PVT Int Law - Memorial

TEAM GOLUNSKY
I NTERNA TI ONA L COUR T OF

AR BI TRA TI ON
__________________________________________________________________________
PETER EXPLOSIVE
Claimant
v.
REPUBLIC OF OCEANIA
Respondent
__________________________________________________________________________
MEMORIAL FOR RESPO NDENT

__________________________________________________________________________
September 26, 2016

Team Golunsky | Memorial for Claimant
TABLE OF CONTENTS
TABLE OF CONTENTS ii
INDEX OF AUTHORITIES – BOOKS AND ARTICLES v
LIST OF AUTHORITIES – MISCELLANEUS viii
INDEX OF CASES ix
INDEX OF ARBITRAL AWARDS xi
INDEX OF LEGAL SOURCES xx
INDEX OF ABBREVIATIONS xxi
STATEMENT OF FACTS 1
STATEMENT OF ARGUMENTS 3
I. THE TRIBUNAL HAS NO JURSIDICTION OVER THE DISPUTE

CONCERNING EXPROPRIATION CLAIMANT‘S PROPERTY
UNDER THE EUROASIA BIT AND THE CLAIMS ASSERTED BY
CLAIMANT ARE INADMISSIBLE. 3
1. The Claimant is not the investor under Article 1(2) of the Euroasia BIT
considering that the grant of Euroasian citizenship to Claimant is violation
of international law as the annexation is illegal (the principle of ex injuria
jus non oritur). 4
2. Peter Explosion is not Euroasian national since the Citizenship Act does not
allow Euroasian nationals to possess dual nationality. 6
3. The Euroasian nationality of Peter Explosion is not effective. 7
II. THE CLAIMANT CANNOT BROADEN THE SCOPE OF THE ARTICLE

3 OF THE AGREEMENT FOT THE PROMOTION AND RECIPROCAL
PRTECTION OF INVESTMENTS BETWEEN THE REPUBLIC OF
OCEANIA NAD THE REPUBLIC OF EUROASIA (EUROASIA BIT)
TO JUSTIFY HIS CONDUCT AS HE WAS OBLIGATED TO COMPLY
WITH PRE-ARBITRAL STEPS PROVIDED IN THE ARTICLE 9 OF
EUROASIA BIT PRIOR TO BRINGING HIS CLAIMS BEFORE THE
TRIBUNAL. 8
ii
1. The Claimant has not satisfied the mandatory preconditions to the ICC‘s
jurisdiction. 9
1.1. The Article 9 of the Euroasia BIT requires domestic litigation prior to
recourse to arbitration. 9
1.2. The provisions included in the Euroasia BIT purposely limit the access to
arbitration. 10
1.2.1. Meaning of the word „may‖ is obligatory „must‖ or ―shall‖. 10
1.2.2. Expressed consent to prior arbitration of the other contracting party is

mandatory due to the compromissory clause. 11
2. The Claimant inappropriately relied on the MFN clause included in the Art. 3
of the Euroasia BIT. 11
2.1. There is no literal meaning of the MFN clause. 12
2.2. The MFN clause could not be used to expand the scope of arbitration. 12
2.3. If parties concluded a separate provision of jurisdictional matters, there is no

need to refer to the MFN clause to broaden the scope. 13
III. THE CLAIMANT CANNOT BENEFIT FROM THE PROTECTION OF

THE TREATY SINCE IT DOES NOT HAVE ―CLEAN HANDS‖. 14
IV. THE CLAIMANT‘S INVESTMENT WAS NOT EXPROPRIATED BY

THE RESPONDENT. 16
1. The conduct of the Respondent do not amount to expropriation or equivalent

measures. 17
1.1. The Claimant was not deprived control over investment. 17
1.2. The Claimant did not take into account business risk. 17
2. The Respondent was obligated to enact the Executive Order under the
principles of public international law. 18
2.1. The Respondent acted legally by imposing sanctions. 18
2.2. The Respondent‘s act was not expropriatory, since it was taken within the
sovereign powers of the Republic of Oceania and thus, the Claimant is not
entitled to get compensation. 20
iii
V. THE CLAIMANT CONTRIBUTE TO THE DAMAGE SUFFERED BY HIS

INVESTMENT. 21
1. The Claimant contribute to the damages by his own wrongful conduct,

therefore the Tribunal is entitled to reduce or even to void the
compensation. 22
2. If the Tribunal awards that the damage have not been foreseen or was too
remote, the Tribunal may consider to reduced amount of compensation. 22
2.1. The damage was not foreseeable. 23
2.2. The compensation pointed out by the Claimant is at least too remote. 23
3. Alternatively, if the Tribunal recognize the Claimants‘ investment as an

expropriated by the Respondent, the Tribunal may award the
compensation which is filed only with lost profit. 23
4. If the Tribunal consider to award a compensation in the amount indicted by

the Claimant, the Tribunal may consider that the Claimant failed to apply
the ‗fair market value‘ standard. 24
REQUEST FOR ARBITRATION 25
iv
INDEX OF AUTHORITIES – BOOKS AND ARTICLES
Desierto D. Human Rights and Investment in Economic

Emergencies: Conflict of Treaties, Interpretation,
Valuation Decisions presented at the Society of
International Economic Law (SIEL) 3rd Biennial
Global Conference, July 2012
Cited as: Desierto
Dolzer R., Schreuer C. Principles of International Investment Law, Oxford

University Press, Oxford, 2012, p. 45-47
Cited as: Dolzer/Schreuer
Douglas Z. The International Law of Investment Claims,

Cambridge University Press The Edinburgh Building,
Cambridge, p. 134
Cited as: Douglas
Gillis Wetter J. Issues of Corruption before International Arbitral

Tribunals; The Authentic Text
and True Meaning of Judge Gunnar Lagergren‘s 1963

Award in ICC Case No. 1110 (1994) Vol. 10, No. 4
Arbitration International, p. 227.
Cited as: Commentary on ICC Case No. 1110
Dugan Ch., Wallace Jr D, Rubins Investor-State Arbitration, Oxford University Press,

N., Sabahi B. Oxford, 2008, p. 300-305
Cited as: Dugan/Wallace/Rubins/Sabahi
v
Kantor M. Valuation for Arbitration: Uses and Limits of Income-

Based Valuation Methods‘ 4(6) Transnational Dispute
Management 15, TDM 6 (2007)
Cited as: Kantor
Kohen M., Hébié M. Territory, Acquisition, MPEPIL, Oxford University

