INTERNATIONAL COURT OF ARBITRATION - FDI Moot · Arbitration Report Mealey's International Arbitration Report, December 1999 Cited as: Mealey's International Arbitration Report The

TEAM GOLUNSKY

INTERNATIONAL COURT OF

ARBITRATION

__________________________________________________________________________

PETER EXPLOSIVE

Claimant

v.

REPUBLIC OF OCEANIA

Respondent

__________________________________________________________________________

MEMORIAL FOR RESPONDENT

__________________________________________________________________________

September 26, 2016

Team Golunsky | Memorial for Claimant

ii

TABLE OF CONTENTS

TABLE OF CONTENTS ii

INDEX OF AUTHORITIES – BOOKS AND ARTICLES v

LIST OF AUTHORITIES – MISCELLANEUS viii

INDEX OF CASES ix

INDEX OF ARBITRAL AWARDS xi

INDEX OF LEGAL SOURCES xx

INDEX OF ABBREVIATIONS xxi

STATEMENT OF FACTS 1

STATEMENT OF ARGUMENTS 3

I. THE TRIBUNAL HAS NO JURSIDICTION OVER THE DISPUTE

CONCERNING EXPROPRIATION CLAIMANT‘S PROPERTY

UNDER THE EUROASIA BIT AND THE CLAIMS ASSERTED BY

CLAIMANT ARE INADMISSIBLE. 3

1. The Claimant is not the investor under Article 1(2) of the Euroasia BIT

considering that the grant of Euroasian citizenship to Claimant is violation

of international law as the annexation is illegal (the principle of ex injuria

jus non oritur). 4

2. Peter Explosion is not Euroasian national since the Citizenship Act does not

allow Euroasian nationals to possess dual nationality. 6

3. The Euroasian nationality of Peter Explosion is not effective. 7

II. THE CLAIMANT CANNOT BROADEN THE SCOPE OF THE ARTICLE

3 OF THE AGREEMENT FOT THE PROMOTION AND RECIPROCAL

PRTECTION OF INVESTMENTS BETWEEN THE REPUBLIC OF

OCEANIA NAD THE REPUBLIC OF EUROASIA (EUROASIA BIT)

TO JUSTIFY HIS CONDUCT AS HE WAS OBLIGATED TO COMPLY

WITH PRE-ARBITRAL STEPS PROVIDED IN THE ARTICLE 9 OF

EUROASIA BIT PRIOR TO BRINGING HIS CLAIMS BEFORE THE

TRIBUNAL. 8


iii

1. The Claimant has not satisfied the mandatory preconditions to the ICC‘s

jurisdiction. 9

1.1. The Article 9 of the Euroasia BIT requires domestic litigation prior to

recourse to arbitration. 9

1.2. The provisions included in the Euroasia BIT purposely limit the access to

arbitration. 10

1.2.1. Meaning of the word „may‖ is obligatory „must‖ or ―shall‖. 10

1.2.2. Expressed consent to prior arbitration of the other contracting party is

mandatory due to the compromissory clause. 11

2. The Claimant inappropriately relied on the MFN clause included in the Art. 3

of the Euroasia BIT. 11

2.1. There is no literal meaning of the MFN clause. 12

2.2. The MFN clause could not be used to expand the scope of arbitration. 12

2.3. If parties concluded a separate provision of jurisdictional matters, there is no

need to refer to the MFN clause to broaden the scope. 13

III. THE CLAIMANT CANNOT BENEFIT FROM THE PROTECTION OF

THE TREATY SINCE IT DOES NOT HAVE ―CLEAN HANDS‖. 14

IV. THE CLAIMANT‘S INVESTMENT WAS NOT EXPROPRIATED BY

THE RESPONDENT. 16

1. The conduct of the Respondent do not amount to expropriation or equivalent

measures. 17

1.1. The Claimant was not deprived control over investment. 17

1.2. The Claimant did not take into account business risk. 17

2. The Respondent was obligated to enact the Executive Order under the

principles of public international law. 18

2.1. The Respondent acted legally by imposing sanctions. 18

2.2. The Respondent‘s act was not expropriatory, since it was taken within the

sovereign powers of the Republic of Oceania and thus, the Claimant is not

entitled to get compensation. 20


iv

V. THE CLAIMANT CONTRIBUTE TO THE DAMAGE SUFFERED BY HIS

INVESTMENT. 21

1. The Claimant contribute to the damages by his own wrongful conduct,

therefore the Tribunal is entitled to reduce or even to void the

compensation. 22

2. If the Tribunal awards that the damage have not been foreseen or was too

remote, the Tribunal may consider to reduced amount of compensation. 22

2.1. The damage was not foreseeable. 23

2.2. The compensation pointed out by the Claimant is at least too remote. 23

3. Alternatively, if the Tribunal recognize the Claimants‘ investment as an

expropriated by the Respondent, the Tribunal may award the

compensation which is filed only with lost profit. 23

4. If the Tribunal consider to award a compensation in the amount indicted by

the Claimant, the Tribunal may consider that the Claimant failed to apply

the ‗fair market value‘ standard. 24

REQUEST FOR ARBITRATION 25


v

INDEX OF AUTHORITIES – BOOKS AND ARTICLES

Desierto D. Human Rights and Investment in Economic

Emergencies: Conflict of Treaties, Interpretation,

Valuation Decisions presented at the Society of

International Economic Law (SIEL) 3rd Biennial

Global Conference, July 2012

Cited as: Desierto

Dolzer R., Schreuer C.

Principles of International Investment Law, Oxford

University Press, Oxford, 2012, p. 45-47

Cited as: Dolzer/Schreuer

Douglas Z. The International Law of Investment Claims,

Cambridge University Press The Edinburgh Building,

Cambridge, p. 134

Cited as: Douglas

Gillis Wetter J. Issues of Corruption before International Arbitral

Tribunals; The Authentic Text

and True Meaning of Judge Gunnar Lagergren‘s 1963

Award in ICC Case No. 1110 (1994) Vol. 10, No. 4

Arbitration International, p. 227.

Cited as: Commentary on ICC Case No. 1110

Dugan Ch., Wallace Jr D, Rubins

N., Sabahi B.

Investor-State Arbitration, Oxford University Press,

Oxford, 2008, p. 300-305

Cited as: Dugan/Wallace/Rubins/Sabahi


vi

Kantor M. Valuation for Arbitration: Uses and Limits of Income-

Based Valuation Methods‘ 4(6) Transnational Dispute

Management 15, TDM 6 (2007)

Cited as: Kantor

Kohen M., Hébié M. Territory, Acquisition, MPEPIL, Oxford University

Press, March 2011, para. 48

Cited as: Kohen/Hébié

Marossi A., Bassett M. Economic sanctions under International Law:

Unilateralism, Multilateralism, Legitimacy, and

Consequences, Springer, 2015, p. 77-78, 90, 169

Cited as: Marossi/Bassett

Mikulka V. The Impact of International Rules on Nationality, [in]:

Dissolution, Continuation and Succession in Eastern

Europe, Kluwer Law International, 1998, B. Stern (ed.),

p. 90

Cited as: Mikulka

Newcombe A., Paradell I. Law and Practice of Investment Treaties: Standards of

Treatment, Kluwer Law International, 2009, p. 378

Cited as: Newcombe/Paradell

Salacuse J. W.

The Law of Investment Treaties, Oxford University

Press, Oxford, 2015, p. 207

Cited as: Salacuse


vii

Schwarzenberger G. A Manual of International Law, 5th ed., London,

Stevens, 1967, p. 141

Cited as: Schwarzenberger

Serkin Ch. The Meaning of Value: Assessing Just Compensation

for Regulatory Takings, 99 NW. U. L. REV. 677, 725–

27 (2005)

Cited as: Serkin


viii

LIST OF AUTHORITIES – MISCELLANEUS

International Law Comission Draft Articles on Responsibility of States for

Internationally Wrongful Acts, November 2001,

Supplement No. 10 (A/56/10), chp.IV.E.1

Cited as: A/56/10

Mealey's International

Arbitration Report

Mealey's International Arbitration Report, December

1999

Cited as: Mealey's International Arbitration Report

The UN General Assembly

Resolution

United Nations General Assembly Resolution adopted

on 24 October 1970 concerning Declaration on

Principles of International Law Concerning Friendly

Relations and Cooperation among States in

Accordance with the Charter of the United Nations

Cited as: A/RES/25/2625


on 16 December 1970 concerning Declaration on the

Strengthening of International Security



on 14 December 1974 concerning the Question of

Defining Aggression


United Nations General Assembly Resolutions

adopted on 18 December 2013 concerning Particular

Relevance to Statelessness and Nationality



ix

INDEX OF CASES

House of Lords, UK Jurisdiction AstraZeneca UK Ltd v. IBM Corporation, EWHC 306

summary, High Court, 2011

Cited as: AstraZeneca

Julius v. Oxford (Lord Bishop) (1880), 5 App. Cas.

214 at 222-23 (H.L.)]

Cited as: Julius v. Oxford

ICJ Democratic Republic of Congo v. Rwanda, - Armed

Activities on the Territory of the Congo (New

Application: 2002) (Democratic Republic of the

Congo v. Rwanda), Judgment, I.C.J. Reports, 2006

Cited as: Congo

Gabčíkovo-Nagymaros Project (Hungary/Slovakia),

ICJ Award, 25 September 1997, para. 83

Cited as: Gabčíkovo-Nagymaros Project

Affaire Nottebohm (Liechtenstein v. Guatemala), ICJ,

Award, 6 1955, para. 22

Cited as: Nottebohm

PCIJ Oscar Chinn affair, P.C.I.J, Ser A/B, Case No. 63 1934

Cited as: Oscar Chinn

SCC Vladimir Berschader and Moïse Berschader v. The

Russian Federation, SCC Case No. 080/2004, SCC

Award, 21 April 2006

Cited as: Berschader


x

UNITED STATES COURT OF

APPEALS FOR THE FIFTH

CIRCUIT

Karaha Bodas Co., L.L.C., Plaintiff-Appellee, V.

