ARBITRATION INSTITUTE OF THE STOCKHOLM CHAMBER OF … · ARBITRATION INSTITUTE OF THE STOCKHOLM...

Memorial for the Respondent Team Code - Visscher

i

ARBITRATION INSTITUTE OF THE

STOCKHOLM CHAMBER OF COMMERCE

CALRISSIAN AND CO., INC. Claimant

v.

FEDERAL REPUBLIC OF DAGOBAH Respondent

___________________________

MEMORIAL ON BEHALF OF THE RESPONDENT

20 SEPTEMBER 2014

__________________________


ii

INDEX

TABLE OF ABBREVIATIONS IV

LIST OF AUTHORITIES VI

STATEMENT OF FACTS 1

ARGUMENTS ON JURISDICTION 3

Issue 1. The Tribunal does not have jurisdiction ‘rationae materie’ over the claims

submitted by Calrissian and Company. 3

I. IT DOES NOT FALL UNDER THE TYPICAL CHARACTERISTICS TEST ENUMERATED UNDER

ARTICLE 1 OF THE BILATERAL INVESTMENT TREATY. 3

II. IT DOES NOT FALL UNDER THE OBJECTIVE DEFINITION OF A “INVESTMENT” AS

UNDERSTOOD IN INTERNATIONAL LAW 4

ISSUE 2. The 2003 Award of the PCA is not binding on this Tribunal 6

A. THIS TRIBUNAL HAS THE INDEPENDENT JURISDICTION TO ADJUDICATE ON THE SCOPE

OF AN ‘INVESTMENT’ UNDER ARTICLE 1 OF THE BIT 6

B. FOR THE DECISION TO HAVE AN EFFECT ON THIS TRIBUNAL AND AMENDMENT

PROCEDURE UNDER ARTICLE 39 OF THE VCLT MUST BE COMPLIED WITH 7

ISSUE 3: The Tribunal cannot rule on the claim asserted in light of the forum selection

clause contained in the sovereign bonds 9

I. THE CLAIMS SUBMITTED AMOUNTS TO CONTRACTUAL CLAIMS. 9

II. THE CONTRACTUAL FORUM IS ‘LEX SPECIALIS’ AND WILL PREVAIL OVER ARTICLE 8

OF BIT. 10

III. IN ARGUENDO, THE CURRENT CLAIMS ARE INADMISSIBLE AT THIS STAGE. 10

ARGUMENTS ON MERITS 12

ISSUE 4. The measures of the Respondent State did not violate its obligations to accord

Fair and Equitable Treatment under Article 2(2) of the Corellia-Dagobah BIT. 12

I. THE DEBT RESTRUCTURING MEASURES OF THE RESPONDENT DID NOT VIOLATE THE

LEGITIMATE EXPECTATIONS OF THE CLAIMANT. 12

II. THE MEASURES OF THE RESPONDENT DO NOT RESULT IN DENIAL OF ACCESS TO

JUSTICE. 14


iii

III. THE RESPONDENT STATE HAS NOT BREACHED ITS OBLIGATION TO ACCORD FULL

PROTECTION AND SECURITY TO THE BONDS. 15

ISSUE 5. The Respondent’s debt restructuring measures are exempted under Article

6(2) of the BIT. 17

I. ARTICLE 6 IS LEX SPECIALIS AND INDEPENDENT OF THE CUSTOMARY INTERNATIONAL

LAW DEFENSE OF NECESSITY. 17

II. THE CONDITIONS FOR THE APPLICATION OF ARTICLE 6(2) ARE SATISFIED IN THE

PRESENT CASE. 18

III. ARGUENDO, RESPONDENT’S ACTIONS SATISFY THE CONDITIONS STIPULATED FOR

THE APPLICATION OF ARTICLE 25. 20

RELIEF SOUGHT 23


iv

TABLE OF ABBREVIATIONS

Sl. No. Abbreviation Full Form

1. ¶ Para No.

2. Art. Article

3. BIT Bilateral Investment Treaty

4. Chap. Chapter

5. Ed. Edition

6. Eds. Editors

7. FET Fair and Equitable Treatment

8. FTC Free Trade Commission

9. HRI Human Health Research Institute

10. ICCPR International Covenant on Civil and Political Rights.

11. ICJ International Court of Justice

12. ICSID International Centre for Settlement of Investment Disputes

13. ILC International Law Commission

14. J.W.I.T. Journal of World Investment and Trade

15. NAFTA North American Free Trade Agreement

16. No. Number

17. O.U.P. Oxford University Press


v

18. p. Page No.

19. PCA Permanent Court of Arbitration

20. PCIJ Permanent Court of International Justice

21. Rep. Reports

22. SRA Sovereign Restructuring Act

23. U.S.A. United States of America

24. UDHR The Universal Declaration of Human Rights.

25. UN United Nations

26. UNCITRAL United Nations Commission on International Trade Law

27. UNCTAD United Nations Conference on Trade and Development

28. v. Versus

29. VCLT Vienna Convention on the Law of Treaties

30. Vol. Volume

31. WIPO World Intellectual Property Organization

32. YBIL Yearbook of International Law


vi

LIST OF AUTHORITIES

ARTICLES

Sl.

No.

Abbreviation Full Citation

1. Anthea Roberts Anthea Roberts, “State-to-State Investment Treaty Arbitration:

A Hybrid Theory of Interdependent Rights and Shared

Interpretive Authority", 55 HARVARD INTERNATIONAL

LAW JOURNAL, 1 (2014).

2. Anthea Roberts Anthea Roberts, “State-to-State Investment Treaty Arbitration:

A Hybrid Theory of Interdependent Rights and Shared

Interpretive Authority”, 55 HILJ 1 (2014).

3. Jan Paulsson Jan Paulsson, “Denial of Justice in International Law”,

Cambridge University press (2005).

4. Jeromin

Zettelmeyer

Jeromin Zettelmeyer, Christoph Trebesch, Mitu Gulati, “The

Greek Debt Restructuring: An Autopsy”, July 2013 available at

http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=534

3&context=faculty_scholarship.

5. Pauwelyn Joost Pauwelyn, “Role of Public International Law in the WTO:

How far can we go?”, 95 The American Journal of International

Law (2001).

6. Scheuer 2 Weiniger, Matthew and Scheuer, Conversations Across Cases -

Is there a Doctrine of Precedent in Investment Arbitration?

TDM 3 (2008).