Press, March 2011, para. 48
Cited as: Kohen/Hébié
Marossi A., Bassett M. Economic sanctions under International Law:

Unilateralism, Multilateralism, Legitimacy, and
Consequences, Springer, 2015, p. 77-78, 90, 169
Cited as: Marossi/Bassett
Mikulka V. The Impact of International Rules on Nationality, [in]:

Dissolution, Continuation and Succession in Eastern
Europe, Kluwer Law International, 1998, B. Stern (ed.),
p. 90
Cited as: Mikulka
Newcombe A., Paradell I. Law and Practice of Investment Treaties: Standards of

Treatment, Kluwer Law International, 2009, p. 378
Cited as: Newcombe/Paradell
Salacuse J. W. The Law of Investment Treaties, Oxford University

Press, Oxford, 2015, p. 207
Cited as: Salacuse
vi
Schwarzenberger G. A Manual of International Law, 5th ed., London,

Stevens, 1967, p. 141
Cited as: Schwarzenberger
Serkin Ch. The Meaning of Value: Assessing Just Compensation

for Regulatory Takings, 99 NW. U. L. REV. 677, 725–
27 (2005)
Cited as: Serkin
vii
LIST OF AUTHORITIES – MISCELLANEUS
International Law Comission Draft Articles on Responsibility of States for

Internationally Wrongful Acts, November 2001,
Supplement No. 10 (A/56/10), chp.IV.E.1
Cited as: A/56/10
Mealey's International Mealey's International Arbitration Report, December

Arbitration Report 1999
Cited as: Mealey's International Arbitration Report
The UN General Assembly United Nations General Assembly Resolution adopted

Resolution on 24 October 1970 concerning Declaration on
Principles of International Law Concerning Friendly
Relations and Cooperation among States in
Accordance with the Charter of the United Nations
Cited as: A/RES/25/2625
United Nations General Assembly Resolution adopted

on 16 December 1970 concerning Declaration on the
Strengthening of International Security
United Nations General Assembly Resolution adopted

on 14 December 1974 concerning the Question of
Defining Aggression
United Nations General Assembly Resolutions

adopted on 18 December 2013 concerning Particular
Relevance to Statelessness and Nationality
viii
INDEX OF CASES
House of Lords, UK Jurisdiction AstraZeneca UK Ltd v. IBM Corporation, EWHC 306

summary, High Court, 2011
Cited as: AstraZeneca
Julius v. Oxford (Lord Bishop) (1880), 5 App. Cas.

214 at 222-23 (H.L.)]
Cited as: Julius v. Oxford
ICJ Democratic Republic of Congo v. Rwanda, - Armed

Activities on the Territory of the Congo (New
Application: 2002) (Democratic Republic of the
Congo v. Rwanda), Judgment, I.C.J. Reports, 2006
Cited as: Congo
Gabčíkovo-Nagymaros Project (Hungary/Slovakia),

ICJ Award, 25 September 1997, para. 83
Cited as: Gabčíkovo-Nagymaros Project
Affaire Nottebohm (Liechtenstein v. Guatemala), ICJ,

Award, 6 1955, para. 22
Cited as: Nottebohm
PCIJ Oscar Chinn affair, P.C.I.J, Ser A/B, Case No. 63 1934
Cited as: Oscar Chinn
SCC Vladimir Berschader and Moïse Berschader v. The

Russian Federation, SCC Case No. 080/2004, SCC
Award, 21 April 2006
Cited as: Berschader
ix
UNITED STATES COURT OF Karaha Bodas Co., L.L.C., Plaintiff-Appellee, V.

APPEALS FOR THE FIFTH Perusahaan Pertambangan Minyak Dan Gas Bumi
CIRCUIT Negara; Et Al, Defendants, Perusahaan Pertambangan
Minyak Dan Gas Bumi Negara, Defendant-Appellant,
23 March 2004
Cited as: Karaha Bodas
x
INDEX OF ARBITRAL AWARDS
Ad hoc Arbitration 1 Flegenheimer Case—Decision No. 182, Italian-United

States Conciliation Commission, U.N. Reports of
International Arbitral Awards vol. XIV, 20 September 1958,
p. 341,
2
3 Cited as: Flegenheimer
4
5
6 Salem Case (United States v Egypt), Special Arbitral
Tribunal, 8 June 1932 , U.N. Reports of International
Arbitral Awards (1932) vol. II, p. 1184
7
8 Cited as: Salem
9
10
11 12 Sapphire International Petroleums Ltd. v. National Iranian
Oil Company, 1963
13
14 Cited as: Sapphire International Petroleums
15
16
ICSID 17 Ambiente Ufficio S.p.A. and others v. Argentine Republic,
ICSID Case No. ARB/08/9 (formerly Giordano Alpi and
others v. Argentine Republic)
18
19 Cited as: Ambiente Ufficio
20
21 22 American Manufacturing & Trading, Inc. v. Republic of
Zaire, ICSID Case No. ARB/93/1, Award, 21 February
1997,
23
24 Cited as: AMT
25
26
27 28 CMS Gas Transmission Company v. The Republic of
Argentina, ICSID Case No. ARB/01/8 , Award, 12 May
2005, para. 263
29
30 Cited as: CMS
31
32
xi
33 34 Electrabel S.A. v. Republic of Hungary (ICSID Case No.

ARB/07/19), Decision on Jurisdiction, Applicable Law and
Liability, 30 November 2012, para. 7.77
35
36 Citd as: Electrabel
37
38
39 40 Enron Corporation and Ponderosa Assets, L.P. v. Argentine
Republic, ICSID Case No. ARB/01/3, Award, 22 May
2007, para. 245
41
42 Cited as: Enron
43
44
45 46 Marvin Roy Feldman Karpa v. United Mexican States,
ICSID Case No. ARB(AF)/99/1, Award, 16 December
2002, para. 103
47
48 Cited as: Feldman
49
50
51 52 Fraport AG Frankfurt Airport Services Worldwide v
Philippines, Award, ICSID Case No ARB/11/12, IIC 731
(2014), 10 December 2014, para. 328,
53
54 Cited as: Fraport
55
56
57 58 Generation Ukraine, Inc. v. Ukraine, ICSID Case No.
ARB/00/9, Award, 16 September 2003, para. 20.30
59
60 Cited as: Generation Ukraine
61
62
63 64 Gustav F W Hamester GmbH & Co KG v Ghana, Award,
ICSID Case No ARB/07/24, IIC 456 (2010), 10th June
2010, despatched 18th June 2010, para. 123
65
66 Cited as: Hamester
67
68
xii
69 70 Dissenting Opinion of arbitrator Christopher Thomas in