Perusahaan Pertambangan Minyak Dan Gas Bumi

Negara; Et Al, Defendants, Perusahaan Pertambangan

Minyak Dan Gas Bumi Negara, Defendant-Appellant,

23 March 2004

Cited as: Karaha Bodas


xi

INDEX OF ARBITRAL AWARDS

Ad hoc Arbitration 1 Flegenheimer Case—Decision No. 182, Italian-United

States Conciliation Commission, U.N. Reports of

International Arbitral Awards vol. XIV, 20 September 1958,

p. 341,

2

3 Cited as: Flegenheimer

4

5

6 Salem Case (United States v Egypt), Special Arbitral

Tribunal, 8 June 1932 , U.N. Reports of International

Arbitral Awards (1932) vol. II, p. 1184

7

8 Cited as: Salem

9

10

11 12 Sapphire International Petroleums Ltd. v. National Iranian

Oil Company, 1963

13

14 Cited as: Sapphire International Petroleums

15

16

ICSID 17 Ambiente Ufficio S.p.A. and others v. Argentine Republic,

ICSID Case No. ARB/08/9 (formerly Giordano Alpi and

others v. Argentine Republic)

18

19 Cited as: Ambiente Ufficio

20

21 22 American Manufacturing & Trading, Inc. v. Republic of

Zaire, ICSID Case No. ARB/93/1, Award, 21 February

1997,

23

24 Cited as: AMT

25

26

27 28 CMS Gas Transmission Company v. The Republic of

Argentina, ICSID Case No. ARB/01/8 , Award, 12 May

2005, para. 263

29

30 Cited as: CMS

31

32


xii

33 34 Electrabel S.A. v. Republic of Hungary (ICSID Case No.

ARB/07/19), Decision on Jurisdiction, Applicable Law and

Liability, 30 November 2012, para. 7.77

35

36 Citd as: Electrabel

37

38

39 40 Enron Corporation and Ponderosa Assets, L.P. v. Argentine

Republic, ICSID Case No. ARB/01/3, Award, 22 May

2007, para. 245

41

42 Cited as: Enron

43

44

45 46 Marvin Roy Feldman Karpa v. United Mexican States,

ICSID Case No. ARB(AF)/99/1, Award, 16 December

2002, para. 103

47

48 Cited as: Feldman

49

50

51 52 Fraport AG Frankfurt Airport Services Worldwide v

Philippines, Award, ICSID Case No ARB/11/12, IIC 731

(2014), 10 December 2014, para. 328,

53

54 Cited as: Fraport

55

56

57 58 Generation Ukraine, Inc. v. Ukraine, ICSID Case No.

ARB/00/9, Award, 16 September 2003, para. 20.30

59

60 Cited as: Generation Ukraine

61

62

63 64 Gustav F W Hamester GmbH & Co KG v Ghana, Award,

ICSID Case No ARB/07/24, IIC 456 (2010), 10th June

2010, despatched 18th June 2010, para. 123

65

66 Cited as: Hamester

67

68


xiii

69 70 Dissenting Opinion of arbitrator Christopher Thomas in

Hochtief AG v. The Argentine Republic, ICSID Case No.

ARB/07/31, Decision on Jurisdiction, 24 October 2011

71

72 Cited as: Hochtief

73

74

75 76 Kılıç İnşaat İthalat İhracat Sanayi ve Ticaret Anonim Şirketi

v Turkmenistan, ICSID Case No ARB/10/1, Award, 6 July

2013

77

78 Cited as: Kılıç İnşaat

79

80

81 82 Joseph Charles Lemire v. Ukraine, ICSID Case No.

ARB/06/18, Decision on juridiction and liabiity, para 505

83

84 Cited as: Lemire

85

86

87 88 LG&E Energy Corp., LG&E Capital Corp., and LG&E

International, Inc. v. Argentine Republic, ICSID Case No.

ARB/02/1, Decision on Liability, paras. 188, 195, 197

89

90 Cited as: LG&E

91 92 Emilio Agustín Maffezini v. The Kingdom of Spain, ISCID

case no. ARB/97/7, Decision of the Tribunal on Objections

to Jurisdiction, 25 January 2000

93

94 Cited as: Maffezini

95

96

97 98 Metal-Tech Ltd v.Republic ofUzbekistan, ICSID Case No.

ARB/10/3, Award, 4 October 2013, para. 243, 413

99

100 Cited as: Metal-Tech

101

102


xiv

103 104 Micula and others v Romania, Decision on Jurisdiction and

Admissibility, ICSID Case No ARB/05/20, IIC 339 (2008),

24 September 2008, paras. 70-106

105

106 Cited as: Micula

107

108

109 MTD Equity Sdn. Bhd. and MTD Chile S.A. v. Republic of

Chile, ICSID Case No. ARB/01/7, Award, 25 May 2004

110

111 Cited as: MTD

112

113

114 Niko Resources (Bangladesh) Ltd. v. People‘s Republic of

Bangladesh, Bangladesh Petroleum Exploration &

Production Company Limited (―Bapex‖),Bangladesh Oil

Gas and Mineral Corporation (―Petrobangla‖), ICSID Case

No. ARB/10/11 and ICSID Case No. ARB/10/18, Decision

on Jurisdiction (19 August 2013), para. 433, 484

115

116 Cited as: Niko

117

118

119 Olguín v. Paraguay, Award, ICSID Case No ARB/98/5,

(2003) 18 ICSID Rev—FILJ 143, (2004) 6 ICSID Rep 164,

IIC 97 (2001), 26 July 2001, para. 60-62

120

121 Cited as: Olguín

122

123

124 Occidental Petroleum Corporation and Occidental

Exploration and Production Company v. The Republic of

Ecuador, ICSID Case No. ARB/06/11, Award, 5 October

2012

125

126 Cited as: Petroleum

127 Plama Consortium Limited v. Republic of Bulgaria, ICSID

Case No. ARB/03/24, Award, 27 August 2008

128

129 Cited as: Plama

130

131

http://www.italaw.com/cases/767


xv

132 Compañia del Desarrollo de Santa Elena S.A. v. Republic of

Costa Rica, ICSID Case No. ARB/96/1, Award, 17

February 2000

133

134 Cited as: Santa Elena

135 Sempra Energy International v. The Argentine Republic,

ICSID Case No. ARB/02/16, Award, 28 September 2007,

para. 284

136

137 Cited as: Sempra

138

139

Señor Tza Yap Shum v. The Republic of Peru, ICSID Case

No. ARB/07/6, Decision on Jurisdiction and Competence,

19 June 2009, paras. 42-77

140

141 Cited as: Shum

142

143

144 Siag and Vecchi v. Egypt, Award, ICSID Case No

ARB/05/15, IIC 374 (2009), 1 June 2009, para. 261

145

146 Cited as: Siag

147

148

149 Soufraki v. United Arab Emirates, Award, ICSID Case No

ARB/02/7, IIC 131 (2004), 7 July 2004, para. 55, 63

150

151 Cited as: Soufraki

152 153 Suez, Sociedad General de Aguas de Barcelona S.A., and

InterAguas Servicios Integrales del Agua S.A. v. The

Argentine Republic, ICSID Case No. ARB/03/17, Decision

on liability, 30 July 2010, para. 128

154

155 Cited as: Suez

156

157


xvi

158 159 Técnicas Medioambientales Tecmed, S.A. v. The United

Mexican States, ICSID Case No. ARB (AF)/00/2, Award,

29 May 2003, para. 119

160

161 Cited as: Tecmed

162

163

164 165 Teinver SA v. Argentine Republic, ICSID Case No

ARB/09/1, Decision on Jurisdiction, 21 December 2012

166

167 Cited as: Teinver

168

169 170 Telenor Mobile Communications A.S. v. The Republic of

Hungary, ICSID Case No. ARB/04/15, Award, 13

September 2006, para. 64,

171

172 Cited as: Telenor

173

174

175 176 Urbaser SA & Consorcio de Aguas Bilbao

177 Biskaia, Bilbao Biskaia Ur Partzuergoa v Argentine Repub,

ICSID Case No ARB/07/26, Decision on

178 Jurisdiction, 19 December 2012

179

180 CIted as: Urbaser

181

182

183 184 Inceysa Vallisoletana S.L. v. Republic of El Salvador, case

ICSID No. ARB/03/26, award dated August 2, 2006 , para.

