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TEAM XUE

INTERNATIONAL CHAMBER OF COMMERCE


UNDER THE ICC RULES OF ARBITRATION 2012 ADMINISTERED BY
THE ICC INTERNATIONAL COURT OF ARBITRATION

PETER EXPLOSIVE
Claimant
v.

REPUBLIC OF OCEANIA
Respondent
ICC ARBITRATION CASE NO. 28000/AC

MEMORIAL FOR RESPONDENT

TABLE OF CONTENTS
List of Abbreviations ................................................................................................. iii
Index of Authorities ..................................................................................................... v
List of Resolutions, Statutes and Treaties.................................................................xi
List of Arbitral Decisions ........................................................................................ xiii
List of International Court Cases ......................................................................... xviii
Statement of Facts ........................................................................................................ 1
Summary Of Arguments ............................................................................................. 3
Arguments .................................................................................................................... 4
Arguments on Jurisdiction ...................................................................................... 4
Claimant is not an investor pursuant to Article 1(2) of the Euroasia BIT ....... 4
A. Claimant is not a national under Article 1(2)(a) of the Euroasia BIT. ........ 4
Claimant is not a national under Article 1(2)(a) of the Euroasia BIT
under national law. ......................................................................................... 4
i. The Claimant has insufficient evidence to prove his Euroasian
nationality. ................................................................................................. 5
ii. In arguendo, the Claimants dominant nationality is Eastasian. ......... 6
Claimant is not a national under Article 1(2)(a) of the Euroasia BIT
under international Law. ................................................................................ 7
i. The transfer was effected through an unlawful use of force. ............... 8
ii. The transfer of territory is an exercise of Subjugation. ....................... 9
iii. The right of self-determination does not permit such a transfer. ..... 10
The Claimants non-compliance with the pre-arbitral steps in Article 9 of the
Euroasia BIT constitutes a bar to this Tribunals jurisdiction ............................. 10
A. The pre-arbitral requirements in Article 9 are mandatory ........................ 11
B. The Claimant cannot rely on the futility exception ................................... 12
The Claimant may not use Article 3 of the Euroasia BIT to rely on Article 8
of the Eastasia BIT ............................................................................................... 13
A. There is no consent to international arbitration......................................... 13
B. In arguendo, The extension of the MFN clause to dispute resolution
violates the ejusdem generis rule ..................................................................... 14

C. The extension of the MFN clause to dispute resolution violates the


principle of effet utile ....................................................................................... 15
D. Extending the MFN clause to dispute resolution violates public policy
considerations of the Respondent .................................................................... 15
Arguments on Merits ............................................................................................. 18
The Claimant is not a protected investor ....................................................... 18
A. For an investment to be accorded protection under the Eastasia BIT, it
should be made in accordance to the host state laws ....................................... 18
B. The Tribunal must identify that the burden of proof has been satisfied ... 19
C. The Claimant cannot rely on the principle of estoppel ............................. 20
Respondent Did Not Expropriate The Claimants Investment ..................... 21
A. The investment was not directly or indirectly expropriated...................... 21
The investment was not directly expropriated. ..................................... 21
The investment was not indirectly expropriated. .................................. 22
B. The effect of the Executive Order falls under the public purpose
exception provided in Article 3 of the Eastasia BIT. ....................................... 25
In arguendo the Executive Order does constitute expropriation under
Article 3, the actions of the Respondent are valid under Article 9. ............. 26
C. The Respondent was simply exercising its sovereign powers with the view
of maintaining international peace and security. ............................................. 27
The act of the Respondent is within its police powers. ......................... 27
There is a presumption of validity of a regulatory measure. ................. 29
The Claimant was responsible for the damages caused to his investments. 30
A. The Executive Order falls under the ambit of Article 9 of the Eastasia BIT
30
B. The Executive Order and its impact are proximate ................................... 31
C. The Claimants investments were accorded Minimum Standards of
Treatment ......................................................................................................... 32
Request For Relief...................................................................................................... 34

ii

LIST OF ABBREVIATIONS
ABBREVIATION

FULL REFERENCE

Paragraph

Paragraphs

ARSIWA

Articles on Responsibility of States for


Internationally Wrongful Acts

ART. /ARTS.

Article/Articles

BIT

Bilateral Investment Treaty

CERD

Committee on Elimination of Racial


Discrimination
Agreement between the Republic of

EASTASIA BIT

Oceania and the Republic of Eastasia for


the Promotion and Reciprocal Protection
of Investments
EO

Executive Order

EUROASIA-BIT

Agreement between the Republic of


Oceania and the Republic of Euroasia for
the Promotion and Reciprocal Protection
of Investments

i.e.

Id est (that is)

ICJ

International Court of Justice

ICSID

International Centre for Settlement Of


Investment Disputes

ID .

Idem

IEEP

International Emergency Economic


Powers Act 1992

ILC

International Law Commission

LON

League of Nations

LTD.

Limited

MFN

Most-Favoured-Nation

NAFTA

North American Free Trade Agreement

iii

National Environment Authority of

NEA

Oceania
No.

Number

P/PP

Page/ Pages

PO

Procedural Order

Question

UN

United Nations

UNCITRAL

United Nations Commission on


International Trade Law

Uncontested Facts

Statement of Uncontested Facts

UNCTAD

United Nations Conference on Trade and


Development

v.

Versus

VCLT

Vienna Convention on the Law of


Treaties
Vienna Convention on Succession of

VCSST

States in respect of Treaties


Yearbook of the International Law

YBILC

Commission

iv

INDEX OF AUTHORITIES
ARTICLES
SHORT REFERENCE

FULL CITATION

Acconci

Pia Acconci
Most-Favoured-Nation Treatment
in Oxford Handbook of International
Investment Law (2008).
G. C. Christie

Christie

What Constitutes a Taking of Property


Under International Law?
In British Yearbook of International
Law (1962).
ICSID Review

Fortier/Drymer

Y. Fortier & S. L. Drymer


International Expropriation in the Law
of International Investment: I Know It
When I See It, or Caveat Investor
In Foreign Investment Law Journal
(2004).
R. Geiger

Geiger

Regulatory Expropriations in
International Investment Law: Lessons
from the Multilateral Agreement on
Investment
In NYU Environmental Law Journal
(2002).
Todd J. Grierson-Weiler & Ian A. Laird

Grierson-Weiler/Laird

Standards of Treatment
In Oxford Handbook of International
Investment Law (2008).
Ori J. Herstein

Herstein

A Normative Theory of the Clean


Hands Defense

In Cornell Law Faculty Publication


(2011).
ICSID Report

ICSID Report

ICSID: Salini Costruttori S.P.A. and


Italstrade S.P.A. v. Kingdom of
Morocco (Decision on Jurisdiction)
42 ILM 609 (2003).
ICSID Review

ICSID Review

In the matter of arbitration between


AAPL v. Sri Lanka Case No
ARB/87/3
In Foreign Investment Law Journal
(1990).
Thomas Waelde & Abba Kolo

Kolo/Waelde

Environmental Regulation, Investment


Protection and Regulatory Taking in
International Law
In International and Comparative Law
Quarterly (2001).
Peter T Muchlinski

Muchlinski

Trends in International Investment


Agreements: Balancing Investor Rights
and the Right to Regulate; The Issue of
National Security
In Yearbook on International
Investment Law (2009).
ICSID Review

Newcombe

Andrew Newcombe
The Boundaries of Regulatory
Expropriation in International Law
In Foreign Investment Law Journal
(2005).

vi

August Reinisch

Reinisch

Expropriation
In Oxford Handbook of International
Investment Law (2008).
B.H. Weston

Weston

Constructive Takings Under


International Law: A Modest Foray
Into the Problem of Creeping
Expropriation
In Virginia Journal of International
Law (1976).
BOOKS
SHORT REFERENCE

FULL CITATION

Aghahosseini

Mohsen Aghahosseini
Claims of Dual Nationals and the
Development of Customary
International Law (2007).

Blacks Law

Bryan A. Garner
Blacks Law Dictionary (2004).
Gary Born

Born

International Commercial Arbitration


(2014).
Ian Brownlie

Brownlie (I)

Principles of Public International Law


(2008).
Ian Brownlie

Brownlie (II)

Principles of Public International Law


(2003).
Rudolf Dolzer & Christoph Schreuer

Dolzer/Schreuer

Principles of International Investment


Law (2012).
Zachary Douglas

Douglas

The International Law of Investment

vii

Claims (2012).
Edward Helgeson

Helgeson

Iran-U.S. Claims Tribunal Reports


(1994).
Robert Yewdall Jennings

Jennings

The Acquisition of Territory in


International
Law
(1963).
Campbell McLachlan QC, Laurence

McLachlan/Shore/Weiniger

Shore & Matthew Weiniger


International Investment Arbitration:
Substantive Principles (2010).
Santiago Montt

Montt

State Liability in Investment Treaty


Arbitration:Global Constitutional and
Administrative Law in the BIT
Generation (2008).
Lassa Franics Lawrence Oppenheim

Oppenheim

Oppenheims International Law: Peace


(2003).
Schreuer/Malintoppi/Reinisch/Sinclair

Christoph Schreuer, August Reinsich,


Loretta Malintoppi, Anthony Sinclair
The ICSID Convention: A Commentary
(2009).
M. Sornarajah

Sornarajah

The International Law on Foreign


Investment (2012).
Mark E. Villiger

Villiger

Commentary on the 1969 Vienna


Convention on the Law of Treaties
(2009).
Yearbook of the International Law

YBILC (I)

viii

Commission, (1954).
Yearbook of the International Law

YBILC (II)

Commission, (1966).
MISCELLANEOUS
SHORT REFERENCE

FULL CITATION

Expert Opinion of Schreuer in

Christoph Schreuer,

Wintershall v. Argentina

Wintershall Aktiengesellschaft v.
Republic of Argentina
ICSID Case No. ARB/04/14,
(Legal Opinion of Christoph Schreuer).
Responsibility of States for

ILC Articles (2001)

Internationally Wrongful Acts 2001,


53 UN GAOR Supp. (No. 10) at 43,
U.N. Doc. A/56/83 (2001).
Draft Articles on Most-Favoured-

ILC Draft Articles on MFN Clauses

Nation Clauses 1978, Yearbook of the


International Law Commission (1978).
Indirect Expropriation and the Right

OECD

to Regulate in International Investment


Law
OECD Working Papers on
International Investment 2004/04
(2004).
Christoph Schreuer

Schreuer

Relevance of Public International Law


in International Commercial
Arbitration: Investment Disputes.
Second Report on Diplomatic Protection

Second Report on Diplomatic


Protection
U.N. Doc.A/CN.4/514
(2001).
United Nations Committee on

UN CERD

Elimination of Racial Discrimination

ix

General Recommendation No. 21:


Right to Self-Determination,
23 August 1996.
UNCTAD: Series on Issues in

UNCTAD (I)

International Investment Agreements,


2012
(E.12 II. D.7).
UNCTAD: Series on International

UNCTAD (II)

Investment Policies for Development,


The Protection of National Security in
IIAs
(UNCTAD/DIAE/IA/2008/5).

