MEMO CLAIMANT - ALVAREZ - FDI Moot

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II. RESPONDENT VIOLATED THE PROVISIONS OF ICC RULES OF ARBITRATION…….. III. THE SYLVANIAN NGO, CSE, SHOULD NOT BE PERMITTED TO PARTICIPATE IN ANY WAY IN THE CONFIDENTIAL ICC PROCEEDINGS………………………………….. 1. CSE‟s participation is unnecessary for the proceedings.………………... 2. Allowing CSE to the proceedings would be detrimental to Claimant‟s position in the dispute............................................................................... D. RESPONDENT VIOLATED INTERNATIONAL LAW, PARTICULARLY THE BIT………………………………………………………………………………………… I. RESPONDENT DID NOT ACCORD CLAIMANT FET ……………………………….. 1. Respondent frustrated Claimant‟s legitimate expectations……………… a. Expectations created by the legal framework of Sylvania………….. b. Expectations arising out of the Agreement…………………………. 2. Bad faith on the part of Respondent……………………………………. 3. Respondent did not satisfy the standard of due process………………… II. RESPONDENT DID NOT ACCORD CLAIMANT‟S INVESTMENT FULL PROTECTION AND SECURITY…………………………………………………………… III. RESPONDENT UNLAWFULLY EXPROPRIATED CLAIMANT‟S INVESTMENT…….. 1. Respondent breached Art. 4(1) BIT by interfering in Claimant‟s possession, control and enjoyment of the investment……………………. 2. Respondent has expropriated Claimant‟s investment……………………. a. Claimant was deprived of effective control over the investment…….. b. The deprivation was not „merely ephemeral‟……………………… 3. Respondent did not fulfill the legality grounds under Art. 4(2)…………. iii
a. Expropriating Claimant was not for public purposes nor national interest……………………………………………………………….. b. The measures were not in accordance with due process of law……… c. No compensation whatsoever was issued by Respondent…………… 4. In any event, Respondent is obliged to compensate Claimant…………… E. RESPONDENT IS NOT ENTITLED TO RELY ON ITS DOMESTIC LAW AND INTERNATIONAL LEGAL NOTIONS OF NATIONAL SECURITY AND PUBLIC INTEREST AS DEFENCES……………………………………………………………… I. THE PRIORITY OF INTERNATIONAL OBLIGATIONS EXCLUDE ANY RELIANCE ON CONFLICTING DOMESTIC LAW…………………………………………………… 1. In particular, Respondent cannot claim that an alleged breach of domestic law ousts the investment‟s protection under the BIT…………. II. RESPONDENT CANNOT RELY ON THE NATIONAL SECURITY DEFENSE……………. 1. Respondent could only raise the customary defense enshrined in Art. 25 DARSIWA that shall fail to succeed……………………………………. a. The measures were not the only means that could have been taken to tackle the ecological danger………………………………………….. b. No essential interest was being safeguarded…………………………. c. The ecological peril did not reach the requisite gravity……………… d. The measures seriously impaired Freedonian economic prosperity and the interests of Claimant………………………………………… 2. Should the Tribunal consider the treaty defense in Art. 9(2) BIT, it may be read solely in conjunction with Art. 25 DARSIWA………………….. a. Invoking Art. 9(2) BIT is subject to good-faith review, in accordance with the object and purpose of the BIT…………………………….. iv
Page 1 and 2: ALVAREZ INTERNATIONAL CHAMBER OF CO
Page 3: 2. The purpose of the “umbrella c
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 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
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MEMO CLAIMANT - ALVAREZ - FDI Moot

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