7. Scheur 1 Christopher Scheuer, Towards Arbitral Path Coherence &

Judicial Borrowing: Persuasive Precedent in Investment

Arbitration TDM 3 (2008).


vii

8. Schreuer PIL Christoph Schreuer, The Relevance of Public International in

International Commercial Arbitration: Investment Disputes,

available at

http://www.univie.ac.at/intlaw/wordpress/pdf/81_csulpaper_1.p

df

9. Stanimir

Alexandrov

Stanimir Alexandrov, “Breaches of Contract and Breaches of

Treaty: The Jurisdiction of Treaty-based Arbitration Tribunals

to Decide Breach of Contract Claims in SGS v. Pakistan and

SGS v. Philippines”, 5 J. World Investment & Trade 555 (2004)

1

10.

Yuval Shany Yuval Shany, “Contract Claims vs. Treaty Claims: Mapping

Conflicts between ICSID Decisions on Multisourced Investment

Claims”, 99 The American Journal of International Law, No. 4

(2005)

BOOKS

Sl.

No.


1. - Brownlie, Brownlie's Principles of Public International Law,

Oxford University Press, (2012).

2. Muthucumaraswa

my

MUTHUCUMARASWAMY SORNARAJAH, THE

INTERNATIONAL LAW ON FOREIGN INVESTMENT, (3rd

ed. 2010).

3. - Villiger ME, Commentary on the 1969 Vienna Convention on

the Law of Treaties (Martinus Ninjhof Publishers, 2009).

4. - Vienna Convention on the Law of Treaties a

Commentary (Oliver Dorr & Kirsten Schmalenbach eds.,

2012).


viii

5. Crawford James Crawford, Brownlie’s Principles of Public International

Law, Oxford University Press (8th Ed. 2012)

6. Salacuse Jeswald W. Salacuse, The Law of Investment Treaties, (Oxford

University Press, 2010).

7. Sornarajah M. Sornarajah, International Law on Foreign Investment,

(Cambridge University Press, 2010).

8. James Crawford James Crawford, The International Law Commission’s Articles

on State Responsibility: Introduction, Text and Commentaries,

Cambridge University Press (2002).

9. Schreuer C Schreuer, The ICSID Convention: A Commentary

(Cambridge, Cambridge University Press, 2001)

ICSID CASES

Sl.

No.


1. AAPL v. Sri

Lanka

Asian Agricultural Products Limited v Sri Lanka, Final award on

merits and damages, ICSID Case No ARB/87/3 (21 June 1990).

2. Abaclat

Jurisdiction

Abaclat and ors v Argentina, Decision on Jurisdiction and

Admissibility, ICSID Case No ARB/07/5 (04 August 2011)

3. ADF Group

Award

ADF Group Inc v. United States of America, ICSID Case No ARB

(AF)/00/1, Award, , (January 9, 2003).

4. Amco Asia

Jurisdiction

Amco Asia Corp Inc v The Republic of Indonesia , ICSID Case No.

ARB/81/1, Decision on Jurisdiction, 25 September 1983

5. Arif Award Arif v Moldova, Award, ICSID Case No ARB/11/23 (08 April 2013).

6. Azurix Azurix Corp. v. The Argentine Republic, ICSID Case No.


ix

Jurisdiction ARB/01/12, Decision on Jurisdiction, (December 8, 2003)

7. CMS

Annulment

committee

Decision

CMS Gas Transmission Company v Argentina, Decision on

Application for Annulment, ICSID Case No ARB/01/8 (25

September, 2007)

8. CMS award CMS Gas Transmission Company v. The Argentine Republic, Award,

ICSID Case No. ARB/01/8 (12 May, 2005)

9. Deutsche

Bank Award

Deutsche Bank AG v. Democratic Socialist Republic of Sri Lanka,

ICSID Case No. ARB/09/02, Award, (31 October 2012).

10. Duke Energy

Award

Duke Energy Electroquil Partners and Electroquil S.A. v. Republic of

Ecuador ICSID Case No. ARB/04/19, Award (18 August 2008).

11. Enron Award Enron Corporation Ponderosa Assets, L.P v. Argentine Republic,

Award, ICSID Case No. ARB/01/3 (22 March, 2007)

12. Impregilo

Jurisdiction

Impregilo S.P.A. v. Islamic Republic of Pakistan, Decision on

Jurisdiction, ICSID Case No. ARB/03/3 (22 April, 2005).

13. Lanco

Jurisdiction

Lanco International v. The Argentine Republic, Jurisdiction of the

Arbitral Tribunal, ICSID Case No. ARB/97/6 (8 December, 1998)

14. LG&E Award LG & E Energy Corp., LG & E Capital Corp., and LG & E

International, Inc. v. Argentine Republic, Award, ICSID Case No.

ARB/02/1 (25 July, 2007).

15. Lucchetti

Award

Empresas Lucchetti, S.A. v. Republic of Peru, ICSID Case No.

ARB/03/4, Award (Feb. 7, 2005)

16. National Grid

Award

National Grid Public Limited Company v Argentina, Award,

UNCITRAL, IIC 361 (2008) (03 November 2008).

17. Noble

Ventures

Noble Ventures, Inc. v. Romania, Award, ICSID Case No.

ARB/01/11 (12 October, 2005)


x

Award

18. Pantechniki v.

Albania

Pantechniki SA Contractors and Engineers v Albania, Award, ICSID

Case No ARB/07/21 (28 July 2009).

19. Parkerings-

Compagniet

Award

Parkerings - Compagniet AS v. Republic of Lithuania, Award, ICSID

Case No. ARB/05/8 (11 September, 2007).

20. Saipem

Jurisdiction

Saipem S.p.A. v. The People’s Republic of Bangladesh (ICSID Case

No. ARB/05/07), Decision on Jurisdiction and Recommendation on

Provisional Measures of 21 March 2007.

21. Salini

Jurisdiction

Salini Costruttori S.p.A. and Italstrade S.p.A. v. Morocco, ICSID-

Case-No. ARB/00/4, Decision on Jurisdiction, (July 23, 2001).