LIST OF RESOLUTIONS, STATUTES AND TREATIES


SHORT REFERENCE

FULL CITATION

Argentine-Spain BIT

Agreement between the Republic of


Argentina and the Kingdom of Spain on
the Reciprocal Promotion and Protection
of Investments (1991).
Council of Europe

European Convention on Nationality

European Convention on Nationality


6 November 1997, E.T.S. 166.
The Hague

Hague Convention on Nationality

Convention on Certain Questions relating


to the Conflict of Nationality Laws,
12 April 1930, 179 L.N.T.S. 89.
Harvard Draft Convention on the

Harvard Draft Convention

International Responsibility of States for


Injury to Aliens
(1961).
General Treaty for Renunciation of War

Kellogg-Briand Pact

as an Instrument of National Policy


(Kellogg-Briand Pact),
27 August 1928, 94 L.N.T.S. 57.
League of Nations of Covenant

LON Covenant

28th April 1919.


Model Text of an Agreement for the

UK Model BIT

Promotion and Protection of Investments


(2008).
Charter of the United Nations

UN Charter

24th October 1945, 1 U.N.T.S. XVI.


United Nations General Assembly

UN Resolution 2131

Declaration on the Inadmissibility of


Intervention in the Domestic Affairs of
States and the Protection of Their
Independence and Sovereignty,

xi

21 December 1965, A/RES/2131(XX).


United Nations Security Council

UN Resolution 242

Land for Peace


22 November 1967, S/RES/242.
United Nations General Assembly

UN Resolution 2625

Declaration on Principles of International


Law concerning Friendly Relations and
Co-Operation among States in accordance
with the Charter of the United Nations,
24 October 1970, A/RES/25/2625.
United Nations General Assembly

UN Resolution 2949

15 December 1972, A/RES/2949.


United Nations General Assembly

UN Resolution 3314

Definition of Aggression,
14 December 1974,
A/RES/29/3314(XXIX).
Model Text of an Agreement for the

US Model BIT

Promotion and Protection of Investments


(2012).
VCLT

Vienna Convention on the Law of Treaties


23rd May 1969, 1155 U.N.T.S. 331.

VCLT

Vienna Convention on the Law of Treaties


23rd May 1969, 1155 U.N.T.S. 331.
Vienna Convention on Succession of

VCSST

States in
Respect of Treaties
23rd August 1978, 1946 U.N.T.S. 3.

xii

LIST OF ARBITRAL DECISIONS


SHORT REFERENCE

FULL CITATION

AAPL v. Sri Lanka

Asian Agricultural Products Ltd. v.


Republic of Sri Lanka
ICSID Case No. ARB/87/3, Award, (Jun.
27, 1990).
Ambatielos Case

Ambatielos

(Greece v. United Kingdom)


Judgment 1956 International Commission
of Arbitration (Mar. 6).
Ambiente Ufficio S.p.A. and others v.

Ambiente Ufficio v. Argentina

Republic of Argentina
ICSID Case No. ARB/08/9, Decision on
Jurisdiction and Admissibility (Feb. 8,
2013).
Azurix Corp. v. The Republic of

Azurix v. Argentina

Argentina
ICSID Case No. ARB/01/12, Award, (Jul.
14, 2006).
BG Group Plc. and The Republic of

BG Group v. Argentina

Argentina
UNCITRAL, Award, (Dec. 24, 2007).
Case No. A/18

Case No. A/18

5 Iran-US CTR 251, Decision on


Jurisdiction,
(Apr. 6, 1984).
Chemtura v. Canada

Chemtura Corporation v. Government of


Canada
NAFTA, Award, (Aug. 2, 2010).
Marvin Roy Feldman Karpa v. The

Feldman v. Mexico

United Mexican States


ICSID Case No. ARB(AF)/99/1, Award,

xiii

(Dec. 16, 2002).


Claim of Finnish Shipowners against

Finnish Ships Arbitration

Great Britain in Respect of the Use of


Certain Finnish vessels during the War
3 RIAA 1479, Award, (May 9, 1934).
Gemplus S.A., SLP S.A. and Gemplus

Gemplus v. Mexico

Industrial S.A. de C.V. and The United


Mexican States
ICSID Cases No. ARB(AF)/04/3 &
ARB(AF)/04/4, Award, (Jun. 16, 2010).

Glamis Gold, Ltd. v. United States of

Glamis Gold v. USA

America
UNCITRAL (1976), Award, (Jun. 8,
2009).
Impregilo v. Argentina

Impregilo S.p.A. v. Republic of Argentina


ICSID Case No. ARB/07/17, Award (Jun.
21, 2011).
James v. United Kingdom

James v. United Kingdom

ECHR 2, Judgement, (Feb. 21, 1986).


Ioannis Kardassopoulos v. The Republic

Kardassopoulos v. Georgia

of Georgia
ICSID Case No. ARB/05/18, Award,
(Mar. 3, 2010).
LG&E Energy Corp., LG&E Capital

LG&E v. Argentina

Corp., and LG&E International, Inc v.


Republic of Argentina
ICSID Case No. ARB/02/1, Decision on
Liability, (Oct. 3, 2006).
Libyan American Oil Company v. The

LIAMCO v. Libya

Libyan Arab Republic


Ad Hoc Tribunal, Award, (Apr. 12 1977).
Maffezini v. Spain

Emilio Agustin Maffezini v. The Kingdom

xiv

Of Spain
ICSID Case No. ARB/97/7, Decision on
Jurisdiction (Jan. 25, 2000).
Metalclad Corporation v. United

Metalclad v. Mexico

Mexican States
ICSID Case No. ARB (AF)/97/1, Award,
(Aug. 30, 2000).
Methanex v. USA

Methanex Corporation v. United States of


America
NAFTA, Part IV Chapter D, Final Award
on Jurisdiction and Merits, (Aug. 3,
2005).
MTD Equity Sdn. Bhd. and MTD Chile

MTD v. Chile

S.A. v. Republic of Chile


ICSID Case No. ARB/01/7, Award, (May
25, 2004).
Eudoro Armando Olguin v. Republic of

Olguin v. Paraguay

Paraguay
ICSID Case No. ARB/98/5, Award, (Jul.
26, 2001).
Jan Oostergretel and Theodora

Oostergretel v. Slovakia

Laurentius v. The Slovak Republic


UNCITRAL, Award (redacted version),
(Apr. 23, 2012).
Plama Consortium Limited v. Republic of

Plama v. Bulgaria

Bulgaria
ICSDI Case No. ARB/03/24, Decision on
Jurisdiction (Feb. 8, 2005).
Pope & Talbot Inc. v. The Government of

Pope & Talbot v. Canada

Canada
UNCITRAL, Interim Award, (Jun. 26,
2000).

xv

RosInvest Co. UK Ltd. v. The Russian

RosInvest v. Russia

Federation
Stockholm Chamber of Commerce, SCC
Arbitration V (079/2005).
S.D. Myers, Inc. and Government of

S.D. Myers case

Canada
UNCITRAL (1976), First Partial Award,
(Nov. 13, 2000).
Saluka Investments v. Czech Republic

Saluka Investments BV (The Netherlands)


v. The Czech Republic
UNCITRAL, Partial Award, (Mar. 17,
2006).
Sea-Land Service, Inc. v. The Islamic

Sea-Land case

Republic of Iran, Ports and Shipping


Organization of Iran
Iran-US CTR, Award No. 135-33-1, (Jun.
20, 1984).
Sedco, Inc. v. National Iranian Oil

Sedco, Inc. v. National Iranian Oil Co.

Company
9 Iran-US CTR, Interlocutary Award No.
ITL 55-129-3, (Oct. 28, 1985).
Siemens A.G. v. The Republic of

Siemens v. Argentina

Argentina
ICSID Case No. ARB/02/8, Decision on
Jurisdiction, (Aug. 03, 2004).
Hussein Nuaman Soufraki v. The United

Soufraki v. UAE

Arab Emirates
ICSID Case No. ARB/02/7, Award, (Jul.
07, 2004).
Sporrong and Lonnroth v. Sweden

Sporrong & Lonnroth v. Sweden

5 EHRR 35, Judgement, (Sept. 23, 1982).


Suez, Sociedad General de Aguas de

Suez v. Argentina

Barcelona S.A., and InterAguas Servicios

xvi

Integrales del Agua S.A. v. The Republic


of Argentina
ICSID Case No. ARB/03/17, Decision on
Jurisdiction (May 16, 2006).
Tecmed v. Mexico

Tecnicas Medioambientales Tecmed, S.A.


v. The United Mexican States
ICSID No. ARB(AF)/00/2, Award, (May
29, 2003).

Tippetts, Abbett, McCarthy, Stratton

Tippets, Abbet, McCarthy, Stratton v.

v. Consulting Engineers of Iran

TAMS-AFFA Consulting Engineers of


Iran, The Islamic Republic of Iran, Civil
Aviation Organization, Plan and Budget
Organization, Iranian Air Force,
Ministry of Defence, Bank Melli, Bank
Sakhteman, Mercantile Bank of Iran and
Holland
6 Iran-US CTR 219, Award No. 141-7-2,
(Jun. 22, 1984).
Total S.A. v. The Republic of Argentina

Total v. Argentina

ICSID Case No. ARB/04/01, Award,


(Nov. 23, 2013).
Wintershall Aktiengesellschaft v.

Wintershall v. Argentina

Republic of Argentina
ICSID Case No. ARB/04/14, Award,
(Dec. 8, 2008).
World Duty Free v. Kenya

World Duty Free Company v. Republic of


Kenya
ICSID Case No. ARB/00/7, Award, (Oct.
4, 2006).

xvii

LIST OF INTERNATIONAL COURT CASES


SHORT REFERENCE

FULL CITATION

Interhandel Case

Interhandel Case (Interim Protection)


(Switzerland v. The United States of
America)
Order 1957 I.C.J. (Oct. 24).
Military Activites in and against

Nicaragua Case

Nicaragua
(Nicaragua v. United States)
Judgement 1986 I.C.J. 1, (Jun. 27).
Nottebohm Case

Nottebohm Case

(Lichtenstein v. Germany)
Second Phase, 1955 I.C.J. 4, (Apr. 6).
Oscar Chinn Case

Oscar Chinn Case

(U.K. v. Belgium)
P.C.I J. Judgment, Ser. A/B, No. 63 (12
December 1934).
Reference re Secession of Quebec

Quebec Secession Case

(Canada)
Judgement, 1998 2 S.C.R. 217, (Aug.
20).

xviii

STATEMENT OF FACTS
1.