240-242, 257

185

186 Cited as: Vallisoletana

187

188


xvii

189 190 Waste Management, Inc. v. United Mexican States

("Number 2"), ICSID Case No. ARB(AF)/00/3, Award, 30

April 2004, para. 159,

191

192 Cited as: Waste Management

193

194

195 Wintershall Aktiengesellschaft v Argentine Republic,

ICSID Case No ARB/04/14, Award, 8 December 2008

196

197 Cited as: Wintershall

198

199

200 World Duty Free Co. Ltd. v. Republic of Kenya, ICSID

Case No. ARB/00/7, Award 4 October 2006, para. 157, 178

201

202 Cited as: World

203

Iran-United States Claim

Tribunal

204 SEDCO, Inc. v. National Iranian Oil Co., Award No. 59-

129-3,10 IRAN-U.S.CL.TRIB.REP. 180, 204n.34, 27

March, 1986, para. 249

205

206 Cited as: SEDCO

207

208

PCA 209 HICEE B.V. v. The Slovak Republic, Partial Award,

UNCITRAL, PCA Case No. 2009-11, 23 May 2011

210 Cited as: HICEE

211

212

213 214 ICS Inspection & Control Servs Ltd (UK) v The Repub of

Argentina, PCA Case No 2010-9, Award on Jurisdiction, 10

February 2012

215

216 Cited as: ICS Inspection

217

218


xviii

219 220 Yukos Universal Limited v Russian Federation, Final

Award, PCA Case No AA 227, IIC 652 (2014), ICGJ 481

(PCA 2014), 18th July 2014, para. 1352,

221

222 Cited as: Yukos

223

224

UNCITRAL 225 Hesham Talaat M. Al-Warraq v. Republic of Indonesia,

UNCITRAL, Award, 15 December 2014, para. 646

226

227 Cited as: Al-Warraq

228

229

230 231 Austrian Airlines v. The Slovak RepublicAustrian Airlines

v. The Slovak Republic, Award, 9 October 2009

232

233 Cited as: Austrian Airlines

234

235

236 237 Chemtura Corporation v. Government of Canada,

UNCITRAL, Award, 2 August 2010, para. 266

238

239 Cited as: Chemtura

240

241

242 243

244

245 HICEE B.V. v. The Slovak Republic, Partial Award,

UNCITRAL, PCA Case No. 2009-11, 23 May 2011

246

247 Cited as: HICEE

248 249 Ronald S. Lauder v. The Czech Republic, UNCITRAL,

Final Award, 3 September 2001, para. 198

250

251 Cited as: Lauder

252 253 Methanex Corporation v. United States of America,

UNCITRAL, Award, part IV, chapter D, para. 7

254

255 Cited as: Methanex

256


xix

257 258 Pope & Talbot Inc. v. The Government of Canada,

UNCITRAL, Interim Award, 26 June 2000, para. 100

259

260 Cited as: Pope&Talbot

261

262

263 264 Saluka Investments B.V. v. The Czech Republic,

UNCITRAL, Partial Award, 17 March 2006 paras. 254-255

265

266 Cited as: Saluka

267

268

269 270 S.D. Myers, Inc. v. Government of Canada, UNCITRAL,

Award, 30 December 202, para. 282

271

272 Cited as: S.D. Myers

273

274 275

276 277


xx

INDEX OF LEGAL SOURCES

CRS 1961

United Nations Convention on the Reduction of

Statelessness, 30 August 1961

ICC Rules of Arbitration Arbitration Rules of the International Chamber of

Commerce, 1 January 2012

VCSST Vienna Convention on Succession of States in Respect of

Treaties, 23 August 1978

VLCT Vienna Convention on the Law of Treaties, 23 May 1969

UDHR Universal Declaration of Human Rights, 10 December

1948

UN Charter Charter of the United Nations, 26 June 1945


xxi

INDEX OF ABBREVIATIONS

& And

% Per cent

Art. Article

AtR Answer to Request for Arbitration

Claimant Peter Explosive

ClaM Memorial of the Claimant

ClaR Memorial of the Respondent

EA Environment Act of the Republic of Oceania

Euroasia BIT an Agreement for the Promotion and Reciprocal Protection

of Investments, Oceania-Euroasia Treaty

Eastasia BIT an Agreement for the Promotion and Reciprocal Protection

of Investments, Oceania-Eastasia Treaty

EO Executive Order of the Republic of Oceania

i.e. id est, that means

Ltd Limited

Ms Miss

Mr Mister

NEA National Environment Authority of Oceania

No. Number(s)

p. Page

Para. Paragraph

PO Procedural Order

Record FDI International Arbitration Moot 2016 Problem

Respondent The Republic of Oceania

RfA Request for Arbitration

The Parties the Claimant and the Respondent

UF Statement of Uncontested Facts

v. Versus


1

STATEMENT OF FACTS

The Republic of Oceania and the Republic of Euroasia have ratified Vienna Convention on

the Law of Treaties (VLCT) and the Vienna Convention on Succession of States in Respect of

Treaties (VCSST).

Both, the Republic of Oceania and the Republic of Euroasia, are members of the United

Nations.

On January 1, 1992 the Republic of Oceania and the Republic of Euroasia concluded the

Agreement for the Promotion and Reciprocal Protection of Investments (the Ocenia-Euroasia

BIT). In the same day the Republic of Oceania and the Republic of Eastasia concluded the

Agreement for the Promotion and Reciprocal Protection of Investments (the Oceania-Eastasia

BIT).

In February 1998 Peter Explosive acquired shares in Rocket Bombs Ltd. located in the

Republic of Oceania and became its 100% shareholder. Company operated in arms industry

and specialized in arms production.

On July 23, 1998 the National Environment Authority (NEA) issued an environmental license

for Rocket Bombs Ltd. It allowed Peter Explosive to start production.

On August 3, 1998 the Ministry of Environment of Oceania denied the request of Rocket

Bombs Ltd. for the subsidy, which was possible to get under the Environment Act 1996 (EA).

On December 23, 1998 Peter Explosive and the Ministry of the National Defence of the

Republic of Euroasia concluded contract for the arms productions for fifteen years.

Referendum in Fairyland was held on November 1, 2013. The armed forces of Euroasia

entered the territory of Fairyland on March 1, 2014. On March 23, 2014 the Republic of

Euroasia officially declared Fairyland a part of the Euroasian territory.

The Republic of Oceania did not recognize annexation of Fairyland by Euroasia, since it was

illegal act under international law. On April 1, 2014 the Republic of Oceania sent a

notification to Euroasia that diplomatic relations are break off.


2

New contract for arms production between Peter Explosive and the Minister of the National

Defence was concluded for six years on February 28, 2014 and effective of April 1, 2014.

On May 1, 2014 the President of the Republic of Oceania issued an Executive Order on

blocking Property of Persons Contributing to the Situation on the Republic of Eastasia. It

introduced a system of sanctions, which were applied also to the Claimant, since the Claimant

was engaged in producing arms sector of the Republic of Euroasia.

In 2013, an investigation regarding the corruption in the National Environment Authority of

Oceania started. On November 21, 2013 the criminal proceedings against officials, who were

under suspicion, were initiated. On February 1, 2015 those officials were convicted of

accepting bribes.

In connection with corruption affair in the NEA of Oceania, on May 5, 2015 Peter Explosive

was informed that he was under investigation with regard to the environment license for

Rocket Bombs Ltd. On June 23, 2015 the criminal proceedings against Peter Explosive

officially started.

On September 11, 2015 the Claimant requested for arbitration.

The International Court of Arbitration acknowledged on September 11, 2015 the receipt of

the Request of Arbitration.

The Respondent responded to a Request for Arbitration on September 30, 2015.


3

STATEMENT OF ARGUMENTS

I. THE TRIBUNAL HAS NO JURSIDICTION OVER THE DISPUTE

CONCERNING EXPROPRIATION CLAIMANT‟S PROPERTY UNDER

THE EUROASIA BIT AND THE CLAIMS ASSERTED BY CLAIMANT

ARE INADMISSIBLE.

1 Peter Explosion on 11 September 2015 submitted its Request for Arbitration to the

International Court of Arbitration of the International Chamber of Commerce in Paris

[Record, RfA, p. 15-16]. According to Claimant‘ statement – Peter Explosion is an

investor in the meaning of Art. 1 of the Agreement between the Republic of Oceania and

the Republic of Euroasia for the Promotion and Reciprocal Protection of Investments of 1

January 1992 (the Euroasia BIT) and therefore he is entitled to submit his case for

settlement to the ICC for arbitration pursuant to Art. 8 of the Agreement between the

Republic of Oceania and the Republic of Eastasia for the Promotion and Reciprocal

Protection of Investments of 1 January 1992 (the Eastasia BIT) in accordance with Art. 3

of the Euroasia BIT (MFN Clause) [Art. 3 Euroasia BIT].

2 The statement presented above is strongly incomprehensible and incorrect and Peter

Explosion is not the investor under the Art. 1 of the Euroasia BIT.

3 In absence of jurisdiction and admissibility of the claims the Tribunal cannot proceed to

adjudge the merits arising out of an investment [Douglas, p. 134].

4 In this proceeding the main procedural question is whether the Tribunal constituted by the

ICC in empowered to settle the present dispute. According to the statement of Claimant –

Tribunal‘s jurisdiction derives from the Euroasia BIT since he submitted himself as a

Euroasian national [Record, PO No. 1, p. 29-30].

5 Contrary to this argument - it should be noted that the jurisdiction of the Tribunal could not

result solely from the choice of the investor, but should be based on all the legal

circumstances of the case. In investment arbitration – the Tribunal should have jurisdiction

in field of three aspects – temporal, material and personal [Douglas, p. 134].

6 In this arbitration Tribunal has not power to determine the dispute as long as Peter

Explosion is not the investor in the meaning of the Euroasia BIT. Contrary to the Claimant

statement he is not the investor under Article 1(2) of the Euroasia BIT considering that the

grant of Euroasian citizenship to Claimant is violation of international law as the

annexation is illegal (the principle of ex injuria jus non oritur) (1). Peter Explosion is not

Euroasian national since the Citizenship Act does not allow Euroasian nationals to possess


4

dual nationality (2), so the Euroasian nationality of Peter Explosive is not effective (3).

