MEMO CLAIMANT - ALVAREZ - FDI Moot

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46. Respondent interprets the BIT, Art. 11(3)(b) in a way that it prohibits to bring a claim before an international body in case it has been once submitted to the domestic authorities. In the view of Respondent, the administrative proceedings before the MoE definitely excluded the possibility of bringing a claim before the ICC. 47. The „fork-in-the-road‟ provision contains a right of the Investor to choose the legal remedy to protect one‟s rights under the treaty. This could be made by reference to the domestic court or international arbitration. However, once chosen, the way of dispute resolution remains the only available remedy for the investor. In result, the remedy which was not chosen by the Investor is lost irrecoverably. 29 48. The only case wherein the Tribunal rejected investor‟s claim on basis of the „fork-in- the-road‟ provision was Pantechniki case. The provision of Albania-Greece BIT was utterly different from the BIT in question, Art. 11(3)(b). The challenged provision read as follows: „If such disputes cannot be settled within six months from the date either party requested amicable settlement the investor or the Contracting Party concerned may submit the dispute either to the competent court of the Contracting Party or to an international arbitration tribunal‟ 30 . 49. The wording of the relevant provision of Sylvania-Freedonia BIT, Art. 11(3)(b) is of different character. It contains the condition of initiating the proceedings before the ICC, not narrows the right of the investor to chose only one remedy. 50. Moreover, the Tribunal in Pantechniki decided that: „The same facts can give rise to different legal claims. The similarity of prayers for relief does not necessarily bespeak an identity of causes of action. 31 . 51. In the same case, the Tribunal pointed out the absence of the „umbrella clause‟ as a determinant which made unable to draw distinction between contractual commitments 29 SCHREUER, p. 239-240. 30 Pantechniki, §53. 31 Ibidem, §62. 10
and treaty rights protected. The claim of the Greek investor had to be found on basis of BIT provisions and lost because of the lack of possibility of protection of contractual rights by the virtue of the treaty. 32 52. Thus, Pantechniki case, being an exception from the well-established case-law, leads to the conclusion that BIT, Art. 11(3)(b) does not constitute the „fork-in the-road‟ provision in the meaning of international investment law. 2. It does not impose the requirement of exhaustion of domestic remedies 53. ICSID Convention in Art. 26 prescribes that „Consent of the parties (…) shall be deemed consent to such arbitration to the exclusion of any other remedy. A Contracting State may require the exhaustion of local administrative or judicial remedies as a condition of its consent to arbitration under this Convention‟ 54. The stipulation invoked reverses the rule expressed by the ICJ in Interhandel case wherein the Court expressed the requirement of prior exhaustion of domestic remedies as an alleged rule of customary international law. 33 Unless the treaty lacks in the provision concerning the exhaustion of local remedies, no such obligation is imposed on an individual seeking one‟s rights protection on the international level. 34 55. Thus, Art. 26 of ICSID Convention derogates the alleged rule of customary international law between the Parties (lex posterior derogat legi priori) – it must be borne in mind that there is no hierarchy of sources of international law (Art. 38 of the Statute of ICJ does not classify the sources of law). 56. The Tribunal had to deal with similar provision while recognizing Maffezini case. 35 32 Ibidem, §64. The two important functions of such a stipulation in BIT were pointed out: 33 Interhandel, p. 6. 34 Maffezini, Jurisdiction, §22; AES Corporation, §69. 35 Maffezini Jurisdiction, §19. 11
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 and 18: 15. The facts of the case do not gi
Page 19 and 20: 24. In the light of the above, stat
Page 21 and 22: 32. BIT, Art. 11(3)(b) stipulates t
Page 23: creating the treaty norms of intern
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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