MEMO CLAIMANT - ALVAREZ - FDI Moot

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„treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose [emphasis added]‟. 3 . 21. Consequently, „sovereign‟ means (a) not controlled by outside forces; (b) independent of, and unlimited by, any other; (c) being independent or autonomous‟ 4 and fund - „to furnish money for‟. 5 22. Both the above terms were used in the context of exceptions to the general rule, saying that nationals of either of the Contracting Parties, meeting the requirements set forth in point 1 above, are qualified as „Investors‟ and may enjoy protection under the BIT. Such exceptions shall be construed restrictively. Especially the term „funded by the other Contracting Party‟ should not be construed in such a manner that it would debar all the state-owned companies from seeking legal protection under the BIT. Claimant would argue that the common will of the Parties‟ was to not confer the status of an Investor only upon the state-owned companies funded by the other Contracting Part and by means of which the other Contracting Party pursues its own sovereign activities. Should it be the Parties‟ intention to exclude all the state-owned companies from holding a status of an Investor they would have simply created an additional exception and left no place for speculation. 23. Such an approach finds also foundation in the object and purpose of the BIT. According to the preamble it intends „to establish favorable conditions for improved economic co-operation between the two countries, including investment by nationals of one Contracting Party in the territory of the other Contracting Party‟ Furthermore, „it is legitimate to resolve uncertainties in its interpretation so as to favour the protection of covered investments‟ 6 . 3 See also: Aguas del Tunari, §91 4 WEBSTER‟S ONLINE DICTIONARY, see: Sovereign 5 Idem.; see: Fund 6 SGS v. Philippines, §116. 4
24. In the light of the above, state-owned companies funded by a state and pursuing sovereign activities shall be confronted with state-owned companies invested in by a state and pursuing purely commercial activities. Only the latter deserve protection under the BIT. 25. It is also a standpoint approved by ICSID tribunal that a mixed economy company or government–owned corporation should not be disqualified as a „national of another Contracting State‟ unless it is acting as an agent for the government or is discharging an essentially governmental function 7 . 26. Similar stance was presented by the tribunal in Maffezini, where it applied structural and functional tests to determine whether an entity was a private one or state one. The structural test required direct or indirect ownership by the state to be demonstrated, although the tribunal itself stated that the structural test is „but one element to be taken into account‟ 8 and that it may not always be a conclusive 9 . Further, the tribunal resorted to „functional test‟, examining „whether specific acts or omissions are essentially commercial rather than governmental in nature‟, as the former ones cannot be attributed to a State, and the latter ones „should be so attributed‟. 10 27. In the case at hand, Claimant is a state-owned company, with 40% of its shares remaining in private hands 11 . This, however, in the view of the BIT and its interpretation as above, does not indicate that it cannot enjoy the status of an investor in pursuance with the BIT provisions. As underlined in the above assertions the decisive criterion of whether Claimant shall be deemed as an investor, is the character of its activities. None of the facts of this case provide the Tribunal with any information about any other activity pursued by Claimant, than strictly commercial 7 Ceskoslovenska Obchodni Banka, Jurisdiction, §17. 8 Maffezini, Award, §50. 9 Maffezini, Jurisdiction, §79. 10 Maffezini, Award, §52. 11 Facts, §1. 5
Page 1 and 2: ALVAREZ INTERNATIONAL CHAMBER OF CO
Page 3 and 4: 2. The purpose of the “umbrella c
Page 5 and 6: a. Expropriating Claimant was not f
Page 7 and 8: LIST OF AUTHORITIES BOOKS ALVAREZ,
Page 9 and 10: NAFTA Free Trade Commission, Notes
Page 11 and 12: EnCana Corporation v. Republic of E
Page 13 and 14: Sempra Energy International v. Arge
Page 15 and 16: STATEMENT OF FACTS 1. Claimant is a
Page 17: 15. The facts of the case do not gi
Page 21 and 22: 32. BIT, Art. 11(3)(b) stipulates t
Page 23 and 24: creating the treaty norms of intern
Page 25 and 26: and treaty rights protected. The cl
Page 27 and 28: itself does not contain the definit
Page 29 and 30: MERITS B. NPCS’ ACTIONS ARE ATTRI
Page 31 and 32: activities. Only leaking wells were
Page 33 and 34: 82. Alternatively, these acts shall
Page 35 and 36: of CSE‟s actions) and thus contri
Page 37 and 38: stand against the very idea of the
Page 39 and 40: „to provide to international inve
Page 41 and 42: 116. This contractual content was m
Page 43 and 44: II. RESPONDENT DID NOT ACCORD CLAIM
Page 45 and 46: 135. In the circumstances of the pr
Page 47 and 48: 144. Additionally, since expropriat
Page 49 and 50: 153. Whereas Claimant concedes that
Page 51 and 52: 163. Respondent might submit that C
Page 53 and 54: actions beyond the bare minimum nec
Page 55 and 56: Art. 33 that the infringed rights
Page 57 and 58: 188. In addition to the outlined me
Page 59 and 60: 197. Respondent was not entitled to
Page 61 and 62: public body. 215 This body had carr

MEMO CLAIMANT - ALVAREZ - FDI Moot

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