22. Sempra

Award

Sempra Energy International v. Argentine Republic, Award, ICSID

Case No. ARB/02/16 (28 September, 2007)

23. SGS v.

Pakistan

Jurisdiction

SGS Société Générale de Surveillance S.A. v. Islamic Republic of

Pakistan, Decision of the Tribunal on Objections to Jurisdiction,

ICSID Case No. ARB/01/13 (6 August, 2003)

24. SGS v.

Philippines

Dissent

SGS Société Générale de Surveillance S.A. v. Republic of the

Philippines, ICSID Case No. ARB/02/6, Dissenting Opinion of

Professor A. Crivellaro.

25. SGS v.

Philippines

Jurisdiction

SGS Société Générale de Surveillance S.A. v. Republic of the

Philippines, Decision of the Tribunal on Objections to Jurisdiction,

ICSID Case No. ARB/02/6 (29 January, 2004).

26. Siemens

Award

Siemens AG v Argentina, Award and Separate Opinion, ICSID Case

No ARB/02/8 (06 February 2007)

27. Southern

Pacific

Properties

Southern Pacific Properties (Middle East) Ltd. V. Arab Republic of

Egypt, ICSID Case No. REP 131, Decision on Jurisdiction, (April 14,


xi

Jurisdiction 1988).

28. Suez Award Suez and ors v Argentina, Decision on Liability, ICSID Case No

ARB/03/17 (03 August 2006).

29. Vivendi I

Annulment

Compañia De Aguas Del Aconquija S.A. and Vivendi Universal v.

Argentine Republic, Decision on Annulment, ICSID Case No.

ARB/97/3 (3 July, 2002)

30. Vivendi I

Award


Argentine Republic, Award, ICSID Case No. ARB/97/3 (21

November, 2000)

31. Vivendi II

Award


Argentine Republic, Award, ICSID Case No. ARB/97/3 (21

November, 2004)

32. Zaire Award American Manufacturing & Trading, Incorporated v Zaire, Award

and separate opinion, ICSID Case No ARB/93/1 (11 February 1997).

OTHER CASES

Sl.

No.


1. Alps Award Alps Finance and Trade AG v. Slovak Republic, UNCITRAL

Investor-State Claim, Award (March 5, 2011).

2. East Timor The case concerning East Timor I.C.J. Reports 1995

3. Gabchikovo-

Nagymyros Project

Case

GabcikovoNagymaros Project (Hungary v

Slovakia) [1997] ICJ Rep. 7.

4. Romak Award Romak S.A.(Switzerland) v . The Republic of Uzbekistan,


xii

UNCITRAL, PCA Case No. AA280 (1976).

5. Saluka award Saluka Investments B.V. v. The Czech Republic, Partial Award,

UNCITRAL Arbitration Proceedings (17 March, 2006).

6. Soci n ale

Jurisdiction

Soci n ale v. ominican Republic, LCIA Case No. UN

7927, Decision on Jurisdiction (September 19, 2008).

7. Whaling case Whaling in the Antartic (Australia v. Japan) ICJ March 2014

available at http://www.icj-cij.org/docket/files/148/18136.pdf.

MISCELLANEOUS

Sl.

No.

Full Citation

1. Augustin Landier and Kenichi Ueda, “The Economics of Bank Restructuring:

Understanding the Options” available at

https://www.imf.org/external/np/seminars/eng/2012/fincrises/pdf/ch15.pdf.

2. Committee on Foreign & Comparative Law, New York Bar Association, “Governing

Law in Sovereign Debt –Lessons from the Greek Crisis and Argentina Dispute of

2012”, available at http://www2.nycbar.org/pdf/report/uploads/20072390-

GoverningLawinSovereignDebt.pdf.

3. IMF, “Collective Action Clauses in Sovereign Bond Contracts—Encouraging Greater

Use”, available at https://www.imf.org/external/np/psi/2002/eng/060602a.pdf.


1

STATEMENT OF FACTS

I. The Bilateral Investment Treaty

1. The Federal Republic of Dagobah (“Dagobah”) and the Corellian Republic (“Corellia”)

entered into the Agreement in 1992 for the Promotion and Protection of Investments

(“BIT”). The BIT provided for a definition of protected investments and contained

standard clauses of protection such as national treatment, fair and equitable treatment, full

protection and security and protection against expropriation

II. 2001 Financial Crisis and Proposed Sovereign Debt Restructuring

2. In 2001 Dagobah was faced with an unsustainable debt burden and descended into a two-

and-a-half year long economic crisis. Dagobah’s inability to meet its debt obligations led

its government to restructure its sovereign debt and launch an offer according to which

bondholders would be able to exchange their bonds for new ones which woul reduce the

bonds’ face value by 43%. Such proposed restructuring could cause losses to

bondholders, among which were several investors from Corellia. The IMF presented

certain recommendations for Dagobah to appropriately implement the sovereign debt

restructuring process.

III. The Permanent Court of Arbitration’s Award

3. Corellia decided to ensure the protection of Corellian bondholders by trying to clarify the

language of the BIT, which did not include an express reference to sovereign bonds under

the definition of investments. Despite Diplomatic relations the parties were not able to

agree on whether the treaty covered sovereign bonds or not. Pursuant to Article 7 of the

BIT, Corellia commenced arbitral proceedings against Dagobah, administered by the

Permanent Court of Arbitration (“PCA”), providing for State-to-State dispute settlement,

requesting a decision on the interpretation issue.

4. On 29 April 2003, the PCA Arbitral Tribunal finally decided, by majority, that sovereign

bonds were investments within the definition of the BIT and that bondholders of both

countries were entitled to its standards of protection and to resort to the investor-State

dispute settlement provision included therein. On 19 May 2003, the dissenting arbitrator

presented his opinion, in which he held that sovereign bonds could not constitute an


2

investment in accordance with the wording of the BIT. By then, Corellian bondholders

had already accepted a restructuring offer made by Dagobah, which only represented

losses of less than 20% of the net present value.

IV. Terms of the Sovereign Restructuring Act

5. At the beginning of 2010, a new recession hit Dagobah and on 14 September 2011, the

IMF issued a recommendation stating that “although Dagobah has for the most part

followed the IMF’s recommendations after the crisis of 2001, its debt, now estimated at

more than U$ 400 billion, is unsustainable”, and suggesting several measures which

included the implementation of a new sovereign debt restructuring

6. On 28 May 2012, Dagobah enacted the Sovereign Restructuring Act (“SRA”) applicable

to all bonds governed by Dagobah’s law, which provided that if a qualified majority of

the owners of 75% of the aggregate nominal value of all outstanding bonds governed by

domestic law agreed to modify the terms of the bonds, that decision would bind all the

remaining bondholders. Before the adoption of the SRA, the affected bonds did not allow

for amendment unless all bondholders agreed to it.