The Republic of Oceania (the Respondent) entered into a BIT with the Republic of Eastasia
on 1 January 1992 and the BIT came into force on 1 April 1993 (Eastasia BIT). The
Republic of Oceania entered into a BIT with the Republic of Euroasia on 1 January 1992
and it entered into force on 23 October 1995 (Euroasia BIT).

2.

Mr. Peter Explosive (the Claimant) is a resident of Fairyland and a national of Eastasia. In
February 1998, the Claimant purchased 100% shares in Rocket Bombs Ltd. located in
Oceania. The Claimants investments were in the arms production sector.

3.

Before Rocket Bombs Ltd. was purchased by the Claimant, it had lost its environmental
license in November 1997 and hence arms production was discontinued at the time of
purchase of the shares. The company had become decrepit because of the halt in production.

4.

For Rocket Bombs Ltd. to start producing again, it was necessary for the Claimant to acquire
a license from the National Environment Authority of Oceania. The license contained an
environmental approval that is mandatory for commencing production. The requirements to
be met were as per the Oceanian Environment Act, 1996.

5.

The Claimant did not have the financial resources to make the requisite adjustments as the
technological changes to be implemented were highly expensive. For the same, the Claimant
sought to commence production as soon as possible to recover the initial expenses of the
investment.

6.

The Claimant, with the intention of expediting the licensing procedure, decided to arrange a
private meeting with the President of the National Environment Authority in July 1998. He
was given the environmental license on 23 July, 1998 despite the licensing procedure being a
long and time-consuming one. Site verification was also a prerequisite for the granting of the
license.

7.

The Claimant also sought a subsidy from the Ministry of Environment to make the changes in
the production line. The subsidy request was denied in August 1998. The Claimant hence
lacked the resources to begin arms production. To procure the same, the Claimant approached
the Minister of Defence of the Republic of Euroasia, Mr. John Defenceless, who was his
long-time friend.

8.

John Defenceless apprised the Claimant of the fact that the previous arms contract that
Euroasia held was on the verge of expiry, and that the Claimant could be made party to the
new arms contract with the Republic of Euroasia. On 1 January 1999, a contract was

concluded between the Claimant and the Republic of Euroasia. Rocket Bombs Ltd.
commenced production when the Claimant received advances from this contract.
9.

As the business of the Claimant grew and became profitable, the Claimant finally took up the
initiative to modernise the production line to meet the environmental requirements of the
Environment Act, 1996. Further, a second contract was concluded between the Claimant and
Euroasia on 28 February 2014, one day before the annexation of Fairyland by Euroasia.

10.

Fairyland has been undisputedly a part of Eastasian since 1918. On 1 March 2014, Euroasian
forces entered Fairyland and attempted to annex it. On 23 March 2014, Euroasia declared
Fairyland part of its territory. In order to maintain international peace and security, Oceania
passed an Executive Order targeting only those who were actively promoting the situation of
annexation in Fairyland.

11.

The Claimant attempted to revoke his Eastasian Nationality on 2 March 2014, but failed to
comply with the required procedure. He was granted Euroasian nationality on 23 March
2014, and was given a Euroasian passport and identity card.

12.

In 2013, the General Prosecutors Office of Oceania began conducting investigations


regarding corruption in the National Environment Authority immediately after receiving an
anonymous tip regarding the same. On 21 November 2013, criminal proceedings were
initiated against the President and other officials of the NEA on charges of corruption.

13.

The President, during his trial, named the Claimant as one of the parties involved in the
corruption scandal. On 1 February 2015, the President and the other officials were convicted
for the charges of corruption.

14.

On 5 May 2015, the Claimant was informed that investigations were taking place against him
pertaining to the private meeting held between him and the President of the NEA in July 1998
and the manner in which the environmental license for Rocket Bombs Ltd. was procured by
the Claimant on 23 July 1998.

SUMMARY OF ARGUMENTS
15.

JURISDICTION. The Respondent submits that the ICC Tribunal lacks jurisdiction. First, the
Claimant is not an investor pursuant to Article 1(2) of the Euroasia BIT since he does not
fulfil the requirement of being a national of either of the contracting parties under national or
international law. The Claimant does not have enough evidence of Euroasian nationality and
in arguendo, his Eastasian nationality is dominant. Further, the annexation of Fairyland is
unlawful as it was executed through an unlawful use of force, was an exercise of Subjugation,
and was impermissible under the right to self-determination. Second, the failure of the
Claimant to comply with the pre-arbitral steps contained in Article 9 of the Euroasia BIT bars
the Tribunals jurisdiction as such steps are mandatory. The Claimant cannot invoke the
defense of futility in this regard. Third, the Claimant cannot use Article 3 of the Euroasia BIT
to rely on Article 8 of the Eastasia BIT as the requisite consent has not been provided. In
arguendo, such an extension would violate the ejusdem generis rule as well as the principle
of effet utile. Furthermore, such extension would violate the Respondents public policy
considerations.

16.

MERITS OF THE CLAIM. If the Tribunal finds that it has Jurisidction, the Respondent submits
the following: First, the Claimants investment is not protected under Article 1(1) of the
Eastasia BIT since the Claimant has breached the Clean Hands Doctrine with regard to the
making of the investment in 1998. The private meeting betweeen the President of the
National Environment Authority casts a serious doubt on the legality of the investments.
Second, the Respondent did not directly or indirectly expropriate the Claimants investment
by implementing the Executive Order. This was a regulatory measure put into force by the
Respondent to protect a legitimate public interest, and therefore its economic impact is noncompensable. Furthermore, the passing of the measure was within the Respondents police
powers. Third, the Claimant contributed to the damage suffered by his investment by not
taking up reasonable care to ensure that the investments would not be impacted once the
Executive Order was passed.

ARGUMENTS
ARGUMENTS ON JURISDICTION
CLAIMANT IS NOT AN INVESTOR PURSUANT TO ARTICLE 1(2) OF THE EUROASIA
BIT
17.

Article 1(2) of the Euroasia BIT lays down two requirements for an individual to be an
investor under the treaty: (a) that the Claimant has made an investment in either contracting
party1, and (b) that the Claimant is a national of the other contracting party. In the instant
case, the Claimant fails to fulfil the second requirement.2
A.

18.

Claimant is not a national under Article 1(2)(a) of the Euroasia BIT.

Article 1(2)(a) of the Euroasia BIT requires that the Claimant be a national of either
contracting party to the treaty in order to be under its ambit.3 The Claimant has alleged that
he is a Euroasian national.4 In Soufraki v. UAE, the tribunal cited the importance of national
law to determine a persons nationality.5 However, Christoph Schreuer has found that issues
of nationality, amongst others, must be determined through the application of international
law.6 Furthermore, Articles 1(3)(a)7 and 1(3)(b)8 of both the Euroasia and the Eastasia BITs
respectively reference international law. Thus, the Claimant must be a Euroasian national
under both national and international law.
Claimant is not a national under Article 1(2)(a) of the Euroasia BIT under
national law.

19.

The Claimant attempted to revoke his Eastasian nationality on 2 March 2014.9 However, no
such revocation occurred due to his failure to comply with the required procedure for a valid
revocation.10 Therefore, the Claimant is still an Eastasian national under Eastasian Law. The
Claimant also applied for and was granted Euroasian nationality on 23 March 2014, and was
1

Id.

Euroasia BIT at Art. 1(2)(a), p 41.

Id.

Request for Arbitration at p 4.

Soufraki v. UAE at 55.

Schreuer at p 10.

Euroasia BIT at Art. 1(3)(a), p 41; Eastasia BIT at Art. 1(3)(a), p 47.

Euroasia BIT at Art. 1(3)(b), p 41; Eastasia BIT at Art. 1(3)(b), p 47.

PO3 at 2, p 59.

10

Id.

given a Euroasian passport and identity card for the same.11 However, Euroasian law does not
permit dual nationality 12 . As the Claimants Eastasian nationality persists, it must be
examined whether mere possession of a passport and an identity card are enough to prove his
Euroasian nationality. If the Tribunal finds that the Claimant possesses Euroasian nationality
under Euroasian national law, then he will be a dual national of Eastasia and Euroasia, and
shall resultantly be subject to the laws governing dual nationals applicable in international
arbitration.
20.

The Respondent submits that the Claimant is not a Euroasian national as: (i) The Claimant
has insufficient evidence to prove his Euroasian nationality, and (ii) In arguendo, the
Claimants dominant nationality is Eastasian.
i.

21.

The Claimant has insufficient evidence to prove his Euroasian nationality.

The Claimant failed to comply with the required procedure for revocation of his Eastasian
nationality, and therefore this nationality persists.13 The Claimant also possesses Euroasian
nationality as of 23 March 2014, with only an identity card and a passport as proof of the
same.14 Since Euroasian law does not permit dual nationality, the evidence of the Claimants
Euroasian nationality must be examined. 15

22.

The only evidence of the Claimants possession of Euroasian nationality is his passport and
his identity card. In the case of Soufraki v. UAE, the Claimant had submitted a number of
identity cards, passport copies and certificates of nationality as evidence of his Italian
nationality.16 The Tribunal, however, found that these documents were not enough to deem
the Claimant an Italian national. 17 This verdict has been reaffirmed by experts such as
Christoph Schreuer and August Reinisch.18

23.

In the instant case, the only available evidence of Euroasian nationality that the Claimant may
provide is a Euroasian passport and identity card, which is not enough for proof of
nationality. Therefore, the Claimant cannot adequately prove his Euroasian nationality, and
thus is not to be considered a Euroasian national.
11

PO2 at 2, p 56.

12

Id.

13

PO3 at 2, p 59.

14

PO2 at 4, p 56.

15

PO2 at 2, p 56.

16

Soufraki v. UAE at 14, 50.

17

Id. at 81.

18

Schreuer/Malintoppi/Reinisch/Sinclair, at 653, p 268.

ii.
24.

In arguendo, the Claimants dominant nationality is Eastasian.

In the unlikely event that the Tribunal finds that the Claimant is a Euroasian national, it is
submitted that the Claimants dominant nationality is Eastasian, and therefore for the
purposes of international arbitration, the Claimant should be considered only an Eastasian
national by the Tribunal.

25.

Professor Zachary Douglas has stated that when a BIT fails to consider questions of dual
nationality and does not explicitly disallow the application of the effective and dominant
nationality principle, the Tribunal shall have jurisdiction only if the dominant nationality of
the investor is that of the home state. 19 The same principal arose in the Nottebohm case,
wherein the Claimants dominant nationality not being that of the home state rendered the
claim inadmissible. 20 In the instant case, as the BITs are silent on the question of dual
nationality and do not explicitly disallow the application of the effective and dominant
nationality principle, the Tribunal shall only have jurisdiction over the claim if the
Claimants dominant nationality is that of the home state, i.e. Euroasia.

