"?
2 There's a dirt road there.

3 A. The access road that was cut up through 18
4 switchbacks through the soils absolutely destroyed the
5 mountain. When the rains came, you could see nothing but
6 brown flowing into the creeks and rivers, and it was seen
7 from everywhere in the area.

8 So, yes, there was a great amount of environmental
9 destruction on the road cut.

10 Q. But brown--at least brown is still part of nature;
11 right? I mean, do you think that some people could
12 reasonably say that you destroyed the mountain more than
13 Mr. Domínguez here, based on those photos we just saw?

14 A. At the top of the mountain. But I think what he
15 has done is fine. I'm saying the roads that he built going
16 up the mountain created a huge environmental impact.
17 Sedimentation arose in affected waterways, yes.

18 Q. But you were denied the permit for the top of the
19 mountain also; right? This is the top of the mountain
20 that's adjacent, and they too got their permit denied.
21 But, you know--well, how many houses were constructed on
22 your lower mountain project in the end? How many are
23 there?

24 A. They're not done being constructed. I think
25 there's probably about 65 that are completed, maybe a

[Page 366]

1 couple more in different degrees of construction, but that
2 would be an estimate.

3 Q. 65? Is that what you said?

4 A. Maybe 60, 65, 67. I don't have--I haven't been
5 there very much in the last several years.

6 Q. So, that's a lot of houses on the mountain, is it
7 not? I mean, certainly more than two or three, whatever it
8 is that--structures that Domínguez has.

9 A. Yes. There is more in Jamaca de Dios.

10 Q. And you said that the roads that Mr. Domínguez had
11 constructed were generating a lot of erosion; is that
12 right?

13 A. It was a massive environmental impact seen from
14 everywhere.

15 Q. Including erosion?

16 A. Massive erosion.

17 Q. Massive erosion because of the roads?

18 A. Because of the horrible road and design, yes, sir.

19 Q. All right. Because that's--that's what was
20 causing the erosion, in your view, is the badly constructed
21 roads; right?

22 A. Without any environmental consideration
23 whatsoever, yes, sir.

24 Q. All right. Now, let me take you now to Page 2 of
25 the permit. And we're still talking about the permit for

[Page 367]

1 Project 2, which is the lower mountain project.

2 And let me read to you the next-to-last paragraph
3 of the permit, starting with where it says "This
4 environmental permit."

5 Do you see that in R-2?

6 A. Yes, I do.

7 Q. So, in the English translation, it says, "This
8 environmental permit is exclusively for the aforementioned
9 activities carried out in the specified area. Any change
10 of technology, substantive inclusion of new works or
11 expansion must be submitted to the environmental impact
12 assessment process in accordance with Law 6400."

13 Do you see that?

14 A. Yes.

15 Q. So this permit--this is the permit--explicitly
16 warned you that the permit applied only to the particular
17 construction project that was authorized in the permit. Is
18 that a fair characterization?

19 A. Yes, sir.

20 Q. And it specifically warned you that any change of
21 technology and any expansion project would be subject to a
22 new environmental impact assessment process; correct?

23 A. Yes, sir.

24 Q. All right. Now, at the end of this
25 document--sorry.

[Page 368]

1 Do you recall signing this document, the EIA,
2 yourself? I mean, you said that your environmental
3 consultants prepared it, but do you remember signing it?

4 A. I don't remember signing it. But if my signature
5 is there, then it's mine and I did sign it. But I don't
6 remember specifically signing it.

7 Q. Right. Let me--it's at Exhibit C-4 on Page 3.

8 So it's being explained to me that it's the same
9 document at Exhibit C-4. The version that your counsel
10 submitted included the signature page which appears on the
11 screen here. It's at the end of C-4.

12 A. Yes. This is my signature.

13 Q. Do you see that?

14 A. Yes, sir.

15 Q. All right. So what this document says is, "I,
16 Michael Ballantine"--and I'm just free-translating here.
17 But "I, Michael Ballantine," and then it goes on to
18 say--"me comprometo en nombre del mismo a dar fiel
19 cumplimiento a los requisitos establecidos en el permiso
20 ambiental "(in Spanish.)¹⁴

21 MR. Di ROSA: Do you have that?

22 (Comments off microphone.)

23 BY MR. Di ROSA:

24 Q.

14 English Audio Day 2 at 02:36:35

[Page 369]

1 Q. All right. So what this says--and you can correct
2 me if I'm wrong. It says: "I commit on behalf of del
3 mismo"--which is the project--"on behalf of the
4 same"--which is the Jamaca de Dios project--"to give
5 faithful compliance to the requirements established in this
6 permit."

7 Is that a fair translation?

8 A. Yes, sir.

9 Q. And then you go on to say at the end, "which I
10 have read and understood" is part--I mean, you see that
11 part that says "I have read and understood it"?

12 A. Yes.

13 Q. All right. And you say that that--that those
14 requirements are an integral part of the approval of the
15 permit; is that right?

16 A. Yes.

17 Q. Let me direct your attention now to Page 26 of 126
18 on this EIA document. Again, that's the reference to the
19 lower right-hand number.

20 And this is still R-103, for the benefit of the
21 Tribunal.

22 Are you there?

23 A. Page 26.

24 Q. 26 of 126.

25 So in this section of the EIA, you are essentially

[Page 370]

1 articulating your own understanding of what the
2 environmental impacts would be of your lower mountain
3 project; correct?

4 A. Is that the hierarchy of impacts? Is that what
5 you're referring to?

6 Q. Yeah, the hierarchy of impacts.

7 A. Okay. Yes, this appears to be correct. Yes, sir.

8 Q. Okay. So this is your own environmental
9 consultants and your assessment, because you signed this
10 thing, of what would be the different kinds of impacts.
11 And they're classified in high significance, medium
12 significance, and low significance.

13 And I think in the Spanish it said "alta
14 importancia," right? "Mayor importancia."¹⁵ Okay. That's
15 what it said. "Impactos de mayor¹⁶ importancia" in Spanish.
16 High significance impact is how it's translated in the
17 English.

18 So let's focus on the high--the high significance
19 impact in the construction phase. It's divided into
20 construction phase and operation phase.

21 In the construction phase, there are six impacts
22 that you--environmental impacts that you classified as high

15 English Audio Day 2 at 02:38:48
16 English Audio Day 2 at 02:38:50

[Page 371]

1 significance that are listed here. Do you see that?

2 A. Yes, sir.

3 Q. And two of those are described as negative. Do
4 you see that?

5 A. Yes.

6 Q. All right. And the two negative ones are change
7 in land use and increased erosion caused by earth moving
8 and vegetation removal.

9 Did I read that correctly?

10 A. You did, yes.

11 Q. All right. For the medium significance impacts,
12 which start at the very bottom of that page, also in the
13 construction phase, you identified six impacts of medium
14 significance; correct?

15 A. Yes.

16 Q. And you said all of them are negative; right?

17 A. Yes.

18 Q. And these impacts included increased contamination
19 of the surface water and groundwater sources. Second,
20 modification to the patterns of surface flow and
21 infiltration into the land. Third, increased consumption
22 of water. Fourth, elimination of 30,000 square meters of
23 primary forest. Five, increased risk of occupational and
24 traffic accidents. And six, increased consumption of
25 aggregates for construction.

[Page 372]

1 Do you see that?

2 A. Yes.

3 Q. And for the low significance impact, also in the
4 construction phase, you identified four low significance
5 impacts, all of which are also negative.

6 Do you see that?

7 A. Yes.

8 Q. Those impacts are, first, increased emissions of
9 gases and particulates caused by earth moving and operation
10 of heavy equipment; increased noise levels and vibrations
11 caused by heavy equipment; impact on the habitats of forest
12 fauna from removal of vegetation; and temporary impacts on
13 the landscape while the construction work is taking place.

14 Is that correct?

15 A. That is correct.

16 Q. So these are all risks to the environment that
17 you're--that you and your environmental consultants
18 identified in connection with the proposed lower mountain
19 property; right?

20 A. Yes, sir.

21 Q. So this didn't relate at all to the potential
22 impact on the upper mountain. This is just the lower
23 mountain; correct?

24 A. Yes.

25 Q. And as it happened, in the end, you never actually

[Page 373]

1 presented an environmental assessment for the upper
2 mountain project because you didn't get that far in the
3 permitting process for that project; is that correct?

4 A. Yes.

5 Q. All right. Let me take you now--and still in the
6 same document here--to Page 61 of 119.

7 Sorry. 62, I guess, in the English.

8 Do you see at the bottom of the page there it says
9 "Construction Phase"?

10 A. Which page?

11 Q. Sorry. 62 of 126 in the English.

12 Right? Do you see that? Are you there?

13 A. Yep.

14 Q. So the heading there two-thirds of the way down
15 the page is "Construction Phase."

16 And then it says "Construction"--the
17 subheading--"Construction of the project's access roads and
18 internal roads."

19 Do you see that?

20 It's right below the heading.

21 A. Yes, sir.

22 Q. So this is the part on which the EIA is focusing
23 specifically on the impact of the roads; is that right?

24 A. Yes.

25 Q. All right. So, let's just take a quick look at

[Page 374]

1 the list below it, the enumerated items starting with 1.1,
2 tree cutting; right?

3 So you have--1.1 is tree cutting; 1.2 is land
4 clearing; 1.3, operation of heavy equipment; 1.4 is earth
5 moving: excavation, cutting, filling, and compacting. And
6 1.5 is asphalt paving of roads and other road-related
7 constructions (curbs, gutters, culverts, etc.)

8 Is that right?

9 A. Yes, sir.

10 Q. All right. Now, all of this refers to the
11 internal roads of the housing development; right?

12 A. Yes.

13 Q. Because you had already constructed the main road
14 leading up the mountain; right?

15 The main road leading up the mountain had been
16 approved by the forest officials--

17 A. Yes, sir.

18 Q. forestry officials, not by the Ministry of
19 Environment.

20 And the road--the main road was the one that was
21 shown in the video during the opening arguments yesterday;
22 correct?

23 A. Yes.

24 Q. For the construction of the first road, you also
25 had to cut trees, use heavy equipment, conduct excavations,

[Page 375]

1 et cetera, all these things that are listed here; is that
2 right?

3 A. Yes.

4 Q. Now, in connection with the lower housing project,
5 aside from the environmental impact assessment that you
6 were required to present and prepare to the Ministry, which
7 is this document that we're looking at, you also had to
8 prepare a document known as an Environmental Management and
9 Adaptation Plan; right?

10 "Plan de manejo y adecuación ambiental"¹⁷ (In
11 Spanish.) Is that right?

12 A. Where is that at?

13 Q. Well, we're going to go--it's R-103. But do you
14 remember the concept itself of the "Plan de manejo
15 ambiental"¹⁸ (in Spanish)?

16 A. An environmental management plan?

17 Q. Yeah, right.

18 A. Isn't that what this was?

19 Q. No. This is the Environmental Impact Assessment.
20 There's a separate requirement for something called the
21 Environmental Management and Adaptation Plan.

22 But let's just go and look at it. Maybe that will

17 English Audio Day 2 at 02:45:16
18 English Audio Day 2 at 02:15:29

[Page 376]

1 refresh your recollection.

2 Do you see R-103?

3 A. Okay. I've got that one.

4 Q. So let's go to Page 79 and 80.

5 (Comments off the microphone.)

6 MR. Di ROSA: It's a document--it's a plan that's
7 inside the--in this case you put it in the actual
8 environmental impact assessment. My apologies.

9 ARBITRATOR CHEEK: So it's the same document we
10 were looking at?

11 MR. Di ROSA: It's the same document. It's
12 Chapter 3. I unilaterally created this confusion.

13 THE WITNESS: Was this the same date as the other
14 one?

15 MR. Di ROSA: Yeah. It's the same document,
16 essentially. It's just--

17 THE WITNESS: I mean the date. I'm asking the
18 date. Or is this a separate document on--

19 MR. Di ROSA: No. It's a chapter of the same
20 document.

21 THE WITNESS: Okay. Gotcha.

22 MR. Di ROSA: Sometimes it's represented
23 separately. You guys did it together. And that's fine.

24 THE WITNESS: Sure. I just want to understand.

25 BY MR. Di ROSA:

[Page 377]

1 Q. So, basically, this chapter, this plan, is a plan
2 that the project promoter--in this case you--prepares to
3 mitigate the adverse environmental impacts of the project
4 that are identified in the Environmental Impact Assessment;
5 right?

6 A. Yes, I got that. I'm assuming what you're saying
7 is true. Yes.

8 Q. So you don't know what purpose of--

9 A. I'm sorry. I've got the Spanish version again. I
10 didn't--

11 Q. So you don't remember this plan, in any event?

12 A. I don't remember the plan.

13 Q. The English is behind your blue sheet there, if
14 you wanted to--

15 A. Yeah. And it's R--

16 Q. On the Spanish version, it's Page 78.¹⁹

17 A. R what again?

18 Q. R-103. It's the same document we've been looking
19 at.

20 A. Yeah. But I was looking at the Spanish. I'm
21 sorry.

22 Q. I guess it starts at Page 80 of the English
23 version. 80 of 126 is in the lower right-hand number.

19 English Audio Day 2 at 02:47:35

[Page 418]

1 AFTERNOON SESSION

2 PRESIDENT RAMÍREZ HERNÁNDEZ: Thank you. Please,

3 Respondent.

4 MR. Di ROSA: Thank you, Mr. Chairman. And good

5 afternoon, Mr. Ballantine.

6 BY MR. Di ROSA:

7 Q. So, you know, we were talking before the break

8 about the reconsideration process. And as we were

9 discussing at the end of the previous session, the Ministry

10 had invited you to submit an alternative proposal, but you

11 did not do that. Is that right?

12 A. Yes, sir.

13 Q. Yes, you did not do that?

14 A. Wait. No, I did not--I did not submit an

15 alternative site proposal.

16 0. Thank you. Instead, you submitted a request for

17 reconsideration of the permit denial; correct?

18 A. Yes, sir.

19 Q. All right. So, let's take a look at your first

20 reconsideration request, and that's Exhibit C-10 in your

21 binder.

22 I should note for the record that we're using the

23 Dominican Republic's translation of this document because

24 the Ballantines did not submit an English version.

25 MR. Di ROSA: C-010, yes.

[Page 419]

1 Put it up on the screen. It's on the screen.

2 It's just a one-page document.

3 BY MR. Di ROSA:

4 Q. So, this is the first reconsideration request that

5 was submitted on behalf of Jamaca de Dios. Do you remember

6 who did this letter? Did you do it yourself or--it's

7 signed by you.

8 A. Yes, I believe I drafted this letter myself. I

9 think so. Yes, sir.

10 Q. All right. And in this letter, you did not offer

11 to the Ministry any change in your original proposal, did

12 you?

13 A. I did not because I thought the basis was a

14 mistake.

15 Q. So, instead, you simply insisted on the original

16 project and emphasizing the mistake which related to, in

17 your view, the steepness of the slopes on the part of the

18 property that you were proposing for the project; right?

19 A. Yes, sir.

20 Q. All right. And then specifically, you said that

21 there was an error in the slope because--and I'm quoting

22 here, "Development is not permitted in areas where the

23 slope is greater than 60 degrees, and this is correct.

24 However, the slope where we were trying to create a simple

25 access road is only 34 degrees and is, therefore, within

[Page 420]

1 the permitted margin."

2 Do you see that?

3 A. I do.

4 Q. And you have explained that that was a mistake.

5 You confused the degrees with the percent, and Ms. Cheek

6 did that yesterday, and I've done it, you know, a hundred

7 times in the course of the last few months, as my team will

8 attest. So, that part I understand.

9 A. Yes, sir.

10 Q. The part that I'm struggling with a little more

11 is--so you got this permit denial, and you wrote this

12 letter, and you say you wrote it yourself.

13 Did it occur to you to run it by an environmental

14 consultant or environmental lawyer? I mean, were the

15 Empaca Redes consultants still under your employment?

16 A. Well, sir, at this point, I just had the

17 perception and the feeling that the previous Minister was

18 not being fair to me in a lot of ways, and it's expressed

19 in the second paragraph.

20 And he left, and then there was a new Minister,

21 and I thought I'd get a better evaluation. And so there

22 was no--I calculated the slopes. I didn't know exactly

23 what they're referring to. And according to the top of

24 Phase 1 to the top of Phase 2, it is a 34 or a 32 percent.

25 And so I didn't know if they were talking about a certain

[Page 421]

1 area or the whole thing. And so I'm saying the overall

2 area is not that. Because that's all I had to go on.

3 And so that's what I was responding to. Could you

4 please appeal, could you please review this because I think

5 there's an error in the math.

6 Q. Right. But at this point you no longer had an

7 environmental consultant that you were discussing this

8 stuff with; is that right?

9 A. At this point--well, yeah, I was working with

10 Empaca Redes. They were in the process. I had an

11 agreement with them that they would do the steps necessary

12 to get to the place of an approval. So, I don't think they

13 wrote this. I thought this was just me because I felt like

14 it was a mathematical error and

15 Q. So, when you say, then, "I measured," do you

16 literally mean you measured it? Did you--you personally

17 measured it, the slopes?

18 A. Yes. It's a simple function on Google imagery

19 where you just take the one point to the next, and then

20 you--it has a distance, and then it has an elevation gain,

21 and it simply shows what it is.

22 And that does bear out. That is a reality, that

23 the average slope--and I think Mr. Navarro responds to

24 that, that that's just not the way they do it in the

25 Ministry, so--

[Page 422]

1 Q. Doesn't it depend on variations in the topography

2 on different part of the mountain?

3 A. I was

4 Q. I mean, you said like you took an average. So, if

5 you have, you know, part of the mountain that's flat and

6 then the mountain--I mean, I'm not saying this is the case,

7 just hypothetically.

8 A. Right.

9 Q. Say it's you know, you've got a flat part and

10 then a really steep part. The average will be, you know,

11 say, whatever, 34 degrees. But if your road is going to go

12 from here to the top--

13 A. 34 percent.

14 Q. Yeah. If it's going to go from here to the top,

15 though, that might be--that part might be steeper there;

16 right? I mean, it's not the average that counts?

17 A. I did not know what they were looking for at the

18 time. I just calculated it because I thought they were

19 talking about the entire area was that. And so I was just

20 demonstrating that it wasn't that.

21 Q. Did you have an environmental lawyer employed at

22 this time?

23 A. I did not.

24 Q. Okay. So, you did have Empaca Redes. Why didn't

25 you ask them to do the calculations of the slope?

[Page 423]

1 A. I could have. I did not.

2 Q. All right.

3 A. They ultimately did do that after the third

4 denial, and they wrote a very nice technical letter that's

5 laid out, along with a letter explaining other things.

6 0. So, when you submitted this letter and you said,

7 "Hey, you know, Ministry, you've made a mistake, the slope

8 is actually not as steep as you say," the Ministry sent out

9 a technical team, right, to conduct another site visit--

10 A. Yes.

11 Q. --agreed?

12 And were you there when the Ministry's technical

13 team did its site visit?

14 A. I remember I was there for the first two. I don't

15 recall on the third one. I'd have to look at the notes on

16 that and see if I recognize a name. I don't know.

17 Q. All right.

18 A. I might have been out of the country at that time,

19 I don't know.

20 Q. Do you recall that the technical team was

21 composed--that was sent by the Ministry was composed of an

22 entirely new group of technicians from the Ministry's

23 national office, none of whom had been involved in the

24 previous site visit?

25 A. I don't recall who was involved.

[Page 424]

1 Q. Okay. You know, just for the record--and we don't

2 need to go there, but just for the record, Exhibit R-105

3 lists the people who attended the January 2012 site visit,

4 and Exhibit R-108, on page 5, lists the Ministry officials

5 who attended the February 2011 site visit.

6 The list shows that the only overlapping member of

7 the site visit team was the Director of the Province

8 Office. So, everybody who came from Capital was a

9 different person, a different technician.

10 The technical team that visited the site visit

11 after your first reconsideration request produced a site

12 visit report that I want to take you to, which is

13 Exhibit R-105.

14 If you go to Page 3 of R-105, and if I could ask

15 you to read the first paragraph because my voice is failing

16 me. If you don't mind, Mr. Ballantine.

17 A. Under "Brief Introduction"?

18 Q. No. So, where it says--sorry. Where it says "In

19 the field visit," starting where it says "Field

20 Evaluation," the heading "Field Evaluation," and then it

21 says "In the field visit."

22 A. Is it on the first page?

23 Q. Page 3. Sorry.

24 A. Oh, I'm sorry.

25 "In the field visit, using a clinometer, we could

[Page 425]

1 verify that the slopes in the project area were of various

2 ranges, with slopes between 20 and 37 degrees, which, in

3 percentage terms, would be 36 percent and 75 percent

4 respectively.

5 "Regarding what was expressed in the

6 communication"--

7 0. So--sorry.

8 A. Yes, sir.

9 Q. Let me just stop you there.

10 There's a reference here to a clinometer. Do you

11 know what that is?

12 A. Yes. It's a device to measure slopes.

13 Q. Right. But you said you used Google Earth to

14 measure the slopes; right?

15 A. In the first one, yes. But subsequent to that, we

16 used many different calculations. And that particular one,

17 referring to the first denial, I did use Google Earth.

18 Q. So, the time that you used Google Earth is the one

19 that yielded the 34 degrees that really is 34 percent

20 A. Yes, sir.

21 Q. right?

22 Okay.

23 A. But we did many subsequent studies because of the

24 urgency and the pressure we were feeling of being denied.