7. In contrast to the old bonds, which were governed by Dagobah’s law and contained a

forum selection clause granting exclusive jurisdiction to Dagobah’s courts over any

disputes arising therefrom, the new bonds were governed by the law of the Kingdom of

Yavin. The new bonds also included provisions regulating collective action (Collective

Action Clauses, ‘CACs’), which related both to the collective change of the bond terms as

well as to the enforcement of any of the current bonds’ contractual obligations. The CACs

provided that if bondholders wanted to initiate any legal action, they would need to gather

at least 20% of the nominal value of the issue in order to sue. Such a clause was absent in

the old bonds.

V. Submission before the tribunal constituted under the rules of the Arbitration

Institute of the Stockholm Chamber of Commerce

8. On 30 August 2013, Calrissian & Co., a Corellian hedge fund that holds a number of

sovereign bond, was among the holdout minority under the SRA, commenced arbitral

proceedings before the SCC pursuant Article 8 of the BIT on issues relating to

interpretation of “investments” and breach of Fair and Equitable Treatment.


3

ARGUMENTS ON JURISDICTION

ISSUE 1. THE TRIBUNAL DOES NOT HAVE JURISDICTION ‘RATIONAE MATERIE’ OVER THE

CLAIMS SUBMITTED BY CALRISSIAN AND COMPANY.

9. The Respondent submits that

a. The bonds do not satisfy the ‘typical characteristics’ test elucidated under Article 1.

b. The tribunal does not have jurisdiction as sovereign bonds do not fit in the general

definition of an investment.

I. IT DOES NOT FALL UNDER THE TYPICAL CHARACTERISTICS TEST ENUMERATED

UNDER ARTICLE 1 OF THE BILATERAL INVESTMENT TREATY.

10. Any international treaty cannot be read and interpreted in isolation to the general

principles of international law.1 The BIT does not prescribe any rules of interpretation, in

absence of which, the general principles of International Law are to be referred.2 The

Vienna Convention on the Law of Treaties, 1969 to which both Dagobah and Corellia are

a party to is the authority under the general principles of International Law to interpret the

BIT entered into between the two parties.3 Article 31(1) requires an Article to be

interpreted in light of the object and purpose, as well as in good faith – in terms of their

context.4, and the provisions of the treaty must be strictly interpreted.

5

i. Sove eign bonds do no fall unde he defini ion of an inves men in ligh of he ‘objec and

ea y’ of he Bila e al Inves men T ea y

11. To determine object of the treaty, the preamble is looked into. Preamble of BIT states

that “the treatment to be accorded such investment will stimulate the flow of private

capital and the economic development of the Parties”.6 The ‘and’ requires a cumulative

1 Pauwelyn, p. 539.

2 Crawford, p. 134.

3 Procedural Order No. 2, ¶ 7.

4 Article 31 (1), VCLT.

5 Seimens, ¶ 81.

6 Preamble, BIT.


4

test to be satisfied. Sovereign bonds do not stimulate the flow of private capital and hence

cannot be said to be a part of an ‘investment’ envisaged under objects and purpose of a

treaty.

ii. Sovereign Bonds are not an investment when interpreted with the context of the BIT

12. Not only the chapeau, the illustrations listed under Article 1 of the BIT must be taken into

consideration to determine the scope of investments. Illustrations are provided to give an

idea of the scope of a particular treaty provision if it is not exhaustive.7 A closer look of

Article 1 would give a clear genus with respect to the investments illustrated. The

investments listed in Article 1 all have a specific connect to either an enterprise or within

the broad spectrum of rights related to property – tangible and intangible.8 Even stocks,

shares and other portfolio investments have been quantified with the term “an enterprise”

to provide for a restrictive approach.9 A sovereign bond is neither a right related to a

commercial enterprise, nor does it fall under ‘property’ rights as elucidated by examples

under Article 1, thus excluding it from the scope of investments.

II. IT DOES NOT FALL UNDER THE OBJECTIVE DEFINITION OF A “INVESTMENT” AS

UNDERSTOOD IN INTERNATIONAL LAW

i. The objective definition of an investment must be looked into while interpreting the scope of

Article 1 of the BIT.

13. BITs are created under the realm of public international law.10

Thus the general principles

of international law are applicable in the context of investment treaty arbitrations.11

As

investment treaties have evolved against a background of general principles of

7 Villiger ME, COMMENTARY ON THE 1969 VIENNA CONVENTION ON THE LAW OF TREATIES, (Martinus Ninjhof

Publishers, 2009).

8 Article 1, BIT.

9 Article 1(ii), BIT.

10 Salacuse, p.46.

11 Schreuer PIL.


5

international law, these have been widely used and applied with respect to investment

contracts.12

14. An important requirement of international law to be satisfied while interpreting a treaty is

the notion of ‘investment’. BITs may contain different definitions of what constitutes an

‘investment’. However, they are understood to implicitly refer to an objective definition

that enforces the true intention of the parties to the BIT.13

15. It is now generally understood that the necessary characteristics to be satisfied for

attributing the quality of ‘investment’ to a contractual relationship include: (a) a capital

contribution to the host state; (b) a certain duration; (c) an element of risk, and; (d) an

operation made in order to develop an economic activity in the host state.14

These

characteristics must also be fulfilled for a non-ICSID tribunal to exercise jurisdiction.15

Therefore, Respondent submits that an investment must satisfy the characteristics listed

above in order to avail the protection of the BIT.

ii. The Sove eign bonds no mee he objec ive h eshold of an ‘inves men ’

16. Tribunals have held that a jurisdictional or a formal prerequisite must be satisfied with

respect to the definition of an investment.16

These characteristics include a long term

duration of the investment as well as the assumption of risk. Duration necessarily

precludes portfolio investments and thus volatile investments do not fit the threshold

required.17

Further, sovereign bonds only have the risk of a default. The criteria required

to be an investment requires a higher threshold of risk. Sovereign bonds do not satisfy this

criterion and hence cannot be considered investments under the regime of International

Investment Law.18

12

Sornarajah, p.86.