26.

The most pertinent factor for determining the dominant nationality of an individual is
habitual residence,21 as demonstrated in the Nottebohm case22 and Case No. A/18 of the
Iran-US Claims Tribunal.23 The same is also expressed by Article 5 of the Convention on
Certain Questions Relating to the Conflict of Nationality Laws, which clearly states that
when there is a clash of two nationalities, the individuals dominant nationality is that of the
State to which he has the most apparent connection or of which he is a habitual resident.24
The European Convention on Nationality also finds that habitual residence is integral to the
determination of an individuals nationality25.

27.

The Claimant has been a resident of Fairyland for at least 18 years.26 Furthermore, Fairyland
has undisputedly been part of Eastasia for over 100 years.27 Hence, the Claimant has been
habitually residing in Eastasia. Therefore, the Claimants dominant nationality is Eastasian
19

Douglas at p 321.

20

Nottebohm Case at p 26.

21

Aghahosseini at 6.3.1.1, pp 171-72.

22

Nottebohm Case at p 22.

23

Case No. A/18 at p 21.

24

Hague Convention on Nationality at Art. 5.

25

European Convention on Nationality at Art. 18(2)(b).

26

Statement of Uncontested Facts at 2, p 32.

27

PO2 at 4, p 56.

and not Euroasian. As the Claimants nationality is not of the home state, the Tribunal has no
jurisdiction.
Claimant is not a national under Article 1(2)(a) of the Euroasia BIT under
international Law.
28.

The Respondent submits that the Claimant is not a Euroasian national under international
law. The Claimant has failed to give up his Eastasian nationality, 28 and also possesses
Euroasian nationality. 29 Moreover, Euroasia does not permit its citizens to hold dual
nationality.30 Article 5 of the Convention on Certain Questions Relating to the Conflict of
Nationality Laws finds that a person who has more than one nationality shall be treated as
having only one nationality in a third state.31 The Special Rapporteur of the International Law
Commission also found that to remedy problems of dual nationality, the individual ought to
be deprived of one of the nationalities. 32 As the Claimant appears to have been granted
nationalities of both states, then the Claimant must be treated as having the nationality of only
one state under international law.33

29.

The Tribunal in Soufraki v. UAE found that where a challenge is made against such
nationality, the Tribunal is bound to adjudicate upon such a challenge. 34 In the present case,
Oceania has challenged the nationality of the investor on the basis of the unlawful
annexation,35 and therefore, the Tribunal is required to adjudicate upon the lawfulness of such
annexation when determining the nationality of the investor.

30.

Therefore, the sole nationality of the Claimant can be determined only by referencing the
annexation of Fairyland. It is an established rule of customary international law that in the
event of a transfer of territory being effected, the residents of the territory so transferred lose
the nationality of the predecessor state.36 Therefore, if the transfer of Fairyland is lawful, the

28

PO3 at 2, p 59.

29

PO2 at 4, p 56.

30

Id.

31

Hague Convention on Nationality at Art. 5.

32

YBILC (I) at p 48.

33

Id.

34

Soufraki v. UAE at 55.

35

Answer to Request For Arbitration at p 15.

36

Oppenheim at pp 218-19.

Claimant would lose his Eastasian nationality and gain Euroasian nationality, which he has
already been granted by Euroasia.37
31.

The same would be displayed by Article 15 of the VCSST which states that upon the transfer
of a part of a territory from one state to another, that part shall cease to be governed by
treaties of the predecessor state and shall instead be governed by those of the successor.38 If
Fairyland has transferred lawfully, it shall cease to be governed by Eastasian treaties, and
shall instead be governed by Euroasian treaties.

32.

It is submitted that no lawful territorial transfer took place and resultantly the customary
international law relating to transfer of territory as mentioned above, along with Article 15 of
the VCSST shall not apply since: (i) The transfer was effected through an unlawful use of
force, and in keeping with ex injuria ius non oritur has no legal effect, (ii) The transfer
constitutes an exercise of Subjugation by Euroasia (iii) The right of self-determination does
not permit such a transfer.
i.

33.

The transfer was effected through an unlawful use of force.

Article 2(4) of the United Nations Charter outlaws the threat of force or the use of force that
would jeopardize or violate the territorial integrity or political independence of any state, or is
otherwise not in keeping with the principles of the United Nations. 39 United Nations
Resolution 213140 and Resolution 262541 state that an armed intervention by one state in the
territory of another is against the principles of the United Nations and is therefore illegal. The
ICJ in its Judgement in the Nicaragua case cited these resolutions and stated that action by
regular armed forces across a border would constitute an armed attack,42 and such an armed
attack would constitute a grave and unlawful use of force, 43 as well as a violation of the
principle of non-intervention that outlaws any intervention by one state in the internal affairs
of another.44

37

PO2 at 4, p 56.

38

VCSST at Art. 15.

39

UN Charter at Art. 2(4).

40

UN Resolution 2131 at 1.

41

UN Resolution 2625.

42

Nicaragua Case at 195.

43

Id. at 191.

44

Id. at 205.

34.

In the instant case, Euroasian forces entered the Eastasian territory of Fairyland on the 1
March 2014.45 Through this military incursion, Euroasia attempted to annex the territory, and
officially declared it part of Euroasia on 23 March 2014.46 However, this annexation was
effected via the passage of the Euroasian armed forces across the Eastasian border into
Fairyland, which would constitute an armed attack and a violation of the principle of nonintervention, and hence a grave and unlawful use of force.

35.

The doctrine of ex injuria ius non oritur is a principle of international law that states that no
legal rights may arise as a result of an illegal action.47 According to Jennings, no valid title to
territory can be acquired by a state through an unlawful use of force. 48 In the instant case,
Euroasia has clearly committed an unlawful use of force by means of which it has attempted
to acquire the territory of Fairyland. In keeping with this principle, it is submitted that
Euroasia has no legal claim over Fairyland, which shall remain Eastasian territory, and
therefore the residents including Peter Explosive shall remain Eastasian nationals.

ii.
36.

The transfer of territory is an exercise of Subjugation.

Subjugation or the right of conquest occurs when a state acquires territory via conquest,
followed by an annexation,49 such as when territory is acquired by a display of armed force.50
The acquisition of territory through conquest has been illegal since the establishment of the
League of Nations, with Article 10 of its Covenant.51 This principle was reaffirmed by the
Kellogg-Briand Pact of 1928.

52

United Nations Resolution 242 emphasized the

inadmissibility of territory acquired through warfare,53 while Resolution 2949 reaffirmed that
the territory of a state could not be the object of an acquisition by another state through the
use of force. 54 Furthermore, United Nations resolution 3314 found that any annexation

45

Uncontested Facts, at 14, p 35.

46

Id.

47

Oppenheim at 54, pp 183-84.

48

Jennings at p 54.

49

Oppenheim at pp 698-705.

50

Jennings at p 53.

51

LON Covenant at Art. 10.

52

Kellogg-Briand Pact, 1928; Oppenheim at 268, pp 702-03.

53

UN Resolution 242.

54

UN Resolution 2949.

effected via a use of force is unlawful, and therefore without legal effect.55 Therefore, it is
apparent that international law has ceased to permit transfers that are effected through a use
of force, and such transfers would be unlawful and without legal effect.
37.

The fact that the annexation was effected through a use of force, i.e. the incursion of
Euroasian armed troops into Eastasian territory on 1 March 2014, 56 itself renders the
annexation an exercise of Subjugation. Hence, the transfer is without legal effect.
Consequently, Fairyland remains Eastasian territory, and the Claimant remains an Eastasian
national.
iii.

38.

The right of self-determination does not permit such a transfer.

The Claimant has contended that the people of Fairyland have, by virtue of their right to selfdetermination, effected the secession of Fairyland to Euroasia.57 It is submitted that the right
to self-determination does not permit the severance of the territorial integrity of a state.

39.

The right of self-determination is provided by Article 1(2) of the United Nations Charter.58
However, United Nations resolution 2625 states that while all people are entitled to the right
of self-determination and that states are encouraged to promote such a right, such a right may
never permit the dismemberment or impairment of the territorial integrity of a state. 59 This
has been reaffirmed by the United Nations Committee on Elimination of Racial
Discrimination.60 Furthermore, the Supreme Court of Canada in the Quebec Secession case
found that there is no right to unilateral secession under international law.61

40.

Therefore, the right of self-determination does not permit a right of unilateral secession of
territory. In this case, Fairyland may not secede from Eastasia to Euroasia through selfdetermination, and thus Fairyland remains Eastasian territory, subject to Eastasian treaties,
and the Claimant remains an Eastasian national.
THE CLAIMANTS

NON-COMPLIANCE WITH THE PRE-ARBITRAL STEPS IN

ARTICLE 9

EUROASIA BIT

OF THE

JURISDICTION

55

UN Resolution 3314.

56

Uncontested Facts at 14, p 35.

57

Request for Arbitration at p 5.

58

UN Charter at Art. 1(2).

59

UN Resolution 2625.

60

UN CERD at 6.

61

Quebec Secession Case at q 2.

10

CONSTITUTES A BAR TO THIS

TRIBUNALS

41.

Article 9 of the Euroasia BIT provides for two pre-arbitral requirements that have to be
fulfilled by the investor of a contracting party. 62 The first requirement is of settling the
dispute amicably to the extent possible, 63 and the second requirement is of litigating in
national courts for at least twenty-four months.64 The Respondent submits that this Tribunal
does not have jurisdiction since: (A) the pre-arbitral steps in Article 9 are mandatory and (B)
the Claimant cannot invoke the defense of futility to justify his non-compliance with these
pre-arbitral steps.
A.

42.

The pre-arbitral requirements in Article 9 are mandatory.

Article 9 of the Euroasia BIT contains two pre-arbitral steps.65 The Claimant has complied
with the first pre-arbitral step66 but has not complied with the second pre-arbitral step, i.e.
litigating in Oceanian Courts for a minimum period of two years.67

43.

The Respondent submits that the pre-arbitral requirement of litigating in Oceanian Courts is
mandatory despite the usage of the word may in Article 9 (2) of the Euroasia BIT.68

44.

Article 9 of the Euroasia BIT should be interpreted using the tools of interpretation provided
by the VCLT. Article 31 of the VCLT states that the treaty should be interpreted keeping in
mind the ordinary meaning of its text.69 In the instant case, Article 9 needs to be read in its
entirety in order to assign a particular meaning to particular words. 70 Here, the word may
would provide the investor the choice of not pursuing the dispute further or pursuing the said
dispute in the national courts of Oceania. The Tribunals in the cases of Ambient Ufficio v.
Argentina71 and Impregilo v. Argentina have held that, in a similarly worded clause to Article
9, the word may should be given such interpretation.72

62

Euroasia BIT at Art. 9, p 44.