25 Q. Right. So, I mean, is it possible that because

[Page 426]

1 you did not use a clinometer that first time but, rather,

2 Google Earth, that your measurement was inaccurate?

3 A. No, it's not possible.

4 Q. Not possible?

5 A. No. Because we subsequently confirmed what I was

6 saying in my letters²⁵ using a clinometer, amongst other

7 measuring devices.

8 Q. Let's skip ahead to Page 6. There's a section

9 there called "Comments."

10 Can you read that section into the record for me,

11 Mr. Ballantine? Thank you.

12 A. "After carrying"--

13 Q. Yeah. Sorry, go ahead.

14 A. "After carrying out the field visit to the Jamaca

15 de Dios Expansion project, we were able to verify that

16 slopes are, for the most part, very steep, and that the

17 construction of the road entails a great deal of movement

18 of soil in a fragile area where we would observe landslides

19 in some areas."

20 Should I continue?

21 Q. Yes.

22 A. "Moreover, the type of construction proposed by

23 the developer is not appropriate for the location. The

25 English Audio Day 2 at 04:05:30

[Page 427]

1 number of stories is very exaggerated, proposing villas of

2 up to three stories, and most of the materials being used

3 are"--it should be "not suitable for this area."

4 Q. Right.

5 A. "We reiterate that what is started in Article 122

6 of Law 64-00: "The only permitted use on slopes greater

7 than 60 percent is the establishment of permanent

8 plantations of fruit trees and shrubs."

9 Q. Thank you for reading that, Mr. Ballantine.

10 So, this is a new technical team from the Ministry

11 reaching the same conclusion that the previous team did.

12 And this team is saying that they observed landslides in

13 some of the areas, and they also observed that the type of

14 construction was not appropriate for the location.

15 I mean, was there--was the plan essentially to

16 build houses in the upper mountain similar to the lower

17 mountain ones? I mean, did you have any limitations on the

18 type of construction you would have up at the--in the upper

19 mountain?

20 A. We would have done anything that the Ministry of

21 Environment would have allowed us to do. The intention was

22 to continue the successful Phase 1 for the extension of

23 Phase 1. But if they would have said, "No, you can't do

24 that, you can do this," then we'd have gladly accepted

25 that. But there was never, at any point, any communication

[Page 428]

1 or options given.

2 Nor did we propose any specific houses in Phase 2.

3 And according to this, they're saying what I'm proposing

4 for Phase 2 doesn't qualify. I never proposed villas of up

5 to three stories. And as a matter of fact, the one slide

6 you saw was a two-story house. There was a basement--a

7 walk-out basement. So, that's not three stories,

8 technically.

9 Q. All right. After this technical visit, the site

10 visit from the technical team, the Ministry sent you a

11 letter denying the reconsideration request.

12 Do you remember that?

13 A. This is a second denial letter, correct, or the

14 first one? Well, they sent me--this is my appeal, yeah,

15 January. Yes. And then I think in March I received my

16 second denial letter, and that's--

17 Q. Right.

18 A. --where they outline the charge.

19 Q. So, the first was the permit denial itself, and

20 the subsequent letter is--the one that we're about to talk

21 about is the first reconsideration. Denial shall we call

22 it?

23 A. Yes, sir.

24 0. All right. Now, earlier you were asked--at the

25 beginning of this session today, you were asked by your

[Page 429]

1 lawyers on direct examination, "Did any of the MMA

2 rejection letters specifically identify the road as the

3 reason why your permit was being denied?"

4 And you answered, "Never."

5 Do you remember that?

6 A. Yeah. I might have made a mistake. I thought I

7 didn't talk about the road. Did I misremember?

8 Q. Well, that was--I mean, I'm looking at the

9 transcript 263:19-22. And the question was: "Did any of

10 the MMA rejection letters specifically identify the road as

11 the reason why your permit was being denied?"

12 And your answer was, "Never."

13 A. I thought--

14 2. Is that a mistake?

15 A. I might have made a mistake. If you have evidence

16 that the rejection letter is due, then it did, and I was

17 wrong. I don't remember that, though. I thought, you

18 know, that it never mentioned the road.

19 Q. When he asked you that, you didn't say, "I don't

20 remember." You said, "Never."

21 A. From what I--at the time--yes, I--yeah. I

22 answered that thinking that it never did. If I

23 contradicted myself just now, then perhaps--I wasn't trying

24 to be deceptive.

25 Q. No, I'm not--

[Page 430]

1 A. Does the rejection letter say that? I haven't

2 seen that.

3 Q. Well, we'll take a look at it, but let me just

4 understand first. Did you not read these letters, the, you

5 know, various reconsideration denials and so forth, in

6 preparation for this hearing?

7 A. Yes, but not in the last week or two. I didn't

8 read these specifically.

9 Q. All right. Let's go to Exhibit C-11. This is the

10 letter that the Ministry sent.

11 ARBITRATOR CHEEK: Mr. Di Rosa, I'm very sorry to

12 interrupt. Is the Tribunal only supposed to have one

13 binder? There's just a lot of documents you refer to that

14 aren't in our binder. So, are we supposed to have

15 two binders or one?

16 MR. Di ROSA: Let me ask about that because I

17 don't know.

18 (Comments off microphone.)

19 MR. Di ROSA: Yeah. I apologize, Ms. Cheek. It

20 appears that a few of these documents were not in the

21 binder, so we're showing them to the witness from the

22 binders of the record, which means that you would have to

23 rely on what's on the screen or pull it up if you have the

24 ability to do that. I apologize.

25 ARBITRATOR CHEEK: Okay. Thank you.

[Page 431]

1 BY MR. Di ROSA:

2 Q. So, Exhibit C-11 is where we are. This is the

3 first reconsideration denial. And, you know, if you could

4 look at Page 2, Mr. Ballantine, the last bullet

5 point--sorry. Is it Page 1?

6 Yeah, Page 2, the last bullet point at the top of

7 the page there.

8 A. Do you want me to read that?

9 0. Yeah, if you could read into--

10 A. "The cuts and leveling of lots required to

11 establish the path requested in the constructions would

12 have a great pressure over the mountain ecosystems proposed

13 to be executed."

14 Q. Right. And in the Spanish, the term that's used

15 is "camino"; right?

16 A. I don't--

17 Q. Oh, you don't know, but let me represent to you

18 that's what the Spanish says there. So, that's a reference

19 to the road, though, is it not?

20 A. Well, I read this to be the creation of the lots

21 for the homesite. But on closer reading, yes, sir. But

22 that was not intentional on my part.

23 Q. All right. So, they did mention the road to you?

24 A. Reading closely into this particular sentence,

25 yes, I would say that it does refer to the path requested.

[Page 432]

1 But the context is--I was worried more about the--you know,

2 the build. But you were right.

3 Q. All right. Now, in this letter, the Ministry

4 reiterated to you the problems with your proposed site; is

5 that right?

6 A. I believe this was the first time they mentioned

7 anything about--besides the slope law, to me, they defined

8 what they meant by "environmentally fragile," and they

9 named some specific laws.

10 And so on the basis of these specific

11 laws--because the four rejections were the only

12 communication whatsoever we ever received from the

13 Ministry, we began to respond to what was written here and

14 the only thing we received.

15 So, in my perspective, they amplified the slope

16 law and then they defined what they meant by

17 "environmentally fragile."

18 Q. Right. So, basically what they were doing is they

19 were saying you--your proposed site still has the same

20 problems, but let us explain in a little more detail why

21 it's a problem. Is that fair?

22 A. That's the way I interpret it, yes, sir.

23 Q. Yeah, okay.

24 So, let me see. So, on Page 1 they have an

25 enumeration of the reasons that the project is not viable.

[Page 433]

1 And they say--and this is the bullet point listed--starts

2 at Page 1 and spills into Page 2, and I'm quoting. "The

3 project is located in lots with slopes between 27 and

4 37 degrees. In percentage terms, that means between

5 36 percent and 75 percent respectively."

6 And then in the second tick it says, "The area

7 where the extension is proposed, in case of being

8 authorized, would modify the natural runoff of the area and

9 the local hydrological condition and the condition of the

10 micro basin since this is an area where streams are born."

11 Do you see that?

12 A. I do.

13 Q. All right. And then the third one, it says, "The

14 request," meaning your request, "presented deals with the

15 construction and operation of ten cabins, sale of 19 lots

16 for the construction of villas, which, due to the

17 conditions of the soil, has been considered not viable.

18 But at the moment of the visit, it was informed about the

19 construction and operation of 50 lots to build the

20 50 villas, and it was observed that regarding the

21 authorized parts, some buildings have been construed"--I

22 think it should say "constructed"--"breaching the

23 authorization issued."

24 And then the third--the final tick there is the

25 one that you just read about the road.

[Page 434]

1 So, in the preceding tick, though, they're talking

2 about the condition of the soil; right? That's their

3 explanation of the--one of the issues that they found.

4 And in passing, they mention that some of the

5 buildings that were constructed were not constructed in

6 accordance with the authorization that was issued by the

7 Ministry in the permit for Phase 1; right?

8 A. Yes, sir.

9 0. All right. So, the Ministry basically rejects

10 your proposal again, but despite that, you didn't make any

11 changes to your proposal. Instead, you simply submitted a

12 new reconsideration request, a second reconsideration

13 request; is that right?

14 A. Yes, we did ask for that.

15 Q. And let me take you--let's look at the second

16 reconsideration request, which is at C-12.

17 If you look at it on the screen, it's a letter

18 sent from Jamaca de Dios to the Minister at the time,

19 Mr. Ernesto Reyna. And in the third paragraph--so if you

20 can scroll up--

21 MR. Di ROSA: Just keep it there. Scroll down a

22 little bit. Sorry. Up.

23 BY MR. Di ROSA:

24 Q. All right. In the third paragraph you say, "We

25 understand there are parameters established, and we are not

[Page 435]

1 asking you to question in any way, we are just saying that

2 the extension of our current project is located in a zone

3 with a pitch of 32, and not 60."

4 Now, earlier, in the previous letter, you had

5 said, you know, 34 degrees, and here you're saying

6 32 degrees. So, is that because you remeasured; is that

7 it?

8 A. That could have been. I might have taken like

9 from one part or the next. But either way, it's about half

10 under the requirement of the law. So, my assumption is--I

11 double-checked, and depending on the measurement, it was

12 that.

13 Q. So, you did the measurement yourself; right?

14 A. At this point, yes, because I didn't understand

15 what they meant or where they were talking about, and in

16 this meeting in particular, it was a meeting that I

17 attended with the Mayor of Jarabacoa. She said that--she

18 implied that she would talk to Ernesto Reyna, who--they

19 were in the same family.

20 She said that she was going to push forward the

21 approval of Mirador del Pino because he had donated an

22 ambulance to the city and that she would put in a good word

23 on my behalf.

24 And she had arranged the meeting where I could sit

25 down and talk with him and explain what Jamaca was, and he

[Page 436]

1 was very positive and he said, "Michael, just send me a

2 letter, and that will start the process."

3 And so it was more of an informal way

4 that--through relationships, I guess, which is common in

5 the Dominican Republic.

6 Q. So, you just assumed that the problem could be

7 resolved politically, so to speak?

8 A. I thought being the grandmother of the biological

9 children of the President, that that might be some

10 influence. She had demonstrated that she had a lot of

11 power and influence before. And it was the same family.

12 And I thought that that might help, you know.

13 And so it was, "Could you please"--and he said,

14 "Please give me a formal letter and we'll take a look at

15 this." And so that was--there was more of a context than

16 just black-and-white letters so--

17 Q. Right. But the part that I find confusing still

18 is--so this is the second letter in which--I mean, you got

19 a second denial, which was the first reconsideration

20 denial, which told you that, you know, you had this error

21 of the degrees.

22 And at that point you are on notice that the slope

23 is an issue, in particular the steepness of the slope, but

24 you still didn't run this by an environmental consultant?

25 Right? Instead, you decided to go the political route, and

[Page 437]

1 so you basically just submitted kind of the same

2 reconsideration request as the first one; is that right?

3 A. Yes, sir.

4 Q. All right. And despite the fact that you had been

5 told--you know, you got the degrees and the percentages

6 confused in the--you know, you were told that in the

7 previous letter, you did it again this time?

8 If you look at the Spanish--unfortunately--this is

9 an unfortunate translation. If you look at the Spanish, it

10 says, where it says here "of 32 and not 60," in the Spanish

11 it says, "It's only at 32 degrees of grading and not 60."

12 Do you see that part? If you can highlight it in

13 yellow. So, the part at the very end there, it says

14 "grados," which is degrees, isn't it?

15 A. Yes, sir.

16 Q. And so why did you make the same mistake in the

17 second reconsideration request? You were told that was a

18 problem. Did you not pay attention, or did you not think

19 it was important, or was it just the issue that you

20 thought, "Well, okay, now we got the grandmother of the

21 President, whoever it is, the relative of the President,

22 who is going to solve the problem for you?" Is that--which

23 of those was it?

24 A. It was--when I read the denial, I didn't read as

25 deeply into it that the Ministry was trying to clarify

[Page 438]

1 degrees or percent. I didn't think that was what they were

2 doing.

3 And he specifically asked me to send him a letter

4 tomorrow, and that's exactly what I did. I responded to

5 what the Minister of Environment had said to me. And he

6 said, "Send me a letter tomorrow and we'll redo it."

7 So, this is the letter I sent.

8 Q. So, you didn't think they were making an issue of

9 the degrees or percent, but the very first point is about

10 the steepness of the slopes, and they tell you that that's

11 the issue. It's the very first point of the four bullet

12 points, the very first issue.

13 But you didn't think it was about the percentages

14 or the degrees? It was about the steepness of the slope,

15 was it not?

16 A. But the relation is the same. And I don't know if

17 it's in the record, but it was in the discovery, that map,

18 indicating clearly--that the Respondent received during

19 discovery, the map indicating the actual steepness.

20 And then when I met with Witness Navarro, I showed

21 him the maps, I showed him the maps of the area, I showed

22 him aerial footage, I walked it through with him, and that

23 was prior to the fourth denial.

24 So, he was well aware of what the context was, and

25 so he gave me no options at that point either, even though

[Page 439]

1 he could have said "Okay, this area you can develop; this

2 area, no."

3 There was none of that dialogue, none of that

4 collaboration.

5 Q. All right. I mean, I--you know, I'm not

6 questioning you for getting the terminology wrong.

7 A. Yes, sir.

8 Q. I'm just questioning the fact that you got it

9 wrong again after you had been specifically told that that

10 was the error.

11 A. To me, it wasn't that clear. It wasn't like,

12 "Michael, you got this wrong, this is what it's saying."

13 I didn't read that.

14 Q. But it said--it said it's not viable in the

15 selected place--

16 A. Yes.

17 Q. --because the slopes are between 27 and 37 degrees

18 but then in percentage terms means 36 and 75. So, I mean,

19 essentially they were saying, "Look, you know, you--

20 A. I see that.

21 Q. --if you think about it in percentages, it's--you

22 know, you were wrong. So, it was a mistake, in any event,

23 that you repeated.

24 Now, did you--so you told us earlier that you

25 drafted your Witness Statements; right?

[Page 440]

1 A. I did.

2 Q. And did you have a hand in drafting the pleadings

3 as well, or was that done by your lawyers?

4 MR. ALLISON: I'm going to object to the extent it

5 calls for attorney-client privilege.

6 Please don't answer that question.

7 MR. Di ROSA: I withdraw the question.

8 BY MR. Di ROSA:

9 Q. In Reply Paragraph 365, the pleading, you know,

10 your pleading, the lawyer's pleading, whoever's pleading it

11 was, it says, "It defies credulity that had the Ballantines

12 been told that they had to consider a revised plan, that

13 they would not have done so."

14 And then it says--period--"How silly is that?"

15 And that's close quote.

16 MR. ALLISON: Is there a question there, or is

17 Mr. Di Rosa doing his summation as part of his testimony?

18 MR. Di ROSA: No, no. I'm leading to it. It's

19 just a question about drafting and terminology.

20 BY MR. Di ROSA:

21 Q. So, the term "silly" there is one that has been

22 used by counsel a lot.

23 And you say in your Witness Statement, in

24 Paragraph 2 of your Third Witness Statement, that "It's

25 silly that anybody would have understood that you meant

[Page 441]

1 percent rather than degrees."

2 Is that just a coincidence, your use of the word

3 "silly" and the use of the word "silly" in the Claimants'

4 pleadings

5 MR. ALLISON: I'm going to object to this line of

6 questioning as trying to equate Claimants' pleadings to

7 Claimants' Witness Statements. We heard Mr. Di Rosa,

8 ten minutes ago, say "degrees" instead of "percent." We

9 spent enough time on this issue. Can we move on?

10 MR. Di ROSA: That's--I'm just trying to

11 determine--you know, I'm testing the veracity of his

12 assertion that he drafted his Witness Statements,

13 Mr. Chairman. I think it's perfectly legitimate.

14 PRESIDENT RAMÍREZ HERNÁNDEZ: Could you limit

15 yourself to the extent that you are referring to the

16 statement of the witness? I mean, this issue about

17 percentage and degrees, I think everybody in the room now

18 understands.

19 MR. Di ROSA: No, I've moved on from that. I've

20 moved on to the terms that are being used, which are

21 "unusual coincidences." That was the "silly" part, and I'd

22 like to point out something else which caught my attention.

23 MR. ALLISON: Ask a question. Quit testifying

24 about the similarities between Witness Statements and

25 Replies. You pick one word out of one document to compare

[Page 442]

1 it to another word out of another document. It's

2 astonishing. Can we move on?

3 BY MR. Di ROSA:

4 Q. In the--in the pleadings, there was a statement in

5 the Reply at Paragraph 202 that says, "Valerio has damned

6 [sic] the natural spring."

7 And I assume that that refers to the construction

8 of a dam; right? I mean to the erection of a dam.

9 A. Not sending them to hell, no. I was--

10 Q. Correct. Right. And that's my question, though.

11 It's spelled d-a-m-n-e-d, which is sending them to hell;

12 right? So it's--

13 MR. ALLISON: I will admit, I may have misspelled

14 something in the Reply. I mean, what--

15 MR. Di ROSA: So you misspelled it. Can I just

16 finish my question, Mr. Allison.

17 MR. ALLISON: Well, what is the question other

18 than trying to accuse me of intellectual disrigour, which

19 you did yesterday during your opening.

20 MR. Di ROSA: No, that's not what I'm saying at

21 all. If you would just let me finish.

22 PRESIDENT RAMÍREZ HERNÁNDEZ: Counsel.

23 MR. Di ROSA: If he can let me finish the

24 question, Mr. Chairman. Just one more question.

25 PRESIDENT RAMÍREZ HERNÁNDEZ: You have some

[Page 443]

1 others?

2 MR. Di ROSA: I have one more question, if that's

3 okay.

4 PRESIDENT RAMÍREZ HERNÁNDEZ: Okay. But please

5 refer to the Statement, please.

6 MR. Di ROSA: I am referring to the Statement

7 right now.

8 BY MR. Di ROSA:

9 Q. In your Witness Statement, you say--in your Third

10 Witness Statement at Paragraph 64, you say, "Valerio has

11 damned (sic) the natural spring," and you have the same

12 error, damned, d-a-m-n-e-d. Is that a coincidence or does

13 that mean that Mr. Allison drafted that part of your

14 Statement?

15 A. I wrote my Witness Statement. I think if you look

16 at the context of all the Witness Statements, they're

17 authentic and genuine voice. I wrote my Witness

18 Statements, period.

19 Q. All right. Because I could see the word "silly"

20 being a coincidence, although it's not usually used in

21 formal documents. But "damned" with an N when you mean--

22 PRESIDENT RAMÍREZ HERNÁNDEZ: Hold on, Counsel. I

23 mean, you are free to point this out about this

24 coincidence.

25 MR. Di ROSA: All right.

[Page 444]

1 PRESIDENT RAMÍREZ HERNÁNDEZ: You are entitled.

2 MR. Di ROSA: That's what I'm trying to test,

3 Mr. Chairman, if it is a coincidence or not. But let's

4 move on.

5 PRESIDENT RAMÍREZ HERNÁNDEZ: Okay.

6 THE WITNESS: I can unequivocally state that Mr.

7 Valerio has dammed off the spring which is an important

8 water source for the Baiguate River.

9 MR. ALLISON: Mr. Ballantine, there is no question

10 pending.

11 BY MR. Di ROSA:

12 Q. I wasn't asking you about that, Mr. Ballantine.

13 So let's just--

14 A. Yes, sir.

15 Q. Let's just move to a different subject, shall we?

16 All right.

17 Let's talk about the creation of the park. In

18 particular, about when you became aware of the creation of

19 the park. Do you remember when that was?

20 A. I became aware that there was a park that affected

21 part of my property from my environmental consultants.

22 Q. But my question was--

23 A. September of 2010. I think it was September 20th,

24 around there.

25 Q. All right. And that--you learned about the

[Page 445]

1 creation of the park from an email that you received from

2 your environmental consultant; is that correct?

3 A. That is correct.

4 Q. And this environmental consultant is Miriam Arcia;

5 correct?

6 A. The company is Empaca Redes, and she's an

7 employee.

8 2. All right. So let's take a look at that email.

9 It's Exhibit R-170.

10 And are you there? It's also on the screen, if

11 that helps you.

12 A. I see it.

13 Q. All right.

14 MR. ALLISON: Is it in the binder?

15 MR. Di ROSA: I'm not sure. It's not. Okay. If

16 you can just look at it on the screen, Mr. Allison. Can

17 you blow it up a little bit or not?

18 All right.

19 BY MR. Di ROSA:

20 Q. So this is an email dated 22 September 2010, which

21 is roughly what you had indicated that you remember from

22 your consultant. And it's addressed to you personally; is

23 that correct?