Hochtief AG v. The Argentine Republic, ICSID Case No.
ARB/07/31, Decision on Jurisdiction, 24 October 2011
71
72 Cited as: Hochtief
73
74
75 76 Kılıç İnşaat İthalat İhracat Sanayi ve Ticaret Anonim Şirketi
v Turkmenistan, ICSID Case No ARB/10/1, Award, 6 July
2013
77
78 Cited as: Kılıç İnşaat
79
80
81 82 Joseph Charles Lemire v. Ukraine, ICSID Case No.
ARB/06/18, Decision on juridiction and liabiity, para 505
83
84 Cited as: Lemire
85
86
87 88 LG&E Energy Corp., LG&E Capital Corp., and LG&E
International, Inc. v. Argentine Republic, ICSID Case No.
ARB/02/1, Decision on Liability, paras. 188, 195, 197
89
90 Cited as: LG&E
91 92 Emilio Agustín Maffezini v. The Kingdom of Spain, ISCID

case no. ARB/97/7, Decision of the Tribunal on Objections
to Jurisdiction, 25 January 2000
93
94 Cited as: Maffezini
95
96
97 98 Metal-Tech Ltd v.Republic ofUzbekistan, ICSID Case No.
ARB/10/3, Award, 4 October 2013, para. 243, 413
99
100 Cited as: Metal-Tech
101
102
xiii
103 104 Micula and others v Romania, Decision on Jurisdiction and

Admissibility, ICSID Case No ARB/05/20, IIC 339 (2008),
24 September 2008, paras. 70-106
105
106 Cited as: Micula
107
108
109 MTD Equity Sdn. Bhd. and MTD Chile S.A. v. Republic of
Chile, ICSID Case No. ARB/01/7, Award, 25 May 2004
110
111 Cited as: MTD
112
113
114 Niko Resources (Bangladesh) Ltd. v. People‘s Republic of
Bangladesh, Bangladesh Petroleum Exploration &
Production Company Limited (―Bapex‖),Bangladesh Oil
Gas and Mineral Corporation (―Petrobangla‖), ICSID Case
No. ARB/10/11 and ICSID Case No. ARB/10/18, Decision
on Jurisdiction (19 August 2013), para. 433, 484
115
116 Cited as: Niko
117
118
119 Olguín v. Paraguay, Award, ICSID Case No ARB/98/5,
(2003) 18 ICSID Rev—FILJ 143, (2004) 6 ICSID Rep 164,
IIC 97 (2001), 26 July 2001, para. 60-62
120
121 Cited as: Olguín
122
123
124 Occidental Petroleum Corporation and Occidental
Exploration and Production Company v. The Republic of
Ecuador, ICSID Case No. ARB/06/11, Award, 5 October
2012
125
126 Cited as: Petroleum
127 Plama Consortium Limited v. Republic of Bulgaria, ICSID

Case No. ARB/03/24, Award, 27 August 2008
128
129 Cited as: Plama
130
131
xiv
132 Compañia del Desarrollo de Santa Elena S.A. v. Republic of

Costa Rica, ICSID Case No. ARB/96/1, Award, 17
February 2000
133
134 Cited as: Santa Elena
135 Sempra Energy International v. The Argentine Republic,

ICSID Case No. ARB/02/16, Award, 28 September 2007,
para. 284
136
137 Cited as: Sempra
138
139
Señor Tza Yap Shum v. The Republic of Peru, ICSID Case
No. ARB/07/6, Decision on Jurisdiction and Competence,
19 June 2009, paras. 42-77
140
141 Cited as: Shum
142
143
144 Siag and Vecchi v. Egypt, Award, ICSID Case No
ARB/05/15, IIC 374 (2009), 1 June 2009, para. 261
145
146 Cited as: Siag
147
148
149 Soufraki v. United Arab Emirates, Award, ICSID Case No
ARB/02/7, IIC 131 (2004), 7 July 2004, para. 55, 63
150
151 Cited as: Soufraki
152 153 Suez, Sociedad General de Aguas de Barcelona S.A., and

InterAguas Servicios Integrales del Agua S.A. v. The
Argentine Republic, ICSID Case No. ARB/03/17, Decision
on liability, 30 July 2010, para. 128
154
155 Cited as: Suez
156
157
xv
158 159 Técnicas Medioambientales Tecmed, S.A. v. The United

Mexican States, ICSID Case No. ARB (AF)/00/2, Award,
29 May 2003, para. 119
160
161 Cited as: Tecmed
162
163
164 165 Teinver SA v. Argentine Republic, ICSID Case No
ARB/09/1, Decision on Jurisdiction, 21 December 2012
166
167 Cited as: Teinver
168
169 170 Telenor Mobile Communications A.S. v. The Republic of
Hungary, ICSID Case No. ARB/04/15, Award, 13
September 2006, para. 64,
171
172 Cited as: Telenor
173
174
175 176 Urbaser SA & Consorcio de Aguas Bilbao
177 Biskaia, Bilbao Biskaia Ur Partzuergoa v Argentine Repub,
ICSID Case No ARB/07/26, Decision on
178 Jurisdiction, 19 December 2012
179
180 CIted as: Urbaser
181
182
183 184 Inceysa Vallisoletana S.L. v. Republic of El Salvador, case
ICSID No. ARB/03/26, award dated August 2, 2006 , para.
240-242, 257
185
186 Cited as: Vallisoletana
187
188
xvi
189 190 Waste Management, Inc. v. United Mexican States

("Number 2"), ICSID Case No. ARB(AF)/00/3, Award, 30
April 2004, para. 159,
191
192 Cited as: Waste Management
193
194
195 Wintershall Aktiengesellschaft v Argentine Republic,
ICSID Case No ARB/04/14, Award, 8 December 2008
196
197 Cited as: Wintershall
198
199
200 World Duty Free Co. Ltd. v. Republic of Kenya, ICSID
Case No. ARB/00/7, Award 4 October 2006, para. 157, 178
201
202 Cited as: World
203
204
Iran-United States Claim SEDCO, Inc. v. National Iranian Oil Co., Award No. 59-
Tribunal 129-3,10 IRAN-U.S.CL.TRIB.REP. 180, 204n.34, 27
March, 1986, para. 249
205
206 Cited as: SEDCO
207
208
PCA 209 HICEE B.V. v. The Slovak Republic, Partial Award,
UNCITRAL, PCA Case No. 2009-11, 23 May 2011
210 Cited as: HICEE