13 Alps Award, ¶ 240.

14 Salini Jurisdiction.

15 Alps Award, ¶ 240; Soci n ale Jurisdiction.

16 Romak Award.

17 Salini Jurisdiction.

18 Ambient Officio v. Argentina.


6

ISSUE 2. THE 2003 AWARD OF THE PCA IS NOT BINDING ON THIS TRIBUNAL


a. This Tribunal has the independent jurisdiction to adjudicate on the scope of an

‘investment’ under Article 1 of the BIT.

b. For the decision to have an effect on this Tribunal and amendment procedure under

Article 39 of the VCLT must be complied with.

a. THIS TRIBUNAL HAS THE INDEPENDENT JURISDICTION TO ADJUDICATE ON THE SCOPE

OF AN ‘INVESTMENT’ UNDER ARTICLE 1 OF THE BIT

18. The Mandate of the Tribunal under Article 7 covers disputes with respect to interpretation

and application,19

while that to the tribunal under Article 8 includes ‘any legal dispute’20

that arises out of the BIT. The mandate of the tribunal constituted under Article 8 is

broader while Article 7 is restricted in its scope.

19. There is an overlap with respect to the jurisdiction as the tribunal under Article 8 can

adjudicate on issues related to interpretation and application. This overlap does not take

away the jurisdiction of this Tribunal as both the PCA as well as the tribunal under SCC

exercise parallel jurisdiction over the resolution of the scope of an investment.21

Decision

on a matter by the PCA does not create an estoppel on this tribunal’s jurisdiction due to

presence of concurrent jurisdiction.

20. There is no hierarchy between tribunals which have been envisaged either under the

Treaty or the scheme of International Investment Arbitration.22

A tribunal’s decision will

thus not be binding on the other.23

The BIT, while providing for parallel jurisdiction does

not create a hierarchy of decisions. In case of the Peru-Chile BIT, the dispute resolution

clauses have been couched in the same words as Article 7 and Article 8 of the BIT 1992.

19

Article 7, BIT.

20 Article 8, BIT.

21 Scheur 1.

22 Scheuer 2.

23 Abaclat Jurisdiction.


7

Lucetti v. Peru, the Investor-State tribunal refused to grant stay on the proceedings till the

State-to-State tribunal decides the scope of interpretation and decided and interpret the

treaty by it itself.24

Thus it is amply clear that unless the treaty specifically includes a

provision that would create a specific hierarchy; the tribunal should exercise its entire

jurisdiction without a restriction.

21. While a hybrid theory for harmonizing the decisions has been contemplated, the current

position of law still vests with tribunal’s concurrent jurisdiction not having a limit.25

The

PCA’s decision, like other decisions of tribunals who have adjudicated on legal disputes

will be persuasive at best. However this tribunal must still adjudicate the case

independently as its jurisdiction to hear the matter has not been infringed upon.

22. It is also submitted that Article 7’s decision will apply to the dispute brought before the

PCA and will be restricted to that specific case.26

While the need for laws that can

harmonise the regime exists, the right of an investor to seek grievance as well as a

tribunal’s inherent right to view a treaty fresh have prevailed. Thus multiple contradictory

decisions can exist between different investors and the same state, arising out of the same

BIT.27

If a party chose to avoid such a scenario, they should have amended the agreement

as per the VCLT.

b. FOR THE DECISION TO HAVE AN EFFECT ON THIS TRIBUNAL AND AMENDMENT

PROCEDURE UNDER ARTICLE 39 OF THE VCLT MUST BE COMPLIED WITH

23. A party choosing to amend a BIT must comply with the provisions of VCLT as the BIT

does not lay down a procedure for amendment.28

The amendment under VCLT for a

bilateral treaty requires it to be a written one,29

and this procedure has not been complied

24

Lucchetti Award.

25 Anthea Roberts.

26 Scheurer 2.

27 Anthea Roberts.

28 VIENNA CONVENTION ON THE LAW OF TREATIES A COMMENTARY (Oliver Dorr & Kirsten

Schmalenbach eds., 2012).

29 Article 39, VCLT.


8

with. ‘Sovereign bonds’ could be included in the laundry list under Article 1 of the BIT as

it has been explicitly included in many BITs.

24. It is further submitted that there has been no subsequent practice or agreement to imply

that such an interpretation has been agreed upon for every subsequent case. In fact the

sovereign bonds were not protected even post the 2001 crisis, as Dagobah gave them

bonds with a reduced face value, and a haircut which was purported to be prevented by

Corellia by alleging of the protection of the bonds had still been proceeded with. Since

Dagobah had continued with the haircut, which was accepted by the bondholders, and

Corellia had not instituted any legal proceedings against such an action, this is contrary to

the notion of subsequent practice.30

30

Whaling case.


9

ISSUE 3: THE TRIBUNAL CANNOT RULE ON THE CLAIM ASSERTED IN LIGHT OF THE FORUM

SELECTION CLAUSE CONTAINED IN THE SOVEREIGN BONDS


a. The claims submitted amounts to contractual claims.

b. The contractual forum is ‘lex specialis’ and will prevail over Article 8 of BIT.

c. In Arguendo, the current claims are inadmissible at this stage.

I. THE CLAIMS SUBMITTED AMOUNTS TO CONTRACTUAL CLAIMS.

26. Breach of a contract can simultaneously give rise to two independent claims under a

treaty as well as under a contract and both claims require different inquires.31

Rights

asserted under a contract and those under a treaty are essentially different32

and both have

to be claimed under their respective dispute resolution clause.33

It is in principle

established that with respect to a BIT claim an arbitral tribunal has no jurisdiction where

the claim at stake is a pure contract claim. This is because a BIT is not meant to correct or

replace contractual remedies, and in particular it is not meant to serve as a substitute to

judicial or arbitral proceedings arising from contract claims.34

27. Contractual claims are in substance different from the treaty claims35

and the rights under

an international treaty and those under the contract are independent of each other.36

Whether there has been a breach of the BIT or breach of the contract are different

questions and each has to be determined by reference to its proper law.37

The present

claims are contractual claims against the Republic of Dagobah for non-payment of

investor’s money and violation of the terms of Sovereign Bonds, which should have been

31

Impregilo Jurisdiction, ¶ 258.

32 Azurix Award, ¶ 54.

33 Vivendi I Award, ¶ 102; Lanco Jurisdiction, ¶ 28; Azurix Award, ¶ 79.

34 Abaclat Jurisdiction ¶ 316.

35 Azurix Jurisdiction, ¶ 89; CMS Gas Jurisdiction, ¶ 80.

36 Vivendi I Annulment, ¶ 95-96.

37 Vivendi II Award, ¶ 96.


10

presented before the forum mentioned in the Bonds i.e. the national courts of Dagobah.