24 A. Yes.

25 Q. And in this email, your environmental consultant

[Page 446]

1 is notifying you that this park was created, the Baiguate

2 National Park, and that part of your property falls within

3 the limits of the park; right?

4 A. Yes.

5 Q. And she tells you that because the park is a

6 Category II park, it is subject to certain use constraints;

7 correct?

8 A. Yes.

9 Q. And she tells you that the part of your property

10 that falls within the park can only be used for ecotourism

11 purposes; right?

12 A. There's several things mentioned, but ecotourism

13 is emphasized by them. That red is from them.

14 Q. So the red is in the original?

15 A. In the original by them. It was not something--

16 Q. So they were emphasizing that henceforth--I mean,

17 that part of the property that you--that fell within the

18 park limits was going to be limited to ecotourism. Is that

19 a fair characterization?

20 A. We didn't know for sure. They didn't know. They

21 said the best thing to do was to just submit it to the

22 Ministry of Environment, which we did.

23 Q. So, you know, despite this warning, you went ahead

24 with your plans to develop the upper mountain project in

25 the way that you had originally envisioned; is that right?

[Page 447]

1 A. I did exactly what they asked me to do. And they

2 said to send--send it to--that we're going to send this to

3 the Ministry of Environment. And there's a subsequent

4 letter from Mario Méndez.

5 Q. Right. But my question was a different one.

6 A. I'm sorry.

7 Q. My question was, did you alter your--you know,

8 your plan in any way to take account of the fact that now

9 you had this ecotourism limitation, or was the plan just to

10 kind of go with the proposal that you originally had?

11 A. I had no idea what ecotourism was allowed or not.

12 And I did exactly what the environmental company told me to

13 do because it was not clear.

14 Q. And you also purchased more land after this email

15 was sent to you; is that right?

16 A. A little bit, yes, sir.

17 Q. What do you mean by "a little bit"? Do you know

18 how many roughly?

19 A. I don't know the amount. Maybe 25 percent of the

20 Phase 2 land.

21 Q. Okay. 25 percent. And you also went ahead and

22 made plans to buy excavators to use on that land; is that

23 right? Do you remember that?

24 A. We were doing Phase 1 development as well, and an

25 excavator was a perfect machine for the work that we were

[Page 448]

1 doing in Phase 1. It would have been perfect for Phase 2

2 as well as the future acquisition of Paso Alto. But we

3 used that machinery significantly in Phase 1 as well. That

4 was approved.

5 Q. And you were planning on using it for Phase 2

6 also?

7 A. Yes, that would be logical.

8 Q. All right. And you also at this point engaged

9 consultants to formulate a road engineering design; is that

10 right?

11 A. Yes, I was talking to Eric Kay, who is a witness

12 here, about creating a nice road up to the top that would

13 be a good one that would work.

14 Q. Okay. And in January 2011, you requested a permit

15 to construct a project on the upper mountain--upper part of

16 the mountain; right?

17 A. Yes. And--yes, sir.

18 Q. So this new project proposed the creation of 70

19 lots; is that right?

20 A. Yes, sir.

21 Q. And you just told us earlier today that on the

22 lower mountain, you had about 60 to 65 houses; right?

23 A. Well, no. Currently, that's how many are built.

24 But it's been approved for development for 90, but not all

25 the homes have been built yet.

[Page 449]

1 Q. Okay. So about the same number of houses, then,

2 you envision for the upper mountain as well as the lower?

3 A. No, there's a difference between 90 and 70. It's

4 probably about 25 percent less, yes, sir.

5 Q. Okay. All right. So 70 homes. But--so in that

6 sense, it's, you know, maybe a smaller scale. But you also

7 were intending to put a hotel at the top of the mountain

8 and then a spa; right?

9 A. When you use the concept hotel, I was talking

10 about little tiny standalone cottages that were upscale.

11 Nothing heavy at all. So it's not like a hotel, like a big

12 one. It was just stand-alone bohios, they were called.

13 Q. So those were going to be sort of cabin-like

14 unlike the homes or--

15 A. Very small. Very small.

16 Q. Small.

17 A. Maybe 60 or 70 square meters, but with like a

18 little plunge pool and a hot tub. Very elegant. That's

19 what Rafael Selman designed for me.

20 Q. And what about the apartment complex, what was

21 that going to consist of?

22 A. The apartment complex was not in the second phase.

23 It was in the first phase. What that was, was 12

24 two-bedroom units right across the street from the

25 restaurant in the approved area, which there were two lots

[Page 450]

1 that were approved for development, no park restrictions,

2 and it was just going to be a change of plans.

3 Q. All right. So in this email, you were told in

4 September 2010 that your--part of your property was inside

5 the park. Did you ever ask the Dominican authorities about

6 the implications of the fact that part of your property was

7 inside the park?

8 A. What happened--no.

9 Q. So you never brought it up yourself? You were

10 just hoping that the issue would kind of not be an issue

11 essentially?

12 A. That's a false characterization. I did not bring

13 it up. It was a very, very important meeting that I had

14 with Minister Jaime David. And present in the meeting

15 were--I waited in his office for a couple of hours. I was

16 with Omar Rodriguez. I was with--you know, in that meeting

17 were the Vice Minister in charge of protected areas as well

18 as the Vice Minister in charge of management.

19 I knew that ecotourism was allowed. It was a

20 stressful meeting in the sense that there was this question

21 about the fine on the table, that the Minister would not

22 meet with me until I paid the fine.

23 And we were in the position of acquiring Paso Alto

24 at the same time. And it was a very brief meeting, and

25 there was maybe seven Vice Ministers there. And Omar spoke

[Page 451]

1 very highly of Jamaca and our future planned joint venture,

2 and the fact that the Vice Minister of the protected areas

3 as well as the man--I don't know if he's a Vice

4 Minister--but in charge of management for protected areas

5 were present.

6 And it just seemed absolutely logical that we were

7 there. And it was maybe a 20-minute meeting. And so there

8 was--and in between that, I had received the CONFOTUR

9 signed off by the Ministry of Environment allowing, without

10 any restriction whatsoever, in December, right around

11 Christmastime, all of my--all of my projected plans for

12 Phase 2. And that was in between this. So when I received

13 that, I'm like, "All right. We're going forward."

14 Q. All right. I didn't ask you about any of that,

15 but that's fine. I mean, you know, I was just asking you

16 whether you brought up the--whether you consulted with

17 anybody about the implications of the park.

18 A. Yes, sir.

19 Q. But you did know about it from your consultant and

20 they had mentioned the ecotourism thing. Is it your

21 position that the project that you were proposing, in fact,

22 qualified as ecotourism?

23 A. Yes, I did.

24 Q. Would you characterize the photos that we just saw

25 earlier today as ecotourism?

[Page 452]

1 A. There was no legislation regarding ecotourism.

2 And I didn't see why not. My neighbor was building.

3 Rancho Guaraguao, I knew, was ecotourism. They were

4 building big houses. There was many projects going on in

5 the protected areas. And so I was waiting for the Ministry

6 to come back and let me know if there would be any

7 restrictions. They were silent.

8 Q. Okay. So you were just waiting for them to bring

9 it up or make an issue of it? Is that it?

10 A. My environmental company said it's the Ministry of

11 Environment that decides. And their recommendation was to

12 submit the project to them and ask for reference terms, and

13 I did exactly what they asked me to do.

14 Q. Okay. And so around this time in June of 2013,

15 the government renewed your permit for the lower mountain

16 housing development for another five years; is that right?

17 A. Yeah, that seems about right.

18 Q. So if the government had been conspiring against

19 you as you have alleged in this arbitration, wouldn't it

20 have been more logical for the government to have just

21 denied you the permits for Phase 1?

22 A. They would have had a huge problem facing very

23 powerful Dominicans, very politically influential, if they

24 would have not renewed that permit because they would have

25 had no basis to not renew it. So they wouldn't have the

[Page 453]

1 problem with me. They would have had the problem with

2 their own citizens.

3 Q. We just saw a document where one of the inspection

4 technicians said that there were irregularities in the

5 construction of the houses due to the material that was

6 used. Do you remember that?

7 A. Yes. If they would have communicated to me

8 exactly what they wanted from Day 1, 18 environmental

9 reports, more inspections than I--than you can even

10 imagine. Never once do they specify, "Michael, you need to

11 use more wood. You've got to change something."

12 We would have done whatever they said.

13 Q. Right. But if they were inclined to conspire

14 against you, wouldn't that be the first thing they would

15 have brought up? You know, we saw earlier how each of the

16 applications that you filed said mountain cabin and

17 mountain this and that and wood and lightweight materials

18 and blending into the environment and so forth. And they

19 consistently granted you authorizations from the forestry

20 officials, you know, to build the path to the reforestation

21 project. And then the first permit to--from the Ministry

22 of Environment to construct the lower mountain.

23 And they all said, "Okay. Well, you know, we

24 grant you authorization to do these mountain cabins."

25 So wouldn't it have been more logical if they had,

[Page 454]

1 in fact, a conspiratorial bent to just tell you, "Hey, you

2 know, your permit is revoked" or "We're not renewing your

3 permit because look at these, you know, McMansions that

4 you've built on the mountain as opposed to mountain

5 cabins"?

6 A. They would have had big problems with the powerful

7 Dominicans that own in Jamaca. And at that time, with the

8 acquisition of Paso Alto as well as Jamaca de Dios, my

9 neighbor was in checkmate. He had no hope at all

10 whatsoever. And I had a plan where I had absolute control

11 over the entire mountain ridge and all of the mountains of

12 Jarabacoa.

13 And so I feel that I was treated unfairly by not

14 allowing me to continue.

15 Q. Right. But they--maybe they treated you more

16 fairly than you deserved to when they didn't, you know,

17 decline to renew your permit because of the type of

18 construction that you had made; right?

19 A. I feel if that would have happened, that would

20 have been quite arbitrary and would not have been fair

21 without giving me a warning or saying, "Hey, Michael, you

22 guys are not doing this right. You're violating your

23 permit."

24 They were more than content to give me a big fine

25 for things that were already approved in my permit, and

[Page 455]

1 they were absolutely silent on this issue. And so they

2 would have had big problems if they would have--and not

3 from me, but from their own citizens.

4 2. You have stated in your pleadings and perhaps in

5 your Witness Statements that the owner of the property that

6 was adjacent to yours, Aloma, Mr. Domínguez, was sort of

7 part of the conspiracy; right? Or at least that he was one

8 of the people who stood to benefit from you not doing well.

9 Is that fair?

10 A. Yes. Absolutely.

11 Q. Fair characterization?

12 A. I would say that.

13 Q. And so Aloma was the project that we showed on the

14 screen that had the dirt roads, and we talked about the

15 fact that they had three structures on it but no housing

16 development as such. Domínguez is also the person who is

17 the--at the time, you know, was the son of the mayor of

18 Jarabacoa; is that correct?

19 A. Yes, sir.

20 Q. And you characterize him as the son-in-law of

21 President Fernández?

22 A. No, I characterize him as the ex-brother-in-law.

23 Q. Ex-brother-in-law. Okay. So in any event, fairly

24 influential; right?

25 A. Yes, he controls Jarabacoa. He did at the time.

[Page 456]

1 Q. Right. And his property was also inside the

2 National Park; is that correct?

3 A. Yes, he is inside the National Park.

4 Q. And his property had a permit denied; is that

5 correct? We established that earlier today. But do you

6 remember that?

7 A. Yes, sir.

8 Q. So if there is a conspiracy and you have this

9 influential person who is literally next door to your--to

10 your mountain and your project, how do you explain the fact

11 that his permit was denied and that he didn't have his

12 property carved out of the park and so forth, all these

13 allegations that you've made? Isn't that kind of

14 inconsistent with your theory?

15 A. He worked with impunity for years. And what began

16 to happen, after he led the revolt on the town and tore

17 down our gates, I reached out to many different

18 institutions outside of the Ministry of Environment. I did

19 not at any point do a negative campaign against the

20 country. I was contacted by Nuria. Nuria Piera is one of

21 the most respected journalists in all of Ibero-America.²⁶

22 She contacted me, and then she did a report and about a

23 week after he applied for his permit.

26 English Audio Day 2 at 04:46:03

[Page 457]

1 Concurrent with that, there was a lot of pressure

2 being brought to bear on the Ministry by the United States

3 Embassy, by the Center of Export and Import who also wrote

4 the president at the time, the American Chamber of

5 Commerce.

6 And so the Ministry of Environment was really

7 getting a lot of pressure. Not only that, the Zeta, which

8 is the program The Government of the Morning. There was a

9 lot of external pressure.

10 They took no action against Domínguez until

11 massive pressure came to bear on the Ministry of

12 Environment for their inequitable treatment.

13 Q. But this is in 2013, though, that he got

14 A. This is all in 2013. Everything I stated. It's

15 all on the record.

16 Q. Yeah. But his permit was denied in 2013.

17 A. They had no choice.

18 Q. Now, you--there was--the Minister at the time that

19 you filed your permit application was Jaime David

20 Fernández; right?

21 A. That is correct.

22 Q. And then by the time that your last

23 reconsideration request was denied a couple years later,

24 there was a different Minister; right?

25 A. Yes. Bautista Gomez Rojas was the Minister. And

[Page 458]

1 I don't think it's in the pleadings, but he was a campaign

2 manager for Leonel Fernández for the 2016 and is now the

3 pre-candidate campaign manager for the 2020 election.

4 Q. All right. And between the two of them, there was

5 a third Minister, Ernesto Reyna; is that right?

6 A. Who is the biological uncle of Leonel Fernández as

7 well.

8 Q. Right. So there are three different Ministers

9 throughout the span. And, you know, your position is that

10 all three of these Ministers were essentially conspiring

11 against you; is that it?

12 A. Yes. There was no way I wasn't in checkmate. It

13 was verified by many different sources. And that's when I

14 knew I was in checkmate and I was done.

15 Q. All right. And is it your position also--I mean,

16 you know, the Ministry has this policy of sending out a

17 different technical team to do inspections for

18 reconsideration requests. And in your case, they didn't do

19 just one. They didn't do just two. They didn't--you know,

20 they did three different reconsiderations, a total of five

21 site visits, and a total of 21 different people--different

22 technical people from the Ministry went to do site visits.

23 Is it your position that all 21 of those people

24 were also in on the conspiracy?

25 A. That would require speculation. I can speak to

[Page 459]

1 what I know.

2 Q. Right. In the end the Ministry conducted five

3 different site inspections; is that correct? I mean, do

4 you know that?

5 A. Yes. There was--there was five different site

6 visits.

7 Q. All right. And they kept doing these things even

8 though nothing was changing in your application, basically?

9 You know, they were--

10 A. That is not correct. Between the third and

11 fourth, we drafted a very well thought out, very

12 well-organized letter. We submitted that with the Empaca

13 Redes report along with the slope maps. The Empaca Redes

14 report, my environmental company, laid out as well as the

15 letter, all the plans, what we had done, what we're gonna

16 do.

17 And in that letter, we said we will do anything

18 possible to make Jamaca de Dios a great ecotourism offer

19 for the country. So the concept of ecotourism and Jamaca

20 de Dios is longtime standing.

21 Q. All right. So you have five site inspections, and

22 the last one is conducted by the full Technical Evaluation

23 Committee; is that correct?

24 A. Yes, sir, according to what I understand. I

25 didn't know them, but that's my understanding.

[Page 460]

1 Q. And have you ever heard of the Technical Committee

2 ever going out and personally doing an inspection either

3 before or since?

4 A. I don't know who goes to inspect projects. It was

5 a first time for us that it happened, yes, sir.

6 Q. All right. And this happened after the U.S.

7 Embassy called on your behalf; is that right?

8 A. And they met. And then they were ignored and they

9 followed up. And then there was a letter from Jean-Alain

10 Rodriguez, who is now the Attorney General of the country,

11 who is the Minister of the Center for Export and Import,

12 with a copy of the letter to the president at the time.

13 Q. All right.

14 A. The person that arranged that meeting for me was

15 Victor Pacheco, the grandson of Dr. Mendez Capellan, who is

16 very well aware of our situation because Domínguez was in

17 the middle of our properties. He saw the whole thing and

18 he went to bat for us because he saw the mistreatment and

19 how we were being treated.

20 Q. All right. So going back to the conspiracy of the

21 three ministers, you said, you know, it came from different

22 sources. But, you know, these are just things that you

23 heard basically; right?

24 A. You need to understand the context of what Jamaca

25 de Dios is. It's a very highly visible project. The upper

[Page 461]

1 class--

2 Q. Yeah, we saw that. Yeah.

3 A. Yes, exactly. The restaurant, it's--primarily the

4 business is on the weekends. And the people from the

5 higher society, government officials, they come up. And so

6 my conversations included many high-ranking officials,

7 extremely powerful people. For example, Rafael Selman who

8 is one of the most respected architects in the country, his

9 father, Eduardo Selman, is on the Central Committee of the

10 PLD.

11 He said, "Michael, you have no hope. This is

12 political."

13 And I can name ten more and go on and on. And I'm

14 not going to unless you request that. It was overwhelming

15 that my battle was nothing but political and competing

16 economic interests. It was made known to me because I was

17 there. I lived it. I lived under the threat. I

18 experienced it. My family experienced it, and I know it to

19 be true. And there is nothing--

20 Q. You know it to be true. But that's just kind of a

21 deep sort of conviction that you have. I mean, you have no

22 actual proof because none has been presented in this

23 arbitration. I mean, there's a lot of statements that are

24 like the one you just made that go, "Oh, sources say"--

25 A. I'm testifying--

[Page 462]

1 MR. ALLISON: Paolo--

2 MR. Di ROSA: Yeah.

3 MR. ALLISON: --you can make your legal arguments

4 at the end of the case.

5 MR. Di ROSA: No. I'm asking him a question.

6 Like, you know, do you have any evidence about that other

7 than what you say you heard.

8 MR. ALLISON: What we presented in the case, which

9 you say is not evidence and not proof and we say is.

10 MR. Di ROSA: And he's just saying--he's saying

11 that as a fact--

12 MR. ALLISON: And is this a memory test where he

13 has to remember all of the exhibits that we've submitted

14 that support that?

15 MR. Di ROSA: You know what, Mr. Allison--

16 MR. ALLISON: We can argue this at the end of the

17 case.

18 PRESIDENT RAMÍREZ HERNÁNDEZ: Counsels.

19 MR. Di ROSA: He's making a very serious

20 allegation, Mr. Allison. He's making a very serious

21 allegation against three ministers and impugning the whole,

22 you know, reputation of the government. And he's just

23 making these allegations without any proof is what we're

24 saying.

25 MR. ALLISON: Well, you've asked for the proof,

[Page 463]

1 and he's described the conversations that he's had, and you

2 don't like that proof.

3 MR. Di ROSA: No.

4 BY MR. Di ROSA:

5 Q. My question was, do you have any evidence other

6 than what you're saying? And I gather the answer is no; is

7 that correct?

8 MR. ALLISON: You can answer the question,

9 Mr. Ballantine.

10 A. We presented the proof we had in black-and-white

11 writing.

12 BY MR. Di ROSA:

13 Q. All right. Okay. So let's go back to the issue

14 of the creation of the park. In Paragraph 1 of your third

15 statement, you mentioned that you had known--if you had

16 known that the creation of the park would be used as a

17 justification to deny the expansion of your project, you

18 never would have become a Dominican citizen; is that right?

19 Do you remember saying that?

20 A. Yes, that is the case.

21 Q. Now, the creation of the park--the park issue did

22 not become a basis invoked for the denial of your permit

23 until the very last reconsideration letter; right? The

24 fourth denial; is that correct?

25 A. That's correct.

[Page 464]

1 Q. So the first--the original permit denial invoked

2 three other grounds; is that correct?

3 A. Yes.

4 Q. Not the national park. And the first--so the

5 first three consideration requests did not mention the

6 National Park at all; right?

7 A. That's correct.

8 Q. So if you had never requested a reconsideration,

9 the National Park would not have become an issue at all;

10 right?

11 A. If I could rephrase that. If I would have known

12 that my expansion permit would have been denied on any

13 basis, I would have never become a Dominican citizen. And

14 the only reason why I became a Dominican citizen is because

15 I was concerned about our asset protection for our family.

16 And I became a citizen in February of 2010 as I

17 was gearing up to expand. And we were highly concerned in

18 case of the demise of Lisa and myself, what would happen

19 with Dominican probate? What would happen to our children?

20 Q. Right. And so I'm not asking so much about--

21 A. So the park or the land.

22 Q. I'm not so much asking about the naturalization

23 aspect as kind of your understanding of the basis on which

24 your permit was denied.

25 So I asked you, you know, in the original permit

[Page 465]

1 denial, there was no reference to the National Park, but

2 the permit was denied. So your project was dead at that

3 point; right?

4 A. I didn't believe it was dead, but I had become a

5 citizen prior to that. I thought you were referring--

6 Q. Let's leave aside the citizenship. I'm just

7 asking your understanding of the basis on which your permit

8 was denied because the Claimants--I mean, your counsel

9 confirmed yesterday that, you know, the creation of the

10 park as a grounds for denial is still part of their claim

11 even though they've abandoned the claims that are related

12 directly to the creation of the park.

13 And

14 MR. ALLISON: I would simply ask Mr. Di Rosa to

15 quit characterizing what the legal arguments are in

16 testimony before he asks a question.

17 MR. Di ROSA: All right. Fair enough.

18 MR. ALLISON: Is that fair?

19 MR. Di ROSA: This one is fair, Mr. Allison. I'll

20 withdraw that one.