211
212
213 214 ICS Inspection & Control Servs Ltd (UK) v The Repub of
Argentina, PCA Case No 2010-9, Award on Jurisdiction, 10
February 2012
215
216 Cited as: ICS Inspection
217
218
xvii
219 220 Yukos Universal Limited v Russian Federation, Final

Award, PCA Case No AA 227, IIC 652 (2014), ICGJ 481
(PCA 2014), 18th July 2014, para. 1352,
221
222 Cited as: Yukos
223
224
UNCITRAL 225 Hesham Talaat M. Al-Warraq v. Republic of Indonesia,
UNCITRAL, Award, 15 December 2014, para. 646
226
227 Cited as: Al-Warraq
228
229
230 231 Austrian Airlines v. The Slovak RepublicAustrian Airlines
v. The Slovak Republic, Award, 9 October 2009
232
233 Cited as: Austrian Airlines
234
235
236 237 Chemtura Corporation v. Government of Canada,
UNCITRAL, Award, 2 August 2010, para. 266
238
239 Cited as: Chemtura
240
241
242 243
244
245 HICEE B.V. v. The Slovak Republic, Partial Award,
UNCITRAL, PCA Case No. 2009-11, 23 May 2011
246
247 Cited as: HICEE
248 249 Ronald S. Lauder v. The Czech Republic, UNCITRAL,

Final Award, 3 September 2001, para. 198
250
251 Cited as: Lauder
252 253 Methanex Corporation v. United States of America,

UNCITRAL, Award, part IV, chapter D, para. 7
254
255 Cited as: Methanex
256
xviii
257 258 Pope & Talbot Inc. v. The Government of Canada,

UNCITRAL, Interim Award, 26 June 2000, para. 100
259
260 Cited as: Pope&Talbot
261
262
263 264 Saluka Investments B.V. v. The Czech Republic,
UNCITRAL, Partial Award, 17 March 2006 paras. 254-255
265
266 Cited as: Saluka
267
268
269 270 S.D. Myers, Inc. v. Government of Canada, UNCITRAL,
Award, 30 December 202, para. 282
271
272 Cited as: S.D. Myers
273
274 275
276 277
xix
INDEX OF LEGAL SOURCES
CRS 1961 United Nations Convention on the Reduction of

Statelessness, 30 August 1961
ICC Rules of Arbitration Arbitration Rules of the International Chamber of

Commerce, 1 January 2012
VCSST Vienna Convention on Succession of States in Respect of

Treaties, 23 August 1978
VLCT Vienna Convention on the Law of Treaties, 23 May 1969
UDHR Universal Declaration of Human Rights, 10 December

1948
UN Charter Charter of the United Nations, 26 June 1945
xx
INDEX OF ABBREVIATIONS
& And
% Per cent
Art. Article
AtR Answer to Request for Arbitration
Claimant Peter Explosive
ClaM Memorial of the Claimant
ClaR Memorial of the Respondent
EA Environment Act of the Republic of Oceania
an Agreement for the Promotion and Reciprocal Protection
Euroasia BIT
of Investments, Oceania-Euroasia Treaty
an Agreement for the Promotion and Reciprocal Protection
Eastasia BIT
of Investments, Oceania-Eastasia Treaty
EO Executive Order of the Republic of Oceania
i.e. id est, that means
Ltd Limited
Ms Miss
Mr Mister
NEA National Environment Authority of Oceania
No. Number(s)
p. Page
Para. Paragraph
PO Procedural Order
Record FDI International Arbitration Moot 2016 Problem
Respondent The Republic of Oceania
RfA Request for Arbitration
The Parties the Claimant and the Respondent
UF Statement of Uncontested Facts
v. Versus
xxi
STATEMENT OF FACTS
The Republic of Oceania and the Republic of Euroasia have ratified Vienna Convention on
the Law of Treaties (VLCT) and the Vienna Convention on Succession of States in Respect of
Treaties (VCSST).
Both, the Republic of Oceania and the Republic of Euroasia, are members of the United
Nations.
On January 1, 1992 the Republic of Oceania and the Republic of Euroasia concluded the
Agreement for the Promotion and Reciprocal Protection of Investments (the Ocenia-Euroasia
BIT). In the same day the Republic of Oceania and the Republic of Eastasia concluded the
Agreement for the Promotion and Reciprocal Protection of Investments (the Oceania-Eastasia
BIT).
In February 1998 Peter Explosive acquired shares in Rocket Bombs Ltd. located in the
Republic of Oceania and became its 100% shareholder. Company operated in arms industry
and specialized in arms production.
On July 23, 1998 the National Environment Authority (NEA) issued an environmental license
for Rocket Bombs Ltd. It allowed Peter Explosive to start production.
On August 3, 1998 the Ministry of Environment of Oceania denied the request of Rocket
Bombs Ltd. for the subsidy, which was possible to get under the Environment Act 1996 (EA).
On December 23, 1998 Peter Explosive and the Ministry of the National Defence of the
Republic of Euroasia concluded contract for the arms productions for fifteen years.
Referendum in Fairyland was held on November 1, 2013. The armed forces of Euroasia
entered the territory of Fairyland on March 1, 2014. On March 23, 2014 the Republic of
Euroasia officially declared Fairyland a part of the Euroasian territory.
The Republic of Oceania did not recognize annexation of Fairyland by Euroasia, since it was
illegal act under international law. On April 1, 2014 the Republic of Oceania sent a
notification to Euroasia that diplomatic relations are break off.
1
New contract for arms production between Peter Explosive and the Minister of the National
Defence was concluded for six years on February 28, 2014 and effective of April 1, 2014.
On May 1, 2014 the President of the Republic of Oceania issued an Executive Order on
blocking Property of Persons Contributing to the Situation on the Republic of Eastasia. It
introduced a system of sanctions, which were applied also to the Claimant, since the Claimant
was engaged in producing arms sector of the Republic of Euroasia.
In 2013, an investigation regarding the corruption in the National Environment Authority of

Oceania started. On November 21, 2013 the criminal proceedings against officials, who were
under suspicion, were initiated. On February 1, 2015 those officials were convicted of
accepting bribes.
In connection with corruption affair in the NEA of Oceania, on May 5, 2015 Peter Explosive
was informed that he was under investigation with regard to the environment license for
Rocket Bombs Ltd. On June 23, 2015 the criminal proceedings against Peter Explosive
officially started.
On September 11, 2015 the Claimant requested for arbitration.
The International Court of Arbitration acknowledged on September 11, 2015 the receipt of
the Request of Arbitration.
The Respondent responded to a Request for Arbitration on September 30, 2015.
2
STATEMENT OF ARGUMENTS
I. THE TRIBUNAL HAS NO JURSIDICTION OVER THE DISPUTE