Hence, the Claimant has no right to bring his claim under the Euroasia BIT.

1. The Claimant is not the investor under Article 1(2) of the Euroasia BIT

considering that the grant of Euroasian citizenship to Claimant is violation of

international law as the annexation is illegal (the principle of ex injuria jus

non oritur).

7 Article 1(2)(a) Euroasia BIT defines an ―investor of the other Contracting State‖ as a

natural person having the nationality of either Contracting Party [Euroasia] in accordance

with its laws. Peter Explosion argued that he may seek protection since he is Euroasian

national [Record, PO No 2 p. 56, para. 4]. Contrary to the Claimant‘s argumentation the

identity card and passport constitutes only prima facie evidence of nationality [Micula,

para. 70-106; Shum, 42-77; Siag, para. 261; Soufraki, para. 63]. It should be noted that the

Tribunal has right to decide for itself whether, on the facts and law before it, the person

whose nationality is at issue was or was not a national of the State in question and when,

and what follows from that finding [Soufraki, para. 55]. Therefore the Tribunal is required

to recognise all relevant law during this arbitration.

8 Subsequently in the present case, the Claimants argued that Fairyland annexation was

lawful self-determination act due to which Peter Explosion acquired the Euroasian

citizenship [Record, RfA, p. 5]

9 According to the UN Charter, which both Counteracting Countries are members, the self-

determinations provides that all peoples have the right freely to determine, without

external interference, their political status and to pursue their economic, social and

cultural development, and every State has the duty to respect this right in accordance with

the provisions of the Charter [Art. 1(2) UN Charter]. Nevertheless it cannot be base to

disaggregate the territory of existing state. The UN Friendly Relations Declaration states

that the principle of self-determination may not be construed as authorizing or

encouraging any action which would dismember or impair, totally or in part, the

territorial integrity or political unity of sovereign and independent States‖ as long as states

respect the principle of equal rights and self-determination in relation to minority groups

[A/RES/25/2625].

10 In the present case the Fairyland people on 1 November 2013 organised illegal referendum

on the secession of Fairyland from Eastasia and its reunification with Euroasia. Majority

decided to be part of the Euroasia [Record, UF, p. 35, para. 14]. This action clearly


5

constituted violation of territorial integrity of the Eastasia and it was illegal in the light of

international public law [Art. 2(4) UN Charter]. On the grounds of that fact the Eastasia

declared that this referendum was unlawful and had no effect on the shape of the Eastasian

territory [Record, UF, p. 35, para. 14].

11 Even, if the Tribunal will assume that people of Fairyland in accordance with the self-

determination principle had right to succession from the Eastasia, it cannot be exercise

with using a force.

12 Art. 2(4) of the UN Charter provides that all Members shall refrain in their international

relations from the threat or use of force against the territorial integrity or political

independence of any state, or in any other manner inconsistent with the Purposes of the

United Nations [Art. 2 (4) UN Charter].

13 Consequently, since the adoption of the UN Charter annexation no longer constitute

legally ways of acquisition of territory as it is an illegal use of force in violation of Art.

2(4) [Kohen/Hébié, para. 48] and no territorial acquisition or special advantage resulting

from aggression or even these resulting from the threat of use of force shall be recognized

as lawful [A/RES/29/3314; A/RES/25/2734]. The authorities of Fairyland not only

organized unlawful referendum, but additionally wrote an official letter to the Minister of

Foreign Affairs of Euroasia, asking for an military intervention. On 1 March 2014, the

armed forces of Euroasia entered the territory of the Eastasia – Fairyland and on 23 March

2014 the Euroasia declared Fairyland a part of the Euroasian territory [Record, UF, p. 35,

para. 14]. Subsequently Eastasia declared the annexation of Fairyland to be illegal and in

the light of the public international law and the international community supports its

declarations as well [Record, UF, p. 36, para. 16]. On the base of all this circumstances, it

is submitted, that the Fairyland annexation constitutes violation of the international public

law [ Art. 2 (4); The Peace Treaty of 1918; Record, PO No 2, para. 9].

14 Hence, Peter Explosion cannot rely on such internationally wrongful act and annexation of

Fairyland cannot be recognized as legal according to the principle ex injuria jus non oritur

[A/RES/29/3314; A/RES/25/2734].

15 Doubtless in principle, international law leaves each territorial sovereign to decide which

of his inhabitants he wishes to grant nationality. Thus, primarily, the topic is governed by

the rules underlying the principle of sovereignty [Schwarzenberger, p. 141]

16 Notwithstanding in one case the arbitral tribunal found that one of the powers [state], by

bestowing the citizenship against general principles of international law, has interfered

with the rights of the other power [Salem, p. 1184] and it is the tribunal‘s duty to


6

investigate, by verification and appraisal of the facts, whether nationality was actually

acquired or lost, to exclude fraud, favoritism, error and inconsistencies with treaties and

general principles of law [Flegenheimer, p. 341; Micula, para. 94-96]

17 Consequently, law regarding acquisition of nationality shall be in the line with general

principle of the international law and in respect to sovereignty of other country [Mikulka,

p. 90].

18 The change of Euroasian Citizenship Act occurred in accordance with Fairyland

annexation and its aim was underlining that the Euroasia exercised its sovereign powers

over Fairyland people and territory [Record, PO No 2, p. 56, para. 4].

19 Therefore, it should be noted that Euroasia may determine itself who is its national-instead

other states are not bound by such decision since it constitutes the violation rules and

norms of international public law.

20 Hence, it submitted that international protection over Fairyland people, which

subsequently become Euroasian is violation of the international law and such nationality

together with illegal annexation cannot be accepted by the Tribunal.

21 Therefore, the Tribunal shall found the Claimant cannot seek protection under the

Euroasian BIT.

2. Peter Explosion is not Euroasian national since the Citizenship Act does

not allow Euroasian nationals to possess dual nationality.

22 According to the VCLT, the words of a treaty provision should be given ordinary meaning

and understood in the light its purpose especially expressed in preamble [Article 31(1), the

VCLT]. Article 1(2)(a) Euroasia BIT defines the ―investor of the other Contracting State‖

as a natural person having the nationality of either Contracting Party [Euroasia] in

accordance with its laws. According to the ordinary meaning of this term the nationality of

investor shall be examine under law of Contracting state. In the present case Peter

Explosion to seek protection under the Euroasia BIT shall have Euroasian nationality

under Euroasian law.

23 Firstly, the provisions of the Euroasian Citizenship Act does not allow citizens to possess

dual nationality [Record, PO No 2, p. 56, para. 4]. Secondly under the Eastasian

Citizenship Law Eastasian citizens may renounce their citizenship, but reunification

becomes effective upon the acknowledgement of the President of the Republic of Eastasia

[Record, PO No 3, p. 59-60, para. 2]. After that the Oceania changed the Euroasian

Citizenship Act in accordance with Fairyland annexation, the Claimant applied for


7

Euroasian citizenship. On 2 March 2014 the Claimant informed via e-mail the President of

the Republic of Eastasia that he declares the renunciation of his Eastasian citizenship

[Record, PO No 3, p. 59-60, para. 2]. Nevertheless, the Claimant application did not

comply with the described formal requirements of the Eastasian Citizenship Law and the

President of the Republic of Eastasia did not acknowledgement the renunciation by Peter

Explosion his Eastasia nationality [Record, PO No 3, p. 60, para. 2]. Therefore, the

Claimant did not lost his Eastasia citizenship and considering his dual nationality he

cannot possess Euroasian nationality.

24 Secondly, it is submitted that even if Peter Explosion will declare reunification of his

Eastasia citizenship, the President of the Republic of Eastasia could not accept it since

renunciation shall not result in loss of nationality unless the person concerned possesses

or acquires another nationality [Art. 7 CRS 1961]. Doubtless, under the international law

a prevention and reduction of statelessness are primarily the responsibility of States

[A/RES/68/141 recommended accession of CRS 1961 and reflecting Art. 15 UDHR]. It

should be bear in mind that on 2 March 2014 Peter Explosion has not had yet Euroasian

citizenship. The Euroasian authorities recognised him as its citizen only from 23 March

2014 [Record, PO No 2 p. 56, para. 4]. Consequently, the Eastasia authorities could not

accept the Claimant reunification in that time because it will effect his statelessness.

25 By virtue of this facts Peter Explosion possess dual nationality which is against the

Euroasian Citizenship Act.

26 Consequently, the Arbitral Tribunal shall assume that the Claimant cannot seek protect

under the Euroasian BIT as he is not the Euroasian nationality what is required by Art.

1(2)(a) of the Euroasian BIT.

3. The Euroasian nationality of Peter Explosion is not effective.

27 Even if the Tribunal will hold that the Claimant has the Euroasian citizenship- his

nationality is not effective.

28 It should be bear in mind that in case of dual nationality of the investor, only the dominant

and effective nationality should be taken into account [Dolzer/Schreuer, p. 45-47;

Salacuse, p. 207; Dugan/Wallace/Rubins/Sabahi, p. 300-305]. The Principle of ―genuine

rule‖ established the International Court of Justice (ICJ) in Nottebohm case. The ICJ held

that international arbitrators have […] given their preference to the real and effective

nationality, that which accorded with the facts, that based on stronger factual ties between

the person concerned and one of the States whose nationality is involved. Different factors


8

are taken into consideration […] the habitual residence of the individual […] centre of his

interests, his family ties, his participation in public life […] etc. [Nottebohm, para. 22].