Since the ‘fundamental basis’38

of the claim is contractual, they cannot be adjudicated by

a treaty tribunal.

28. Moreover, it is an established principle of investment arbitration that in order to invoke

the jurisdiction of the treaty tribunal, the claimant have to establish a prima facie breach

of the treaty standard39

which has not been done in the present case. A mere invocation of

various BIT provisions, as done by Claimants, may not suffice to satisfy the prima facie

standard as otherwise the standard would be meaningless.

II. THE CONTRACTUAL FORUM IS ‘LEX SPECIALIS’ AND WILL PREVAIL OVER ARTICLE 8

OF BIT.

29. A binding exclusive jurisdiction clause in a contract should be respected, unless

overridden by another valid provision.40

Article 8 of BIT is a general provision,

applicable to investment arrangements concluded either before or after of the

commencement of the treaty. The BIT itself was not concluded with any specific

investment or contract in view. It is not to be presumed that such a general provision has

the effect of overriding specific provisions of particular contracts, freely negotiated

between the parties.41

30. A document containing a dispute settlement clause which is more specific in relation to

the parties and to the dispute should be given precedence over a document of more

general application.42

In the instant case, the contractual forum selection clause overrides

Article 8 of the BIT as The choice of forum under the contract is exclusive and thereby

binding as ‘lex specialis’.43

III. IN ARGUENDO, THE CURRENT CLAIMS ARE INADMISSIBLE AT THIS STAGE.

38

Azurix Jurisdiction, ¶ 79; Vivendi II Jurisdiction, ¶ 103.

39 Amco Asia Jurisdiction, ¶ 38; Stanimir Alexandrov, pp. 573.

40 SGS v. Philippines Jurisdiction, ¶ 138.

41 Ibid, ¶ 141.

42 Schreuer, pp. 362-63.

43 Southern Pacific Properties Jurisdiction, ¶ 83.


11

31. In case it is held that the tribunal can exercise jurisdiction over contractual claims of the

claimant, it is submitted that such claims will be admissible only after the exhaustion of

the remedies provided for in the contract itself. The Tribunal should not exercise its

jurisdiction over a contractual claim when the parties have already agreed on how such a

claim is to be resolved, and have done so exclusively.44

Once the contractual dispute is

settled conclusively between the parties by way of exhausting the remedies under the

Sovereign Bonds, then only this tribunal will be empowered to address the ramifications

of such claims and the liability of the respondent under the BIT.

44

SGS v. Philippines Jurisdiction, ¶ 155.


12

ARGUMENTS ON MERITS

ISSUE 4. THE MEASURES OF THE RESPONDENT STATE DID NOT VIOLATE ITS OBLIGATIONS

TO ACCORD FAIR AND EQUITABLE TREATMENT UNDER ARTICLE 2(2) OF THE CORELLIA-

DAGOBAH BIT.


a. The debt restructuring measures of the Respondent did not violate the legitimate

expectations of the Claimant.

b. The measures of the Respondent do not result in denial of access to justice.

c. The Respondent State has not breached its obligation to accord full protection and

security to the bonds.

I. THE DEBT RESTRUCTURING MEASURES OF THE RESPONDENT DID NOT VIOLATE THE

LEGITIMATE EXPECTATIONS OF THE CLAIMANT.

33. The Respondent does not dispute that protection of legitimate expectations is a key

element of the Fair and equitable Treatment standard [FET]. But arbitral tribunals have

acknowledged that the protection guaranteed to foreign investors is not unlimited45

. To be

protected, the investor’s expectations must be legitimate and reasonable at the time when

the investor makes the investment46

.

34. The arbitral tribunal in Duke Energy opined that to assess reasonableness, all

circumstances must be taken into account, including not only the facts surrounding the

investment, but also the “political, socioeconomic, cultural and historical conditions

prevailing in the host State”47

. In addition, such expectations must arise from the

conditions that the State offered the investor and the latter must have relied upon them

45

Saluka award, ¶ 300.

46 LG&E Award, ¶ 130.

47 Duke Energy Award, ¶ 340.


13

when deciding to invest, also taking into account factors such as business risk or

industry’s regulatory patterns48

.

35. By the time the investment was made in Dagobah’s sovereign bonds by the Claimant in

2005, the Respondent had successfully completed a debt restructuring process in response

to the sovereign debt crisis it faced in 2001. The Respondent contends that the Claimant

was aware of its historical condition and the possibility that in the event the Respondent

faced a similar sovereign debt crisis in the near future, debt restructuring by means of an

exchange offer could be attempted by the State of Dagobah. There were no

representations made by the Respondent to the effect that it will not attempt the

restructuring of its sovereign debt49

. Therefore, the accentuated risk of default associated

with the Dagobahian bonds is a business risk that was assumed by the Claimant at the

time of making the investment.

36. Further, the enactment of the SRA itself cannot violate the legitimate expectations of the

Claimant. Stability of the legal framework is not an absolute requirement, even as an

element of the FET standard50

. It is each State's undeniable right and privilege to exercise

its sovereign legislative power and a sovereign State has the right to enact, modify or

cancel a law at its own discretion51

. The Respondent is not obliged to freeze its legislative

framework in the absence of the guarantee of a stabilization clause52

. The Claimant

should have anticipated the possibility of amendment in the legislative framework of the

State of Dagobah53

, especially in the case of an economic crisis54

.

37. It is not suggested that the Respondent can choose to exercise its legislative power in any

manner that it so desires; the arbitral tribunal in Parkerings-Compaignet held that a State,

in the exercise of its legislative power is prohibited from acting unfairly or

48

LG&E Award, ¶ 130.

49 Procedural Order No.2, ¶ 18.

50 Enron Award, ¶ 260-261.

51 Parkerings-Compagniet Award, ¶ 332.

52 Ibid.

53 Ibid.

54 Enron Award, ¶ 260-261.


14

unreasonably55

. The Respondent contends that the statutory collective action mechanism

[CAM] was neither unfair nor unreasonable. First, the CAM was adopted across the

board for all investors who held bonds issued by the State of Dagobah before 31st

December 2011. Second, the Respondent used a market standard provision56

while

adopting the CAM through the SRA.