CONCERNING EXPROPRIATION CLAIMANT‟S PROPERTY UNDER
THE EUROASIA BIT AND THE CLAIMS ASSERTED BY CLAIMANT
ARE INADMISSIBLE.
1 Peter Explosion on 11 September 2015 submitted its Request for Arbitration to the
International Court of Arbitration of the International Chamber of Commerce in Paris
[Record, RfA, p. 15-16]. According to Claimant‘ statement – Peter Explosion is an
investor in the meaning of Art. 1 of the Agreement between the Republic of Oceania and
the Republic of Euroasia for the Promotion and Reciprocal Protection of Investments of 1
January 1992 (the Euroasia BIT) and therefore he is entitled to submit his case for
settlement to the ICC for arbitration pursuant to Art. 8 of the Agreement between the
Republic of Oceania and the Republic of Eastasia for the Promotion and Reciprocal
Protection of Investments of 1 January 1992 (the Eastasia BIT) in accordance with Art. 3
of the Euroasia BIT (MFN Clause) [Art. 3 Euroasia BIT].
2 The statement presented above is strongly incomprehensible and incorrect and Peter
Explosion is not the investor under the Art. 1 of the Euroasia BIT.
3 In absence of jurisdiction and admissibility of the claims the Tribunal cannot proceed to
adjudge the merits arising out of an investment [Douglas, p. 134].
4 In this proceeding the main procedural question is whether the Tribunal constituted by the
ICC in empowered to settle the present dispute. According to the statement of Claimant –
Tribunal‘s jurisdiction derives from the Euroasia BIT since he submitted himself as a
Euroasian national [Record, PO No. 1, p. 29-30].
5 Contrary to this argument - it should be noted that the jurisdiction of the Tribunal could not
result solely from the choice of the investor, but should be based on all the legal
circumstances of the case. In investment arbitration – the Tribunal should have jurisdiction
in field of three aspects – temporal, material and personal [Douglas, p. 134].
6 In this arbitration Tribunal has not power to determine the dispute as long as Peter
Explosion is not the investor in the meaning of the Euroasia BIT. Contrary to the Claimant
statement he is not the investor under Article 1(2) of the Euroasia BIT considering that the
grant of Euroasian citizenship to Claimant is violation of international law as the
annexation is illegal (the principle of ex injuria jus non oritur) (1). Peter Explosion is not
Euroasian national since the Citizenship Act does not allow Euroasian nationals to possess
3
dual nationality (2), so the Euroasian nationality of Peter Explosive is not effective (3).
Hence, the Claimant has no right to bring his claim under the Euroasia BIT.
1. The Claimant is not the investor under Article 1(2) of the Euroasia BIT
considering that the grant of Euroasian citizenship to Claimant is violation of
international law as the annexation is illegal (the principle of ex injuria jus
non oritur).
7 Article 1(2)(a) Euroasia BIT defines an ―investor of the other Contracting State‖ as a
natural person having the nationality of either Contracting Party [Euroasia] in accordance
with its laws. Peter Explosion argued that he may seek protection since he is Euroasian
national [Record, PO No 2 p. 56, para. 4]. Contrary to the Claimant‘s argumentation the
identity card and passport constitutes only prima facie evidence of nationality [Micula,
para. 70-106; Shum, 42-77; Siag, para. 261; Soufraki, para. 63]. It should be noted that the
Tribunal has right to decide for itself whether, on the facts and law before it, the person
whose nationality is at issue was or was not a national of the State in question and when,
and what follows from that finding [Soufraki, para. 55]. Therefore the Tribunal is required
to recognise all relevant law during this arbitration.
8 Subsequently in the present case, the Claimants argued that Fairyland annexation was
lawful self-determination act due to which Peter Explosion acquired the Euroasian
citizenship [Record, RfA, p. 5]
9 According to the UN Charter, which both Counteracting Countries are members, the self-
determinations provides that all peoples have the right freely to determine, without
external interference, their political status and to pursue their economic, social and
cultural development, and every State has the duty to respect this right in accordance with
the provisions of the Charter [Art. 1(2) UN Charter]. Nevertheless it cannot be base to
disaggregate the territory of existing state. The UN Friendly Relations Declaration states
that the principle of self-determination may not be construed as authorizing or
encouraging any action which would dismember or impair, totally or in part, the
territorial integrity or political unity of sovereign and independent States‖ as long as states
respect the principle of equal rights and self-determination in relation to minority groups
[A/RES/25/2625].
10 In the present case the Fairyland people on 1 November 2013 organised illegal referendum
on the secession of Fairyland from Eastasia and its reunification with Euroasia. Majority
decided to be part of the Euroasia [Record, UF, p. 35, para. 14]. This action clearly
4
constituted violation of territorial integrity of the Eastasia and it was illegal in the light of
international public law [Art. 2(4) UN Charter]. On the grounds of that fact the Eastasia
declared that this referendum was unlawful and had no effect on the shape of the Eastasian
territory [Record, UF, p. 35, para. 14].
11 Even, if the Tribunal will assume that people of Fairyland in accordance with the self-
determination principle had right to succession from the Eastasia, it cannot be exercise
with using a force.
12 Art. 2(4) of the UN Charter provides that all Members shall refrain in their international
relations from the threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with the Purposes of the
United Nations [Art. 2 (4) UN Charter].
13 Consequently, since the adoption of the UN Charter annexation no longer constitute
legally ways of acquisition of territory as it is an illegal use of force in violation of Art.
2(4) [Kohen/Hébié, para. 48] and no territorial acquisition or special advantage resulting
from aggression or even these resulting from the threat of use of force shall be recognized
as lawful [A/RES/29/3314; A/RES/25/2734]. The authorities of Fairyland not only
organized unlawful referendum, but additionally wrote an official letter to the Minister of
Foreign Affairs of Euroasia, asking for an military intervention. On 1 March 2014, the
armed forces of Euroasia entered the territory of the Eastasia – Fairyland and on 23 March
2014 the Euroasia declared Fairyland a part of the Euroasian territory [Record, UF, p. 35,
para. 14]. Subsequently Eastasia declared the annexation of Fairyland to be illegal and in
the light of the public international law and the international community supports its
declarations as well [Record, UF, p. 36, para. 16]. On the base of all this circumstances, it
is submitted, that the Fairyland annexation constitutes violation of the international public
law [ Art. 2 (4); The Peace Treaty of 1918; Record, PO No 2, para. 9].
14 Hence, Peter Explosion cannot rely on such internationally wrongful act and annexation of
Fairyland cannot be recognized as legal according to the principle ex injuria jus non oritur