63

Euroasia BIT at Art. 9(1), p 44.

64

Euroasia BIT at Arts. 9(1) & 9(2), p 44.

65

Euroasia BIT at Art. 9, p 44.

66

PO3 at 4, p 60.

67

Euroasia BIT at Art. 9(3), p 44.

68

Euroasia BIT at Art. 9(2), p 44.

69

VCLT at Art. 31.

70

Id.

71

Ambiente Ufficio v. Argentina at 591.

72

Impregilo v. Argentina at 54.

11

45.

The principle of effet utile derived from Article 31 of the VLCT states that a treaty should be
interpreted in such a manner so as to give effect to every provision.73 The ILC report of 1966
further states that where a treaty is open to two interpretations, that interpretation should be
chosen which enables the treaty to have appropriate effect in good faith.74

46.

In the instant case, if the word may is interpreted to mean that the pre-arbitral step itself
was not mandatory in order for there to be valid consideration, then Article 9(2) and 9(3) of
the BIT would be derived of any purpose. This would violate the effet utile principle.

47.

The case of Wintershall v. Argentina held that a failure of the investor to comply with the
buffer period mentioned in the dispute resolution clause would constitute a jurisdictional bar
to the Tribunals jurisdiction owing to a lack of consent from the host state.75

48.

The consent to arbitration in Article 9(5) of the Euroasia BIT is only given on the completion
of the required pre-arbitral steps. 76 Since the Claimant has not completed the pre-arbitral
steps, there is no consent for international arbitration.
B.

49.

The Claimant cannot rely on the futility exception.

The exhaustion of local remedies rule is an established rule of customary international law.77
The rule provides that the victim must exhaust all local remedies available in the host state
prior to resorting to an international dispute settlement mechanism.78 In the instant case, the
contracting parties to the Euroasia BIT agreed to limit this rule to an attempt for amicable
settlement and litigation in national courts of the host nation for a minimum period of two
years.79

50.

The test for futility, as laid down by Justice Bagge in the Finnish Ships Arbitration, is that the
only remedies, which may be exempt from exhaustion under the futility rule, are those that
are obviously futile.80 Borchard also advocates for a sparing application of the futility rule to

73

Villiger at 12, p 428.

74

YBILC (II) at 6, p 219.

75

Wintershall v. Argentina at 114-22.

76

Euroasia BIT at Art. 9(5), p 44.

77

Second Report on Diplomatic Protection at p 10.

78

ILC Articles (2001) at Art. 44.

79

Euroasia BIT at Art. 9, p 44.

80

Finnish Ships Arbitration at p 1504.

12

a few prize cases, which is the authority relied on by Justice Bagge in the Finnish Ships
Arbitration.81
51.

In the instant case, the Claimant does have the option of resorting to the Constitutional Courts
of Oceania, which has the power to set aside any legal act including the Executive Order in
question.82 Further, the fact that the Court would take up to 3 or 4 years to decide the claim
would not by itself make the option a futile one. Tribunals have held that only a delay of a
certain extent would result in the remedy falling under the category of futile.83 While the
Claimant would indeed have the option under Article 9(3) of the Euroasia BIT to withdraw
the claim from local courts and submit the dispute to international arbitration after 24 months,
that is an option that does not render the domestic remedy itself to be futile.84 Moreover, as
per the Oceanian Code of Administrative Procedure, any administrative decision, including
the imposition of sanctions such as the Executive Order, may be made subject to
reconsideration.85
THE CLAIMANT MAY NOT USE ARTICLE 3 OF THE EUROASIA BIT TO RELY ON
ARTICLE 8 OF THE EASTASIA BIT

52.

The Claimant in the instant case seeks to use the MFN clause contained in Article 3 of the
Euroasia BIT to rely on the dispute resolution clause contained in Article 8 of the Eastasia
BIT.86 The Respondent submits that the extension of the MFN clause to dispute resolution
should not be permitted in the instant case since: (A) there is no consent to international
arbitration; (B) even if the Tribunal finds that consent does exist, the extension of the MFN
clause to dispute resolution violates the rule of ejusdem generis, (C) the extension of the
MFN clause to dispute resolution violates the principle of effet utile, and (D) the extension of
the MFN clause to dispute resolution would violate the public policy of the host state.
A.

53.

There is no consent to international arbitration.

In Wintershall v. Argentina, it has been stated that unless the MFN clause clearly and
unambiguously indicates that it extends to dispute resolution, it should not be extended to the

81

Id.

82

PO3 at 6, p 60.

83

Interhandel Case at p 355.

84

Euroasia BIT at Art. 9(3), p 44.

85

PO3 at 10, p 61.

86

Request for Arbitration at p 3.

13

same. 87 This is because international arbitration must have its basis upon the parties
agreement. 88 Such agreement must be clear and unambiguous, even if constructed by the
extension of an MFN clause. 89 Even when the MFN clause applies to all matters and
dispute settlement is not mentioned expressly, there is still a doubt as to the agreement of the
parties.90
54.

Article 3 of the Euroasia BIT does not expressly mention dispute resolution as a subject
matter that the MFN treatment extends to,91 unlike that present in certain other BITs such as
the UK Model BIT.92 Therefore, the extension of the MFN clause to dispute settlement would
not constitute adequate consent to the Tribunals jurisdiction on the part of the host state.
B.

In arguendo, the extension of the MFN clause to dispute resolution violates


the ejusdem generis rule.

55.

Even if the Tribunal does not accept the contention in point (A), the MFN clause in the
instant case cannot be extended to dispute resolution since such an extension would violate
the ejusdem generis rule of treaty interpretation.

56.

The Commission of Arbitration in the case of Ambatielos stated that an MFN clause could be
extended to dispute resolution provided the ejusdem generis rule of interpretation is not
violated.93 The ejusdem generis rule is a tool of interpretation that states that a general term is
to be understood in light of the specific terms that precede it.94 The text of the MFN clause is
of particular consideration here, as has been highlighted by Schreuer.95 In Article 3 of the
Euroasia BIT, the words and such other investment matters follow the categories of
income and activities related to such investments.96 The wording of the MFN Clause in
the Euroasia BIT is therefore much more restrictive97 than that present in the Maffezini MFN
clause, which stated that the MFN clause would apply to all matters subject to the
87

Wintershall v. Argentina at 167.

88

McLachlan/Shore/Weiniger at p 256.

89

Id.

90

Id.

91

Euroasia BIT at Art. 3, p 41.

92

UK Model BIT at Art. 3(3).

93

Ambatielos at p 107.

94

Id.

95

Acconci at p 404.

96

Euroasia BIT at Art. 3, p 41.

97

Id.

14

agreement. 98 This wording itself restricts the extension of the MFN as sought by the
Claimant, since such extension would violate the ejusdem generis rule.
C.

57.

The extension of the MFN clause to dispute resolution violates the principle
of effet utile.

The principle of effet utile, as mentioned above, is derived from Article 31 of the VCLT.99
According to this principle, when there are two possible interpretations, the interpretation that
enables all the provisions of the treaty should be chosen.100 In the instant case, if the MFN
provision is extended to dispute settlement, it would mean that the dispute resolution
provision of the Euroasia BIT would prove ineffective from the moment the Euroasia BIT
came into existence since the Eastasia BIT precedes the Euroasia BIT. 101 Therefore, such
interpretation of the MFN clause would render the dispute settlement provision ineffective.
Further, the intention of the parties is to be understood only from the text of the treaty.102
Therefore, since the text of the treaty does not mention dispute resolution as a subject matter
to which the MFN clause extends103 and MFN clauses ordinarily do not extend to dispute
resolution, 104 it cannot be said that the parties intended for the said dispute resolution
provision to be rendered ineffective.
D.

Extending the MFN clause to dispute resolution violates public policy


considerations of the Respondent.

58.

An MFN clause cannot be extended to dispute resolution if it violates the public policy
considerations of the host state. 105 This is in line with Article 4 of the International Law
Commissions Draft Articles on Most Favored Nation clauses which states that MFN clauses
should only apply in an agreed sphere of relations.106

98

Argentine-Spain BIT at Art. 4.

99

Villiger at 12, p 428.

100

YBILC (II) at 6, p 219.

101

Uncontested Facts at 1, p 32.

102

Expert Opinion of Schreuer in Wintershall v. Argentina.

103

Euroasia BIT at Art. 3, p 41.

104

McLachlan/Shore/Weiniger at p 256.

105

Maffezini v. Spain at 62.

106

ILC Draft Articles on MFN clauses at Art. 4.

15

59.

The Tribunal in Maffezini v. Spain laid down four scenarios where extension of the MFN
clause to dispute resolution would violate public policy considerations. 107 However, the
Tribunal in Plama v. Bulgaria found that these four scenarios did not have any legal basis.108
Instead, the Tribunal held that the public policy test would be that unless the MFN clause
leaves no doubt that the parties intended to include dispute resolution within its ambit, an
extension of the MFN clause in such a manner would violate the public policy of the host
nation.109 This reasoning present in Plama v. Bulgaria has been relied upon the Tribunal in
the case of Wintershall v. Argentina.110 The reasoning of the Tribunals in the case of Siemens
v. Argentina111 and Tecmed v. Mexico112 would not apply, as mentioned by the Tribunal in
Plama v. Bulgaria, since these decisions are based either totally or partially upon the faulty
reasoning adopted by the Tribunal in Maffezini v. Spain. 113

60.

In the instant case, Article 3 of the Euroasia BIT does leave room for doubt regarding the
inclusion of dispute resolution within its ambit since the same is not mentioned explicitly. 114
Therefore, extending the MFN clause to dispute resolution would be a clear violation of
public policy considerations of Oceania.

61.

In the unlikely event that the Tribunal finds that the test laid down in Maffezini v. Spain
should be followed, 115 the Respondent submits that there would still be a public policy
violation on the extension of Article 3 of the Euroasia BIT to dispute settlement.

62.

The four scenarios mentioned by the Tribunal in Maffezini v. Spain are: (1) when the
contracting parties have opted for a highly institutionalized system of arbitration (such as that
under the NAFTA), then the investor may not use the MFN Clause to bypass those
requirements; (2) where the dispute resolution clause in the basic BIT contains a fork-in-theroad provision and the investor has made a non-reversible choice, the investor cannot use
the MFN clause to change his choice by relying on the dispute resolution clause of another
BIT; (3) Where the parties have conditioned their consent to arbitration upon the exhaustion

107

Maffezini v. Spain at 63.