38. Finally, since the Respondent was facing the threat of imminent default and time was of

the essence, the CAM was necessary to prohibit minority investors from blocking or

delaying the debt restructuring process. Therefore, the SRA and the CAM were neither

unreasonable nor unfair.

39. In light of the aforesaid arbitral jurisprudence and facts and circumstances, it is submitted

that there were no legitimate expectations of the Claimant that were violated by the

measures of Respondent in the present case.

II. THE MEASURES OF THE RESPONDENT DO NOT RESULT IN DENIAL OF ACCESS TO

JUSTICE.

40. The element of prevention of denial of justice does not impose an obligation on the

Respondent to provide unqualified access to remedies for redressal of grievances to the

foreign investor. The Respondent is required to provide an effective remedy to the

investor for contractual claims but not necessarily in its domestic courts57

. The Claimant

can enforce its rights under the new bonds in the courts of the Kingdom of Yavin, which

is in fact, advantageous to the Claimant as the laws of Yavin are presumably more

favourable for commerce and arbitration58

. Neutral forums for enforcing contractual

55

Parkerings-Compagniet Award, ¶ 332.

56 Jeromin Zettelmeyer.

57 Jan Paulsson pp.138-139.

58 Facts of the Case, ¶ 20.


15

claims are quite common for sovereign bonds59

and courts of Yavin are the most

appropriate forum since the new bonds are governed by the laws of Yavin60

.

41. Even the Collective Action Clause (CAC) in the new bonds is a market standard

provision61

and the Respondent has not been arbitrary in its adoption. Therefore, there has

been no denial of justice by the Respondent in the present case.

III. THE RESPONDENT STATE HAS NOT BREACHED ITS OBLIGATION TO ACCORD FULL

PROTECTION AND SECURITY TO THE BONDS.

42. The obligation to provide full protection and security to the investments of foreign

investors under the BIT is not an absolute obligation, which guarantees that no damages

will be suffered, in the sense that any violation thereof creates strict liability on behalf of

the host state62

. The host State is only required to exercise due diligence as is reasonable

under the circumstances prevailing in the State63

. The AMT tribunal opined that protection

under the standard of full protection and security “must be in conformity with its

applicable national laws and must not be any less than those recognized by international

law”64

.

43. The Respondent exercised the requisite amount of due diligence when it took steps to

prevent an outright default on the sovereign bonds, including the passage of the SRA and

introduction of the CAM. The Respondent contends that the standard of due diligence

must analyzed in the background of the financial crisis that the State of Dagobah was

facing at the time. If the debt restructuring process had failed, the resulting default on the

part of State of Dagobah would have reduced the rating of the bonds to junk status,

leading to a greater loss of value to the Claimant. It is emphasized that the terms of the

59

Committee on Foreign & Comparative Law, New York Bar Association, “Governing Law in Sovereign Debt

–Lessons from the Greek Crisis and Argentina Dispute of 2012”, available at

http://www2.nycbar.org/pdf/report/uploads/20072390-GoverningLawinSovereignDebt.pdf.


61 IMF, “Collective Action Clauses in Sovereign Bond Contracts—Encouraging Greater Use”, available at

https://www.imf.org/external/np/psi/2002/eng/060602a.pdf.

62 AAPL v. Sri Lanka, ¶ 48.

63 Pantechniki v. Albania, ¶ 81.

64Zaire Award, ¶ 606.


16

bonds were amended in consonance with the legislation of the State of Dagobah65

and the

bond exchange offer was as per the provisions of the SRA as well as the IMF

recommendations for debt restructuring66

.

44. Therefore, it is submitted that the Respondent did not violate the obligation to provide full

protection and security as per the standard recognized in international law.

65

Facts of the Case, ¶ 18.

66Facts of the Case, ¶ 18.


17

ISSUE 5. THE RESPONDENT’S DEBT RESTRUCTURING MEASURES ARE EXEMPTED UNDER

ARTICLE 6(2) OF THE BIT.


a. Article 6 is lex specialis and independent of the customary international law defense

of necessity.

b. The conditions for the application of Article 6(2) are satisfied in the present case.

c. Arguendo, Respondent’s actions satisfy the conditions stipulated for the application of

Article 25.

I. ARTICLE 6 IS LEX SPECIALIS AND INDEPENDENT OF THE CUSTOMARY INTERNATIONAL

LAW DEFENSE OF NECESSITY.

46. Article 6(2) is a Not-Precluded Measures (NPM) clause which, if applicable, would

preclude liability of the host State for breach of substantive obligations under the BIT.

The Respondent contends Article 6 is lex specialis, which operates independently of and

prevails over the necessity defense in customary international law.

47. Article 25 of the International Law Commission’s Articles on State Responsibility

reflects the defense of necessity as it exists in customary international law67

. It imposes a

very high threshold, which the Respondent submits, was not the intention of the State

parties while incorporating Article 6 in the BIT.

48. Two aspects must be highlighted in this regard. First, the very objective of a NPM clause

in a BIT is to preserve some legal flexibility for the State to able to take the necessary

measures for protection of the interests of the State. Second, the aim and object of the

Articles on State Responsibility was to systematically express customary international

law for breach of international obligations owed by a State to other States and not private

actors.

49. Further, the CMS Annulment Committee, while interpreting Article XI of the U.S.-

Argentina BIT (which was also a NPM clause), was of the opinion that the treaty defense

67

Gabchikovo- Nagymyros Project Case.


18

and the necessity defense work independently holding that, the treaty defense is a

“threshold requirement: if it applies, the substantive obligations under the Treaty do not

apply. By contrast, Article 25 is an excuse which is only relevant once it has been decided

that there has otherwise been a breach of those substantive obligations.”68

In addition, the

CMS Annulment Committee also highlighted the fact that the treaty provision covers

measures “necessary for the maintenance of public order or the protection of each Party’s

own essential security interests, without qualifying such measures.”69

The necessity

defense in customary international law, on the other hand, requires the satisfaction of four

conditions before the defense can be successfully invoked70

.

50. Therefore, since the Treaty is to be the first source of obligations incumbent on State

parties under the BIT, it is submitted that Article 6, as a treaty-based defense, is separate

and distinct from the necessity defense in customary international law.

II. THE CONDITIONS FOR THE APPLICATION OF ARTICLE 6(2) ARE SATISFIED IN THE

PRESENT CASE.