[A/RES/29/3314; A/RES/25/2734].
15 Doubtless in principle, international law leaves each territorial sovereign to decide which
of his inhabitants he wishes to grant nationality. Thus, primarily, the topic is governed by
the rules underlying the principle of sovereignty [Schwarzenberger, p. 141]
16 Notwithstanding in one case the arbitral tribunal found that one of the powers [state], by
bestowing the citizenship against general principles of international law, has interfered
with the rights of the other power [Salem, p. 1184] and it is the tribunal‘s duty to
5
investigate, by verification and appraisal of the facts, whether nationality was actually
acquired or lost, to exclude fraud, favoritism, error and inconsistencies with treaties and
general principles of law [Flegenheimer, p. 341; Micula, para. 94-96]
17 Consequently, law regarding acquisition of nationality shall be in the line with general
principle of the international law and in respect to sovereignty of other country [Mikulka,
p. 90].
18 The change of Euroasian Citizenship Act occurred in accordance with Fairyland
annexation and its aim was underlining that the Euroasia exercised its sovereign powers
over Fairyland people and territory [Record, PO No 2, p. 56, para. 4].
19 Therefore, it should be noted that Euroasia may determine itself who is its national-instead
other states are not bound by such decision since it constitutes the violation rules and
norms of international public law.
20 Hence, it submitted that international protection over Fairyland people, which
subsequently become Euroasian is violation of the international law and such nationality
together with illegal annexation cannot be accepted by the Tribunal.
21 Therefore, the Tribunal shall found the Claimant cannot seek protection under the
Euroasian BIT.
2. Peter Explosion is not Euroasian national since the Citizenship Act does
not allow Euroasian nationals to possess dual nationality.
22 According to the VCLT, the words of a treaty provision should be given ordinary meaning
and understood in the light its purpose especially expressed in preamble [Article 31(1), the
VCLT]. Article 1(2)(a) Euroasia BIT defines the ―investor of the other Contracting State‖
as a natural person having the nationality of either Contracting Party [Euroasia] in
accordance with its laws. According to the ordinary meaning of this term the nationality of
investor shall be examine under law of Contracting state. In the present case Peter
Explosion to seek protection under the Euroasia BIT shall have Euroasian nationality
under Euroasian law.
23 Firstly, the provisions of the Euroasian Citizenship Act does not allow citizens to possess
dual nationality [Record, PO No 2, p. 56, para. 4]. Secondly under the Eastasian
Citizenship Law Eastasian citizens may renounce their citizenship, but reunification
becomes effective upon the acknowledgement of the President of the Republic of Eastasia
[Record, PO No 3, p. 59-60, para. 2]. After that the Oceania changed the Euroasian
Citizenship Act in accordance with Fairyland annexation, the Claimant applied for
6
Euroasian citizenship. On 2 March 2014 the Claimant informed via e-mail the President of
the Republic of Eastasia that he declares the renunciation of his Eastasian citizenship
[Record, PO No 3, p. 59-60, para. 2]. Nevertheless, the Claimant application did not
comply with the described formal requirements of the Eastasian Citizenship Law and the
President of the Republic of Eastasia did not acknowledgement the renunciation by Peter
Explosion his Eastasia nationality [Record, PO No 3, p. 60, para. 2]. Therefore, the
Claimant did not lost his Eastasia citizenship and considering his dual nationality he
cannot possess Euroasian nationality.
24 Secondly, it is submitted that even if Peter Explosion will declare reunification of his
Eastasia citizenship, the President of the Republic of Eastasia could not accept it since
renunciation shall not result in loss of nationality unless the person concerned possesses
or acquires another nationality [Art. 7 CRS 1961]. Doubtless, under the international law
a prevention and reduction of statelessness are primarily the responsibility of States
[A/RES/68/141 recommended accession of CRS 1961 and reflecting Art. 15 UDHR]. It
should be bear in mind that on 2 March 2014 Peter Explosion has not had yet Euroasian
citizenship. The Euroasian authorities recognised him as its citizen only from 23 March
2014 [Record, PO No 2 p. 56, para. 4]. Consequently, the Eastasia authorities could not
accept the Claimant reunification in that time because it will effect his statelessness.
25 By virtue of this facts Peter Explosion possess dual nationality which is against the
Euroasian Citizenship Act.
26 Consequently, the Arbitral Tribunal shall assume that the Claimant cannot seek protect
under the Euroasian BIT as he is not the Euroasian nationality what is required by Art.
1(2)(a) of the Euroasian BIT.
3. The Euroasian nationality of Peter Explosion is not effective.
27 Even if the Tribunal will hold that the Claimant has the Euroasian citizenship- his
nationality is not effective.
28 It should be bear in mind that in case of dual nationality of the investor, only the dominant
and effective nationality should be taken into account [Dolzer/Schreuer, p. 45-47;
Salacuse, p. 207; Dugan/Wallace/Rubins/Sabahi, p. 300-305]. The Principle of ―genuine
rule‖ established the International Court of Justice (ICJ) in Nottebohm case. The ICJ held
that international arbitrators have […] given their preference to the real and effective
nationality, that which accorded with the facts, that based on stronger factual ties between
the person concerned and one of the States whose nationality is involved. Different factors
7
are taken into consideration […] the habitual residence of the individual […] centre of his
interests, his family ties, his participation in public life […] etc. [Nottebohm, para. 22].
29 Therefore, even if the Tribunal will assume that Peter Explosion did not lose its Euroasian
citizenship, since the Claimant has possess dual nationality, it should be re-examine
[Olguín, para. 60-62].
30 As long as the Claimant has only ―genuine link‖ with Fairyland, which is the Eastasia
territory, its Eastasian nationality is effective not Euroasian [Record, UF, p. 35, para. 14].
31 Hence, in accordance with the aforementioned, it shall be concluded that Peter Explosion
is not the investor under Art. 1 (2) the Euroasian BIT and thereby cannot seek protection of
his investment - Rocket Bombs Ltd, by the Euroasian BIT. Contrary to the assertions of
Claimant – it should be noted Peter Explosion is the Eastasia nationality – as long as the
acquisition of the Euroasian citizenship is effect of illegal action of the Euroasia. Due to
the fact that Fairyland annexation was unlawful under international public law, Peter
Explosion did not acquisition the Euroasian and he is a Eastasia nationality. In any case in
order to his non-effective Euroasian citizenship, the Claimant cannot bring his claim on the
base on the Euroasia BIT and the Claimant‘s argumentation in this matter should be
considered as unfounded.
II. THE CLAIMANT CANNOT BROADEN THE SCOPE OF THE