108

Plama v. Bulgaria at 221.

109

Plama v. Bulgaria at 223.

110

Wintershall v. Argentina at 167.

111

Siemens v. Argentina.

112

Tecmed v. Mexico.

113

Plama v. Bulgaria at 226.

114

Euroasia BIT at Art. 3, p 41.

115

Maffezini v. Spain at 63.

16

of local remedies, then the MFN clause cannot be used to bypass such condition and (4) the
investor cannot use the MFN clause to change the forum of international arbitration or
dispute resolution.116
63.

In the instant case, the parties have conditioned their consent to arbitration only upon the
exhaustion of the pre-arbitral steps as contained in Article 9 of the Euroasia BIT and as
proven above.117 Therefore, an extension of the MFN clause to dispute resolution would be a
violation of public policy considerations of Oceania.

116

Id.

117

Euroasia BIT at Art. 9, p 44.

17

ARGUMENTS ON MERITS

THE CLAIMANT IS NOT A PROTECTED INVESTOR


A.

For an investment to be accorded protection under the Eastasia BIT, it


should be made in accordance to the host state laws.

64.

The Clean Hands Doctrine is a principle under international law118 which has its roots in
equity.119 It holds that when a claimant is involved in acts that are unlawful under municipal
or international law, then the claim may be barred from being brought forth to a tribunal.120

65.

The Claimant, Mr. Peter Explosive, invested in the Republic of Oceania under the Eastasia
BIT.121 However, due to the provision of the Clean Hands Doctrine which is contained in
Article 1(1) of the same BIT,122 his investments cannot be accorded protection. The actions
taken up by the Claimant while acquiring the environmental license for the production line in
Rocket Bombs Ltd exhibit corruption on his part. This expressly violates the Clean Hands
Doctrine. The BIT cannot provide protection to investments that are tainted by an
illegality.123

66.

The Claimant purchased shares in Rocket Bombs Ltd, an arms production company, in 1998.
To commence arms production, the Claimants production line had to first comply with the
Oceania Environment Act, 1996. 124 For the same, there was a requirement to procure a
license. In furtherance of this, the Claimant arranged a private meeting with the President of
the National Environment Authority of Oceania in July 1998.125 He was granted a license on
23 July 1998.126

67.

The licensing procedure is known to be very long and time-consuming.127 It involves a


verification of the production site too, after evidence is given regarding the compliance of the

118

Brownlie (I) at p 701.

119

Herstein at p 38.

120

Id.

121

Uncontested Facts at 2, p 32.

122

Eastasia BIT at Art. 1(1), p 46.

123

ICSID Report at p 621.

124

Uncontested Facts at 4, p 32.

125

Uncontested Facts at 6, p 33.

126

Id.

127

Uncontested Facts at 6, p 33.

18

production line with the Environment Act.128 Also the standards to be met by the production
line for granting the license are very high.129 The fact that the Claimant was able to acquire a
license within 20 days of his private meeting with the President of the NEA despite these
procedural requirements raises a concern regarding the legality of his investments. This
concern must be identified as a red flag130 of corruption.
B.
68.

The Tribunal must identify that the burden of proof has been satisfied.

In international investment arbitration,131 a tribunal has the discretion to choose a standard of


proof that it finds conducive for the administration of an award that is justified. In the case of
AAPL v. Sri Lanka,132 it was held that international tribunals are not required to adhere to
very strict rules of evidence.133 With regard to the matter of corruption in investment matters,
it was held in Oostergretal v. The Slovak Republic that whatever may be the standard of proof
set by a tribunal, circumstantial evidence is sufficient to prove corruption. 134 Free
evaluation of evidence135 has always been a point of distinction for investment arbitration
tribunals from other domestic and international adjudicatory tribunals.

69.

The private meeting and the immediate granting of license despite the fact that the Claimants
production line met the requisite standards only by 1 January 2014 136 show that the licensing
procedure was not complied with. Additionally, this is consolidated by the fact that in August
1998, the request for the subsidy that the Claimant had sought from the Ministry of
Environment137 was denied. The criterion for granting of this subsidy was a certain threshold
to be met by the production line. The rejection of the same indicates that the Claimants
production line did not meet that threshold. Further, it is known that the Claimant did have an
intention to expedite the licensing procedure.138

128

PO2 at 1, p 55.

129

Uncontested Facts at 7, p 33.

130

World Duty Free v. Kenya at 115.

131

Born at p 1857.

132

AAPL v. Sri Lanka.

133

ICSID Review at p 530.

134

Oostergretel v. Slovakia at 303.

135

Id.

136

Uncontested Facts at 13, p 35.

137

Uncontested Facts at 7, p 33.

138

Uncontested Facts at 6, p 33.

19

70.

When scrutinized according to the standard of circumstantial evidence and thereby the
preponderance of probabilities,139 it is established that there is enough evidence to adjudicate
over the matter of corruption on part of the Claimant and to hold that the Claimant was
actually guilty of the same.

71.

Further, the conviction or acquittal of the Claimant in the national courts of Oceania is not a
requisite for this tribunal to uphold the allegations of corruption in the proceedings of
arbitration. The Tribunal requires only a minimum quantum of evidence.140 This has already
been presented to it.
C.

72.

The Claimant cannot rely on the principle of estoppel.

Estoppel is a legally recognized principle that prevents one party from denying or alleging a
certain fact owing to the other partys previous conduct.141 The rationale for the same is to
prevent injustice that would arise due to inconsistency regarding the claims brought forth by
the parties.

73.

Criminal proceedings were initiated against the President and other officials of the National
Environment Authority of Oceania in November 2013. They were arrested in February 2015.
However, according to the principle of estoppel, this does not provide a ground for the
Claimant to escape the liability from having had to comply with the licensing procedure in
1998.

74.

In fact, the conviction of the President of the NEA further provides a ground for the
invocation of the Clean Hands Doctrine against the Claimant as the President has named
Mr. Explosive as one of the parties involved in the corruption scandal.142

75.

Considering the harmful impact that corruption has on the investor environment of the host
state, Oceania acted immediately after receiving notification of the same from an anonymous
source143 and brought forth criminal sanctions upon the President and other officials after
gathering evidence. The actions of Oceania showcase that it is extremely swift when
undertaking such investigations and furthermore the sanctions of criminal charges were
imposed only after thorough processing of evidence.

139

Kardassopoulos v. Georgia at 229.

140

Helgeson at p 114.

141

Black's Law at p 589.

142

PO2 at 5, p 56.

143

Uncontested Facts at 19, p 37.

20

76.

In order to prevent the Claimant from taking advantage of his own wrongs, it is imperative
to identify the Claimants indulgence in corruption and therefore not provide investment
protection. It is not a matter of consideration as to when Oceania discovered corruption
within its own machinery and on part of the Claimant as its actions since the charges have
been brought to notice only indicate its need to urgently eradicate the same problem.
Therefore, there should not be a limitation regarding the invocation of the Clean Hands
Doctrine by the Respondent in this matter.
RESPONDENT DID NOT EXPROPRIATE THE CLAIMANTS INVESTMENT

77.

The Respondent submits that the Claimants investment was not expropriated, and that the
passing of the Executive Order was merely an exercise of sovereign power in the form of
implementing a regulatory measure. The argument is three-fold: (A) the investment was not
directly or indirectly expropriated; (B) the effect of the Executive Order falls under the public
purpose exception as provided under Article 3 of the Eastasia BIT; and (C) the Respondent
was merely exercising its sovereign powers with a view of maintaining international peace
and security.
A.

The investment was not directly or indirectly expropriated.


The investment was not directly expropriated.

78.

The Respondent submits that there was no direct expropriation. For direct expropriation to be
established in a case, there must be an open, deliberate and unequivocal intent that is
manifested in a formal law or decree or physical act, which deprives the owner of his/her
property through the transfer of title or outright seizure.144 In other words, the legal title of the
owner must be affected by the measure in question for the investment to have been directly
expropriated.145

79.

The Executive Order of 1 May 2014, which is the measure in question here, declared the
Claimant and his enterprise to be blocked,146 but did not in any way effect the legal title the
Claimant has over his investment in Rocket Bombs Ltd. There was no formal transfer of title
or outright seizure of property in the present scenario. Thus, no direct expropriation took
place.

144

UNCTAD (I) at p 7.

145

Dolzer/Schreuer at p 101.

146

EO at 1, p 52.

21

The investment was not indirectly expropriated.


80.

While determining whether an indirect expropriation has occurred or not, tribunals must take
into account not only the resultant interference with the investors rights but also the context
of the measure and the purpose pursued by the host State.147 The Oscar Chinn case148 and the
Sea-Land case149 used this reasoning. Much of the jurisprudence of the European Court of
Human Rights follows this as well. 150 Fortier has concluded that the dominant approach
adopted by tribunals is that of balancing these different factors.151 The 2004 and 2012 US
Model BITs refer not only to the economic impact of the action but also the objective of
protecting legitimate public welfare objectives while describing indirect expropriations.152
The Tribunal in S.D. Myers v. Canada observed that the correct analysis of an expropriation
claim must go beyond technical formalities, and look at the real interests involved and the
purpose and effect of the government measure.153

81.

Although the Claimant has contended that his investment has suffered substantial depravation
since the value of the investment has reduced and contracts crucial to his investment have
been cancelled,154 it is pertinent to note that: firstly, the damage effected is not permanent and
secondly, the Executive Order is a regulatory measure in pursuance of a legitimate public
objective.

82.

Firstly, the Executive Order does not have a permanent or irreversible effect 155 on the
Claimants investment since Rocket Bombs Ltd. was only suspended to the extent of the
Executive Orders applicability.156 The damage caused is not irreparable in nature since the
Claimant retains ownership over his investment and the loss caused can be recovered
overtime.157 As per the Record, the Oceanian Constitutional Tribunal has the power to set

147

Dolzer/Schreuer at p 114.

148

Oscar Chinn case at p 4.

149

Sea-Land case.

150

Sporrong & Lonnroth v. Sweden at 69, p 20.

151

Fortier/Drymer.

152

US Model BIT at Annex B, 4.

153

S.D. Myers case at 285.

154

Uncontested Facts at 17, p 36.

155

LG&E v. Argentina at 193.

156

Feldman v. Mexico at 146.

157

Total v. Argentina at 128; Glamis Gold v. USA at 42.

22

aside an executive order,158 and the Order may be sent for reconsideration to the Oceanian
Code of Administrative Procedure.159 Moreover, the Order can always be repealed once the
situation in Fairyland is restored.
83.