29 Therefore, even if the Tribunal will assume that Peter Explosion did not lose its Euroasian

citizenship, since the Claimant has possess dual nationality, it should be re-examine

[Olguín, para. 60-62].

30 As long as the Claimant has only ―genuine link‖ with Fairyland, which is the Eastasia

territory, its Eastasian nationality is effective not Euroasian [Record, UF, p. 35, para. 14].

31 Hence, in accordance with the aforementioned, it shall be concluded that Peter Explosion

is not the investor under Art. 1 (2) the Euroasian BIT and thereby cannot seek protection of

his investment - Rocket Bombs Ltd, by the Euroasian BIT. Contrary to the assertions of

Claimant – it should be noted Peter Explosion is the Eastasia nationality – as long as the

acquisition of the Euroasian citizenship is effect of illegal action of the Euroasia. Due to

the fact that Fairyland annexation was unlawful under international public law, Peter

Explosion did not acquisition the Euroasian and he is a Eastasia nationality. In any case in

order to his non-effective Euroasian citizenship, the Claimant cannot bring his claim on the

base on the Euroasia BIT and the Claimant‘s argumentation in this matter should be

considered as unfounded.

II. THE CLAIMANT CANNOT BROADEN THE SCOPE OF THE

ARTICLE 3 OF THE AGREEMENT FOT THE PROMOTION AND

RECIPROCAL PRTECTION OF INVESTMENTS BETWEEN THE

REPUBLIC OF OCEANIA NAD THE REPUBLIC OF EUROASIA

(EUROASIA BIT) TO JUSTIFY HIS CONDUCT AS HE WAS

OBLIGATED TO COMPLY WITH PRE-ARBITRAL STEPS PROVIDED

IN THE ARTICLE 9 OF EUROASIA BIT PRIOR TO BRINGING HIS

CLAIMS BEFORE THE TRIBUNAL.

32 If the Tribunal decides that the Euroasia BIT is applicable, the Respondent notes that,

pursuant to this Euroasia BIT, the Claimant should abide by certain pre-arbitral steps.

33 In present dispute, the Claimant tries to justify his behaviour exemplified by the non-

compliance with the pre-arbitral steps. Notwithstanding, the Claimant should not expand

the meaning of the MFN clause and should comply with the obligations given as the pre-

arbitral steps.

34 Hence, if the Claimant stated that he should be treated as a national under the Euroasia

BIT, he should at the same time comply with the Art.9 provided in this BIT. Therefore, on


9

this ground, the Claimant argues that he is entitled to the most-favoured-nation treatment

and his case should be proceeding prior before the arbitration. This argumentation is wrong

and should be dismissed on the following grounds: (1) The Claimant has not satisfied the

mandatory preconditions to the ICC‘s jurisdiction included in the Euroasia BIT; and (2)

the Claimant inappropriately relies on the MFN clause included in the Article 3 of the

Euroasia BIT.

1. The Claimant has not satisfied the mandatory preconditions to the ICC‟s

jurisdiction.

35 The Claimant did not fulfil the conditions explicitly given under the Article 9 of the

Euroasia BIT which states that: If the dispute cannot be settled amicably, it may be

submitted to the competent judicial or administrative courts. [Record, Euroasia BIT, p.44]

The Claimant did not comply with this requirement and did not submit his claims before

the ICC‘s jurisdiction. [Record, AtR, p.16] Hence, the Tribunal has reasonable grounds to

dismiss his present claims on the basis that: (1.1) the Article 9 of the Euroasia BIT requires

domestic litigation prior to recourse to arbitration; and (1.2) the provisions provided in the

Euroasia BIT purposely limit the access to arbitration.

1.1. The Article 9 of the Euroasia BIT requires domestic litigation prior to

recourse to arbitration.

36 The Claimant did not submit his claim before the court in Oceania but directly submitted

his claims before the Tribunal. [Record, RfR, p.3] In his submission, the Claimant relied

on the Article 3 from the Euroasia BIT but avoided compliance with the Article 9 from that

Treaty. Therefore, the Claimant‘s argumentation is incomplete. The Claimant should

notify his claims to the competent juridical as Article 9 of the Euroasia BIT requires.

37 From the manner in which Article 9 of the Euroasia BIT is worded (and it is words that

determine the intention of the Parties when interpreting a treaty), it is apparent that

reference to ICSID arbitration is expressly conditioned upon inter alia a claimant-investor

first submitting his dispute to a Court of competent jurisdiction, during a given period and

then proceeding to ICSID arbitration. [Wintershall, para.116] Tribunal in CS Inspection

case argues that at the time of commencing dispute resolution under the treaty, the investor

can only deny or accept the offer to arbitrate but cannot vary its terms. Therefore, the

Claimant is not entitled to determine his own rules. [CS Inspection, para.272]


10

38 Moreover, the tribunal in the Daimler case concluded that it did not have jurisdiction to

hear a claim brought by a UK investor on the basis that the UK investor had failed to first

submit the dispute to the Argentine courts [Daimler, para. 177]. Moreover, the obligation

to comply with the pre-arbitral procedural requirements is mandatory and failure to

complete these requirements violates dismissal of arbitral proceeding [Ambiente Ufficio,

paras. 595-607; Urbaser paras 106–50; Kılıç İnşaat, paras 6.3.12–6.3.14; Plama, para.215].

Hence, the Tribunal has a reasonable ground to even conclude that the Tribunal has no

jurisdiction over this case.

39 To conclude, the Claimant should notify his claims to the competent juridical as Article 9

of the Euroasia BIT requires.

1.2. The provisions included in the Euroasia BIT purposely limit the access

to arbitration.

40 At the time when the Parties drafted the Euroasia BIT, their intention was to limit the

arbitration by including a provision that explicitly required to firstly refer the claims to the

domestic court. If the Respondent wanted to let the Claimant submit his claims directly to

the arbitration, he would insert this clause into the Art.9 of the Euroasia BIT. However, the

literal meaning of the Article 9 of the Euroasia BIT is to firstly proceed before the

domestic courts and, directly after that, submit claims before the Arbitral Tribunal. The

provisions provided in the Euroasia BIT purposely limit the access to arbitration due to:

(1.2.1) the literally meaning of the word may; and (1.2.2) in the light of the compromissory

clause there is an obligation to the other party consent when proceeding directly before the

Tribunal.

1.2.1. Meaning of the word „may” is obligatory „must” or “shall”.

41 As stated in the Julius v Oxford case where court ruled that in some situation, regarding

context and purpose govern, may can became must. [Julius v. Oxford, Lord Bishop] Lord

Bishop in that case argues that (…) there may be something in the nature of the thing

empowered to be done, (…) something in the conditions under which it is to be done. (…)

So “may” can be “must”, if the circumstances require that interpretation. Moreover, the

court in the AstraZeneca UK Ltd v IBM Corporation [AstraZeneca, Decision on the High

Court] interpreted may as giving rise to an obligation. In the light of the rest of the

document and the commercial context, construing may as an option would be incorrect.


11

42 Therefore, the meaning of the Euroasia BIT is to promote cooperation and stable

framework for investment. [Record, Euroasia BIT, p.40] The Claimant should comply with

the given rule and firstly submit his claims before the competent court.

43 To conclude, the meaning of the word may be obligatory must or shall.

1.2.2. Expressed consent to prior arbitration of the other contracting party is

mandatory due to the compromissory clause.

44 The Article 9 of the Euroasia BIT provides a compromissory clause in consent that is

expressed in a compromissory clause in an international agreement, any conditions to

which such consent is subject must be regarded as constituting the limits thereon. The

Court accordingly considers that the examination of such conditions relates to its

jurisdiction and not to the admissibility of the application. [Democratic Republic of Congo

v. Rwanda, para.88] Therefore, the Claimant should acquire the Respondent‘s consent to

submit his claims without submitting it to the domestic court as stated in the Article 9 of

the Euroasia BIT.

45 To conclude, the Parties‘ intention was to limit the arbitration by providing the provision

which explicitly required to firstly refer the claims to the domestic court. The provisions

provided in the Euroasia BIT purposely limited the access to arbitration due to: (1) a

meaning of a word may as must or shall; and (2) an obligation under the promissory clause

as to acquire the Respondents‘ consent to change the rules given in the Article 9 of the

Euroasia BIT.

2. The Claimant inappropriately relied on the MFN clause included in the

Art. 3 of the Euroasia BIT.

46 The Article 3 of the Euroasia BIT states as follows:

47 Each Contracting Party shall, within its own territory, accord to investments made by

investors of the other Contracting Party, to the income and activities related to such

investments and to such other investment matters regulated by this Agreement, a treatment

that is no less favourable than that accorded to its own investors or investors from third-

party countries. [Record, Euroasia BIT, p.41]

48 The Claimant invokes Art. 3 to avoid this step and submit his claims directly to the

arbitration. However, quoted MFN clause does not provide any jurisdictional matters.

Moreover, there is a disapproval statement in an international practise for expanding the

MFN clause to the dispute resolution provisions. Hence, the Claimant is not entitled to


12

avoid the mandatory preconditions by invoking incorrectly the broad scope of the MFN

clause.

49 As it was stated above, the Article 9 of the Euroasia BIT explicitly provides for the

domestic litigation as a way of resolving disputes without the need to expand the meaning

of the MFN clause to arbitration.

50 The Claimant inappropriately relied on the MFN clause on the ground that: (2.1) there is

no literal meaning of the MFN clause; (2.2) The MFN clause could not be used to expand

the scope of arbitration; and; (2.3) If parties concluded a separate provision of

jurisdictional matters there is no need to refer to the MFN clause to broaden the scope.

