outline of arguments – claimant

8/13/2019 OUTLINE OF ARGUMENTS CLAIMANT

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OUTLINE OF ARGUMENTS CLAIMANT

OPENING STATEMENT

I. BIT promote and protect investments of the state partiesII. RefusalIII. Cronos and Ruritania - entered into a BITIV. Refused to afford protection, actively participated in violationV. Hold accountable, proper compensation for harm caused

Structure of Presentation

I. Me: 18 minutes 1stand 2ndissue on jurisdictionand admissibility, and5thissue on the sales by CAMs subsidiaries2 minutes for rebuttal

II. Co-agent: 20 minutes 3rdissue on expropriation, fair and equitabletreatment4thissue on full protection and security, moral damages


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ISSUE 1

I. Jurisdiction over claims + admissibilityII. Submissions signposting

a. Protected investment as defined in the BITb. No abuse of processthat would bar admissibilityIII. Jurisdictiona. Respondents argument cannot be further from truthb. Article 1, Section 1 of BIT - clear definition of Investment and

enumeration of covered interests

c. Interpretation according to plain meaning Article 31 of VCLT,Eureko vs. Poland

d. CAMs interests enumeration; covered by BIT; within Ruritania,Cronoan nationality

e. These are Investments; to rule otherwise would be to imposecontractual obligations beyond contemplation of parties who

consented to Contract as worded and signedIV. Admissibility

a. No impediments to cognizance = fully admissibleb. No denial of benefits clausec. Tokios Tokeles vs. Ukraineabsence of such clause precludes

barring of enjoyment of benefits

d. Ruling otherwise creation of new rule patently unjuste. Transfer fully in good faithf. Validity of nationality planning timing of restructuringg. Aguas del Tunari vs. Bolivia prior to dispute, new nationality

honored

h. Our case transfer made prior to imposition of new regulations;transfer not made merely to enjoy BIT protection - Mavrommatis

i. Even if dispute was anticipated pure speculation, not a disputej. Cannot be punished for foresight/business judgment

V. SUMMATION


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ISSUE 2

I. Jurisdiction and admissibility SPA-related claimsII. Submissions signposting

a. Article 6, Section 2 of BIT - Violations of SPA = violations of the BITb. Legally distinct BIT-based claim - Admissible and be given duecourse

III. Jurisdictiona. Determination of two things:

i. Contractual breach = treaty breach?ii. Attributability

b. Article 6, Section 2 of BIT fulfillment of obligations with Investorsi. Umbrella clauses protect undertakings between State and

foreign investors elevates to level of treaty violations

ii. Present arbitral practice wide interpretation - Eureko v.Poland, and Noble Ventures v. Romania, SGS vs Paraguay

iii. OECD dominant view of commentators Dolzer, Stevens,Gaillard and Schreueriv. Inclusion of umbrella clause = guarantee by CAM to protect

contracts

v. Violations of contracts by Ruritania = action under BIT =jurisdiction

c. Acts of SPF = acts of Ruritania = liability for SPA breachi. ASR = State cannot escape liability separate personality

ii. Maffezini vs. Spainformal test (Art. 4) and functional test(Art. 5)

iii. SPF state actor under both tests1. SPA state establishment, created by law (formal)2. Procedural Order No. 2 contributions, dissolution

public functions endowed with status of state actor

(functional)

iv. Alternatively, Art. 8 applies1. Procedural Order No. 2 appointment of Board and

Governor-General

2. Schreuer indirect control identity of controllinginterest

IV. Admissible notwithstanding forum selection clausea. Respondents argument we heartily disagreeb. Gaillard and Lanco vs. ArgentinaTribunals acting on BIT-based

claims have jurisdiction even with forum selection clause

c. SGS vs. Paraguayno express waiver cannot override jurisdictionof Tribunal organized under the treaty to hear treaty-based claims

d. Treaty claim legally distinct from contract claime. Tribunal named in BIT is entirely competent to hear claim

V. SUMMATION


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ISSUE 5

I. Sale of essential items recoverable item of damages under BITII. Submission essential items partake of all the colors of investments in

IILIII. Heart of the matter: General Unity of Investment Operations

a. Investment not defined by ownership of specific assets singleeconomic aim between and among related transactions

b. 1974 Holiday Inns vs. Morocco; CSOB vs. Slovakia; PSEG v. Turkey;Joy Mining v. Egypt; and Franz Sedelmayer v Russian Federation

c. Transactions like sales BIT protection integral part of an overalloperation that qualifies as an investment elevates status above

ordinary commercial transactions

i. Subsidiaries fulfill this requirement necessary/essential tooperations

ii. Transactions between CAM, subsidiaries, FBI unity ofinvestment operations = protected investmentIV. Even upstream earnings covered: Cargill vs. Mexicoexports supply

greater overall investment mirrors our situation

V. Fall under definition under BIT returns? - maybeVI. Partake of all indicia/colors of investments in IIL

a. Dolzer, Schreuer,risk, commitment, duration, object of regular profit,participation

i. Salini line of cases Saipem vs Bangladesh treated aselements

ii. MCI Power Group v. Ecuador indicia or examples, and notelements; and RSM v. Grenada

b. All traits these are in-built Procedural Order No. 1 subsidiaries areowned by CAM and supplied CAMs investment in FBI

c. Not mere one-off commercial transactionsVII. Sum up: qualifies under BIT, general unity, all traits of investmentsVIII. End presentation thank you for your time.

outline of arguments – claimant

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