21 BY MR. Di ROSA:

22 Q. But let me ask you this: You--your permit was

23 denied. So at that point your project is, in fact, dead,

24 is it not?

25 MR. ALLISON: Asked and answered.

[Page 466]

1 MR. Di ROSA: No, he never answered that one.

2 MR. ALLISON: He said he didn't believe his

3 project was dead.

4 MR. Di ROSA: He said he was hoping that it would

5 not be.

6 BY MR. Di ROSA:

7 Q. But it was dead, was it not, as a legal and

8 factual matter? I mean, your hopes are subjective. This

9 is--objectively it's been denied; correct?

10 A. There is a mechanism of appeal which I exercised,

11 and that was under the reasonable assumption that perhaps

12 not all of my land would be denied, but maybe I could do

13 something. Something like right across the street.

14 Something 20 meters away.

15 It was 100 percent denied. Nothing could be used.

16 So I assumed that they would work cooperatively with us to

17 help us to complete their environmental objectives, to at

18 least do something. Maybe not everything I wanted, but

19 something.

20 Q. Right. I'm just trying to establish, you know,

21 your understanding of the--you know, again, of the grounds

22 on which your permit was denied. And

23 MR. ALLISON: We've been through that.

24 PRESIDENT RAMÍREZ HERNÁNDEZ: Mr. Di Rosa, let me

25 encourage you to limit your questions to statements of fact

[Page 467]

1 made by the witness and try to avoid, to the extent

2 possible, these introductory remarks.

3 MR. Di ROSA: Fair enough, Mr. Chairman.

4 PRESIDENT RAMÍREZ HERNÁNDEZ: That sounds like

5 argument in your questions, so--

6 MR. Di ROSA: Fair enough, Mr. Chairman. I mean,

7 I did refer to a Witness Statement assertion by

8 Mr. Ballantine in which he said "Had I known the creation

9 of the park," X and Y. But that's fine. Let's move on. I

10 agree that we--you know, we should move on.

11 BY MR. Di ROSA:

12 Q. Let's talk a little bit about some of your

13 witnesses, Mr. Ballantine. So you have presented in this

14 arbitration Mr. Kay and Mr. Peña as experts; correct?

15 A. Yes, sir.

16 2. But they also are fact witnesses; right? They

17 were present for

18 MR. ALLISON: Mr. Kay and Mr. Peña will be here to

19 testify later.

20 PRESIDENT RAMÍREZ HERNÁNDEZ: What is the

21 relevance?

22 MR. Di ROSA: It's relevant in the following way,

23 Mr. Chairman. I'm trying to establish the independence of

24 the experts. If they're presented as experts rather than

25 fact witnesses, they're supposed to be independent.

[Page 468]

1 MR. ALLISON: They will be here, and you can

2 question them about their expertise and their independence.

3 MR. Di ROSA: Yeah, but I can ask Mr. Ballantine.

4 PRESIDENT RAMÍREZ HERNÁNDEZ: But Mr. Ballantine

5 is appearing here as a factual witness regarding what he

6 has stated. So please refer to that.

7 MR. Di ROSA: He's here to testify about what he

8 knows, Mr. Chairman.

9 PRESIDENT RAMÍREZ HERNÁNDEZ: Yeah.

10 MR. Di ROSA: And so he knows whether he's paying

11 these experts or not, and I want to ask him that.

12 BY MR. Di ROSA:

13 Q. Are you paying these experts?

14 MR. ALLISON: Mr. Ballantine is a claimant

15 represented by counsel. If he wants to ask the question

16 whether or not he's paying his experts, he can do so. But

17 this insinuation and questioning about what decisions you

18 made and who did what with respect to the arbitration are

19 inappropriate, respectfully.

20 PRESIDENT RAMÍREZ HERNÁNDEZ: Okay.

21 MR. Di ROSA: Mr. Ballantine has also approached

22 some of the Dominican Republic's witnesses to offer them

23 compensation. And I think that's a perfectly valid line of

24 questions, Mr. Chairman.

25 PRESIDENT RAMÍREZ HERNÁNDEZ: Please proceed.

[Page 469]

1 BY MR. Di ROSA:

2 Q. Mr. Ballantine, did you approach Ms. Francis

3 Santana, the former director of the Jarabacoa Municipal

4 Office of the Ministry of the Environment in connection

5 with this arbitration?

6 A. I personally did not.

7 2. You personally. But somebody on your behalf did?

8 A. I asked Mr. Peña if he would talk to Ms. Santana

9 and if she would be willing to put in a report what she had

10 orally stated to me prior.

11 Q. And Mr. Peña was a consultant of yours at that

12 point, was he not?

13 I asked you, Mr. Peña was a consultant of yours,

14 was he not? Did you answer that or--

15 A. Well, I got interrupted. I'm sorry. A consultant

16 or--

17 0. Well, you know, was he--were you paying him to do

18 anything?

19 A. Very, very nominally. He was spending a lot of

20 time and research, and he's an expert on environmental law

21 in the Dominican Republic.

22 Q. So you were paying him at least something?

23 A. Nominally. And I was living out of the country.

24 Q. Now, Mr. Peña approached Ms. Santana, who is now a

25 witness for the Dominican Republic, and he offered her a

[Page 470]

1 consultant job if she would testify on your behalf in this

2 proceeding; is that right?

3 A. I am unaware of any conversation that he had with

4 her directly. I wasn't part of that.

5 Q. I see. So he just went out and did this on his

6 own?

7 A. I asked him if he would speak with her, because they²⁷

8 were both former local directors of Jarabacoa. She had told me

9 several things that I thought would be relevant to this hearing.

10 And I asked him if he would confirm that she would be willing

11 make a declaration on our behalf.

12 2. Did you know that Mr. Peña sent her a draft Witness

13 Statement?

14 A. Yes, I've heard about that. Mm-hum.

15 2. Did you see the draft Witness Statement before it was

16 sent to her?

17 A. It wasn't a draft Witness Statement. It was something

18 along those lines. But she would have to write whatever she

19 wanted to write. It was something--those were the facts as she

20 told me, but then she would have to do her own research if she

21 was willing to do that. She had orally communicated to Mr. Peña

22 that she will do anything she can to support Michael, according

23 to what Mr. Peña told me. And there was nothing nefarious about

27 English Audio Day 2 at 05:01:42

[Page 471]

1 any of this.

2 Q. You don't think there's anything irregular about

3 approaching a government official and asking him or her to

4 testify on your behalf and send a draft Witness Statement?

5 That's acceptable to you?

6 A. I--is she a government employee? I don't know.

7 Q. Well, you know, you're asking--

8 A. I don't know--I don't know if she's a government

9 employee.

10 Q. Well, she was. She was in connection with your

11 project. She was a municipal Ministry of Environment person.

12 She was--I mean, that's why you're asking her to testify on your

13 behalf, she because she was involved and--

14 A. Yes, because she was involved.

15 MR. BALDWIN: Mr. President, can we have clarification

16 if counsel is stating that she was a government official during

17 this time, because counsel stated you approached a government

18 official to ask for something, and I would like some

19 clarification.

20 THE WITNESS: Fair enough. Former government official.

21 BY MR. Di ROSA:

22 2. She was a former government official when you

23 approached her, but you approached her because she was a

24 government official at the time of the relevant events, is it

25 not?

[Page 472]

1 A. Is that a question?

2 Q. Right. I'm asking you. That's why you approached her,

3 because she was a government official at the time?

4 A. She had a lot of local knowledge. She experienced what

5 she saw. And Mr. Escarraman is a former employee. Mr. Peña is

6 a former employee. And I think there might have been another

7 one that was a former employee. I think former employees have a

8 right to tell the truth from--in a private capacity.

9 Q. Right. But were you aware that Mr. Peña offered her to

10 be a consultant for you?

11 A. I wasn't aware that he offered to be a consultant.

12 Q. He just did that on his own?

13 A. Well, I was aware that the offer--that she had said

14 that she would be willing to tell the truth and that she would

15 help me in any way that she can.

16 Now, that's different--and please forgive me. I don't

17 know the difference between a consultant, exactly the parameters

18 of a fact or expert witness. I just simply wanted her to tell

19 the truth and state the truth about her experiences, which might

20 require some research and time, and simply speak the truth.

21 2. Right.

22 A. Based on what she had orally told me.

23 Q. But, you know, typically you don't pay fact witness. I

24 mean, at least that's not the custom.

25 What about Mr.-I mean, you said there was two or

[Page 473]

1 three. Did you approach all of them?

2 MR. ALLISON: Is that a question or is that testimony

3 from Mr. Di Paolo [sic] again?

4 MR. Di ROSA: What do you mean?

5 MR. ALLISON: Well, you say typically you don't pay

6 fact witnesses and then stop and then you continue on with

7 something else. You can make your arguments, Mr. Di Paolo--

8 MR. Di ROSA: It's Di Rosa.

9 MR. ALLISON: Mr. Di Rosa. I apologize.

11 BY MR. Di ROSA

12 Q. So, you know, you did mention that there were two or

13 three of these people that were in the municipal office.

14 Did you--you know, did you ask someone on your behalf

15 or did someone on your behalf approach all of them or just

16 Ms. Santana?

17 A. Mr. Escarraman is somebody that I know from Jarabacoa.

18 I know him from my time there. So I spoke with him directly.

19 He is no longer in the capacity of a government employee. He's

20 independent. And Mr. Peña no longer works with the Ministry, as

21 well as--I don't remember who else it might have been.

22 But I understand the burden of proof of this is on me,

23 and I'm living in Chicago. The people that have communicated

24 things to me, I just simply asked if they would be willing to

25 put that in writing.

[Page 474]

1 Q. All right. You know, you--both you and Mr. Eleuterio

2 Martínez, who is a witness for the Dominican Republic, refer in

3 your respective Witness Statements to a meeting that you just

4 had--that you had with him.

5 Do you remember testifying about that?

6 A. Yes, that meeting.

7 Q. And he says that you said that you were confident that

8 you would win this arbitration, essentially; is that correct?

9 MR. ALLISON: Can you point him to the Witness

10 Statement--the paragraph so that you don't mischaracterize it

11 and we can see exactly what you're referring to?

12 MR. Di ROSA: Paragraph 22 of Mr. Martínez's First

13 Witness Statement.

14 MR. ALLISON: So you're referring to what Mr. Martínez

15 said. Can you put that up so he can review what Mr. Martínez

16 said?

17 ARBITRATOR CHEEK: I'm sorry. Is this in

18 Mr. Ballantine's Witness Statement?

19 MR. Di ROSA: No. It's what Mr. Martínez is saying

20 about the meeting that Mr.--that Mr. Ballantine also testified

21 about.

22 ARBITRATOR CHEEK: Okay. Can you give the Tribunal a

23 moment to pull up this other Witness Statement?

24 MR. Di ROSA: Sure. It's Paragraph 22 of

25 Mr. Martínez's First Witness Statement.

[Page 475]

1 ARBITRATOR CHEEK: Okay. One moment, please.

2 MR. Di ROSA: It's on the screen now, if that helps

3 you.

4 BY MR. Di ROSA:

5 2. So in the second sentence of paragraph 22, it says, "I

6 told him"--meaning Mr. Ballantine. This is Martínez speaking.

7 "I told Mr. Ballantine that it was very difficult for him to

8 question the creation of Baiguate National Park, because the

9 park was established to protect the environment. He replied

10 that he had a winning strategy and was confident of his triumph

11 under the theory that there was political favoritism against

12 him."

13 Now, do you dispute that characterization or is that

14 roughly consistent with what you remember you saying?

15 A. I dispute that characterization.

16 0. You dispute it in what way?

17 A. Well, I feel--and I wouldn't be here if I didn't--I

18 don't--you know, I don't understand the customary international

19 law with arbitration, but when I just read "fair and equitable

20 treatment," I don't think I was treated fairly and equitably,

21 and I do believe that my property was expropriated and therefore

22 deserves compensation.

23 So based on that and based on just the English reading

24 of the Central American Free Trade Agreement, I do feel like

25 there has been breaches, and I do feel like they're compensable.

[Page 476]

1 And so I did mention to him that I did feel confident that we

2 would win; otherwise I wouldn't have taken these steps to be

3 here or waste anybody's time.

4 2. All right. Fair enough. Let's move on to a different

5 subject, if we can.

6 So you moved to the Dominican Republic in 2000; is that

7 right? Do I remember that correctly?

8 A. It was a short-term time, yes.

9 2. And then you returned after--to the United States after

10 14 months; right?

11 A. Yes, sir.

12 Q. That's the time when you became dissatisfied and we had

13 that discussion.

14 And when you moved to the Dominican Republic to live

15 there was 2006; correct?

16 A. Yes, sir.

17 2. And your wife, Lisa, moved there as well; correct?

18 A. Yes. We're very close.

19 Q. And your children moved there as well?

20 A. My two oldest children moved there for one year. It

21 was a gap year out of high school. And then my two younger

22 children stayed with us for a few years.

23 Q. In 2006, you also chose to become a permanent resident

24 in the Dominican Republic; right?

25 A. Actually, that's not the case. I know the documents

[Page 477]

1 have been submitted. In 2006 I was a temporary resident, but in

2 2008 I became a permanent resident.

3 2. So, Exhibit R-25--

4 A. I know that. I know that document, but it's just not

5 the case. I've got my temporary sello²⁸ (in Spanish) from 2007,

6 which was presented.

7 0. Is it your position that the document is wrong?

8 A. Yes. My position is--and I can show you 2007 temporary

9 sello²⁹ (in Spanish). But, yes, that's irrespective of this. I

10 was a permanent resident in 2008.

11 2. All right.

12 A. You don't become a permanent resident when you first

13 move to a country in the Dominican Republic.

14 2. And your wife, Lisa, also chose to become a permanent

15 Dominican resident; correct?

16 A. That is correct.

17 2. And so in 2008, you were both--

18 A. Yes, sir. That is correct.

19 2. --permanent residents?

20 And then after that, you decided to become a Dominican

21 citizen; is that correct?

22 A. Yes, sir.

28 English Audio Day 2 at 05:10:16

29 English Audio Day 2 at 05:10:23

[Page 478]

1 2. And Lisa also chose to become a Dominican citizen?

2 A. Reluctantly, but she did.

3 Q. And you naturalized in the hope that Dominicans would

4 see that you were making a commitment to the Dominican Republic;

5 is that fair?

6 A. Yes, because we had--from a commercial standpoint,

7 there is--we had already endured a lot of discrimination, a lot

8 of nationality-based discrimination, and it was strictly for

9 commercial purposes.

10 There was many people--even though we had an excellent

11 product, they were insecure about buying from an American. It

12 was a very simple process. I paid $2,000 and I bought a

13 passport. And I used it just strictly for business. And I

14 wanted to protect my family's inheritance, because--

15 PRESIDENT RAMÍREZ HERNÁNDEZ: Can I interrupt there?

16 THE WITNESS: Sure.

17 PRESIDENT RAMÍREZ HERNÁNDEZ: Because I wanted to ask

18 you something on that, Mr. Ballantine.

19 THE WITNESS: Yes, sir.

20 PRESIDENT RAMÍREZ HERNÁNDEZ: And getting a

21 nationalization, it's for many people maybe a big step. It's

22 like having another flag. It has a lot of emotional--aside

23 from--I understand your economic point, but it also entails an

[Page 479]

1 important--an important decision, I³⁰ think. Because one thing

2 is you become a resident, you live in one country. But another

3 one is to become a national of a country.

4 So I was--I was--as I was going through your statement

5 and the pleadings, I wanted to understand exactly why you took

6 that decision and together with your wife to make this step to

7 become a national of any country.

8 I mean, just--I'm just trying to understand that part.

9 It's something that I had since I've been reading the case. So,

10 please.

11 THE WITNESS: Yes. Primarily, at that time I thought

12 that I owned a very valuable piece of property in the mountains

13 of the Dominican Republic. And I³¹ felt very insecure, in case

14 of my demise or my wife's, what would happen through an

15 arbitrary court ruling or my children having to pick up the

16 pieces, and I thought that it might help protect our estate.

17 Secondly, I felt like it was important for a business

18 decision in order--for the commercial aspects. There were

19 oftentimes people that wouldn't buy from me, for example,

20 because they didn't think that I was committed and they were

21 afraid to buy from a gringo and they would feel more

22 comfortable. And so I lost sales.

30 English Audio Day 2 at 05:12:09

31 English Audio Day 2 at 05:13:01

[Page 480]

1 It was a very simple process. There³² was no

2 renunciation of anything. I lost nothing as a United States

3 citizen, and I just simply became a Dominican citizen.

4 And from my understanding, I gained no other right

5 other than the right to vote. And so that was--it was only--had

6 to do with economics and it had to do with estate protection. I

7 did not integrate with the culture. I was an investor. And we

8 spent most of our time, as much as possible, away.

9 PRESIDENT RAMÍREZ HERNÁNDEZ: Thank you.

10 Please.

11 BY MR. Di ROSA:

12 Q. Mr. Ballantine, your children also were naturalized

13 Dominican, were they not?

14 A. My two oldest were not. My two youngest were--were on

15 their way out, and I said, "Hey, do you guys want to become

16 Dominican too? I can get you a passport for a souvenir."

17 That's all it was. There was no commitment.

18 It was just like, "Hey, you guys can have a passport

19 too, because we're Dominicans." That was the extent of the

20 conversation, like, "Yeah, I'll take one." That was it.

21 2. So that was a right that you had pursuant to Dominican

22 nationality, correct? I mean, to travel as a Dominican was one

23 right?

32 English Audio Day 2 at 05:13:40

[Page 481]

1 A. I never traveled as a Dominican, but--

2 2. You never used your passport?

3 A. The only travel benefit that we ever received

4 was--which is the same right afforded to a resident--is that I

5 pay a $10 entrance tax or be penalized for staying in the

6 country too long. But that same right is given to residents as

7 well.

8 So, there's no benefit to traveling using a Dominican

9 passport, nor did we ever.

10 2. You never used a Dominican passport ever?

11 A. Only entering and exiting the country, but not in--

12 2. But that is traveling with a Dominican passport, is it

13 not?

14 A. Yes. We saved $10. You're correct.

15 2. So--

16 A. Domestically.

17 2. So you're saying you had your two children acquire the

18 nationality of a different county so they could get a passport

19 as a souvenir?

20 A. Yeah.

21 2. Are you really saying that?

22 A. Yes, sir.

23 2. So it wasn't because of the business or anything else?

24 A. It was just like a gift to them because they were

25 leaving the country. Like, "Hey, you guys want a passport too?

[Page 482]

1 I'll get you one." That was the extent of it.

2 2. All right. And you said that you acquired it because

3 of the asset-protection aspect. Is there anything that you

4 contributed by way of documentary evidence supporting that,

5 whether norms that you thought were relevant that would protect

6 you somehow if you were--protect your assets somehow if you were

7 Dominican?

8 I mean, did you show any--you know, any emails or

9 whatever that showed that, yeah, you were worried about your

10 asset protection and that's why you became a Dominican national?

11 A. I don't have documentation, but it is well-known that

12 there's a tendency for the judicial branch to be not

13 independent. There was a huge case recently where a man was

14 found to have a lot of money. It was clean. United States

15 Government responded--

16 0. I'm not asking you about that, Mr. Ballantine.

17 A. Well, that's an important aspect because I was afraid

18 of what would happen to our assets. I had a judicial branch

19 that may not treat my family fairly.

20 Q. All right. Let's go to Exhibit R-17. This is the

21 cover letter to your naturalization application. We'll put it

22 up on the screen.

23 All right. So, this is a letter submitted by a lawyer

24 on your behalf to the government, requesting naturalization; is

25 that right?

[Page 483]

1 A. It appears to be that letter, yeah.

2 2. All right.

3 A. And it says at the bottom there, "The aforementioned

4 individuals identify closely with Dominican sentiment and

5 customs, given their longstanding respect for, and period living

6 in, our country, for which reason they would be happy to confirm

7 legally the Dominican sentiment."

8 Starting with "aforementioned individuals," this is his

9 own letter--his lawyer's letter on his behalf.

10 Q. So, this is something that basically was said by your

11 lawyer on your behalf, correct, presumably with your approval?

12 A. Yes. This is a standard boilerplate form. I did sign

13 it. I'm sure I did. These were not my words, but this is a

14 standard procedure.

15 2. So you just said this, but, you know, you had your

16 lawyer say it, but you didn't mean it; is that what you're

17 saying?

18 A. I can't deny that I have sentiment for the Dominican

19 Republic and there was good experiences and, you know, that

20 there was positive things in the Dominican Republic. It wasn't

21 like it was all conspiracy and bad and evil. There was good

22 times and, you know, there's some very nice people. So, I can't

23 deny that.

24 Q. Right. So--but you're telling the government something

25 in order to have them grant you the special privilege of being a

[Page 484]

1 national of that country, and presumably you meant that.

2 MR. ALLISON: Asked and answered. I mean, do we have

3 to--he answers a question and then he repeats his question

4 before in hopes that he will say something different this time.

5 MR. Di ROSA: It's a slightly different question,

6 Mr. Chairman, and I'm asking him if these words reflect his, you

7 know, genuine thought and belief at the time that he applied for

8 naturalization, so I think that's a fair--

9 MR. ALLISON: And that's what his last answer just was.

10 MR. Di ROSA: I think the question was slightly

11 different.

12 So you don't want to answer that question?

13 PRESIDENT RAMÍREZ HERNÁNDEZ: I think that's been asked

14 and answered.