2.1. There is no literal meaning of the MFN clause.

51 Firstly, the Claimant inappropriately invokes the Article 3 of the Euroasia BIT (Record,

Euroasia BIT, p.41] by spreading the meaning of the phrase such other investment matters

regulated by this Agreement and literally interpreting to the dispute resolution. Hence, as

an international practise expounds, this expression cannot be taken literally.

52 In Vladimir Berschader and Moïse Berschader v. The Russian Federation, the Tribunal

looked at provisions of the treaty in order to show that there were some provisions to

which the MFN clause could not apply, and thus the expression ―all matters covered by the

present Treaty‖ could not be taken literally. [Berschader, para. 192] Moreover, Tribunal in

Maffezini case gives an example of the phrase which cannot be broadened to jurisdiction

matters. Hence, Tribunal states that when treaties include the most-favored-nation clause

as ―all rights contained in the present Agreement‖ or ―all matters subject to this

Agreement‖ it does not provide expressly that dispute settlement as such is covered by the

clause. [Maffezini, paras.52-52] Therefore, the phrase contained in the Euroasia BIT- such

other investment matters regulated by this Agreement does not provide for dispute

resolution in its literally meaning.

53 To conclude, the Claimant wrongly relies on the Article 3 of the Euroasia BIT trying to

interpret it literally.

2.2. The MFN clause could not be used to expand the scope of arbitration.

54 Secondly, the Claimant relies on the MFN clause and mistakenly broadenes its scope to the

jurisdiction. The Article 3 of the Euroasia BIT does not include a provision on

jurisdictional matters.


13

55 According to Cole, State is only obliged to arbitrate when it actually has consent to do so.

[Cole, p.132] Moreover, in Telenor Mobile Communications A.S. v. The Republic of

Hungary, a limited scope for arbitration in the BIT between Hungary and Norway was

indeed intended. Therefore, if the Parties had wanted to rely on the MFN clause, the would

have incorporated this provision into the Euroasia BIT. [Telenor, paras. 96-97] Moreover,

MFN cannot be used to change the conditions for the exercise of procedural or

jurisdictional rights. An investor who has not met the requirements for commencing a

claim against the respondent State cannot avoid those requirements by invoking the

procedural provisions of another BIT. [HICEE, para.149]

56 In the similar case, ICS Inspection and Control Services Limited v Argentina, the tribunal

held that the MFN clause in the Argentina-UK BIT did not apply to dispute resolution

provisions and, therefore, did not enable investors to import a less restrictive arbitration

clause from other Argentine BITs, which did not require that a dispute be litigated in the

local courts for 18 months before it could be submitted to international arbitration.[ICS

Inspection, para.114] Therefore, the MFN clause incorporated in the Euroasia BIT did not

apply to dispute resolution.

57 To conclude, there is a disapproval statement in an international practise for expanding the

MFN clause to the dispute resolution provisions. Therefore, the Claimant cannot expand

the MFN clause to the dispute resolution as an argument to not submitting his claims to the

domestic courts.

2.3. If parties concluded a separate provision of jurisdictional matters, there

is no need to refer to the MFN clause to broaden the scope.

58 Thirdly, in the light that MFN clause could not be expanded to the dispute resolution, the

Claimant cannot rely on the MFN clause to broad a scope on jurisdictional matters. The

Parties enacted in the Euroasia BIT the rules on the jurisdictional matters (the Article 9 of

the Euroasia BIT) which directly shows the Parties how to proceed.

59 In Austrian Airlines the Tribunal considered that the particular provisions of the treaty

relating to jurisdiction were themselves a clear indication that the parties did not intend to

allow the jurisdiction of the tribunal to be expanded by means of an MFN provision.

[Austrian Airlines, para. 135.] Therefore, the Claimant should not rely on the MFN clause,

if there is a direct provision relating jurisdictional matters. [Record, Euroasia BIT, Article

9, p.44]


14

60 Even when the Respondent waives the application of the conditions of its consent to the

exercise of jurisdiction, a Tribunal has no jurisdiction to hear a claim. [Hochtief AG, para.

88] Therefore, the MFN clause cannot be used to change the basis for exercising

jurisdiction.

61 To conclude, the Claimant cannot rely on the MFN clause to broad a scope on

jurisdictional matters. If parties concluded a separate provision of jurisdictional matters,

there is no need to refer to the MFN clause to broaden the scope.

62 To conclude, the Claimant cannot use the MFN clause to avoid his obligations under the

Treaties between the Parties due to: (1) lack of the literally meaning of the MFN clause;

(2) inability of invoking the MFN clause to expand the scope of arbitration; and (3) no

need to refer to the MFN clause to broaden the scope.

III. THE CLAIMANT CANNOT BENEFIT FROM THE PROTECTION

OF THE TREATY SINCE IT DOES NOT HAVE “CLEAN HANDS”.

63 Peter Explosive has no ―clean hands‖. Article 1(1) of the Eastasia BIT provides that

investments shall be carried out in accordance with the laws and regulations of the host

state. [Record, p. 46, para. 1]. The claimant‘s investment is not protected, as he breached

Oceanian domestic laws by obtaining an environmental license through corruption.

64 The requirement of legality for investments is considered as a reflection of the clean hands

doctrine.

65 The ―clean hands‖ doctrine is a part of the applicable law and demands that whoever seeks

the protection of its rights has not acted illegally. It should be bear in mind, that the

fundamental principles of principles of equity and justice the dismissal of claims based on

unfair or illegal conducts. Since in the light of principle nemo auditor propiam

turpitudinem allegans, no right to action may have its origin in negligence and in general,

the rule must be that fraud shall be always punished nobody can benefit from its own

wrong doing [Vallisoletana, paras. 240-242].

66 Therefore, the Arbitral Tribunal has the duty to verify, that whoever presents a claim has

―clean hands‖. One tribunal indicated that if the tribunal will grant the claimant the relief

in case of ‗unclean hands‘ caused by corruption, this Tribunal would thereby appear to

assist and encourage the plaintiff in his illegal conduct [World, para. 178]. The corruption

it is not only domestic problem, but the prohibition of bribery forms part of international

public policy [Niko, para. 433; World, para. 157]


15

67 In the light of ―clean hands‖ an investment will not be protected if it has been created in

violation of national or international principles of good faith; by way of corruption, fraud,

or deceitful conduct; or if its creation itself constitutes a misuse of the system of

international investment protection under the ICSID Convention. It will also not be

protected if it is made in violation of the host State„s law [Hamester, para. 123].

Consequently, it should be noted that the clear hands doctrine requires the parties to the

dispute to appear before the court or tribunal with ‗clean hands‘ and the investor who lacks

―clean hands‖ cannot benefit from the protection of the Treaty. Such position is confirmed

by international tribunals and required by international laws principles.

68 The clean hands doctrine is commonly respected by the arbitral tribunal. For instance in

Fraport case tribunal acknowledged that investment treaty cases confirm that such treaties

do not afford protection to illegal investments based on rules of international law, such as

the „clean hands„ doctrine or doctrines to the same effect [Fraport, para. 328;

Vallisoletana, para. 257].

69 In case at hand the Contracting Parties have specifically and expressly conditioned access

of investors to a protection under the Eastasia BIT by an express requirement of the

investment compliance with the internal legislation of the host State. Claimant started

operated his Rocket Bomb Ltd investment through illegal conduct, namely he did not reach

the requirements of contained in the Environment Act 1996 and the secured an

environmental license in accordance with a crime [Record, UF, p. 32-33, para. 4]. The

Peter Explosion in order to obtain necessary environmental licenses has given bribes to the

President of the National Environmental Authority [Record, PO No2, p. 56, para. 5]. The

private meeting between them and corruption among the officials of the National

Environment Authority is uncontested [Record, UF, p. 33, para. 6; p. 36, para. 18].The

corrupt acts of Peter Explosion are evidenced by confession statements made by the

already convicted President of the National Environment and caused an initiation of

criminal proceedings against him by the General Prosecutor‘s Office. [Record, UF, p. 37,

para. 19, Record, PO No2, p. 56, para. 5].

70 Additionally, the fact that corruptions took place as a result of the corruption among the

officials of the National Environment Authority of the Oceania does not justify Peter

Explosion‘s crime. In afore mentioned World case the arbitral tribunal held that claims

based on contracts of corruption or on contracts obtained by corruption cannot be upheld

by this Arbitral Tribunal and underlined that the Tribunal does not identify the Kenyan


16

President with Kenya; and in any balancing exercise between Kenya and the Claimant, the

balance against the Claimant would remain one-sided [World, para. 157, 178].

71 It should be noted that corruption is by essence difficult to establish and that it is thus

generally admitted that it can be shown through circumstantial evidence [Metal-Tech,

para. 243]. Therefore, the circumstances of the present case constitutes enough strong

evidence to conclude that Peter Explosion ‗unclean hand‘ what precludes his investment

from protection.

72 Consequently as long as contracts, which have as their object the corruption of civil

servants, have been denied effect by international arbitrators the Claimant cannot benefit

from his licenses, which he obtained by corruption [Commentary on ICC Case No. 1110].

73 Since an investor who has obtained an investment in the host State only by acting in bad

faith or in violation of the laws of the host state (…) should not be allowed to benefit from

the Treaty the Peter Explosion cannot bribe and subsequently expect proper protection

under any BIT in accordance with its investment Rocket Bomb Ltd. [Yukos, para. 1352].

74 Moreover, some tribunal held that unclean hands is subject matter of the jurisdiction and

on this base declined its competence to solve the dispute [Niko, para. 484; Metal-Tech,

para. 413].