51. Article 6 lays down the following conditions for its application:

i. There must be an essential security interest of the State involved;

ii. The measures taken by the State must be necessary for the protection of that vital

interest.

i. Essential Security Interest

52. Economic interests of a State qualify as an “essential security interest.”71

In the instant

case, it is submitted that it was a vital interest of the State of Dagobah to prevent the

worsening of the situation and restore financial stability at the earliest. Considering that

several demonstrations and social unrest had occurred to protest against the rising

68

CMS Annulment committee Decision, ¶ 129.

69 CMS Annulment committee Decision, ¶ 130.

70 Article 25, ILC Articles.

71 CMS award; Enron Award; Sempra Award; LG&E Award.


19

unemployment and inflation rates72

, it was imperative that the State of Dagobah act

immediately to prevent the protests from threatening the political survival of the State.

ii. Necessary measures

53. Article 6(2) does not qualify the term “necessary”. The LG&E Tribunal, while

interpreting Article XI of the U.S.-Argentina BIT couched in the same terms as Article 6

of the Corellia-Dagobah BIT, opined that Argentina did not need to show that its response

constituted the only means available to respond to the crisis because Article XI refers to

situations in which a State has no choice but to act, but that a State might have several

responses at its disposal73

.

54. The Respondent submits that the debt restructuring was a necessary measure to safeguard

its economic interests. The core problem that the State of Dagobah was facing was its

unsustainable debt burden74

and its debt-to-GDP ratio was 124%75

. The Respondent did

not have domestic sources of generating revenue to finance its debt No matter what

austerity measures were adopted, it was quite evident that there was no way Dagobah

could have generated revenues “without restructuring or defaulting”76

.

55. In order to prevent the default, it was necessary for the State of Dagobah to redeem the

offer of bailout of US$150 billion by the IMF77

but in order to do so, it had to fulfill the

conditions associated with the bailout. The condition associated with the bailout was that

Dagobah must refinance and reduce its outstanding debt in bonds through an exchange

offer78

. Therefore, the debt restructuring was necessary.

72

Procedural Order no. 3, ¶ 38.

73 LG&E Award, ¶ 239.


75 Procedural Order no. 3, ¶ 37

76 Procedural Order No. 2, ¶ 20; Procedural Order no. 3, ¶37.




20

56. Since both the conditions of Article 6 are satisfied in the present case, the Respondent

submits that there may be no liability whatsoever imposed on it for violation of the

provisions of the BIT due to the application of Article 6.

III. ARGUENDO, RESPONDENT’S ACTIONS SATISFY THE CONDITIONS STIPULATED FOR

THE APPLICATION OF ARTICLE 25.

57. Article 25 lays down the following conditions for the operation of the defense of

necessity:

i. The measure adopted by the State must be to protect its vital interests from a

grave and imminent peril;

ii. It must be the only way available to the State;

iii. The State must not have contributed to the situation of necessity.

i. Grave and Imminent peril

58. Respondent submits that the threat of widespread default, which was imminent if the

Respondent did not take steps to reduce its debt burden, qualifies as a “grave and

imminent peril”. Faced with similar facts and circumstances prevailing in Argentina, the

arbitral tribunal in LG&E concluded that Argentina faced “an extremely serious threat to

its existence, its political and economic survival, to the possibility of maintaining its

essential services in operation, and to the preservation of its internal peace79

.

59. Similarly, the financial crisis had acquired such proportions that it had become an

extremely serious threat to the political and economic survival of the State of Dagobah.

The debt-to-GDP ratio was 124%, public services were on the verge of being

compromised and there was no way Dagobah could have generated revenues “without

restructuring or defaulting”80

. Further, the internal state of affairs was disturbed as

79

LG&E Award, ¶ 253.



21

several demonstrations and social unrest occurred to protest against the rising

unemployment and inflation rates81

.

60. If the Respondent defaults on its debt, the internal conditions would only become worse

and may even lead to revolts among the citizens against the government. In light of these

circumstances, the Respondent submits that its vital interests were threatened by a grave

and imminent peril.

ii. Only way available to the State

61. The Respondent contends that debt restructuring was the only way that the State had to

protect itself against the worsening of the financial crisis. Since the debt rating of

Dagobah’s sovereign bonds had been reduced to B- after the financial crisis82

, it has

presumably only worsened after the IMF recommendation that the debt burden of the

State of Dagobah is unsustainable83

.

62. The Respondent did not have alternative sources of liquidity such as private and

institutional investors. No matter what austerity measures were adopted, it was quite

evident that there was no way Dagobah could have generated revenues “without

restructuring or defaulting”84

.

63. The only source available was the conditional bailout of US$150 billion offered by

IMF85

. But the condition associated with the bailout was that Dagobah must refinance and

reduce its outstanding debt in bonds through an exchange offer86

. Therefore, it was the

only way available to the State to protect its vital interests against the threat of imminent

default.

iii. No contribution to the situation of necessity

81

Procedural Order no. 3, ¶ 38.

82 Procedural Order No. 3, ¶ 31.






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64. Article 25 prohibits the invocation of the necessity defense by a State only if the State has

contributed to the situation of necessity, in a way that is “sufficiently substantial and not

merely incidental or peripheral”87

. It is submitted that the State of Dagobah has not

contributed to the economic crisis in any manner.

65. The debt crisis was mainly due to exogenous factors; the recession in Dagobah was “a

consequence of the financial crisis” of 200888

. The price of oil had also exacerbated the

budget deficits of the government89

. Government policies post the 2001-crisis were

dictated in large part by the IMF90

and were not adopted in the discretion of the

government. Therefore, it is submitted that the Respondent had not contributed to the

crisis in any manner, substantial or peripheral.

66. Thus, all conditions of Article 25 are met in the present case and precludes responsibility

on part of the State of Dagobah for any violation of its international obligations under the

BIT.

87

James Crawford, pp. 160–86.


89 Appendix 4.

90 Appendix 4.


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RELIEF SOUGHT

The Respondent respectfully prays to the Tribunal for the following relief-

Declare that the Tribunal does not have jurisdiction over this dispute.

Declare in the alternative, it is not entitled to rule on the claims asserted in view of the

forum selection clause contained in the sovereign bonds.

Declare, in the event the tribunal decides that is has jurisdiction, that the relief sought

by Claimant’s has no support in the applicable law and thus should be denied.

Declare in any event that Claimant shall pay for all costs related to these proceedings.

Counsels for the Respondent

Team Visscher

20 September 2014

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