Secondly, there is a theoretical distinction that exists between an indirect expropriation and a
regulatory measure,160 though the economic effect of the two may be similar. The Tribunal in
the case of Tippetts, Abbett, McCarthy, Stratton v. Consulting Engineers of Iran observed
that non-discriminatory regulatory actions of a State formulated and implemented to achieve
public welfare objectives, such as public health and safety and environmental conservation,
do not constitute an indirect expropriation. 161 It is the Respondents contention that the
Executive Order was a regulatory measure, and did not result in the expropriation of the
Claimants investment.

84.

In Saluka Investments v. Czech Republic, the Tribunal affirmed the international law principle
that States are not liable to compensate foreign investors when they adopt nondiscriminatory, bona fide regulations in the normal exercise of their regulatory powers with
the aim of general welfare.162 The Tribunal in Methanex v. USA acknowledged that this is
indeed a part of general international law and further added that such a measure is not
deemed expropriatory or compensable unless the regulating government has given specific
commitments to the foreign investor that they would refrain from such regulation. 163 It is
further submitted that it is unreasonable to compensate investors for every loss caused by its
regulations because this would render public governance almost impossible as governments
will be economically crippled by claims for compensation. This is particularly true when
regulations seek to respond to the changing circumstances in society and public
expectations.164

85.

The actions of the Respondent fulfilled all of the above criteria to constitute a noncompensable regulatory measure. The Executive Order was not implemented in a
discriminatory manner since the sanctions were imposed on all persons operating in certain

158

PO3 at 6, p 60.

159

PO3 at 10, p 61.

160

Reinisch at p 432.

161

Tippetts, Abbett, McCarthy, Stratton v. Consulting Engineers of Iran.

162

Saluka Investments v. Czech Republic at 255.

163

Methanex v. USA at 7.

164

Kolo/Waelde at p 840.

23

sectors of the Euroasian economy specified in Section 1(a). 165 Thus, the Order was not
directed towards specific enterprises or persons but entire sectors. The passing of this Order
was in the normal exercise of the powers of the State as it was prepared and published in
accordance with Oceanian law, and the President was competent to introduce it as per the
International Emergency Economic Powers Act, 1992.166 Moreover, the measure was adopted
for the welfare of the people necessitated by a changed circumstance as will be established in
Section (B) below. The Respondent did not make a specific commitment to the Claimant that
it will refrain from regulation that may so effect the Claimants investment as in the present
scenario.
86.

In the ICSID case of Eudoro A. Olguin v. Republic of Paraguay, the Tribunal held that for an
expropriation to transpire, whoever effects the action that results in the deprivation of the
affected partys property must acquire, directly or indirectly, control or at least the fruits of
the expropriated property.167 Essentially, for an expropriation to occur, the host State must
receive some sort of control over or profit from the effect the implemented measure has on
the investment. Therefore, the Claimants investment was not expropriated, directly or
indirectly, in the present case since the State of Oceania did not economically benefit from
the alleged depravation.

87.

The Respondent further submits that the phrase subject to any other measure the effects of
which would be tantamount to expropriation,168 which is found in the expropriation clause
of the Eastasia BIT, does not create a third category of expropriation besides direct and
indirect expropriation under the treaty. Tribunals have expressed the view that the phrases
tantamount or equivalent to a taking found in BITs do not create a third category because
the dictionary meanings of these phrases simply require the act of the state to be the same as
or similar to takings of a direct or indirect nature. 169 In Pope & Talbot v. Canada, the
Tribunal went as far as to hold that the phrase tantamount to taking does not apply. 170 At
most, the inclusion of such phrases have been utilized for expanding the scope of

165

EO at 1(a)(i), p 52.

166

PO2 at 7, pp 56, 57.

167

Olguin v Paraguay at 84.

168

Eastasia BIT at Art. 3(1), p 47.

169

S.D. Myers case at 142.

170

Pope & Talbot v. Canada at 96.

24

expropriation law, but the response has largely been to return the law relating to
expropriation to its erstwhile position under customary international law.171
B.

88.

The effect of the Executive Order falls under the public purpose exception
provided in Article 3 of the Eastasia BIT.

The Respondent submits that the Executive Order is a regulation in the interest of the public,
and therefore fulfills the criterion for it to fall within the public purpose exception found
under the expropriation clause of the BIT.172 The economic impact of the regulation would
thus be non-compensable.

89.

The State may invoke what Moderne refers to as pre-eminent public interests, which are
public ends that justify the sacrifice of private interests without paying compensation. 173 In
the Liamco award, Arbitrator Mahmassani dismissed the requirement to establish a public
purpose while dealing with the contention that the said measure was politically motivated and
not in pursuance of a legitimate public purpose by observing that the general opinion in
international theory is that the public utility principle is not an essential requisite for the
legality of a measure.174 In other words, each state is free to judge for itself what it considers
to be useful or necessary for the public good.175

90.

The European Court of Human Rights has recognized that States must have a wide margin of
appreciation in this respect, and has further acknowledged that it is within the ambit of the
national authorities to make the initial assessment as to whether there is a public concern
warranting measures that result in a dispossession.176 In the case of James and others v.
United Kingdom, the Court held that the States judgment as to what is in the public interest
should be accepted unless it is manifestly unreasonable.177 Moreover, a taking of property
that is effected for the purpose of fulfilling the goals of legitimate social, economic or other
policies is considered to be in the public interest, even if the public at large derives no direct
use or enjoyment of the property so taken.178

91.

In the present case, the sanctions were introduced as a part of an international response to
171

Sornarajah at p 367.

172

Eastasia BIT at Art. 3(1), p 47.

173

Montt at p 277.

174

LIAMCO v. Libya.

175

Id.

176

OECD at p 17.

177
178

James v. United Kingdom at 46.


Id.

25

condemn an illegal act of annexation of the territory of Fairyland. 179 The Republic of Oceania
was obliged under the principles of public international law not to recognize the effects of
unlawful actions, and to take active steps to wipe out the consequences of such unlawful
behaviour.180 The Respondent recognizes that threats to international security, which exist in
whole or in part outside the territory of Oceania, constitute an unusual and extraordinary
national security threat to Oceania.181 The Order was passed to counteract such a threat in line
with this policy, and thus it protects the legitimate public interest of security without the
public deriving a direct enjoyment or use of the properties blocked. Additionally, the
regulatory measure wasnt unreasonable as it was of general application to all persons
operating within specified sectors of the Euroasian economy who were contributing to the
situation in Fairyland,182 and hence wasnt a discriminatory or arbitrary measure.
In arguendo the Executive Order does constitute expropriation under Article 3,
the actions of the Respondent are valid under Article 9.
92.

The Essential Security Interest clause contained in Article 9 of the Eastasia BIT allows either
contracting party to take measures to fulfill its obligations with respect to the maintenance of
international peace or security by ensuring that nothing in this Agreement will prevent
either party from doing so.183 The issuance of the Executive Order of 1 May 2014 was in
pursuance of the obligation to protect and maintain international peace. Hence, this is a valid
measure under Article 9 of the Eastasia BIT, which thereby excludes the application of
Article 3.

93.

Furthermore, Article 9 is a self-judging provision,184 since a State is free to determine what


its obligations are under the Article.185 The illegal annexation of and use of force in the
territory of Fairyland by Euroasia posed an unusual and extraordinary threat to national peace
and security,186 and were actions of Euroasia that are in contravention with international law.
The introduction of the Executive Order as an economic sanction is a valid countermeasure187
179

Uncontested Facts at 16, p 36.

180

Answer to Request for Arbitration at p 16.

181

PO2 at 7, p 56.

182

EO at 1(a)(i), p 52.

183

Eastasia BIT at Art. 9, p 50.

184

UNCTAD (II) at pp 94, 95.

185

Muchlinski at p 41.

186

PO2 at 7, p 56.

187

ILC Articles (2001) at Art. 49.

26

as its purpose is to encourage and ensure that restores the territory of Fairyland to status quo
ante. Moreover, this measure was implemented after Eastasia condemned the actions of
Euroasia to no avail188 and diplomatic relations with Euroasia were terminated.189
94.

To conclude, since the actions of the Respondent can be identified under Article 9, the
Respondent is precluded from its obligations under the BIT including substantive provisions
such as Article 3.
C.

95.

The Respondent was simply exercising its sovereign powers with the view of
maintaining international peace and security.

There is an unwillingness to impose an international standard of public purpose, which


reflects the great hesitancy upon the part of tribunals and of States to determine a template of
what the public needs of a nation are and how these may best be satisfied. 190 State
measures are prima facie a lawful exercise of powers of governments, and may affect the
interests of foreign investors considerably without amounting to expropriation.191 The value
and use of foreign assets may be subjected to government actions such as taxation, trade
restrictions relating to licenses and quotas, and measures of devaluation. 192 Therefore, in
principle, these measures are not unlawful and do not constitute expropriation.
The act of the Respondent is within its police powers.

96.

According to the doctrine of police powers, certain acts of States do not necessitate
compensation under the law concerning expropriation. This doctrine includes State acts such
as legislation restricting the use of property and defence against external threats.193

97.

Several tribunals have invoked the doctrine of police powers while deciding whether a certain
state act constitutes expropriation. The UNCITRAL Tribunal in the Saluka case, which
heavily relied upon the observations made in the case of Methanex v. USA,194 affirmed the
principle that when States adopt regulations that are commonly accepted as within the police
power of States, no expropriation occurs and therefore the State is not liable to pay

188

Uncontested Facts at 16, p 36.

189

PO2 at 6, p 56.

190

Harvard Draft Convention at explanatory note to Art. 10.

191

Brownlie (I) at p 532.

192

Brownlie (I) at p 532.

193

UNCTAD (I).

194

Methanex v. USA at 17.

27

compensation. 195 This principle forms a part of present customary international law. 196 In
Suez v. Argentina, the Tribunal acknowledged the legitimate right States have to exercise
their police powers in order to safeguard public interests as well, and further observed that the
doctrine of police powers is especially pertinent to expropriation cases since an investors
property rights must be balanced with the States legitimate and reasonable need to
regulate.197
98.

In Sedco, Inc. v. National Iranian Oil. Co., the Iran-United States Claims Tribunal referred to
the principle accepted under international law that a State is not liable for economic injuries
that are a consequence of bona fide regulation within the accepted police power of
States.198 In Chemtura v. Canada, it was held that the measure adopted was a valid exercise
of the States police powers, and therefore the measure did not constitute an expropriation.199

99.

The essence is that such exercise of power by a government may affect the economic value of
an investment without the government being made liable to pay compensation200 since the
legitimate power of the regulatory state is recognized under international law.201 According to
Geiger, the need to preserve the regulatory authority of states arises in order to ensure the
fulfillment of the primary role of the state to protect the public interest in areas such as the
environment, health and safety, market integrity and social policies. 202 Newcombe reiterates
this point by observing that international authorities have continually upheld that no right to
compensation arises when regulations are passed for the protection of public health, safety,
morals and welfare.203

100. In the present case, the actions of Euroasia in the territory of Fairyland constitute an unusual
and extraordinary threat to the national security and foreign policy of the Respondent since
the illegal annexation poses a threat to peace, security, stability, sovereignty and territorial
integrity. As stated earlier, the passing of a legislation that restricts the use of property and
actions that defend the nation from an external threat are both actions that are identified under

195

Saluka Investments v. Czech Republic at 263; Sedco, Inc. v. National Iranian Oil Co at 278.