75 Consequently, the Tribunal ought to decline jurisdiction as the Claimant operated his

investment in disregard of Oceanian domestic laws and regulations and thus his investment

is not protected.

76 Even if the Tribunal will find that clean hands it is not a question of jurisdiction, this is

new ground for the inadmissibility of an application. In a recent decision, the Al-Warraq

tribunal, referring to Judge Crawford‘s expert opinion, stated that the „clean hands„

principle has been invoked in the context of admissibility of claims before international

courts and tribunals and the tribunal held the doctrine of „clean hands„ renders the

Claimant„s claim inadmissible [Al-Warraq, para. 646].

77 Hence, the Tribunal shall assume that considering the Claimant corruption in accordance

with operation of its investment, he is not able to seek protection under any BIT.

IV. THE CLAIMANT‟S INVESTMENT WAS NOT EXPROPRIATED BY

THE RESPONDENT.

78 The Claimant claims that its investment was expropriated by the Respondent‘s conduct.

However, the Respondent‘s act did not have expropriatory effect (1). Moreover, the


17

Executive Order was measure, which the Respondent was obliged to enact under the

principles of public international law (2).

1. The conduct of the Respondent do not amount to expropriation or

equivalent measures.

79 The Claimant sill enjoyed control over investment and use. (1.1). Moreover, the Claimant

should have considered business risk, which attend every investment (1.2).

1.1. The Claimant was not deprived control over investment.

80 The Executive Order introduced a system of sanctions to i.e. the Claimant‘s investment,

which caused some impediments to the Claimant to conduct business as before. However,

the Investor still maintains control over the investment. We cannot consider expropriation

where the Investment is impaired but the Investor maintains overall control of the

Investment. [Newcombe/Paradell, p. 378]

81 The expropriatory behavior of State was as also consider by the Tribunal in Pope&Tablot

case. The Tribunal found that Canada did not expropriate the Claimant‘s investment, since

the Investor remains in control of the Investment and it directs the day-to-dayoperations of

the Investment.[Pope&Talbot, para. 100] Since Canada did not have any influence on work

of officers or employees, as well as did not interfere in management or activities of

Investor, there was no expropriation [Pope&Talbot, para. 100]. These criterions were

applied by numerous arbitration tribunals in cases: LG&E [para. 188], CMS [para. 263],

Enron [para. 245] or Sempra [para. 284]. In present case the Claimant enjoys full control

of the investment, since the State did not interfere in any activity of Investor.

82 It is also worth to notice that the legal title of the Claimant‘s investment is not affected.

The Claimant is the owner of Rocket Bombs Ltd. since February 1998 and the Respondent

did not interrupt ownership during this time.

83 Moreover, as the Tribunal in Waste Management case found, even the loss of benefits or

expectations is not a sufficient criterion for an expropriation, even if it is a necessary one.

[Waste Management, para. 159] Thus, claim for expropriation should be rejected.

1.2. The Claimant did not take into account business risk.

84 Business environment and world change constantly, what carry a lot of risks for

investments. The Claimant, as every prudent investor, should have considered business

risk. The Respondent‘s conduct was not straight directed the Claimant‘s investment. The


18

Claimant fell victim of international response for unlawful actions of its State. [Record,

AtR, p. 16]

85 As Permanent Court of International Justice in Oscar Chinn case held: no enterprise can

escape from the chances and hazards resulting from general economic conditions. [Oscar

Chinn cited in LG&E, para. 197] There are times of general prosperity, as well as

investment is also exposed to the danger of ruin or extinction if circumstances

change. [Oscar Chinn cited in LG&E, para. 197] Every prudent investor takes into account

such possibility. Such sanctions are legal under principles of public international law. The

Respondent acted in that way to maintain international peace and security. [Record, AtR,

p.16]

86 Using of regulatory powers by the host State may create impediments to business, but

investor must be aware that every investment involves risks. Such impediments do not

constitute expropriation. [Telenor, para. 64] Even fact that an investment has become

worthless obviously does not mean that there was an act of expropriation;

investment always entails risk. [Generation Ukraine, para. 20.30]

87 The Claimant‘s claims indirect expropriation, since its investment became unprofitable.

Nevertheless, we should remember about business risk, which was taken by the Claimant

in the day of acquiring shares of Rocket Bombs Ltd. The Respondent is not responsible for

ensuring profitability of the Claimant‘s investment. Thus, the allegations that the

Respondent‘s conduct caused expropriation are unjustified.

2. The Respondent was obligated to enact the Executive Order under the

principles of public international law.

88 The Respondent impose sanctions legally (2.1). Furthermore, the Respondent‘s conduct

was taken within the sovereign powers of the Republic of Oceania, what indicate that the

Claimant is not entitled to get compensation for effect, which the Executive Order made on

its investment (2.2).

2.1. The Respondent acted legally by imposing sanctions.

89 As many countries, the Respondent highly doubt about lawfulness of the referendum held

on 1 November 2013 in Fairlyland. [Record, UF, para. 14] There was no international

organization, which supervised, or standards, which were implied to referendum and these

permit to think that it was manipulated by the Republic of Euroasia. The Respondent


19

recognizes the right nations to self-determination, but in that case, referendum was not

held with due process of law and thus it is an illegal act of annexation.

90 Moreover, the army of the Republic of Euroasia unlawfully entered to the territory of

Fairyland. [Record, UF, para. 14] The Claimant provided weapons to the Republic of

Euroasia [Record, UF, para. 10] and thus contributed to this illegal act. The Respondent

felt obligated to impose sanctions to protect international and national security. Protection

of such interests through the exercise of sovereign power is commonly accepted.

[Marossi/Bassett, p. 169]

91 Under principles of public international law a State‟s jurisdiction within its territory is

absolute and exclusive [Marossi/Bassett, p. 78] This is rooted in and based on the

generally accepted norms of international law. [Marossi/Bassett, p. 77] This gives

authority to the State to exercise its sovereign power and i.a. implement sanctions, which

are tool of foreign policy of the State, which aim to change another country‘s behaviour.

As Marossi/Basset concluded: under the law of state responsibility, it is possible for States

to unilaterally maintain lawful economic/financial sanctions that are applied in response

to an allegedly unlawful act of the target State [Marossi/Bassett, p. 90].

92 The Claimant and the Respondent are members of the United Nations, which obligates

them to act accordingly to laws of this organization. According to Draft articles on

Responsibility of States for Internationally Wrongful Acts [A/56/10] adopted by

International Law Commission, the countermeasures may be taken by injured state, as well

as another states may act on behalf of or at the request of an injured state. The Respondent

felt obligated to adopt such sanctions in behalf of the Republic of Eastasia, since

international peace and security are the highest priority.

93 Moreover, international law in case of imposing sanctions requires to follow principles of

proportionality, discrimination and necessity. According to first principle the state has to

consider social, economic and political effect of countermeasures. Second principle

requires certain precision when imposing sanctions. Third principle requires to keep

balance between countermeasure and intended purpose [Marossi/Bassett, p.80] There is no

doubt that the Respondent applied all these principles. Maintaining international peace and

security is essential and thus may need severe actions.

94 Additionally, International Court of Justice held in Gabčíkovo-Nagymaros Project case,

the countermeasures must be taken in response to a previous international wrongful act of

another State and must be directed against that State. [Gabčíkovo-Nagymaros Project,


20

para. 83] The Executive Order comply to these requirements and thus the Respondent

acted legally by implementing such countermeasures.

2.2. The Respondent‟s act was not expropriatory, since it was taken within

the sovereign powers of the Republic of Oceania and thus, the Claimant is

not entitled to get compensation.

95 The Executive Order was held in the public interest – its aim was to maintain international

peace and security. [Record, AtR, p. 16] It is well-established that the host State is entitled

to maintain a reasonable degree of regulatory flexibility to respond to changing

circumstances in the public interest. [Electrabel, para. 7.77] The Respondent has the

inherent right to regulate its affairs and adopt laws in order to protect the common good of

its people. [Lemire, para. 505] As the Tribunal in S.D. Myers case found, we should not

confuse measures of that nature with expropriation [S.D. Myers, para. 281]

96 As the Tribunal in LG&E case found: it can generally be said that the State has the right to

adopt measures having a social or general welfare purpose [LG&E, para. 195] The

Respondent adopted the Executive Order in international welfare purpose. A measure

adopted under such circumstances is a valid exercise of the State's police powers and, as

a result, does not constitute an expropriation [Chemtura, para. 266]

97 The Executive Order, which was regulatory act, do not amount to expropriation, since it

was enacted in public interest, in non-discriminatory manner and implemented in

accordance with due process. The Respondent did not give the Claimant any specific

commitments, which would refrain the Respondent from using its police powers.

[Methanex, part IV, chapter D, para 7] Sanctions were not imposed only in Peter Explosive

and Rocket Bombs Ltd, so they were not discriminatory. Moreover, the Executive Order

was prepared and published in accordance with Oceaninan law. This gives authority to the

President of the Republic of Oceania to enact such measures in case of existence of an

unusual and extraordinary threat, which also concerns situations when international

security is at risk [Record, PO No.2, para. 7].

98 It is commonly accepted under the principles of international public law that state does not

have to pay compensation to dispossessed alien investor if it adopts general regulation

[Suez, para. 128]. Governments must be free to act in the broader public interest and

this cannot be achieved if reasonable governmental regulation requires compensation to

affected businesses [Feldman, para. 103]. This rule was adopted by tribunals in many


21

cases: SEDCO [para. 249], Saluka [para. 255], Lauder [para. 198] or Tecmed [para. 119].