15 MR. Di ROSA: All right. Fair enough.

16 BY MR. Di ROSA:

17 2. So in the Rejoinder, you said--quote, in Paragraph 2,

18 Rejoinder on Jurisdiction, "The Ballantines attained Dominican

19 nationality not because of any enduring cultural bond with that

20 country."

21 MR. BALDWIN: Where is that from, Mr. Di Rosa?

22 MR. Di ROSA: Rejoinder on Jurisdiction, Paragraph 2.

23 MR. BALDWIN: But you said "You said that." That's in

24 the Rejoinder on Jurisdiction.

25 MR. Di ROSA: He's the Claimant, Mr. Chairman.

[Page 485]

1 I mean, you're speaking on his behalf, are you not?

2 MR. BALDWIN: Well, there's two Claimants here, first.

3 He's one of two Claimants. And I just didn't understand where

4 you were--

5 MR. Di ROSA: You were speaking on behalf of both of

6 them, were you not, when you wrote this brief?

7 PRESIDENT RAMÍREZ HERNÁNDEZ: I think at this point

8 he's referring to the last Rejoinder.

9 MR. Di ROSA: To your Rejoinder on Jurisdiction.

10 PRESIDENT RAMÍREZ HERNÁNDEZ: On admissibility and

11 jurisdiction.

12 MR. Di ROSA: Right.

14 BY MR. Di ROSA:

15 Q. Isn't that statement somewhat inconsistent with what

16 you told the Dominican naturalization authorities?

17 A. I'm sorry. I got confused what the question was.

18 2. Sorry. I'll repeat it. No problem.

19 The Rejoinder on Jurisdiction in Paragraph 2 says, "The

20 Ballantines attained Dominican nationality not because of any

21 enduring cultural bond with that country," and then it goes on.

22 But that statement seems inconsistent with what the

23 lawyer that you had submit this naturalization request said in

24 the naturalization request that was submitted.

25 A. Could you put the lawyers' back up? Because I can't

[Page 486]

1 see that.

2 0. Sure. There it is again.

3 "The aforementioned individuals"--meaning you and

4 Lisa--"identify closely with Dominican sentiment and customs

5 given their respect for and period living in the country."

6 So is that different from cultural, in your conception?

7 It's not a cultural bond?

8 A. Can you put back up the other one so I can compare

9 them? I wasn't ready, that you were going to do this.

10 MR. Di ROSA: Can we go back?

11 A. That is not contradictory. I see in the Rejoinder we

12 talked about enduring bonds. And there is no reference in this

13 letter to enduring bonds.

14 And I think that's been demonstrated by our actions

15 subsequent to the filing of Notice of Arbitration and what the

16 habit of our life has been. I think I've been to the Dominican

17 Republic two or three times since then. And so there's been

18 nothing enduring about it. There's some relationships, some

19 people I still keep in contact with. But there's nothing

20 cultural that's been enduring whatsoever.

21 And so I stand by what was written in the Rejoinder on

22 Jurisdiction, because there's nothing enduring. It's been

23 broken.

25 BY MR. Di ROSA:

[Page 487]

1 2. All right. You say in Paragraph 4 of your Second

2 Witness Statement that you "did very little to assimilate into

3 the Dominican culture."

4 And you have said words to the same effect in this

5 testimony today.

6 In that same paragraph you say--Paragraph 4 of the

7 Second Witness Statement, you say "We never felt like we were

8 Dominicans, never acted like Dominicans."

9 What does a Dominican act like? What does that mean,

10 that statement?

11 A. Well, on a lot of levels, there's cultural norms and

12 mores and the way people interact with each other. And--for

13 instance, conflict, how to enter into a conflict, how to avoid

14 it, how to resolve it. There are so many cultural things,

15 holidays, and the way people relate. It's a high-context

16 culture where what's not said is often more the message.

17 I just acted like an American. I would confront things

18 head on, and I made a lot of cultural errors.

19 And so the way things are done in the Dominican

20 Republic are way different. I mean, I did certain things. Like

21 I would have a big party for the homeowners, and I'd say, "Man,

22 we're doing great." They'd say, "No, you don't say you're doing

23 great. You always say you're doing bad." I'm like--I'm

24 inspiring people.

25 There are so many differences in terms of business

[Page 488]

1 operation and political relationships. And nobody perceived me

2 as Dominican, and I didn't even intend to become Dominican or

3 identify. I was very proud of being an American, and I always

4 acted like an American. I run my company like an American. And

5 everybody knew that. Everybody. Everybody here knows that.

6 Q. In Paragraph 45 of the Rejoinder on Jurisdiction, you

7 also refer to your home not being a "Dominican home, and you

8 actually used those quotation marks yourself.

9 What, in your conception, is a Dominican home as

10 opposed to--

11 A. Dominican homes are often designed where there is a

12 separation, where there's a maid and a servants' area. And ours

13 is a big American open floor plan. We spoke English. We made

14 American food. We entertained like Americans. And so there's

15 cultural differences in the way the home runs.

16 And we lived completely as Americans in the Dominican

17 Republic, the food we ate, the way we entertained. Our home was

18 totally Americanized, and it was an obstacle to sell it because

19 Dominicans didn't like that American style of home.

20 Q. You said in Paragraph 8 of your Second Witness

21 Statement that you "continuously maintained at least one

22 residence and sometimes two residences in the United States";

23 correct?

24 A. Yes, sir.

25 Q. And you go on to identify certain addresses, mainly in

[Page 489]

1 Illinois; is that correct?

2 A. Which one?

3 2. You say--you identify certain addresses for those

4 residences and they're in Illinois primarily; is that correct?

5 A. Yes. I had four or five residences during the period.

6 2. And when you say "residences," do you mean houses or

7 what?

8 A. Houses or--I did rent a townhouse as well, and a

9 condominium I purchased.

10 2. All right. But, you know, the place of residence is

11 the place where your permanent home is, is it not? Where your

12 permanent home is?

13 A. Well, like the Florida house, I was there frequently,

14 but my kids lived there. I said that in my Witness Statement.

15 I bought it and they--they lived there.

16 Going back to Chicago, we would stop in Florida and

17 then come back and stop in Florida. I owned it. We sold that,

18 but it was still a residence. My kids lived there.

19 2. Well, right. But, you know, you only have one--you

20 were a permanent resident of the Dominican Republic, were you

21 not?

22 A. I was a permanent resident of the Dominican Republic

23 and a citizen of the United States of America.

24 2. Okay. So, you're not saying that you actually lived in

25 Illinois in 2010; is that right?

[Page 490]

1 A. I did live in Illinois in 2010. And I rented a

2 townhouse. Was it 2010 or 2011? I--

3 Q. Well, I mean, you didn't live there in the sense of

4 being a permanent resident at that time; right?

5 PRESIDENT RAMÍREZ HERNÁNDEZ: Counsel--

6 MR. ALLISON: Is this a legal argument?

7 PRESIDENT RAMÍREZ HERNÁNDEZ: --could you just refrain

8 from those comments and just go to the questions, please.

9 MR. Di ROSA: Mr. Chairman, I'm trying to establish,

10 you know, what his permanent residence was. It's highly

11 relevant to the issue of dominant and effective nationality.

12 THE WITNESS: I'd like to request just a bathroom

13 break, if I could.

14 PRESIDENT RAMÍREZ HERNÁNDEZ: Why don't we take all a

15 break and come back 3:50.

16 (Brief recess.)

17 PRESIDENT RAMÍREZ HERNÁNDEZ: Okay. We can

18 resume. Some arrangement comments.

19 First of all, I believe they consulted with

20 Parties, and I believe that we--the Tribunal and the

21 Parties agree that we will go until 6:30 today. And

22 tomorrow, we might go until 7:30 at the latest.

23 Let's agree on that. Are we fine with that?

24 MR. BALDWIN: That's agreeable to the Claimants.

25 MR. Di ROSA: Yes, that's fine, Mr. Chairman.

[Page 491]

1 PRESIDENT RAMÍREZ HERNÁNDEZ: Okay. Two points of

2 order.

3 I will kindly ask Claimants, if they have some

4 objection to some of the comments and questions made, to

5 please direct them at the Chair of the Tribunal so that we

6 can make a call of whether the objection is sustained and

7 that.

8 And I will ask Respondent to please refrain from

9 making the responses by the witness arguments or remarks

10 and try to state--or to address, as much as possible, the

11 factual aspects.

12 And finally, to both Parties, I mean, this is a

13 Tribunal that has been very diligent in reading all your

14 submissions and all the statements. So we know the case in

15 a nutshell.

16 So any way that you could help us elucidate better

17 the case and not be repetitive, because we know, we have

18 read the arguments, we know the--we have read the

19 witnesses, we have read the expert testimony.

20 So if you could help us in that, elucidate and get

21 a more clear picture of the case, it would be good for the

22 Tribunal.

23 So, Respondent, please.

24 MR. Di ROSA: Thank you, Mr. Chairman. And I'll

25 do my best to abide by your guidance.

[Page 492]

1 BY MR. Di ROSA:

2 Q. Mr. Ballantine, let's talk a little bit about

3 damages. You hired Mr. Farrell as your damages expert;

4 correct?

5 A. Yes, sir.

6 Q. And at the time that you hired him, did you give

7 him Jamaca's financial statements or other financial

8 records?

9 A. The Jamaca statements, yes, sir.

10 0. When you hired him, you gave him those?

11 A. I believe I did.

12 Q. Are you aware that Mr. Farrell did not attach any

13 financial documents, whether statements or otherwise, to

14 either of his expert reports?

15 A. I'm not aware of that. I'm not sure--I knew that

16 there was a concern about something, but I don't know what

17 he used and didn't.

18 Q. Okay. We'll ask him.

19 Did you also, at the time that you hired him, give

20 him--aside from financial records, did you give him

21 Jamaca's contracts for the lot sales for the lower mountain

22 project?

23 A. Yes. Well, I'm not sure. I submitted them in the

24 discovery and to--yeah, I'm pretty sure I did. I'm not

25 sure, though.

[Page 493]

1 Q. Are you aware that Mr. Farrell did not attach any

2 of those contracts to either of his reports?

3 A. I'm not aware of that.

4 Q. All right. Now, did you give him the contracts

5 that you eventually provided to this Tribunal or the

6 contracts that you signed and that were submitted to the

7 Dominican tax authorities?

8 A. If I gave him the contracts, it would have been

9 the real contracts.

10 Q. I see. So, let's call them "the real contracts."

11 And the ones that were the Dominican ones, the tax

12 authority contracts, as "the tax contracts" for

13 convenience. Okay?

14 A. Could you repeat that? I'm sorry.

15 Q. Yeah. You referred to them as the real contracts,

16 so let's just for convenience call them "the real

17 contracts" and the tax contracts just--

18 A. Yes, sir.

19 Q. Okay. In the prayer for relief of³³ your Statement

20 of Claim, the original one dated September 11, 2014, at

21 Paragraph 94.2, you ask for damages of "not less than

22 20 million."

23 But in the Amended Statement of Claim that was

33 English Audio Day 2 at 05:45:00

[Page 494]

1 submitted a couple years later, dated January 4th, 2017, at

2 Paragraphs 275 and 276, you ask for 37.5 million in damages

3 plus 4 million in moral damages, for a total of

4 41 million--41.5 million.

5 Is that about right? Is that consistent with your

6 understanding?

7 A. Yes, sir.

8 Q. So the amount that you claimed in the Amended

9 Statement of Claim is more than double the original

10 Statement of Claim damages amount. And my question is:

11 What changed in the interim?

12 MR. ALLISON: I'd like to make an objection that

13 that mischaracterizes the testimony--or the--not the

14 testimony, but the document that states more than

15 $20 million. And then the later one defines that.

16 And just so it's clear, it's not 20 and 37.

17 PRESIDENT RAMÍREZ HERNÁNDEZ: More than that, I

18 think we will hear from the damages expert. Isn't that a

19 question for the damages expert?

20 MR. Di ROSA: Okay. We can ask him as well.

22 BY MR. Di ROSA:

23 Q. Now, you know, referring--let's go back, then, to

24 the issue of the tax versus what you've called "the real

25 contracts."

[Page 495]

1 Are you aware that both the real and the tax

2 contracts were submitted in this arbitration for the sale

3 of many of the same Phase 1 lots? So, same lot, two

4 different contracts, different price--the same--you know--

5 A. I am aware of that.

6 Q. Okay. All right. And your attorney said that the

7 reason there were parallel contracts for the same lots was

8 because one of the sets of contracts was done specifically

9 for tax purposes; correct?

10 And I can quote the transcript, Page 24 at Line 18

11 through 20. He said, "But Respondent knows those Parallel

12 19 contracts don't reflect the economic"--sorry.

13 "The Respondent knows that parallel contracts

14 don't reflect the economic benefit that was received by the

15 Ballantines. They are tax documents only."

16 Is that consistent with your understanding as

17 well?

18 A. Yes, sir.

19 Q. And the ones that were done for tax purposes had

20 the lower price of each pair; right? So same lot, tax

21 document is lower price, and the real document is a higher

22 price. Is that--

23 A. Yes, sir. That's a fair, accurate assessment.

24 Q. And this was--and the reason that a lower amount

25 contract was submitted to the tax authority was essentially

[Page 496]

1 to try to limit the amount of the transfer tax; is that

2 right? And that's why people do it?

3 A. Yes, sir.

4 Q. And so your lawyers have said in this arbitration

5 that the real figures of the Phase 1 lot sales were not the

6 ones reflected in the tax contracts, but rather the higher

7 prices reflected in the parallel set of contracts, what you

8 were calling "the real contracts."

9 So that's consistent with what you're saying here;

10 correct?

11 A. Yes, sir.

12 Q. Now, the actual revenues from Lot 1 sales counted

13 as income to Jamaca; correct?

14 A. That would be income, yes, sir.

15 Q. Right.

16 And so those--the actual revenues are the revenues

17 that should have been reported by Jamaca as income to the

18 Dominican tax authorities; is that right?

19 A. We reported the--the assessed value of the

20 properties to the tax authorities.

21 Q. I see. But income tax refers to actual income,

22 not to assessed. That's not income. The assessed value is

23 not--in other words, you got a certain amount that was

24 income, and what you're supposed to report to the tax

25 authorities is the actual income; right? Or is that not

[Page 497]

1 your understanding?

2 A. That's not my understanding and that was not my

3 decision unilaterally. That was advised to me by my

4 Dominican accountant who is also a government employee, as

5 well as an attorney.

6 Q. All right. So you were advised by your Dominican

7 advisers, lawyers, et cetera, tax accountants, that you

8 could submit to the Dominican tax authorities an income tax

9 return that reflected not actual revenues, not--in other

10 words, not the real price, but lower revenues. Is that

11 what you said?

12 A. Yes. And I specifically used the word "custom."

13 Q. And is that your understanding of the custom in

14 the United States as well?

15 A. Absolutely not.

16 Q. Not. Okay.

17 So, are you saying that the revenues that were

18 based on the amounts in the tax contracts were not the ones

19 that you reported to the U.S. income tax authorities?

20 A. That--you must be referring to the Form 5471 which

21 is the foreign corporation.

22 Q. I'm not referring to any particular form. I'm

23 just asking you whether you reported to the U.S. tax

24 authorities the actual revenues that you got from the sale

25 of the lots.

[Page 498]

1 A. I did not receive those revenues. With the United

2 States tax authorities, I declared all of my income. Over

3 half of the transactions were done in U.S. Dollars in the

4 United States banking system. They were reflected either

5 as loan repayment, loan back, or interest income,

6 accurately.

7 Q. All right. But, so, in your income tax returns in

8 the U.S., when you have income from a foreign company that

9 you own--in your case, Jamaca was 100 percent owned by you;

10 right? Or you and Lisa; is that--

11 A. Yes, sir. We're 50/50 shareholders.

12 Q. Right. So the two of you combined had 100 percent

13 of Jamaca, and there's a special schedule in the U.S.

14 income tax return that you have to fill out when you've had

15 income from a foreign company that you own; correct?

16 A. That reports the activity of the corporation. It

17 does not become a taxable event until I take that money out

18 and I personally receive that money or the economic

19 benefit, which were--was declared appropriately on my

20 United States tax returns.

21 Q. So when you actually got the income from these

22 sales, you would have at that point reported them to the

23 U.S. tax authorities? I mean, you know--

24 A. Yes, on a personal level, but it was within the

25 corporation.

[Page 499]

1 PRESIDENT RAMÍREZ HERNÁNDEZ: Can I ask Respondent

2 what is the relevance of this line of questioning?

3 MR. Di ROSA: I'm trying to establish,

4 Mr. Chairman, that the amounts that were submitted to the

5 U.S. income tax authorities were not, in fact, the amounts

6 of the actual sales.

7 PRESIDENT RAMÍREZ HERNÁNDEZ: And what is the

8 relevance for this arbitration?

9 MR. Di ROSA: Just that he was being--you know,

10 it's highly relevant to the damages issue, Mr. Chairman,

11 because if he's saying that the--you know, the amounts that

12 were reported to the tax authorities were one amount and

13 the real amount were a different amount, then we have to

14 kind of get to the bottom of that right now.

15 PRESIDENT RAMÍREZ HERNÁNDEZ: And I think we all

16 understood, and it was stated by counsel, Claimants'

17 counsel, on the first day, yesterday, that they use for the

18 damages purposes what they call "the real contracts" for

19 purposes of damages.

20 MR. Di ROSA: All right.

21 PRESIDENT RAMÍREZ HERNÁNDEZ: But I'm trying to

22 see what is the relevance, whether--if you would allow me

23 to finish.

24 MR. Di ROSA: Sure.

25 PRESIDENT RAMÍREZ HERNÁNDEZ: I'm trying to

[Page 500]

1 understand the relevance of the line of questions of

2 whether those incomes were reported or not to tax

3 authorities. For our purposes, the relevance or not has to

4 do with the damages determination.

5 Am I correct?

6 MR. Di ROSA: Yes, Mr. Chairman.

7 Let me just add to that one comment, which is

8 Mr. Ballantine--the Ballantines jointly are asserting a

9 claim against the Dominican Republic under an international

10 treaty, claiming for a certain amount that's a substantial

11 amount of money that is based on what they claim is the

12 actual sales. But at the same time, they told the

13 Dominican tax authorities that they had a lower amount.

14 So they're trying to essentially cheat the

15 Dominican Republic out of tax assessments but then charge

16 the Dominican Republic on the basis of the higher amounts

17 that they did not use for purposes of the tax documents.

18 And the same would apply for the U.S. income taxes.

19 PRESIDENT RAMÍREZ HERNÁNDEZ: I fail to see the

20 relevance. And at the end, I think it has to establish

21 what was the basis to have made a damages determination.

22 And what flows from that, what consequences of having

23 two--of submitting two contracts but not submitting to tax

24 authorities either of the Dominican Republic or the

25 United States is beyond what this Tribunal can do with

[Page 501]

1 those.

2 So I will ask you to go to another line of

3 questioning, please.

4 MR. Di ROSA: All right, Mr. Chairman. I think I

5 sense that we're all getting tired.

7 BY MR. Di ROSA:

8 Q. So let me just ask Mr. Ballantine one final

9 question, which is the following: Mr. Ballantine, do you

10 have any type of external financing or third-party funding

11 for this arbitration?

12 A. Do I need to answer that question?

13 PRESIDENT RAMÍREZ HERNÁNDEZ: (Nodded.)

14 A. Yes, sir.

15 Q. Since when have you had that funding in place?

16 Don't look at your lawyers.

17 A. I just want to--I have a contractual obligation,

18 and I just don't know if I'm violating the terms of that by

19 getting into this.

20 So, I'm happy to do that under the order of the

21 President. I'm happy to answer any questions. But the

22 third-party funder and I have an agreement, and I don't

23 know what my limitations are, if I'm violating that. We

24 could have a private discussion or something, but--

25 PRESIDENT RAMÍREZ HERNÁNDEZ: I think we will need

[Page 502]

1 to discuss this. And I think that we may be dealing with

2 confidential information that may not be--we are being

3 publicly broadcast, so it may not be proper.

4 So, Claimant, how--

5 MR. ALLISON: Yes. We would also argue that the

6 funding of this case is irrelevant to the claims that are

7 brought. But we'd be happy to discuss that off the record

8 after we--

9 PRESIDENT RAMÍREZ HERNÁNDEZ: Yeah. I mean, it

10 has been answered, there has been third-party funding,

11 but--

12 MR. Di ROSA: At a minimum, Mr. Chairman, they

13 would have to disclose the identity of the funder for

14 conflicts purposes.

15 PRESIDENT RAMÍREZ HERNÁNDEZ: Yeah.

16 MR. Di ROSA: And it could be relevant to other

17 issues like costs.

18 PRESIDENT RAMÍREZ HERNÁNDEZ: Yeah. And I see

19 that. So why don't we let us take a break on this, and

20 maybe the Tribunal will want to discuss this with my

21 colleagues. But I think there are some confidentiality

22 issues that maybe we may need to address.

23 MR. Di ROSA: Thank you, Mr. Chairman.

24 (Brief recess.)

25 PRESIDENT RAMÍREZ HERNÁNDEZ: We'll wait a little

[Page 503]

1 bit, because we want to make sure that this is not

2 broadcasted.

3 (Pause in proceedings.)

4 PRESIDENT RAMÍREZ HERNÁNDEZ: The Tribunal has

5 deliberated on this issue and has decided that we will

6 direct the witness to disclose to the Tribunal only the

7 contract that you signed with the third party.

8 After that, we will decide whether that contract

9 should be disclosed to the Respondent or not. But we want

10 to see the contract first. My clear instructions.

11 And I was going to ask Respondent whether, aside

12 from knowing who was the third-party funder, is there any

13 question regarding this issue?