196

Saluka Investments v. Czech Republic at 263.

197

Suez v. Argentina at 147.

198

Sedco, Inc. v. National Iranian Oil Co. at 275.

199

Chemtura v. Canada at 242; Metalclad v. Mexico at 266.

200

Brownlie (II) at p 509.

201

Azurix v. Argentina at 310.

202

Geiger at p 108.

203

Newcombe at p 23.

28

the doctrine of the police powers. The Respondent submits that the passing of the Executive
Order was an exercise of the Respondents police powers in response to the situation in
Fairyland.
There is a presumption of validity of a regulatory measure.
101. To dispute a States claim to regulation is a very serious matter since, traditionally,
international law has recognized that States have the competence to define and manage their
economies, and therefore, it is unlikely that a state would take lightly a challenge to what it
submits to be liability-free behaviour.204 Under international law, it is assumed that states
act in good faith.205 If the reasons cited for the justification of the measure are valid and have
a plausible relationship with the action taken by the State, no attempt should be made to
investigate further as to whether the State was activated by an illicit motive.206 Thus, there is
a presumption of the validity of a regulatory measure in international law.207
102. In Tecmed v. Mexico, the Tribunal emphasized that due deference must be afforded to
States while looking into the matter of defining the issues that affect its public policy or the
interests of society as a whole along with what steps must be taken to protect these
interests.208
103. Furthermore, this deference is extended to determining whether or not a state has breached
the fair and equitable standard of treatment that is to be accorded to investors. In the case of
S.D. Meyers, the Tribunal stated that the determination of whether a host State has breached
the obligation of fair and equitable treatment must be made in the light of the high
deference that international law generally extends to the right of national authorities to
regulate matters within their own territory.209
104. As a matter of public policy, the President of Oceania is authorized to declare an unusual and
extraordinary threat to international security which in whole or substantial part originates
outside of Oceania.210
105. Compliance of the measure with internal law does not necessarily establish the overall

204

Weston at p 121.

205

UNCTAD (I) at p 92.

206

Christie at p 338.

207

Weston at p 121.

208

Tecmed v. Mexico at 122.

209

S.D. Myers case at 263; Saluka Investments v. Czech Republic at 305.

210

PO2 at 7, p 56.

29

legality of the act since if it constitutes a breach of an international obligation, it must be


characterized as internationally wrongful even if the act does not contravene the States
internal law.211 However, it is pertinent to note that compliance with internal or domestic law
may provide additional evidence of validity. According to Dolzer and Schreuer, since the law
of expropriation has essentially grown out of and mirrored parallel domestic laws, it is
plausible that measures that are normally considered regulatory without amounting to
expropriation under the domestic law will not require compensation under international
law.212
106. As per the Record, the Executive Order was passed in accordance with the laws of the
Republic of Oceania since the President is competent to pass an order that blocks transactions
and freezes assets to cope with a threat to national or international security. 213 Moreover,
reasonable notice was given since there were media reports on the preparation of the order
before it was actually circulated and implemented.214
THE CLAIMANT

WAS RESPONSIBLE FOR THE DAMAGES CAUSED TO HIS

INVESTMENTS

A.

The Executive Order falls under the ambit of Article 9 of the Eastasia BIT.

107. The Essential Security Interest clause proposes that Oceania shall have the discretion to fulfil
its obligation towards maintaining international peace and security. The Essential Security
clause provides for a state to conduct legitimate regulatory actions without fearing a backlash
from the investors in its state.215 The inclusion of Essential Security Interest clause in BITs
is to protect the states right to regulate.216 Most states consider this provision to be a selfjudging political resolution.217
108. Oceania identified the annexation of Fairyland by Euroasia to be an active threat to
international peace and security. Therefore anyone contributing to the same situation would
also be seen as a threat to the state of Oceania and international peace. While there is no

211

VCLT at Art. 27.

212

Dolzer /Schreuer at p 104.

213

PO2 at 7, p 56.

214

PO2 at 7, p 57.

215

Muchlinski at p 41.

216

Id.

217

Id.

30

threshold to determine what would be considered a breach of international peace and security,
it is for a state to decide what it considers an active threat.
109. The continuation of arms trade by the Claimant with the Republic of Euroasia despite the
passing of the Executive Order shows that the Claimant did not take up any steps towards
protecting his investments. While it is necessary for a state to ensure that investors are
notified regarding regulatory changes, it is also necessary for the investors to take full
responsibility for the preservation of their investments after they have been notified of such
changes. The Republic of Oceanias media had already discussed the passing of the
Executive Order.218 Thereby, the need for reasonable notice has been satisfied.
110. Further, the Executive Order was passed by the President of the Republic of Oceania in
accordance to the International Emergency Economic Powers Act 1992. 219 When the
Claimant made his investments in 1998, the IEEP was already a part of the legal framework
of Oceania.220 Hence, the contingency of an Order being passed under this Act would not be a
breach of the legitimate expectations 221 of the Claimant. The contingency was already
existent when the investments were made and it was not a provision that was created post the
making of the investment.
B.

The Executive Order and its impact are proximate.

111. The principle of proximity holds that there must be a possibility to establish a link between
the cause and the effect or impact of an action.222 In this case, the cause is the passing of the
Executive Order and the impact is the alleged damages to the Claimants investments.
112. It is necessary to take into consideration the nature of the trade that the Claimant was
involved in and the recent changes in the international arena. Euroasia annexed Fairyland and
Oceania perceived this to be a threat to the territorial sovereignty of Eastasia and therefore
was obligated to act accordingly to ensure that the situation is not furthered.
113. To ensure this, the Republic of Oceania passed the Executive Order on 1 May 2014 with the
intention to impose sanctions on anyone who was and is actively contributing towards the
situation of annexation in Fairyland. The Claimant had concluded a second contract with
Ministry of Defence of the Republic of Euroasia on 28 February 2014 which was one day
218

PO2 at 7, p 57.

219

PO2 at 7, p 56.

220

BG Group v. Argentina at 298.

221

Grierson-Weiler/Laird at pp 275-284.

222

Blacks Law at p 1262.

31

prior to the annexation. Given this extremely close occurrence of events, it is not possible to
negate the involvement of the Claimant.
114. Mr. Explosive had made all his investments in the arms production sector in the Republic of
Oceania. The arms production sector is generally considered volatile and sensitive. The
Claimants biggest and major contract was with the Republic of Euroasia, the aggressor in the
case of the annexation. Therefore, if the Republic of Oceania had not imposed such sanctions
on the Claimant and every other party involved in such sectors, the international situation
could have been worsened.
115. The impact of the sanctions imposed through the Executive Order in the arms production
sector was universal. It is only coincidental that the Claimant was the only party engaged in
arms trade with Euroasia, and hence became the sole party affected by it in that sector. Thus,
the effect of the Executive Order was not discriminatory.
C.

The Claimants investments were accorded Minimum Standards of


Treatment.

116. The Minimum Standards of Treatment is not a defined provision. The treatment that is to be
accorded to investors is in light of due consideration that must be given to the social,
economic and political conditions of the contracting host state. 223 The host state is expected
to grant a certain level of protection to investments mandatorily. This threshold is identified
as a provision that is beneficial for both the investor and the host state. For the investor, this
minimum standard meets the legitimate expectations224 that they may have while investing
and for the host state, they ensure that there is increased Foreign Direct Investment as more
investors would be drawn towards a stable and secure investor environment.225
117. One of the ways to identify the Minimum Standards of Treatment that is to be accorded to an
investor is by using a comparative scale.226 It is necessary to identify whether other investors
in the arms production sector were impacted similarly by the Executive Order to determine
whether the Claimants investments were accorded any treatment substantially different from
that of others and if the same treatment was to the detriment of the Claimant. It has already
been established that the Claimant was the sole arms producer who had a contract with the

223

Methanex v. USA at p 5.

224

Grierson-Weiler/Laird at pp 275-284.

225

Id.

226

Grierson-Weiler/Laird at p 299.

32

Republic of Euroasia,227and was therefore the only one affected by the sanctions. Thus, given
this lack of a comparative standard, the effect of the Executive Order becomes universal.
118. The fact that the Claimant was the sole party operating in the arms production sector who had
a contract with Euroasia despite the passing of the Executive Order shows that, firstly, the
impact of the Order was only on those who were targeted in pursuance to stop the promotion
of the situation in Fairyland and thereby, not discriminatory but rather, informed and very
specific. Secondly, that despite having knowledge of the passing of the Executive Order, the
Claimant did not take up any precautions 228 to reasonably ensure 229 that his investments
would not be impacted by the Order, thereby showing negligence on the part of the Claimant.
119. Given the connection230 that the Claimant had with the Minister of Defence of Euroasia, and
the fact that the Minister revealed details regarding the arms contracts that Euroasia held
previously, it becomes improbable to negate the possibility that the Claimant could not have
known of the intentions of Euroasia in annexing Fairyland from Eastasia.
120. The Claimant should not be granted any compensation by the Tribunal, because of the lack of
prudence on his part to ensure that his investments were secured. Since a breach of Minimum
Standards of Treatment cannot be established, the Claimant cannot hold the passing of the
Executive Order as the reason for the damages to his investments, which he himself failed to
protect.

227

PO2 at 6, p 56.

228

MTD v. Chile at 178.

229

RosInvest v. Russia at 652.

230

Gemplus v. Mexico at 11.12.

33

REQUEST FOR RELIEF

For the aforementioned reasons, the Respondent respectfully requests the Tribunal to
hold that:
1. the Claimant is not an investor pursuant to Article 1(2) of the Euroasia BIT;
2. the pre-arbitral steps in Article 9 of the Euroasia BIT are binding; or
3. the Claimant may not rely on Article 8 of the Eastasia BIT by virtue of the MFN
clause contained in Article 3 of the Euroasia BIT.
In the unlikely event that the Tribunal finds that it has jurisdiction, the Respondent
asks the Tribunal to conclude that:
1. the Claimant did not made a protected investment in light of the Clean Hands
Doctrine with reference to Article 1(1) of the Eastasia BIT;
2. the Respondent has not expropriated the Claimants investment; and
3. the Claimant contributed to the damage suffered by his investment.

Respectfully submitted on 26 September 2016 by

XUE

On Behalf of the Respondent


The Republic of Oceania

34

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