MEMO CLAIMANT - ALVAREZ - FDI Moot

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4. In any event, Respondent is obliged to compensate Claimant 159. Even assuming, arguendo, that the acts of Respondent constituted a lawful expropriation in view of their justification on the grounds listed in Art. 4(2) BIT, they must nonetheless be followed by „immediate full and effective compensation‟ for the period of actual deprivation of enjoyment of Claimant‟s investment, i.e. from 29 November 2010, as evidenced in the practice of arbitral tribunals 163 . 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 160. Under Art. 27 of the VCLT, a state „may not invoke the provisions of its internal law as justification for its failure to perform a treaty.‟ 164 161. This customary principle, embodied in an instrument binding upon the Parties 165 and read in conjunction with the pacta sunt servanda rule 166 , prescribes that the provisions of a state‟s domestic law cannot prevail over those of the treaty 167 . 162. Hence, notwithstanding the legality of Respondent‟s actions under Sylvanian law, Respondent assumes liability therefor with respect to the aforementioned violations of, inter alia, BIT and ECT. 1. In particular, Respondent cannot claim that an alleged breach of domestic law ousts the investment’s protection under the BIT 163 American International Group, p. 14-15, 21; Feldman, §98. 164 VCLT, Art. 27. 165 Responses I, No.9. 166 VCLT, Art. 26. 167 Applicability of the Obligation to Arbitrate, Advisory Opinion, §57. 36
163. Respondent might submit that Claimant violated its security obligations under the OPA and the Agreement and, thus, its investment was not made „in conformity with the laws and regulations‟ of Sylvania as prescribed under art. 1(1) BIT. Therefore, in resting upon a purported violation of its domestic law by Claimant, Respondent might conclude that the investment falls outside the BIT scope of protection. 164. Such reasoning would be clearly abusive, since, first, there is no substantive evidence whatsoever of any failure on the part of Claimant to abide by its security obligations. 165. Secondly, assuming, for the sake of the argument, that Claimant‟s activities were not in line with the obligations imposed, any such duty would amount to „the fundamental principles‟ of the host State as required by the decision in LESI 168 . Therefore, in any case, domestic law, even if breached by Claimant, still cannot constitute Respondent‟s defense. 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 166. Respondent might rest its defense on Art. 9(2) BIT, commonly referred to as „essential‟ or „national security‟ clause. 169 However, Respondent would significantly err in doing so, since such argumentation remains in utter disregard of another BIT provision, i.e. Art. 14(1), prescribing that „Whenever any issue is governed both by this Agreement and by another international agreement to which both the Contracting Parties are parties, or whenever it is governed otherwise by general international law, the most favourable provisions, case by case, shall be applied to the Contracting Parties and to their Investors [emphasis added]‟. 167. It must thus be noted that the national security clause in Art. 9(2) BIT extensively overlaps with the customary law „state of necessity‟ defense, and, as such, the question of derogating from the host state‟s obligations is governed otherwise by such 168 LESI, §83 (translation from the French original). 169 The Oxford Handbook, p. 493. 37
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 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: 153. Whereas Claimant concedes that
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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