14 MR. Di ROSA: Yes, sir.

15 PRESIDENT RAMÍREZ HERNÁNDEZ: Additional

16 questions.

17 MR. Di ROSA: I do have a few questions,

18 Mr. Chairman. Not many. Just a handful.

19 PRESIDENT RAMÍREZ HERNÁNDEZ: But not on this

20 topic.

21 MR. Di ROSA: Oh, no. I thought you were inviting

22 me to ask on this topic.

23 PRESIDENT RAMÍREZ HERNÁNDEZ: No. No.

24 MR. Di ROSA: No, I don't have any questions.

25 PRESIDENT RAMÍREZ HERNÁNDEZ: So we will

[Page 504]

1 continue--we will ask them to be back tomorrow morning.

2 THE WITNESS: Yes, sir.

3 PRESIDENT RAMÍREZ HERNÁNDEZ: Okay.

4 THE WITNESS: You want the contract, not just the

5 name of the company; right? The physical contract?

6 PRESIDENT RAMÍREZ HERNÁNDEZ: We want the

7 contract.

8 THE WITNESS: Yes, sir.

9 MR. Di ROSA: Just for clarity, Mr. President, are

10 you telling me I can't ask the questions about the subject?

11 PRESIDENT RAMÍREZ HERNÁNDEZ: No.

12 MR. Di ROSA: I can.

13 (Brief recess.)

18 PRESIDENT RAMÍREZ HERNÁNDEZ: The problem is that

19 if the questions relate to the--

20 MR. Di ROSA: They relate exclusively to that,

21 Mr. Chairman.

22 PRESIDENT RAMÍREZ HERNÁNDEZ: So, I guess that we

34 Deleted text is duplicative of text included above. The original exchange continues after eliminated text. English Audio Day 2 at 06:08:00

[Page 505]

1 will need to make a call of whether--

2 MR. Di ROSA: I mean, some of them, you know, are

3 primarily about the timing--the timing and the reason that

4 it was not disclosed earlier.

5 MR. ALLISON: Mr. Ramírez, we would propose

6 Mr. Ballantine will be here all week. After the Tribunal

7 has reviewed the contract and decided what's appropriate

8 and inappropriate and heard from counsel on both of those

9 issues, if he needs to come back and give additional

10 testimony, we'll present him in any order that's convenient

11 for the Respondent.

12 PRESIDENT RAMÍREZ HERNÁNDEZ: Okay. So, let me

13 ask the Respondent if they are okay.

14 I understand you have additional questions.

15 MR. Di ROSA: Right.

16 PRESIDENT RAMÍREZ HERNÁNDEZ: So, let us first see

17 the contract, and then if we need--or the Tribunal thinks

18 we need to go back to questioning about these subjects in

19 specific, we will allow the Respondent to question on that.

20 I think Mr. Ballantine will be here all week, so we can--

21 MR. Di ROSA: Perhaps we can do that, or maybe an

22 easier option, Mr. Chairman, would be to just pose my

23 questions to the Tribunal and you assess them--

24 PRESIDENT RAMÍREZ HERNÁNDEZ: Perfect.

25 MR. Di ROSA: --and we don't ask the witness about

[Page 506]

1 them.

2 So, my questions were, since when has that funding

3 been in place?

4 Secondly, was it after the third-party funding

5 started that the switch in counsel from Crowell &

6 Moring to their current counsel Baker Hostetler happened?

7 And, you know, the reason that the funding was not

8 disclosed earlier.

9 I think that's it, Mr. Chairman.

10 PRESIDENT RAMÍREZ HERNÁNDEZ: Okay. Claimant.

11 MR. ALLISON: I'd be happy to debate now the

12 relevancy of those questions, but would you like to see the

13 contract first and then have a discussion, or are you

14 going to consider whether you think those are appropriate

15 questions?

16 PRESIDENT RAMÍREZ HERNÁNDEZ: Let's hear your--

17 MR. ALLISON: As to the third one--

18 PRESIDENT RAMÍREZ HERNÁNDEZ: --argument--

19 MR. ALLISON: As to the third one, which is

20 the reason why the funding was not disclosed earlier, I

21 don't think that's a relevant question. I'm unaware of any

22 rule that requires a Claimant to disclose that. It's

23 attorney-client privileged issues related to that.

24 The question as to the switch in counsel, I don't

25 understand what the relevance of that question is and how a

[Page 507]

1 switch in counsel and a funding agreement impacts the

2 claims that are at issue in the Dominican Republic here.

3 So, I appreciate the opportunity to argue, but I will ask

4 when the funding contract was in place.

5 I have no objection to the first one, but I

6 think the other two are entirely irrelevant to the issues

7 before the Tribunal.

8 MR. Di ROSA: Can I just respond briefly to that

9 for the Tribunal?

10 PRESIDENT RAMÍREZ HERNÁNDEZ: Please.

11 MR. Di ROSA: On the issue of the timing of the

12 disclosure and the duty to disclose, I mean, I think it's

13 fairly well established in arbitration these days that if

14 you have a third-party funder, you have to disclose it in

15 order to ensure that there's no conflict of interest with

16 any of the Tribunal members or the Parties.

17 And, secondly, you know, we think that the issue

18 of the change of counsel and the timing is relevant to the

19 damages issue because the timing is relevant to the

20 increase in the amount of damages, and the question that

21 I'd like the Tribunal to consider is whether the amount of

22 damages changed from the time that they filed their

23 Statement of Claim originally and the time that they got

24 their third-party funding.

25 And in that regard on the disclosure issue, I

[Page 508]

1 would refer the Tribunal to the IBA Guidelines on Conflict

2 of Interest, General Standard Number 6. You know, it

3 states that third-party funders have a certain

4 minimum amount that they are willing to fund. And that's

5 why the--you know, the relevance of that's the relevance of

6 the question as to whether or not the damages increased.

7 Thank you, Mr. Chairman.

8 PRESIDENT RAMÍREZ HERNÁNDEZ: Any last comments?

9 MR. ALLISON: Yes. Again, I dispute the notion

10 that the damages increased. I think it's a

11 mischaracterization of the pleadings to say that.

12 The question about what damage amount was included

13 and aren't included is at the heart of the

14 attorney-client privilege and is entirely inappropriate

15 line of questioning.

16 PRESIDENT RAMÍREZ HERNÁNDEZ: We'll take this

17 under advisement, and we will see the contract and make a

18 call on these three requests that I see--three questions

19 that were posed.

20 Do you have any more questions for Mr. Ballantine?

21 MR. Di ROSA: I do not, Mr. Chairman.

22 PRESIDENT RAMÍREZ HERNÁNDEZ: Thank you,

23 Mr. Ballantine.

24 MR. ALLISON: I have just a few questions for

[Page 509]

1 redirect. I'm sorry, Michael.

2 REDIRECT EXAMINATION

3 BY MR. ALLISON:

4 Q. We spoke at some length this morning--you spoke

5 with Mr. Di Rosa this morning about the request for the

6 permit for the road, and then the request for the permit

7 for the subdivision.

8 Do you recall that testimony?

9 A. Yes.

10 Q. And can we put up what we saw earlier, which is

11 C-33, which is your application for the road.

12 And there was some confusion, if you expressed

13 some confusion as to whether that applied to the

14 Ministry of Environment, to the Ministry of Forestry.

15 I just want to look at the address line here. If

16 you can blow that up, to whom is that written?

17 It's to Mr. Ernesto Reina, Deputy Secretary

18 and Subsecretariat Ground and Water, Santo

19 Domingo National District. Do you see that?

20 Is that the same Ernesto Reyna who was later the

21 director of the MMA?

22 A. I assume so, but that would be speculation. But I

23 think so.

24 Q. And you don't know whether the subsecretariat of

25 Ground and Water was in the Forestry Department or the

[Page 510]

1 Environmental Department; is that right?

2 A. I do not know. I think Rafael could speak to

3 that.

4 MR. ALLISON: Okay. If you would blow up the

5 first paragraph.

6 BY MR. ALLISON:

7 Q. Mr. Di Rosa read a part of this. The length of

8 the 200 meters. Do you see how wide you requested the road

9 to be?

10 A. Do I see it? I see it.

11 Q. Yeah. Can you read how much--how wide a road you

12 wanted?

13 A. 6 meters.

14 Q. And so there was a lot of debate this morning

15 about a two-lane road and the like. But you indicated that

16 you intended to build a 6-meter road; correct?

17 A. The second phase would be a 5-meter wide road with

18 1 meter for gutters. But yes, it would be 6 meters in

19 total.

20 Q. And did you build a 6-meter road in the first

21 phase?

22 A. Is this Phase 1?

23 Q. This is Phase 1.

24 A. Yes.

25 Q. Okay.

[Page 511]

1 A. Some of the curbs are a little wider, but the road

2 itself is 6.

3 Q. And then let's look at the permit that was

4 granted, which is the next exhibit, C-34.

5 And let's look at who the permit letter came from.

6 It's signed by Ernesto Reyna, and the stamp is from--if I'm

7 reading it correctly--is that Medio Ambiente?

8 I see that.

9 And is that the Ministry of the Environment?

10 A. Yes, it is.

11 MR. ALLISON: And could we go up to the top of the

12 letter and see the heading? Keep going. Yeah.

13 BY MR. ALLISON:

14 Q. It's on the letterhead of the MMA, is it not?

15 A. Yes, it is.

16 2. So, the MMA knew about your road, didn't it?

17 A. It appears that way, yes, sir.

18 Q. So, then, let's look at your--at Exhibit C-36,

19 which I believe is the--and if we can blow up the first

20 two paragraphs, this was the response to your request

21 for--could you go to the English version. My Spanish is a

22 little bad. Page 1, please, of the English version.

23 All right. If you could blow up the first

24 two paragraphs.

25 We saw this earlier. This is MMA's response

[Page 512]

1 saying you have to present an Environmental Impact

2 Statement; is that right?

3 A. Yes, sir.

4 Q. And it describes the project. And it says down at

5 the bottom that you were going to construct relaxation and

6 recreation areas. And it says, "At the same time, will

7 have asphalted road."

8 Do you see that?

9 A. Yes, I see that.

10 0. So, the MMA knew you'd have a road; right?

11 MR. Di ROSA: Mr. Chairman, I've been patient with

12 this, but, you know, he keeps asking the witness leading

13 questions. Every question that ends in "is it not" or

14 "wasn't it" is a leading question, and on redirect or

15 direct he should not be doing leading questions.

16 MR. ALLISON: I've refrained as best I can from

17 objections to the form of questions. I'm trying to be

18 quick to get through these as quickly as we can.

19 I will attempt to ask non-leading questions, but

20 they're direct points that counter the issues that were

21 raised earlier this morning by Mr. Di Rosa, who tried to

22 insinuate the MMA didn't know there was a road in Phase 1.

23 So, I'll be guided by your instruction.

24 BY MR. ALLISON:

25 Q. We had a lot of debate earlier today about

[Page 513]

1 mountain villas and cabins and the homes that were built in

2 Phase 1.

3 Do you remember that testimony?

4 A. Yes.

5 Q. And you also testified that the MMA came out to

6 inspect Phase 1 on several occasions; right?

7 A. Yes.

8 Q. And at any of those inspections, was there any

9 discussion from any MMA officials about the size of the

10 house or the construction material of the house, or

11 anything in that regard?

12 A. Never.

13 Q. And when the MMA renewed the Phase 1 permit, which

14 was in 2012 or 2013, did the renewal of that permit include

15 any statements of concerns or conditions or limitations

16 about the design of any of the homes that had been built in

17 Phase 1?

18 A. I don't remember. I'd have to look at that. I

19 just don't remember it.

20 Q. Okay. We looked a little bit at Juan José

21 Domínguez' property with Mr. Di Rosa--Mr. Di Rosa.

22 And I want to put up Slide 20 from the Claimants'

23 opening PowerPoint, which is a screen capture from

24 Claimants' Exhibit 93. I don't want to subject the

25 Tribunal to the entire video. But I just want it to be

[Page 514]

1 clear that--or ask you, did you have a permit to subdivide

2 and develop Phase 1 of Jamaca de Dios?

3 A. Yes.

4 Q. Did Mr. Domínguez have a permit to build any of

5 the three structures that you were debating earlier today?

6 A. Apparently not.

7 Q. And are you aware whether Mr. Domínguez had a

8 permit to deforest the top of his mountain between 2015 and

9 2017?

10 A. It's a National Park, so I would doubt it.

11 Q. We spent a lot of time on the Environmental Impact

12 Statement in which we looked at the hierarchy of impacts

13 when you were proposing Phase 1.

14 Do you remember that?

15 A. Yes, sir.

16 Q. And there were a number of impacts that Jamaca

17 disclosed concerning how construction and operation would

18 impact the environment in that document; correct?

19 A. Yes, we reviewed that.

20 Q. And the MMA--

21 MR. Di ROSA: Mr. Chairman, we just talked about

22 this. You know, he asked a question and he said,

23 "correct?" And then, of course, that induces the answer

24 "yes." You should ask open-ended questions. That's the

25 nature of direct and redirect examination.

[Page 515]

1 MR. ALLISON: I'll try. Thank you. I'll withdraw

2 that question.

3 BY MR. ALLISON:

4 Q. Were you fulsome in describing the impacts that

5 Jamaca de Dios would have on the environment in that

6 document?

7 A. Yes. We identified both strengths and weaknesses.

8 Q. And after the MMA reviewed that document, what

9 happened?

10 A. Well, it was reminded to me today that it was

11 incomplete, and then my environmental company went back and

12 made a more robust study, and that was approved.

13 Q. Well, I think we heard about an unintroduced

14 impact statement that was repeatedly described by

15 Mr. Di Rosa but isn't in the record.

16 But after this more fulsome Environmental Impact

17 Statement, was your project approved?

18 A. Without modification, yes.

19 Q. And I just want to look at one page of this. We

20 were there earlier today, and it's Page 26, I think.

21 Although it may be 25. We'll see.

22 PRESIDENT RAMÍREZ HERNÁNDEZ: What exhibit were

23 you referring to, Counsel?

24 MR. ALLISON: This is Exhibit R-103. I'm sorry.

25 BY MR. ALLISON:

[Page 516]

1 Q. And if we go to Page 26. This is what we saw

2 earlier. This is the hierarchy of impacts; correct?

3 Could you go to the next page? And could you blow

4 up the second paragraph.

5 This is some of the impacts of the operation phase

6 of Jamaca de Dios, is it not?

7 A. Yes.

8 Q. Can you describe the fourth--could you read what

9 the fourth impact of Jamaca de Dios was going to be?

10 A. Yes. We clearly state it was for ecotourism.

11 MR. Di ROSA: Mr. Chairman, he's not asking

12 questions of the witness. As you know, he criticized me a

13 lot for arguing, and he's just sort of walking the Tribunal

14 through evidence. It's not questions to the witness.

15 MR. ALLISON: I object to that. He put up a ton

16 of documents, asked him to read them. I'm asking him

17 questions about these documents just as Mr. Di Rosa was.

18 MR. Di ROSA: Yes, but I was cross-examining him,

19 Mr. Allison. You're doing redirect. There's a difference.

20 I can ask leading questions, I can show him whatever I

21 want, and you can't argue through the witness.

22 MR. ALLISON: Well, Mr. Di Rosa, if you show an

23 incomplete version of a document--

24 MR. Di ROSA: You can--

25 MR. ALLISON: --and don't show everything that's

[Page 517]

1 in there, I'm allowed to show more.

2 MR. Di ROSA: You can show him the document. You

3 can say--

4 PRESIDENT RAMÍREZ HERNÁNDEZ: Counsel, again, if

5 you could direct to the Tribunal.

6 MR. ALLISON: I think it's appropriate for me to

7 show him the same document that Mr. Di Rosa showed him

8 earlier to walk through the hierarchy of impacts in order

9 to try to show how impactful Jamaca de Dios was going to be

10 for the environment.

11 I'm entitled to show other impacts that relate to

12 one of the key issues of the case as to whether or not this

13 was an ecotourism project and what knowledge the MMA had of

14 that and when.

15 PRESIDENT RAMÍREZ HERNÁNDEZ: Respondent.

16 MR. Di ROSA: Mr. Chairman, he's entitled to show

17 the witness a document and to say--for example, to ask the

18 witness, "What else was important here?" or something like

19 that, as opposed to, "Can you go to Point 4 and read that."

20 I mean, that's not a question. That's, you know,

21 essentially, a leading question in a different format.

22 PRESIDENT RAMÍREZ HERNÁNDEZ: Want to move

23 forward, Claimant. Could you try.

24 MR. ALLISON: One last time.

25 BY MR. ALLISON:

[Page 518]

1 Q. Did you disclose to the MMA, in connection with

2 your Environmental Impact Statement, that Jamaca de Dios

3 was an ecotourism project?

4 A. Yes.

5 MR. ALLISON: No further questions.

6 PRESIDENT RAMÍREZ HERNÁNDEZ: Thank you.

7 I think, finally, Mr. Ballantine. Have dinner,

8 please.

9 THE WITNESS: I'm sorry?

10 PRESIDENT RAMÍREZ HERNÁNDEZ: Have dinner, please.

11 THE WITNESS: Oh, thank you.

12 (Witness steps down.)

13 PRESIDENT RAMÍREZ HERNÁNDEZ: I think the next one

14 is Graviel Peña. Could you call him up.

15 (Brief recess.)

16 PRESIDENT RAMÍREZ HERNÁNDEZ: Good afternoon,

17 Mr. Graviel Peña.

18 THE WITNESS: Good afternoon.

19 PRESIDENT RAMÍREZ HERNÁNDEZ: Would you please

20 read the statement you have in front of you. That is the

21 Witness Declaration.

22 THE WITNESS: "I solemnly declare upon my honor

23 and conscience that I will say the truth, the whole truth

24 and nothing but the truth, and my statement will be in

25 accordance with my sincere belief."

[Page 519]

1 PRESIDENT RAMÍREZ HERNÁNDEZ: Thank you very much,

2 Mr. Peña.

3 GRAVIEL PEÑA, CLAIMANTS' WITNESS, CALLED

4 DIRECT EXAMINATION

5 BY MR. BALDWIN:

6 0. Good afternoon, Mr. Peña.

7 A. Good afternoon.

8 Q. You have before you the binder that you have open

9 there that contains your First Report and your Second

10 Report in this case. Do you see that?

11 (Comments off the microphone.)

12 THE INTERPRETER: I believe it's Channel 3 for

13 Spanish.

14 BY MR. BALDWIN:

15 Q. Is the translation working now, Mr. Peña?

16 A. Yes.

17 Q. Excellent. Excellenté. You don't have to switch

18 back for that.

19 Mr. Peña, you have in your binder there

20 two reports that you submitted in the case.

21 Do you see that?

22 A. Yes, these are my reports.

23 Q. And can you confirm that what are in those reports

24 are your observations and opinions regarding this matter?

25 A. That is correct.

[Page 520]

1 Q. Okay. And are there any corrections that you

2 would like to make to either of those reports?

3 A. No corrections.

4 Q. Now, Mr. Peña, I understand you have a PowerPoint

5 presentation that Ms. Gil is going to run.

6 A. That is correct.

7 I have a degree in law. I have a master's degree

8 in environmental management and high management. And

9 between 1999 and 2013, I was a professor at the Catholic

10 University of Cibao, where I taught ecology and

11 environment, agro-climate, general botanics and systematic

12 botanics.

13 And starting in 2010, I've been working for the

14 agricultural and forestry university, Fernando Arturo

15 de Meriño, where I teach design and project management,

16 management of watersheds and bioclimates.

17 I am also the president of the National

18 Association of Forestry Professionals from the Dominican

19 Republic, and I have been in this position since 2015.

20 I have experience in environmental areas, and I

21 also have experience in the area of law and Dominican

22 environmental proceedings, and I also have experience in

23 environmental management.

24 I reviewed the documents submitted during

25 this--the process of this claim, and in several of the

[Page 521]

1 documents that were provided by the Ministry of the

2 environment I observed that some documents were missing,

3 some data was missing, such as part of the technical

4 evaluation reports and also the environmental declarations

5 for the projects, as well as environmental compliance.

6 These are only some of the documents that are missing.

7 I also reviewed the decree that created the

8 National Baiguate Park. This decree shows that the process

9 did not comply with the various steps necessary for the

10 creation of the Park. The Dominican legal measures were

11 not observed to protect the landowners and also violating

12 the property right.

13 In addition, the process was poorly managed since

14 the Ministry of the Environment did not conduct--did not

15 get involved with the affected Parties prior to the

16 creation of the Park. They issued the management plan

17 five years after it was created by decree.

18 The rationale for the creation of the Park and the

19 establishment of this Park in the decree were not

20 taken--was not taken into account when defining the

21 boundaries because there are criteria such as the type of

22 vegetation, the watershed to be protected that are

23 mentioned in the decree but that were not actually

24 protected.

25 I reviewed that decree, and that's the reason why

[Page 522]

1 I list the rationale.

2 I reviewed the criteria established in the

3 four denials of permits for Jamaca de Dios. And based on

4 the reasons presented in my Report and also by my review of

5 the reports, I consider that they share the same conditions

6 as in the second phase of Jamaca de Dios, and the same

7 criteria could be applied to the other projects so that

8 they would be denied, such as Mirador del Pino, Jarabacoa

9 Mountain Garden, Paso Alto, Quintas del Bosque, among

10 others.

11 I reviewed the data on the Quintas del Bosque

12 project as part of my investigation, and I was able to

13 determine that it has some critical water sources that are

14 flowing towards the Yaque del Norte River, and they also

15 have more significant slopes with a higher percentage as

16 compared to Jamaca de Dios.