ARTICLE 3 OF THE AGREEMENT FOT THE PROMOTION AND
RECIPROCAL PRTECTION OF INVESTMENTS BETWEEN THE
REPUBLIC OF OCEANIA NAD THE REPUBLIC OF EUROASIA
(EUROASIA BIT) TO JUSTIFY HIS CONDUCT AS HE WAS
OBLIGATED TO COMPLY WITH PRE-ARBITRAL STEPS PROVIDED
IN THE ARTICLE 9 OF EUROASIA BIT PRIOR TO BRINGING HIS
CLAIMS BEFORE THE TRIBUNAL.
32 If the Tribunal decides that the Euroasia BIT is applicable, the Respondent notes that,
pursuant to this Euroasia BIT, the Claimant should abide by certain pre-arbitral steps.
33 In present dispute, the Claimant tries to justify his behaviour exemplified by the non-
compliance with the pre-arbitral steps. Notwithstanding, the Claimant should not expand
the meaning of the MFN clause and should comply with the obligations given as the pre-
arbitral steps.
34 Hence, if the Claimant stated that he should be treated as a national under the Euroasia
BIT, he should at the same time comply with the Art.9 provided in this BIT. Therefore, on
8
this ground, the Claimant argues that he is entitled to the most-favoured-nation treatment
and his case should be proceeding prior before the arbitration. This argumentation is wrong
and should be dismissed on the following grounds: (1) The Claimant has not satisfied the
mandatory preconditions to the ICC‘s jurisdiction included in the Euroasia BIT; and (2)
the Claimant inappropriately relies on the MFN clause included in the Article 3 of the
Euroasia BIT.
1. The Claimant has not satisfied the mandatory preconditions to the ICC‟s
jurisdiction.
35 The Claimant did not fulfil the conditions explicitly given under the Article 9 of the
Euroasia BIT which states that: If the dispute cannot be settled amicably, it may be
submitted to the competent judicial or administrative courts. [Record, Euroasia BIT, p.44]
The Claimant did not comply with this requirement and did not submit his claims before
the ICC‘s jurisdiction. [Record, AtR, p.16] Hence, the Tribunal has reasonable grounds to
dismiss his present claims on the basis that: (1.1) the Article 9 of the Euroasia BIT requires
domestic litigation prior to recourse to arbitration; and (1.2) the provisions provided in the
Euroasia BIT purposely limit the access to arbitration.
1.1. The Article 9 of the Euroasia BIT requires domestic litigation prior to
recourse to arbitration.
36 The Claimant did not submit his claim before the court in Oceania but directly submitted
his claims before the Tribunal. [Record, RfR, p.3] In his submission, the Claimant relied
on the Article 3 from the Euroasia BIT but avoided compliance with the Article 9 from that
Treaty. Therefore, the Claimant‘s argumentation is incomplete. The Claimant should
notify his claims to the competent juridical as Article 9 of the Euroasia BIT requires.
37 From the manner in which Article 9 of the Euroasia BIT is worded (and it is words that
determine the intention of the Parties when interpreting a treaty), it is apparent that
reference to ICSID arbitration is expressly conditioned upon inter alia a claimant-investor
first submitting his dispute to a Court of competent jurisdiction, during a given period and
then proceeding to ICSID arbitration. [Wintershall, para.116] Tribunal in CS Inspection
case argues that at the time of commencing dispute resolution under the treaty, the investor
can only deny or accept the offer to arbitrate but cannot vary its terms. Therefore, the
Claimant is not entitled to determine his own rules. [CS Inspection, para.272]
9
38 Moreover, the tribunal in the Daimler case concluded that it did not have jurisdiction to
hear a claim brought by a UK investor on the basis that the UK investor had failed to first
submit the dispute to the Argentine courts [Daimler, para. 177]. Moreover, the obligation
to comply with the pre-arbitral procedural requirements is mandatory and failure to
complete these requirements violates dismissal of arbitral proceeding [Ambiente Ufficio,
paras. 595-607; Urbaser paras 106–50; Kılıç İnşaat, paras 6.3.12–6.3.14; Plama, para.215].
Hence, the Tribunal has a reasonable ground to even conclude that the Tribunal has no
jurisdiction over this case.
39 To conclude, the Claimant should notify his claims to the competent juridical as Article 9
of the Euroasia BIT requires.
1.2. The provisions included in the Euroasia BIT purposely limit the access
to arbitration.
40 At the time when the Parties drafted the Euroasia BIT, their intention was to limit the
arbitration by including a provision that explicitly required to firstly refer the claims to the
domestic court. If the Respondent wanted to let the Claimant submit his claims directly to
the arbitration, he would insert this clause into the Art.9 of the Euroasia BIT. However, the
literal meaning of the Article 9 of the Euroasia BIT is to firstly proceed before the
domestic courts and, directly after that, submit claims before the Arbitral Tribunal. The
provisions provided in the Euroasia BIT purposely limit the access to arbitration due to:
(1.2.1) the literally meaning of the word may; and (1.2.2) in the light of the compromissory
clause there is an obligation to the other party consent when proceeding directly before the
Tribunal.
1.2.1. Meaning of the word „may” is obligatory „must” or “shall”.
41 As stated in the Julius v Oxford case where court ruled that in some situation, regarding
context and purpose govern, may can became must. [Julius v. Oxford, Lord Bishop] Lord
Bishop in that case argues that (…) there may be something in the nature of the thing
empowered to be done, (…) something in the conditions under which it is to be done. (…)
So “may” can be “must”, if the circumstances require that interpretation. Moreover, the
court in the AstraZeneca UK Ltd v IBM Corporation [AstraZeneca, Decision on the High
Court] interpreted may as giving rise to an obligation. In the light of the rest of the
document and the commercial context, construing may as an option would be incorrect.
10
42 Therefore, the meaning of the Euroasia BIT is to promote cooperation and stable
framework for investment. [Record, Euroasia BIT, p.40] The Claimant should comply with
the given rule and firstly submit his claims before the competent court.
43 To conclude, the meaning of the word may be obligatory must or shall.
1.2.2. Expressed consent to prior arbitration of the other contracting party is

