MEMO CLAIMANT - ALVAREZ - FDI Moot

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protection and security include the publication of a governmental report 133 and the request of MoE that FPS pay the fine. 134 It is beyond doubt that Respondent possessed reasonable means of preventing both detrimental harms to Claimant‟s investment that comprises, under Art. 1 BIT, shares price, goodwill and the expectation of gain or profit. 132. As a result, Respondent failed to exercise due diligence to protect Claimant‟s investment from the said acts under state control and thus breached the obligation under BIT and ECT to provide full protection and security. III. RESPONDENT UNLAWFULLY EXPROPRIATED <strong>CLAIMANT</strong>’S INVESTMENT 1. Respondent breached Art. 4(1) BIT by interfering in Claimant’s possession, control and enjoyment of the investment 133. Pursuant to Art. 4(1) BIT, „Investments […] shall not be subject to any measure which might limit permanently or temporarily the Investor‟s ownership, possession, control or enjoyment, save where specifically provided by law and by […] orders issued by any […] administrative bodies […] having jurisdiction [emphasis added]‟. 134. Construing this provision in accordance with Art. 31 VCLT, a treaty binding upon the Parties, the ordinary meaning of the term „specifically‟ in its context and in the light of the object and purpose of the BIT 135 establishes a qualified legal certainty and precision of any norm authorizing an interference with the investment. In particular, any exception to the general freedom from limitation must be interpreted restrictively 136 , which finds confirmation in the preamble of the BIT 137 , devoted to establishing favorable conditions and protecting investments 138 . 132 Occidental, §187. 133 Facts, §9. 134 Facts, §18. 135 VCLT, Art. 31(1). 136 Enron, Award, §331. 30
135. In the circumstances of the present case, the legal basis that led the President to issue the Order was formulated as follows: „The President during a declared state of emergency [is authorized] to suspend the license of any entity conducting business within the territory of the Republic which would in any way prevent, hinder, or delay necessary action in coping with the emergency and to take such steps as are necessary to address the emergency [emphasis added]‟ 139 . 136. In light of the broad and indefinite wording of this blanket provision of the Sylvanian statutory code, Claimant argues that such a legal basis is far from clarity and certainty. 137. Therefore, as this imprecise provision failed to attain the „specificity‟ requisite of a limitation measure under Art. 4(1) BIT, the violation whereof by Respondent must hereby be contended. 2. Respondent has expropriated Claimant’s investment 138. Art. 4(2) BIT prescribes that investments in the territory of the host state cannot be „nationalized, expropriated, requisitioned or subjected to any measure having similar effect‟. Art. 13(1) ECT has got the analogous wording. 139. Considering the broad wording of both clauses referring to „effects‟, as well as the sole-effect doctrine espoused by the scholars and jurisprudence 140 , in its arguments Claimant need not discern indirect expropriation from the measures having similar effects thereto and thus will consider solely the effect of any Respondent‟s measures that shall qualify them as expropriation. 140. Therefore, as the rights under the Agreement being Claimant‟s contractual rights 141 and the property rights 142 with respect to the possession of wells and ownership of the 137 SGS v Philippines, §116. 138 BIT, preamble, §§2-3. 139 Order, §6. 140 DOLZER, p. 79; Nykomb, §4.3.1. 141 Rudloff, p. 250; Amoco, § 108. 31
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 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: II. RESPONDENT DID NOT ACCORD CLAIM
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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