17 I also visited La Montaña project for the

18 preparation of my Second Report, and there I was able to

19 see that the percentages of the slopes are also higher as

20 compared to the second phase of Jamaca de Dios. The

21 vegetation is quite vast, and there is a considerable

22 portion of natural forest.

23 They also have, within the mountain terrain, an

24 important hydrological watershed for Jarabacoa because they

25 provide water to some of the residents of the city that is

[Page 523]

1 used as drinking water, and also for agricultural

2 production.

3 As to Jarabacoa Mountain Garden, I visited the

4 project, the Jarabacoa Mountain Garden project, and I

5 understand that this project would create greater impact on

6 the environment than the second phase of Jamaca de Dios

7 because the project has an active river that comes from the

8 Baiguate River. It is the La Artemis stream.

9 And also, the percentage of the slope is higher

10 than the one we have in the second phase of Jamaca de Dios.

11 Also, the amount of vegetation that would need to

12 be removed for the development of this project is higher as

13 compared to the Jamaca de Dios percentage, and this

14 includes the removal of trees or the--such as pines,

15 western pines and yagrumo.

16 The earth movement required for Jarabacoa Mountain

17 Garden would lead to greater impact as compared to the

18 earth movement needed for Jamaca de Dios Phase 2.

19 In the case of Monte Bonito, I visited that

20 project. And this project does not have the environmental

21 permits, but this project has also built several houses and

22 roads on slopes that have--that are greater than

23 60 percent.

24 To conclude, all of these projects hereby listed

25 and also listed in my reports would have negative--negative

[Page 524]

1 impacts that would be more significant than the impact of

2 the second phase of Jamaca de Dios in terms of the

3 affectation or the impairment of water sources, soil

4 erosion, loss of vegetation, impact on biodiversity.

5 However, the permits of these project were not

6 denied, and others have been working without a permit while

7 Jamaca de Dios was denied the permit.

8 If we verify this chart, where we can see aspects

9 such as percentage of the slope, altitude above sea level,

10 the condition of cloud forest and also active water source,

11 as well as the soil classification, we could state that the

12 permit should have been granted to everyone or no permit

13 should have been granted.

14 MR. BALDWIN: Thank you, Mr. Peña.

15 We pass Mr. Peña to Respondent.

16 PRESIDENT RAMÍREZ HERNÁNDEZ: Thank you.

17 MS. TAVERAS: Thank you.

18 CROSS-EXAMINATION

19 BY MS. TAVERAS:

20 Q. Good afternoon, Mr. Peña.

21 A. Good afternoon.

22 Q. My name is Claudia Taveras. I will be in charge

23 of asking you some questions this afternoon.

24 Someone has already given you or will be giving

25 you a binder with your Statements and also with some

[Page 525]

1 exhibits that are also included in this record of the case.

2 And I will be occasionally referring to some of these

3 exhibits.

4 And feel free to look at them if you so wish.

5 And, also, if we are referring to a specific exhibit and if

6 you are interested in reading it, please feel free to do

7 so.

8 MS. TAVERAS: We'll be here--does the Tribunal

9 have the binder? How about the other Party? Do you have

10 the material?

11 BY MS. TAVERAS:

12 2. Then we will be discussing, this afternoon, these

13 topics. And if at some point you'd like to have a break,

14 please let us know, and there shouldn't be any problems.

15 And we will continue with the questions after your break.

16 Then, Mr. Peña, you submitted two reports in this

17 arbitration; is that correct?

18 A. Yes.

19 Q. In the first one, you explain that the owners of

20 Jamaca de Dios asked you to submit a report indicating your

21 knowledge of the facts that led to this arbitration. Is

22 this correct?

23 A. Yes.

24 Q. This implies that, at least partially, you're here

25 as a fact witness; is that correct?

[Page 526]

1 A. Yes, it is.

2 Q. The Ballantines also asked you to express your

3 opinion as an expert on the issues in this arbitration; is

4 that correct?

5 A. Yes.

6 Q. When you said, in your First Statement, that you

7 are an expert on the issues of this arbitration, what were

8 you specifically referring to?

9 A. I was referring to the issues that have to do with

10 the type of project management, the development of this

11 type of project, and also in connection with management

12 plans for the environment in this kind of project and also

13 the type of documents that are presented before the

14 Ministry of the Environment for the approval of this type

15 of project.

16 Q. So, in practice, in the--if you--could you please

17 clarify this?

18 A. Yes. This was in connection with the drafting of

19 the plans and also the studies of the permits.

20 Q. But you're also an attorney; correct?

21 A. Yes, I am.

22 Q. Do you think that your role in this arbitration is

23 the role of an independent expert?

24 A. It could be considered like that in part.

25 Q. Could you please elaborate?

[Page 527]

1 A. The first document that I was requested to draft

2 was requested by one of the affected parties.

3 Q. Then you drafted the first document, you were

4 doing so as a party representative, weren't you?

5 A. The answer is no because I was asked to be honest

6 in another process.

7 Q. Mr. Peña, you stated that on behalf of the

8 Ballantines, you contacted Ms. Francis Santana?

9 A. Yes, it is.

10 Q. And it was to ask Ms. Santana to present a

11 Witness Statement on behalf of the Ballantines; correct?

12 A. Yes, it is.

13 Q. Did you communicated with Ms. Santana that if she

14 accepted to write a Statement in this case, she would be

15 compensated for the time devoted to the case; is that

16 correct?

17 A. Yes, because time needs to be devoted to the

18 drafting of a document of that sort.

19 Q. And what would be the compensation? Ms. Santana?

20 Would you be paying a lump sum, or would you be paying an

21 hourly compensation?

22 A. What I told Ms. Santana that I would provide her

23 with Mr. Ballantine's number so that she could agree with

24 Mr. Ballantine.

25 Q. So, you're not aware of the financial terms?

[Page 528]

1 A. No, I did not.

2 Q. You just knew that she was going to get paid?

3 A. Well, it is just logical that if you devote your

4 time to developing a piece of work, you are compensated for

5 that.

6 Q. Do you think that presenting or submitting your

7 Statement is the same as working?

8 A. Well, I was not the one to define the terms.

9 Q. Would you call it a consulting job?

10 A. Well, if I accept to bring to provide you

11 with Mr. Ballantine's number, and then you agree on the

12 terms--

13 Q. And did you send Ms. Santana a draft of what you

14 suggested she would declare in this arbitration?

15 A. No, that was not a proposal. She asked me, "what

16 are the issues that should be considered in this case?"

17 I said, "Well, I can give you some guidelines as

18 to what I considered for the draft of my first document,

19 and then you can point towards that direction or

20 accept it or not and you can work along these guidelines

21 or accept new ones or adopt new ones."

22 Q. When you had this conversation with

23 Ms. Santana, you were acting as an agent for

35 Original in Spanish: "por eso le dije".

[Page 529]

1 Mr. Ballantine? You were not acting on your behalf but on

2 his behalf?

3 A. Well, I was asked to contact her because she was a

4 witness to the facts of the case.

5 Q. So, you were representing Mrs. Santana--rather,

6 you were representing Mr. Ballantine and acting as his

7 agent to contact Ms. Santana?

8 A. Yes, that is correct.

9 Q. And when you say--we're talking about the

10 guidelines that she sent you. Do you confirm that you

11 drafted her Statement?

12 A. No, no, I did not draft her Statement.

13 When we met at the Agora Mall in Santo Domingo, she asked

14 me about the ideas for that Statement.

15 I said, "I can give you a draft of some concepts

16 that you can work on or not."

17 But this is just a sample of some ideas. But this

18 is not what she should have said, just guidelines to be

19 used as a sample.

20 (Comments off microphone.)

21 PRESIDENT RAMÍREZ HERNÁNDEZ: Mr. Peña, please

22 continue.

23 BY MS. TAVERAS:

24 Q. Did the Ballantines ask you to approach any other

25 fact witness?

[Page 530]

1 A. No, I do not recall.

2 Q. In the role as an expert, you worked with the

3 experts from the Dominican Republic in the visit that took

4 place in 2017 for the area in which the expansion would

5 have taken place; correct?

6 A. Yes.

7 Q. So, as part of the presentation of the statements

8 in this proceeding--so in addition to assisting the

9 Ballantines with the selection and the presentation of the

10 experts³⁷ and also assisting in the visits of the experts,

11 your scope--what else was included in your scope as an

12 expert?

13 A. I was asked to conduct an assessment of the

14 documents that had been presented, and also a field

15 assessment of some aspects that had to be determined and

16 assessed in the expansion, and this was part of the work

17 that was conducted.

18 Q. The Ballantines are they paying you for your

19 testimony in this arbitration?

20 A. The Ballantines are paying me for consulting work

21 I performed.

22 Q. What does that work consist of?

36 Original in Spanish adds: "Al licenciado Sixto Inchaustegui".

37 Original in Spanish "contratación de testigos".

[Page 531]

1 A. Field information, collection, research,

2 assessment of documents submitted by the Parties;

3 confirmation that the information included in those

4 documents correspond with reality.

5 Q. And those consulting activities, do they have to

6 do with this case?

7 A. Yes, with this case.

8 Q. They only have to do with this case; right?

9 A. Yes, only with this case.

10 Q. Are you providing services to the Ballantines that

11 you're being compensated of in any other capacity?

12 A. No.

13 Q. Have you provided services to them in the past?

14 A. No.

15 Q. In your First Statement, you explain that you were

16 the municipal director of the Environment starting in 2010

17 and then until 2013; correct?

18 A. Yes.

19 Q. And that this position is within the structure of the

20 Minister of the Environment; correct?

21 A. Yes.

22 Q. And physically, this is located in the

23 municipality of Jarabacoa. That is why you're called the

24 Municipal Director?

25 A. Yes.

[Page 532]

1 Q. You were in that position uninterruptedly between

2 2010 and 2013?

3 A. No. In 2011, between June and October, I was out

4 of that position.

5 Q. At Paragraph 10 of your First Statement, and you

6 have it in your binder before you, the following: "I have

7 reviewed the four MMA letters to the Ballantines rejecting

8 their expansion permit," and then it describes the letters.

9 "Three of these letters were sent to me³⁸." The line I was

10 the local director of the MMA for Jarabacoa."

11 But you just said to us that you were not at the

12 Ministry, but you know, when seeing the witness statements

13 in spite of the fact that your statement you indicate

14 this, you were not the Municipal Director in Jarabacoa at

15 this date, 22 September 2011, when the expansion permit was

16 rejected for the first time. Is that correct?

17 A. Yes. But I must clarify that I was suspended

18 because of an administrative proceeding, but under the law,

19 I had to be reinstated. So, under the law, the

20 was that I was out of my position are legally valid for

21 the application of the administrative procedure in the D.R.

22 Q. We're talking about facts, Mr. Peña. You said

23 that you were the Municipal Director--

38 English Audio Day 2 at 06:56:11

[Page 533]

1 A. Yes, that's right.

2 Q. --between 2011 and 2013, and that you were the

3 Municipal Director at the time of the rejections.

4 But right now you're saying that you were not the

5 Municipal Director when the first letter was sent?

6 A. Yes, that's right.

7 Q. So, you're saying that there is an error in your

8 Statement?

9 A. Well, there may be an error in that case.

10 Q. In your Witness Statement, you indicated that a

11 large number of projects in Jarabacoa did not have the

12 corresponding environmental licenses; is that correct?

13 A. Yes.

14 Q. You also indicated that during your tenure, you

15 did everything possible to ensure that all projects had the

16 relevant licenses but that that was not possible; is that

17 right?

18 A. Yes, that's right.

19 Q. When you were Municipal Director, how many

20 technicians for oversight purposes had the Ministry sent to

21 the Jarabacoa division?

22 A. Two.

23 Q. Did you consider 11 technicians was not enough?

24 A. No, that was not enough.

25 Q. Mr. Peña, we were talking about your suspension.

[Page 534]

1 A. Yes.

2 Q. That suspension had to do with something related

3 to the Ballantines' case?

4 A. Are you talking about the one in 2011?

5 Q. Yes.

6 A. No. The one in 2011 had to do with a permit for

7 forest exploitation. And at the time, the Ministry thought

8 that that permit was ill-grounded. But when the action was

9 assessed, it was shown that it was justified, so they had

10 to go back on their decision to suspend.

11 Q. Was there any other suspension that we are not

12 aware of?

13 A. No, there wasn't.

14 Q. Well, I'm asking you because we did not have any

15 knowledge of this suspension of 2011, so it's a fair

16 question.

17 Anyways, if there is a project that may impact the

18 environment, the law establishes that a promoter, before

19 starting the project, must obtain the relevant

20 environmental license; is that correct?

21 A. Yes, that's correct.

22 Q. That environmental permit can only be issued if

23 after an environmental assessment study--

24 A. Yes.

25 Q. --the Ministry states that it's valid.

[Page 535]

1 Please wait until I finish my questions for

2 transcription purposes.

3 When you prepared for your testimony in this

4 arbitration, you indicated that you looked at this--one of

5 the reports prepared by the MMA in connection with the

6 expansion project of JDD; correct?

7 A. Yes, that's correct.

8 Q. I'm referring specifically to the report presented

9 by Socrates Nivar³⁹. He was in charge of the technical

10 assistance of the Ministry of 21 March 2011. Could you

11 please look at that document. It's in your binder under

12 R-4.

13 In your Statement, you indicated that you are

14 criticizing the content and quality of this report?

15 A. Yes, that's right.

16 2. At Paragraph 26 of your First Report, you say that

17 the report is so deficient that you don't think that a real

18 assessment took place; is that true?

19 A. Yes, that's correct.

20 Q. You said this because you understand that a

21 correct assessment of the basics of a project must be based

22 on technical and scientific measures and also on

23 assessments; is that correct?

39 English Audio Day 2 at 07:00:56

[Page 536]

1 A. Yes.

2 Q. And that that needs to be conducted by a

3 multidisciplinary team; is that correct?

4 A. Yes.

5 Q. Specifically, you say that Mr. Yarull⁴⁰ should have

6 submitted evidence in connection with the characteristics

7 of the soil, altitude and slopes. Is that true? This is

8 Paragraph 25--at Paragraph 25 on your statement.

9 A. Yes.

10 Q. Do you understand that these aspects are important

11 when conducting an environmental evaluation of a mountain

12 project?

13 A. Yes, that's right.

14 Q. In Paragraph 27 of your Statement, you criticize

15 the fact that Mr. Nivar's⁴¹ report does not define the

16 geomorphologic impacts on the land, impacts on the soil,

17 impacts on the flora and fauna, and impacts on the water

18 runoff and underground water that were brought about by

19 this project. Is that right?

20 A. Yes, that's correct.

21 Q. The assessment of these impacts is important when

22 conducting an environmental assessment; is that correct?

40 Original in Spanish: "Nivar".

41 English Audio Day 2 at 07:02:58

[Page 537]

1 A. Yes.

2 Q. Did you read the First Witness Statement of

3 Zacarías Navarro?

4 A. I think so.

5 Q. Mr. Navarro explains in his statement that when

6 the Ministry assesses mountain projects, it has to take

7 into account several factors: altitude, slope, the amount

8 of rain that falls, the kind of soil, and water issues. At

9 Paragraph 6 of your second statement

10 MR. BALDWIN: I'm sorry, Mr. President. I hate to

11 object, but she's talking about--she's--Ms. Taveras is

12 talking about what's in the Navarro report. We haven't

13 been pointed to it. The witness hasn't seen it. She's

14 just testifying as to her characterization of what's in it.

15 Could we look at it is as we're talking about it

16 or allow the witness to. If the witness is going to be

17 asked a question about it, I think the witness should be

18 allowed to see that portion of Mr. Navarro's report.

19 PRESIDENT RAMÍREZ HERNÁNDEZ: The way I understand

20 it, Ms. Taveras was taking the witness through the

21 paragraphs. So I don't see anything--maybe if you can go

22 slower.

23 MS. TAVERAS: Yeah, I could go slower.

24 PRESIDENT RAMÍREZ HERNÁNDEZ: I think you were

25 taking--

[Page 538]

1 MS. TAVERAS: He can look at the Report. But he

2 did say he read it, so this is not unknown to him.

3 Kaila, can you please--thank you.

4 THE WITNESS: Very well.

5 BY MS. TAVERAS:

6 Q. Okay. I was saying that Mr. Navarro explained in

7 his statement that when the Ministry assesses mountain

8 projects, it has to take into account several factors:

9 altitude, the slope, rain, et cetera.

10 At Paragraph 6 of your second statement, you said

11 that before looking at the Statement of Defense of the

12 Dominican Republic, you never heard of factors like

13 altitude and others had to be considered at the time when

14 assessing lands with a slope?

15 A. Can I read it? "I have read the statements of the

16 D.R., that they considered things like altitude and other

17 factors when deciding whether to grant a permit for land

18 that has slopes. Seeing that in the Statement of Defense

19 was the first time I have ever heard of that. I never

20 heard before these alleged considerations.

21 I have not seen any documents that advised and

22 inspectors and technical persons to consider all these

23 additional elements while examining the slope issue."

24 What I was explaining in that case is that the

25 issue of the slope and altitude has never been considered

[Page 539]

1 as still-related issues. There's no directly established

2 connection between these two factors.

3 Q. But you just said that it's important to assess

4 the altitude, soil, slope characteristics and to consider

5 the impacts on soil, flora and fauna, water bodies. So

6 your answer seems inconsistent. Because we're not talking

7 about assessing slopes here. We're talking here about

8 assessing projects; right?

9 A. My answer is not inconsistent. I can have a piece

10 of land with a 7⁴²-percent slope at 300 meters over sea

11 level, and I can have a land at 900 meters over the sea

12 level with a 20-percent slope. And those two factors, the

13 relation between those two factors are not necessarily the

14 ones that are going to be used to determine the approval or

15 not of a project.

16 0. But Mr. Navarro was not talking about only two

17 factors. But you say here yourself, you said, "Altitude

18 and other factors"; right?

19 A. Yes, other factors are considered.

20 Q. Please go to Tab R-236.

21 MS. TAVERAS: Can we show it on the screen,

22 please. Rather, it's R-326.

23 BY MS. TAVERAS:

42 Original in Spanish: "70".

[Page 540]

1 Q. This is a form from the municipal office of

2 Jarabacoa; correct?

3 A. Yes.

4 Q. This is a printed form that is to be completed by

5 hand; correct?

6 A. Yes.

7 0. And this form shows the findings of the

8 technicians that were part of visits when requests could

9 affect soils and waters were put forth; correct?

10 A. Yes.

11 Q. Had you seen this report before?

12 A. I designed this form.

13 Q. Here we have a date, 1 March 2011. And this is

14 the date on which the municipal office received this

15 document; correct?

16 A. Yes.

17 0. And the inspection date 6 April 2011 is the date

18 on which the visit was done--made by the technicians;

19 correct?

20 A. Yes.

21 Q. You were the technical director of Jarabacoa on

22 both dates; correct?

23 A. Yes.

24 0. This form would be presented to you so that you

25 could determine whether an authorization is to be granted

[Page 541]

1 or not?

2 A. No. That form was used to collect field data when

3 an owner requested a permit.

4 Q. Okay. Exactly. As a municipal director, you were

5 submitted this form and then on the basis of the findings,

6 you would decide whether the authorization was to be

7 granted or not granted?

8 A. Well, it was the technical team of the office, not

9 me.

10 Q. Yes. But you were the technical director of the

11 municipal office; right?

12 A. Yes.

13 Q. Can you show, please, the first of these forms.

14 This refers to Lot 67 of JDD; correct?

15 A. Yes.

16 Q. This has to do with cuts in order to build a road

17 50 meters long and 4 meters wide; correct?

18 A. Yes.

19 Q. You agree that JDD is located in slopey land;

20 correct?

21 A. Yes.

22 Q. Well, you say this in your First Statement. When

23 you say that JDD is a land that has slopes of over

24 60 percent; correct?

25 A. Yes.

[Page 542]

1 Q. If you look at six, you're going to see that it

2 refers to a general description of the area, and it looks

3 at soil and climate factors that take into account when

4 requesting a permit. 6.1.1, height. 6.1.2, annual

5 rainfall. 6.1.3, annual mean temperature⁴³. 6.1.4, hold

6 ridge life zone. 6.1.5, type of soil. 6.1.6, topography.

7 6.1.7, water sources.

8 Would you agree with me that in order to assess

9 lands with a slope, the factors I have just

10 cited are important to sign this form?

11 A. Yes, they are important.

12 Q. I would like to understand how involved you were

13 in the JDD evaluation process. You were not part of the

14 technical visit to assess⁴⁴ the expansion project in

15 February 2011?

16 A. No.

17 Q. You were not involved in the visit that took place

18 on 17^th March 2011; correct?

19 A. I was not involved.

20 Q. You were not involved in the third technical visit

21 on 11 January 2012; correct?

22 A. Yes.

43 English Audio Day 2 at 7:12:37

44 English Audio Day 2 at 7:12:37

45 Original in Spanish: "10".

[Page 543]

1 A. Yes.

2 Q. The field visit on 11 January 2012?

3 A. Yes.

4 Q. I do not recall, no.

5 A. I do not recall.

6 Q. I can show the field visit report and your name

7 is not there.

8 A. I do not recall.

9 Q. You were not involved in the fourth and fifth

10 visit by the Ministry in August and September 2013;

11 correct?

12 A. Well, I had been suspended.

13 Q. You had been suspended for a second time?

14 A. Yes, that's right.

15 Q. Two different ministers; right?

16 A. Yes, that's correct.

17 Q. So you were not involved in any of the technical

18 visits made by the Ministry to assess the JDD expansion

19 project; correct?

