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Procedural Background 3. On 4 December 2006, Max Solutions submitted a request for arbitration against Bela Rano Insularo to the International Centre for Settlement of Investment Disputes (“ICSID”) pursuant to Article 24 of the Treaty Between the Government of Oscania and the Government of Bela Rano Insularo Concerning the Encouragement and Reciprocal Protection of Investment (the “Treaty”). 4. Claimant appointed Mr. Albert Viator, an arbitration practitioner and experienced commercial arbitrator, to the arbitral tribunal (the “Tribunal”) and Respondent appointed Professor Alessandra Iracunda, a prominent investment law academic and experienced arbitrator. Both party-appointed arbitrators accepted their respective appointments and nominated Dr. Humberto Honesta as Chair of the Tribunal. Dr. Honesta accepted his appointment on 13 February 2007. 5. On 1 March 2007, Claimant submitted a Proposal to disqualify Professor Iracunda (the “Challenge”) in accordance with Article 57 of the ICSID Convention, claiming that Professor Iracunda’s academic publications in the field of investment law and her membership in the environmental organization Wilderness undermined her impartiality. 8 6. In accordance with Arbitration Rule 9(4), Mr. Viator and Dr. Honesta (the “Two Members”) considered and ultimately dismissed the challenge to Professor Iracunda. 9 Consistent with prior dismissals on similar grounds, the Two Members observed that it is common for legal scholars to act as arbitrators and that the mere expression of a viewpoint on a relevant legal issue cannot suffice to disqualify an arbitrator. If publication of a view did suffice, the Two Members found, only few scholars could arbitrate disputes and professional arbitrators would feel pressured to refrain from publication in order to avoid “viewpoint-based challenges.” 10 Such a development would, according to the Two Members, significantly undermine the future development of international investment law. 11 8 UF, 3:155 9 CD, 5:255 10 CD, 9:435 11 CD, 9:436-438 2
7. Additionally, the Two Members noted that Professor Iracunda stated her intention to render her decision in the arbitration based on the facts of this particular case 12 in her reply to the Challenge (the “Statement”). Claimant did not challenge the honesty of Professor Iracunda’s statement, or her moral character. 13 Finally, the Two Members found that mere membership in or donations to a large environmental organization that has no membership requirements 14 did not indicate a lack of independence, especially since Claimant did not present any evidence that Professor Iracunda personally participated in any protest against the removal of the Frogs or issued any public statements on this matter. 15 Indeed, it is uncontested that Professor Iracunda did not participate in Wilderness’s activities or internal projects. 16 Moreover, as Professor Iracunda noted, While there may be ecological issues present in the surrounding context of this dispute, the dispute itself concerns a business transaction and an international investment agreement, not the removal of Sireno Kanto from Bela Rano Insularo. This removal is a fact agreed by both sides, and so cannot be a matter that I will be asked to decide. 17 8. Following the dismissal of the challenge to Professor Iracunda, the Tribunal proceeded to the jurisdictional phase of the arbitration. In May 2009, the Tribunal held an initial hearing on Respondent’s objections to the Tribunal’s jurisdiction. In support of its position, Bela Rano submitted an Expert Report from Dr. Herbert Ranapuer, the lead scientist at the Frog Research Unit at Bela Rano Insularo University, on the nature and predicted effect of the frog disease. On the morning of the hearing, Dr. Ranapuer notified the Tribunal and the Parties that he would not attend the arbitral proceedings since members of Wilderness convinced him not to participate. The Tribunal admitted the Expert Report because “it provided information available from no other source.” 18 9. On 29 July 2009, the Tribunal issued an award declining jurisdiction (the “Award”), finding that Claimant’s activities did not contribute to the development of the host state, Bela Rano, and consequently could not be considered an “investment” as 12 CD, 9:450-455 13 CD, 8:425. 14 Clarifications, p. 29. 15 CD, 9:460-465. 16 Clarifications, p. 19. 17 CD, 10:495-499. 18 UF, 4:180-185. 3
Page 1 and 2: MEMORIAL FOR RESPONDENT TEAM AGO FI
Page 3 and 4: A. The tribunal did not manifestly
Page 5 and 6: Shore & Weiniger Reisman Internatio
Page 7 and 8: LIST OF LEGAL SOURCES Abaclat Abacl
Page 9 and 10: Malicorp MCI Millicom Mobil Malicor
Page 11 and 12: Vivendi II Wena v. Argentine Republ
Page 13: Factual Background STATEMENT OF FAC
Page 17 and 18: contrary, the Tribunal properly adm
Page 19 and 20: evident error of fact in an award i
Page 21 and 22: 26. Since it is apparent that all p
Page 23 and 24: expressly acknowledged that her rol
Page 25 and 26: A. Under ICSID Art. 41(1), the Trib
Page 27 and 28: discretion, reject a decision that
Page 29 and 30: jurisdiction, and then applied the
Page 31 and 32: investment according to Article 25
Page 33 and 34: eached its decision in accordance w
Page 35 and 36: Rather, it is whether the Tribunal
Page 37 and 38: could not “be compared with the c
Page 39 and 40: ather because there was no contribu
Page 41 and 42: 76. In general, a party makes a sub
Page 43 and 44: 81. The Tribunal found that “the
Page 45 and 46: VI. THE TRIBUNAL PROPERLY ADMITTED
Page 47 and 48: [e]ach witness (which term includes
Page 49: REQUEST FOR RELIEF 98. For the afor

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