Thus, the Claimant is not entitled to any compensation.

99 Even if the Tribunal recognize that deprivation occurred in present case, it does not have to

indicate an expropriation. As the Tribunal in Saluka case found: deprivation can be

justified if it results from the exercise of regulatory actions aimed at the maintenance

of public order [Saluka, para. 254]. Regulations of host state are a lesser interference. We

cannot say this about expropriations, which tend to involve the deprivation of ownership

rights [S.D. Myers, para. 282].

100 From all reasons above, the Claimant‘s investment was not expropriated by the

Respondent.

V. THE CLAIMANT CONTRIBUTE TO THE DAMAGE SUFFERED

BY HIS INVESTMENT.

101 The Claimant contributed to the damage suffered by his investment by virtue of his own

conduct. If the Claimant had not supplied the weapons to Euroasia, he would not have

aggravated his financial situation. Moreover, the Claimant continue to supply weapons to

the Euroasia even after he should have known of Euroasia‘s intention to incorporate

Fairyland into its territory by direct military intervention which led to the imposition of

sanctions upon Rocket Bomobs Ltd. [Record, AtR, p.16]

102 Meanwhile, the Claimant try to convince the Tribunal that he does not contribute to his

damage and claim for 120,000,000 USD. This is a wrong statement and should be

dismissed on the following grounds: (1) The Claimant contribute to the damages by his

own wrongful conduct, therefore the Tribunal is entitled to reduce or even to void the

compensation; (2) If the Tribunal awards that the damage have not been foreseen or was

too remote, the Tribunal may consider to reduced amount of compensation; (3)

Alternatively, If the Tribunal recognize the Claimants‘ investment as an expropriated by

the Respondent, the Tribunal may award the compensation which is filed only with lost

profit; (4) If the Tribunal consider to award a compensation in the amount indicted by the

Claimant, the Tribunal may consider that the Claimant failed to apply the ‗fair market

value‘ standard.


22

1. The Claimant contribute to the damages by his own wrongful conduct,

therefore the Tribunal is entitled to reduce or even to void the compensation.

103 The Claimant provided the weapons even after he should have known that there could be a

conflict involving the Parties standing on the separate sides. [Record, UF, para.13] The

Claimant should have known that weapons which he produced may be use by the soldiers

in the future armed conflict and at the same time may be consider to be harmful conduct.

104 In the Occidental Petroleum Corp. (“Oxy”) v. Republic of Ecuador, the Tribunal reduced

Oxy‘s damages because of its own wrongful conduct, namely its violation of Ecuadorian

law in entering the Farmout Agreement without ministerial authorization. Accordingly, the

tribunal found that Oxy contributed to the extent of 25% to the prejudice which it suffered

when Ecuador issued the Caduciad Decree. The tribunal reasoned that the assignment of

rights under the Participation Contract pursuant to the Farmout Agreement was null and

void because it lacked ministerial authorization, as required by Ecuadorian law. Thus, no

reduction based on the assignment was possible, given the nullity of the transfer of rights.

[Petroleum, para.142] Therefore, the Claimants‘ compensation should be diminished due

to his wrongful conduct as a contribution to the damage.

105 In MTD v. Chile Malaysia, Tribunal considers that the investor should bear the

consequences of their own actions as experienced businessmen and decided to split the

damages 50/50. [MTD, para.178] Therefore, the Claimant as an experienced arms dealer

should has foreseen the consequences on his business. The consequences should include:

the proper protection and insurance in case of future assumptions which would not

materialize. [MTD, para.178]

106 Moreover, the Claimant argues that there is a causal link between the sanctions imposed by

the Respondent and his loss, but failed to mentioned that there will be no sanctions if the

Claimant would have complied with the Oceania law.

107 To conclude, the Claimant contribute to the damages by his own wrongful conduct,

therefore the Tribunal is entitled to reduce or even to void the compensation. According to

a type of the Claimants‘ business the damage should have been foreseen by him.

Therefore, there is a causal link between the Claimant conduct and his financial problems.

2. If the Tribunal awards that the damage have not been foreseen or was too

remote, the Tribunal may consider to reduced amount of compensation.

108 The aim of damages is to compensate a claimant for the loss it has suffered. But there are

also some limitations at that point. Damages which are not foreseeable or are too remote


23

will not be awarded. [Pryles, p.1] The main aim of the compensation is to place the

aggrieved party in the same pecuniary

position they would have been in had the contract been performed. [Sapphire International

Petroleums, p.6] Therefore, if the Tribunal awards that the damages: (2.1) are not

foreseeable or (2.2) are too remote, the Tribunal may consider to reduce amount of

compensation.

2.1. The damage was not foreseeable.

109 Firstly, the damage may be considering by the Tribunal as not foreseeable. In that case,

recovery is limited to damages that were foreseeable when the contract was made and that

are the immediate and direct result of the breach. [Karaha Bodas Company, p.52]

Therefore, the Tribunal has a reasonable ground to reduce the compensation.

2.2. The compensation pointed out by the Claimant is at least too remote.

110 The Claimant asks for compensation for loss not less than 120,000,000 USD without

giving any mathematics calculations or even estimated result rate. Therefore, the

compensation pointed out by the Claimant is too remote and this amount should be limited.

111 In the AMT v Zaire the Tribunal stated its discretionary and sovereign power to

determinate (sic) the quantum of compensation….taking into account the circumstances of

the case before it. [AMT, para.7.16] Therefore, the Tribunal has a power to award reduced

amount of compensation.

112 To conclude, Tribunal has a reasonable ground to reduce the amount of compensation due

to (1) unforeseeability of the damage or (2) remoteness of the compensation.

3. Alternatively, if the Tribunal recognize the Claimants‟ investment as an

expropriated by the Respondent, the Tribunal may award the compensation

which is filed only with lost profit.

113 The Respondent argues that there was no expropriation by him to the Claimants‘

investments. However, if the Tribunal recognizes the Claimants‘ investment as an

expropriated by the Respondent, the Tribunal may award the compensation which is filed

only with lost profit.

114 As stated in Himpurna and Patuha Tribunals awarded that in case of the expropriation

there is generally no basis to apply the contractual reliance damages (damnum emergens),

but only the expectancy damages (lucrum cessans). [Mealey's International Arbitration

Report, pp. A-1 - A 58; B-1-B-49]


24

115 In conclusion, the Tribunal alternatively may reduce the compensation to damnum

emergens.

4. If the Tribunal consider to award a compensation in the amount indicted

by the Claimant, the Tribunal may consider that the Claimant failed to apply

the „fair market value‟ standard.

116 Finally, if the Tribunal consider to award a compensation in the amount indicated by the

Claimant, the Tribunal may consider that the Claimant failed to apply the ―fair market

value‖ standard.

117 In Santa Elena v Costa Rica Tribunal noted that the protection of the environment does not

alter the level of compensation that must be paid. The same tribunal also noted that the

international source of the obligation to protect the environment makes no difference to the

level of compensation payable. [Santa Elena, paras.71-72] Therefore, the action which

have been taken to fulfil the conditions under the Environment Act 1996 [Record, UF,

para.13] makes no difference to the amount of compensation.

118 As Kantor stated, investment treaty tribunals may determine a ‗fair market value‘ in

respect of a unique asset which the seller does not want to sell and for which no willing

buyer is likely to appear following an expropriation. [Kantor, p.15] Moreover application

of the „fair market value‟ and „full reparation‟ standards involve a significant element of

arbitral discretion. [Serkin, pp.725-727; Desierto, p.46] Hence, the Tribunal may take into

account the fair market value to estimate more precisely than the Claimant did the value of

the compensation.

119 To conclude, the Tribunal has its own discretion to estimate the value of compensation by

taking into account the fair market values standard.

120 To conclude, the Claimant made a wrong statement and his claims for 120,000,000 USD

should be dismissed. The Claimant contributed to his damage and his conduct should be

also take into account when Tribunal will be calculating the loss. The Tribunal has its own

discretion to properly calculate the amount of compensation.


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REQUEST FOR ARBITRATION

On the jurisdictional matters:

1. The Tribunal has no jurisdiction over this case because the Claimant failed to comply

with the jurisdictional provisions incuded in the Euroasia BIT.

2. The Tribunal has a reasonable ground to dismiss all the claims invoked by relaying on

the fact that the Claimant is not an investor under the Euroasia BIT.

If Tribunal decides to go ahead despite the abovementioned arguments, the Tribunal

shall proceed as follows:

On the substantive rights:

1. The Claimant is not entitled to the compensation due to non-compliace with the pre-

arbitral steps, therefore, the Tribunal shall exclude the Claimant‘s loss.

2. Compensation in amount given by the Claimant is at least too remote and should be

diminished by the Tribunal.

3. The Claimant cannot benefit from the protection of the Treaty since it does not have

―clean hands‖ doctrine.

4. The Claimant contributed to the damage suffered by his investment, therefore, he is

not entitled to the compensation.

5. The Claimant‘s investment was not expropriated by the Respondent, who acted legally

under principles of international law and thus the Claimant is not entitled to compensation.

6. Alternatively, if the Tribunal recognizes the Claimant‘s investment as expropriated by

the Respondent, the Tribunal may award the compensation which is filed only with lost profit

and ‗fair market value standard‘.

Documents

INTERNATIONAL COURT OF ARBITRATION - FDI Moot · Arbitration Report Mealey's International Arbitration Report, December 1999 Cited as: Mealey's International Arbitration Report The