20 A. I was not.

21 ARBITRATOR VINUEZA: When he says no, was he

22 there? Was he there?

23 THE WITNESS: No, I was not there.

24 BY MS. TAVERAS:

25 Q. Okay. You were not present in any of the visits?

[Page 544]

1 You were not present in any of the visits. You say it,

2 please. For the record, please.

3 A. No, I was not present in any of the visits.

4 Q. You were not present in the Technical Evaluation

5 Committee in 2011--May 2011?

6 A. I was not.

7 Q. Would you like to look at your First Statement

8 when you say that you were not present during the meeting

9 of the Technical Evaluation Committee of 18 May 2011?

10 A. Oh, yes, yes, you're right. I was not there

11 because the provincial director was at the meeting,

12 Mr. Franklin Bautista.

13 Q. So, you would agree with me, now that you're

14 saying this to me, that the provincial director is the one

15 that goes to the Technical Evaluation Committee visits?

16 A. Yes, I agree, but the thing is that it is not

17 pertinent, and I don't know why it would deem it pertinent,

18 they called on the municipal director or the provincial

19 director.

20 Q. But the regulations at the time only talk about

21 the provincial⁴⁵ director; correct?

22 A. Yes, but that was a decision by the Ministry to

23 call on one or the other of those two officials.

45 English Audio Day 2 at 07:16:38

[Page 545]

1 Q. In your First Statement, you said that--Paragraph

2 11 of your First Statement, that the Ministry excluded

3 local personnel in connection with the granting of this

4 license?

5 A. Yes.

6 Q. But you're saying now that the provincial director

7 was there? And by regulation, the provincial director must

8 be there?

9 A. Yes. But this was a customary rule. The Ministry

10 went against that kind of procedure.

11 Q. The question was--

12 A. Excuse me. The question was that you are admitting now

13 that--excuse me--the Technical Evaluation Committee meeting

14 of 18 May 2011, the person that had to be called to attend

15 was the provincial director, but you were not called to

16 attend that meeting, yes or no?

17 A. Yes.

18 PRESIDENT RAMÍREZ HERNÁNDEZ: But, Mr. Peña, when

19 you mentioned that by custom--you said that rule was

20 violated, what are you referring to when you say that?

21 THE WITNESS: The MMA, and I don't know the

22 reasons why they acted that way, when the MMA thought that

46 Original in Spanish adds: "que contrariamente a todas las normas".

[Page 546]

1 for a certain procedure--well, sometimes they called on the

2 provincial director and sometimes for the assessment of

3 another project, they called on the municipal director.

4 They changed. And they called them one or the other. I

5 don't know the reasons why.

6 PRESIDENT RAMÍREZ HERNÁNDEZ: Was there any legal

7 basis for this; that is, what the lawyer was asking? This

8 was a--simply an issue of practice by the Ministry?

9 THE WITNESS: Yes, this was just a matter of

10 practice by the Ministry.

11 BY MS. TAVERAS:

12 Q. You were not called to attend the meeting of 18

13 May 2011, but you were called to participate at the meeting

14 in February 2012?

15 A. Yes. I think that's right.

16 0. So it's not that you were not being allowed to be

17 part of the meetings of the committee. But in May, the

18 provincial director went, and then in the next year in

19 February, you attended the meeting; is that correct?

20 A. Well, that depends on when--what you mean by that

21 we're trying to hide information.

22 Q. In your statement, you say that "contrary to our

23 rules, the Ministry excluded local personnel from this

24 meeting."

25 You answered that the provisional director was

[Page 547]

1 included in the first meeting. When you're saying here

2 "excluded," it suggests that they didn't want you to be

3 present. But you were present at one of the committee

4 meetings where discussions were had in connection with the

5 projects?

6 A. Yes, but not in connection with the assessment of

7 the fieldwork.

8 Q. In your First Witness Statement, you said that at

9 those meetings--

10 A. What paragraph?

11 2. Paragraph 11. We're talking about the TEC meeting

12 of February 2012. You said that no technical issues were

13 discussed at that meeting.

14 A. You're making reference to that right now? At

15 that meeting, the opinion was asked of the person

16 coordinating the field commission and no discussion was had

17 of the information. A decision was made in connection with

18 what he said. That's what I'm making reference to there.

19 Q. In your First Statement, you said that the opinion

20 of Zacarías Navarro was the only opinion that was asked;

21 correct?

22 A. Yes, that's correct.

23 Q. And that that statement was denied by Mr. Navarro

24 in his First Statement. And Mr. Navarro also explained at

25 Paragraph 15 of his First Statement, when he made reference

[Page 548]

1 to the documents, including the files of the Ministry

2 related to JDD.

3 And if you look at Mr. Navarro's statement before

4 you, Paragraph 15 says that "the minutes of the meeting on

5 February 22nd, 2012, Mr. Peña said that he participated in

6 that meeting. And he confirms that in addition to the

7 reports presented, the decisions made in connection with

8 the reservation request had to do with the opinions of the

9 provisional director, D.P."

10 He was represented by Mr. Peña, according to his

11 statements and his statements and the statements of Ramon

12 Villaman, who was then a technician from the Vice Ministry

13 of Soils and Water, and Mr. Mateo, the Director of

14 Biodiversity of the Ministry of Protected Areas and

15 Biodiversity.

16 In your Second Witness Statement, you said that

17 perhaps you were wrong in connection with the participation

18 of Mr. Navarro at that meeting.

19 Is it possible that you're also misremembering the

20 discussions held there?

21 A. I am sure about the discussions held there.

22 Perhaps I was wrong in connection with the participation of

23 Mr. Navarro. Because at that date, many members of the

24 personnel of the MMA had changed positions. We had new

25 staff members coming in. Some people have moved to other

[Page 549]

1 offices. And since we didn't have any idea as to the fact

2 that we were to come to a proceeding such as this, we

3 weren't really taking down each one of the events in a

4 situation like that because we thought that everything was

5 done correctly.

6 Perhaps I made a mistake when I said that

7 Mr. Navarro was there. But not as to what happened at the

8 meeting.

9 Q. So, you're saying, then, when the minutes were

10 drawn up and they make reference to comments made by D.P.,

11 Mr. Navarro said that perhaps it's you representing the

12 provincial director. This does not make reference to

13 comments that you made?

14 A. No.

15 Q. In your First Statement, you indicated that Aloma

16 Mountain is between--

17 PRESIDENT RAMÍREZ HERNÁNDEZ: What paragraph are

18 you referring to?

19 MS. TAVERAS: I am referring to Paragraph 8.

20 BY MS. TAVERAS:

21 Q. In your First Witness Statement, you are saying

22 that Aloma Mountain is between the projects that are

23 developed and that are being operated--or one of the

24 projects that are being operated and developed in Jarabacoa

25 without the permits. When you are saying that the project

[Page 550]

1 is developed and operated in the case of Aloma, are you

2 referring to the original real estate project or is it a

3 different one?

4 A. There is only one Aloma Mountain project.

5 Q. There you are stating not that the Aloma Mountain

6 project is being developed, but it is already developed?

7 A. In our opinion, operation and development is every

8 single activity that takes place from the very beginning

9 of the project, the first move up to the completion

10 of the construction. And in Aloma Mountain, roads were

11 built, the power grid posts were laid out, installed, and

12 also there was subdivision taking place, and there were

13 movements made.

14 Q. So that is--so you're not referring to the

15 commercial operation, are you?

16 A. No, there was a proposal to sell. So that is a

17 commercial operation.

18 Q. But you just said that you are referring to

19 the--any kind of involvement with the environment, isn't

20 that correct?

21 A. Yes.

22 Q. You just stated that you--that the streets had

23 been laid out and the subdivision had taken place. But the

24 document in your binder labeled R-340 shows some

[Page 551]

1 comparative maps⁴⁶ for Aloma between 2002 and 2017. There

2 are 40 areas that are shown in those maps. And there is no

3 development within those maps.

4 We can see the layout of the streets between 2011

5 and 2017, and there is not much of a difference.

6 Q. So there is a difference?

7 Q. Do you see any real estate development?

8 A. I said before that in our opinion, from the point

9 of view of the environment, development goes from the

10 movement of the first stone to the construction of the

11 buildings and also the operation of the buildings.

12 So there is development in Aloma Mountain because

13 roads have been built, vegetation has been moved, so there

14 is a development.

15 Q. The question was whether there was any real estate

16 development. Were new houses being built in Aloma?

17 A. There is a house that belongs to the owner of the

18 development.

19 Q. And that house was there before 2002; correct?

20 A. Well, I don't know how old that building is

21 because I don't know when that was built.

22 Q. Could we please look at R-48 in your binder. Page

46 Original in Spanish: "And the maps here in this area are for 2002, '06, '11 and '17".

47 Displaced text.

[Page 552]

1 4 in this document contains a document dated October 4th,

2 2012, that was sent to you by technicians from your own

3 office in connection with a violation in the Jamaca

4 project; is that correct?

5 A. Yes, it is.

6 Q. Do you remember that violation, what that was

7 about?

8 A. (No audible answer.)

9 Q. Would you please look at Paragraph 3 on Page 5.

10 Yes, I'm looking at it. I will read it for the

11 rest of the attendees. "The infraction of violation

12 consists of the opening of an access road approximately

13 7⁴⁷ meters in length, 4 meters in width, and between 1

14 and 5 meters in depth. It borders a ravine, and its middle

15 part was cut of 10 to 10 meters.

16 Likewise, it was noted that a large part of the

17 soil that was cut fell into the water of the aforementioned

18 water source, and the rest is sliding downhill along the

19 same road."

20 Q. Your technicians opined that it was preposterous

21 for Mr. Ballantine to have violated the rules like this

22 because there has been a refusal or a denial of his intent

23 to extend the project; is that correct?

47 Original in Spanish: "700".

[Page 553]

1 A. Yes, it is.

2 Q. This is stated at Paragraph 2. And this is a road

3 that was built in Jamaca de Dios after their permit had

4 been denied towards the south of the property, that is to

5 say in the upper portion of the mountain?

6 Q. So contrary to the position that the technicians

7 put forward, who said that it was an intentional or

8 malicious violation when they issued this fine to the

9 Minister, you consider sort of--you're requesting some

10 sort of consideration for Jamaca when imposing--at the time

11 of the fine. And even though a street that was about

12 7⁴⁸ meters long and that a--and that it was about 5 to

13 7⁴⁸ meters wide, a fine of only $1,000 pesos was determined

14 established for Jamaca; is that correct?

15 A. Yes.

16 Q. That would have been $2,500⁴⁹ back then; correct?

17 A. Yes.

18 Q. You as the municipal director charged with the

19 responsibility to act on behalf of local individuals so

20 that reductions be assessed to the fines imposed due to a

21 violation of the environmental law?

48 Original in Spanish: "8 metros".

49 Original in Spanish: "$1,500".

[Page 554]

1 A. No, it's not part of his responsibilities.

2 Q. You indicated that Jarabacoa Mountain Garden was

3 approved because of political connections; is that correct?

4 A. Yes, it is.

5 Q. You said that this was communicated to you by

6 Edgar Mejía who started to work with the Ministry in

7 obtaining the approval?

8 A. That is correct.

9 Q. In connection with Mr.--did you contact

10 Mr. Mejía to be a witness in this case?

11 A. No, I did not.

12 Q. So you did not contact Mr. Mejía because you

13 thought that he would not be corroborating your story;

14 correct?

15 A. No. I did not ask him to participate because I

16 understood that Mr. Mejía, because of his political ties,

17 would not accept to confirm that version that is not

18 favorable for him.

19 Q. But this is a very serious accusation. You are

20 saying that the Ministry technicians approved a project

21 that they knew was not feasible because of political favor.

22 So you think that given the seriousness of the

23 accusation, it was important to verify it?

24 A. It is a serious, severe accusation, and I am

25 ratifying this because of my experience due to that

[Page 555]

1 problem. But I did not ask Mr. Mejía to participate

2 because I am certain that to protect his own interests and

3 the interests of his political followers, he would have

4 not accepted to participate in this process.

5 PRESIDENT RAMÍREZ HERNÁNDEZ: If you allow me,

6 I would like to know how the violation--I would like

7 to understand the criteria used when a violation of this

8 type occurs. Because you received a report indicating

9 there was a violation. Is it you, your office, that

10 determine the violation or what are the criteria used to

11 impose the fine? Or to follow a manual, a guideline?

12 THE WITNESS: Those violations are not decided at

13 the level of the local directorate, but they are decided at

14 the headquarters of the Ministry. Then⁵⁰ we sent the report

15 and the Ministry decided to impose that fine.

16 PRESIDENT RAMÍREZ HERNÁNDEZ: But to be clear, you

17 recommended that fine?

18 THE WITNESS: No, we do not make recommendations

19 of that sort.

20 PRESIDENT RAMÍREZ HERNÁNDEZ: In this case?

21 THE WITNESS: We do not recommend in this case or

22 in any other case. The local director does not recommend

23 any fines. We submit the reports, and the national

50 Original in Spanish: "Nosotros remitimos el informe".

[Page 556]

1 directorate, the Ministry at headquarters, is the one that

2 decides on the fine.

3 You did not decide on 51,000 pesos to be imposed to

4 Michael or whether it was going to be a million pesos. It

5 was not my decision. It was the decision of the

6 technicians with the Ministry based on the reports they

7 received.

8 BY MS. TAVERAS:

9 Q. So you did not decide to send that violation report

10 as a violation by Mr. Ballantine rather than a violation by

11 Jamaca de Dios; is that correct?

12 A. I do not recall why we established that

13 difference.

14 Q. Wouldn't it be because there is a formula under

15 the law that applies violations based on the equity that

16 the person has, and that would have been a higher

17 than the fine that Mr. Ballantine had to pay as a physical

18 person?

19 I do not believe that was the case because I don't

20 think there was such a differentiation back then. But I

21 don't know. I cannot be specific why we decided not to do

22 it with Jamaca de Dios rather than with Michael.

23 PRESIDENT RAMÍREZ HERNÁNDEZ: What law are you

24 referring to?

25 MS. TAVERAS: I am referring to Article 167 of the

[Page 557]

1 environmental law.

2 BY MS. TAVERAS:

3 Q. So let's go back to your criticism of Mr. Nivar⁵¹.

4 That was R-4, the one we were referring to before.

5 In your First Witness Statement, you made two

6 specific criticisms that I would like to explore more.

7 At Paragraph 32 of your First Statement, you say⁵²,

8 in connection with the report by Mr. Nivar⁵³-- and I am going

9 to read it so you can look for it in your own binder.

10 The Report indicates that--the Report points out

11 "that on the land, no type of protection of the work was

12 seen for the access roads or at the villas, which

13 according to the report, will lead to landslides."

14 And later on the paragraph ends with the

15 statement, "That there has been a clumsy distortion of

16 reality, because there are no roads nor exist at the

17 Jamaca de Dios project."

18 What are you referring to? Are you denying that

19 there were any landslides or are you denying that there

20 was evidence, or are you stating that there was no evidence

21 of any landslides?

22 A. What I am stating at that paragraph is that

51 English Audio Day 2 at 07:30:48

52 English Audio Day 2 at 07:31:08

53 English Audio Day 2 at 07:36:48

54 English Audio Day 2 at 07:37:08

[Page 558]

1 Mr. Nivar⁵⁶ said that there was no evidence of protection.

2 But there was evidence of protection with vegetal cover,⁵⁷

3 and there is were also the rows of culverts for the

4 protection from the runoff. And there was--there are

5 elements, but he said that none--no protection was

6 implemented. And that is what I am referring to.

7 Q. But even with that protection, you would admit

8 that there were landslides in Jamaca de Dios?

9 A. All of the mountain projects have those problems.

10 So that's the reason why there is a management--an

11 environmental management program that includes protections

12 as well as mitigation of that type of event.

13 Q. At Paragraph 31 of your First Statement, you state

14 that the report--and this is in connection with the Report

15 at R-4⁵⁸. The report states that "the project is

16 constructed⁵⁹ with inadequate material and some of the

17 buildings have up to three levels made of concrete blocks

18 and cement."

19 And later on you indicated that the Report does

20 not provide any specific evidence of any of these claims.

56 English Audio Day 2 at 07:38:10

57 English Audio Day 2 at 07:38:26

58 English Audio Day 2 at 07:39:13

59 English Audio Day 2 at 07:39:18

[Page 559]

1 I would like to understand what you are referring

2 to with that comment.

3 Are you denying that the buildings exist or are

4 you criticizing that there is no evidence attached to the

5 report to prove their existence?

6 A. I am questioning that reports were not added

7 because there is no document attached to the Report that

8 determines the type and the quality of the material that he

9 considers inadequate.

10 2. So it has to do with the methodology?

11 A. Yes, it could have to do--it could be related to

12 methodology.

13 Q. You have presented two reports in this proceeding;

14 correct?

15 A. Yes.

16 2. And there, you provide prolific information that

17 has to do with the loan, with the agricultural bank, and

18 also your observations and the topographical features of a

19 dozen projects. And today, we saw how in your presentation

20 you referred to projects such as La Montaña, Jarabacoa

21 Mountain Garden, and other projects.

22 My question to you is whether you presented any

23 exhibit or attachment to those reports?

24 A. Yes, I did include exhibits.

25 Q. But those exhibits were not included when they

[Page 560]

1 were submitted to the Tribunal. Could you explain why?

2 A. No, because I was not in charge of handling those

3 reports or--I don't know why all the exhibits were not

4 attached when they were submitted, but they did include

5 exhibits.

6 Some reports also indicate Exhibit X. Exhibit X

7 because, for example, they were part of those reports.

8 Q. Would you please state where in your First Report

9 you are referring to an exhibit.

10 A. (Reviewing documents.)

11 The answer is no.

12 Q. Then you confirm that⁶⁰ in your First Report,

13 you're not referring to any exhibit to support the

14 statements in your report?

15 A. Yes, that is correct.

16 MS. TAVERAS: I have no further questions for you,

17 Mr. Peña. Thank you very much for the time.

18 But⁶¹ to answer the question by the president, I

19 would like to refer you to C-7, Page 3. That is the

20 exhibit that shows the fine imposed to Jamaca de Dios in

21 2009, and that fine applies Article 167 of Law 64-00.

22 Thank you.

60 English Audio Day 2 at 07:44:20

61 Word not found in original in Spanish.

[Page 561]

1 PRESIDENT RAMÍREZ HERNÁNDEZ: Redirect?

2 MR. BALDWIN: We have no questions, Mr. President.

3 PRESIDENT RAMÍREZ HERNÁNDEZ: Very well. Thank

4 you very much, Mr. Peña.

5 THE WITNESS: Thank you.

6 PRESIDENT RAMÍREZ HERNÁNDEZ: I apologize,

7 Mr. Peña. I need to consult with my co-arbitrators whether

8 they have any questions. I apologize.

9 Thank you, Mr. Peña.

10 (Witness steps down.)

11 PRESIDENT RAMÍREZ HERNÁNDEZ: I'm looking at

12 Respondent. So what's the plan?

13 MR. Di ROSA: Mr. Chairman, I think we should make

14 a push with the next witness. And, you know, with any

15 luck, maybe we get through it, and we'll see what happens.

16 PRESIDENT RAMÍREZ HERNÁNDEZ: Yeah.

17 MR. Di ROSA: I mean, if it has to be like five

18 minutes more, can you hold on, or 10? Or is it really a

19 hard stop at 6:30?

20 PRESIDENT RAMÍREZ HERNÁNDEZ: No. I think we can

21 make it 6:40, 6:35. No, it has to be--

22 MR. BALDWIN: I'm sorry. I would like to--the

23 next person is Eric Kay who, likewise, has a report--or

24 likewise has a presentation, and I expect that will take

25 about 20 minutes. So that might take us to the end of 6:30

[Page 562]

1 just with that part of that process. So I'd say it's up to

2 Respondent whether they want that started.

3 MR. Di ROSA: That's fine. Maybe then he presents

4 and we end there. I don't know that it would make sense to

5 start the cross-examination immediately after.

6 PRESIDENT RAMÍREZ HERNÁNDEZ: I would rather have

7 it in one go, the presentation as well as the questions.

8 So would the Parties be agreeable to waking up a little bit

9 earlier? Maybe we could start--certainly, the Tribunal is.

10 I'm looking to Mr. Di Rosa.

11 MR. Di ROSA: I think counsel agreed that we would

12 not do that.

13 PRESIDENT RAMÍREZ HERNÁNDEZ: Okay. So maybe we

14 can start earlier, and my proposal will be 8:30.

15 MR. Di ROSA: Okay.

16 PRESIDENT RAMÍREZ HERNÁNDEZ: Well, let's be early

17 risers. I teach at 7:00, so don't complain. Okay. So we

18 meet 8:30 tomorrow.

19 MR. BALDWIN: Yes. Thank you, Mr. Chairman.

20 MR. Di ROSA: Thank you, Mr. President.

21 (Whereupon, at 5:54 p.m., the Hearing was

22 adjourned until 8:30 a.m. the following day.)

[Page 563]

CERTIFICATE OF REPORTER

I, Margie Dauster, RMR-CRR, Court

Reporter, do hereby certify that the foregoing

proceedings were stenographically recorded by me

and thereafter reduced to typewritten form by

computer-assisted transcription under my direction

and supervision; and that the foregoing transcript

is a true and accurate record of the proceedings.

I further certify that I am neither

counsel for, related to, nor employed by any of

the parties to this action in this proceeding, nor

financially or otherwise interested in the outcome

of this litigation.

Signature

MARGIE R. DAUSTER