mandatory due to the compromissory clause.
44 The Article 9 of the Euroasia BIT provides a compromissory clause in consent that is
expressed in a compromissory clause in an international agreement, any conditions to
which such consent is subject must be regarded as constituting the limits thereon. The
Court accordingly considers that the examination of such conditions relates to its
jurisdiction and not to the admissibility of the application. [Democratic Republic of Congo
v. Rwanda, para.88] Therefore, the Claimant should acquire the Respondent‘s consent to
submit his claims without submitting it to the domestic court as stated in the Article 9 of
the Euroasia BIT.
45 To conclude, the Parties‘ intention was to limit the arbitration by providing the provision
which explicitly required to firstly refer the claims to the domestic court. The provisions
provided in the Euroasia BIT purposely limited the access to arbitration due to: (1) a
meaning of a word may as must or shall; and (2) an obligation under the promissory clause
as to acquire the Respondents‘ consent to change the rules given in the Article 9 of the
Euroasia BIT.
2. The Claimant inappropriately relied on the MFN clause included in the

Art. 3 of the Euroasia BIT.
46 The Article 3 of the Euroasia BIT states as follows:

47 Each Contracting Party shall, within its own territory, accord to investments made by
investors of the other Contracting Party, to the income and activities related to such
investments and to such other investment matters regulated by this Agreement, a treatment
that is no less favourable than that accorded to its own investors or investors from third-
party countries. [Record, Euroasia BIT, p.41]
48 The Claimant invokes Art. 3 to avoid this step and submit his claims directly to the
arbitration. However, quoted MFN clause does not provide any jurisdictional matters.
Moreover, there is a disapproval statement in an international practise for expanding the
MFN clause to the dispute resolution provisions. Hence, the Claimant is not entitled to
11
avoid the mandatory preconditions by invoking incorrectly the broad scope of the MFN
clause.
49 As it was stated above, the Article 9 of the Euroasia BIT explicitly provides for the
domestic litigation as a way of resolving disputes without the need to expand the meaning
of the MFN clause to arbitration.
50 The Claimant inappropriately relied on the MFN clause on the ground that: (2.1) there is
no literal meaning of the MFN clause; (2.2) The MFN clause could not be used to expand
the scope of arbitration; and; (2.3) If parties concluded a separate provision of
jurisdictional matters there is no need to refer to the MFN clause to broaden the scope.
2.1. There is no literal meaning of the MFN clause.
51 Firstly, the Claimant inappropriately invokes the Article 3 of the Euroasia BIT (Record,
Euroasia BIT, p.41] by spreading the meaning of the phrase such other investment matters
regulated by this Agreement and literally interpreting to the dispute resolution. Hence, as
an international practise expounds, this expression cannot be taken literally.
52 In Vladimir Berschader and Moïse Berschader v. The Russian Federation, the Tribunal
looked at provisions of the treaty in order to show that there were some provisions to
which the MFN clause could not apply, and thus the expression ―all matters covered by the
present Treaty‖ could not be taken literally. [Berschader, para. 192] Moreover, Tribunal in
Maffezini case gives an example of the phrase which cannot be broadened to jurisdiction
matters. Hence, Tribunal states that when treaties include the most-favored-nation clause
as ―all rights contained in the present Agreement‖ or ―all matters subject to this
Agreement‖ it does not provide expressly that dispute settlement as such is covered by the
clause. [Maffezini, paras.52-52] Therefore, the phrase contained in the Euroasia BIT- such
other investment matters regulated by this Agreement does not provide for dispute
resolution in its literally meaning.
53 To conclude, the Claimant wrongly relies on the Article 3 of the Euroasia BIT trying to
interpret it literally.
2.2. The MFN clause could not be used to expand the scope of arbitration.
54 Secondly, the Claimant relies on the MFN clause and mistakenly broadenes its scope to the
jurisdiction. The Article 3 of the Euroasia BIT does not include a provision on
jurisdictional matters.
12
55 According to Cole, State is only obliged to arbitrate when it actually has consent to do so.
[Cole, p.132] Moreover, in Telenor Mobile Communications A.S. v. The Republic of
Hungary, a limited scope for arbitration in the BIT between Hungary and Norway was
indeed intended. Therefore, if the Parties had wanted to rely on the MFN clause, the would
have incorporated this provision into the Euroasia BIT. [Telenor, paras. 96-97] Moreover,
MFN cannot be used to change the conditions for the exercise of procedural or
jurisdictional rights. An investor who has not met the requirements for commencing a
claim against the respondent State cannot avoid those requirements by invoking the
procedural provisions of another BIT. [HICEE, para.149]
56 In the similar case, ICS Inspection and Control Services Limited v Argentina, the tribunal
held that the MFN clause in the Argentina-UK BIT did not apply to dispute resolution
provisions and, therefore, did not enable investors to import a less restrictive arbitration
clause from other Argentine BITs, which did not require that a dispute be litigated in the
local courts for 18 months before it could be submitted to international arbitration.[ICS
Inspection, para.114] Therefore, the MFN clause incorporated in the Euroasia BIT did not
apply to dispute resolution.
57 To conclude, there is a disapproval statement in an international practise for expanding the
MFN clause to the dispute resolution provisions. Therefore, the Claimant cannot expand
the MFN clause to the dispute resolution as an argument to not submitting his claims to the
domestic courts.
2.3. If parties concluded a separate provision of jurisdictional matters, there

is no need to refer to the MFN clause to broaden the scope.
58 Thirdly, in the light that MFN clause could not be expanded to the dispute resolution, the
Claimant cannot rely on the MFN clause to broad a scope on jurisdictional matters. The
Parties enacted in the Euroasia BIT the rules on the jurisdictional matters (the Article 9 of
the Euroasia BIT) which directly shows the Parties how to proceed.
59 In Austrian Airlines the Tribunal considered that the particular provisions of the treaty
relating to jurisdiction were themselves a clear indication that the parties did not intend to
allow the jurisdiction of the tribunal to be expanded by means of an MFN provision.
[Austrian Airlines, para. 135.] Therefore, the Claimant should not rely on the MFN clause,
if there is a direct provision relating jurisdictional matters. [Record, Euroasia BIT, Article
9, p.44]
13
60 Even when the Respondent waives the application of the conditions of its consent to the
exercise of jurisdiction, a Tribunal has no jurisdiction to hear a claim. [Hochtief AG, para.
88] Therefore, the MFN clause cannot be used to change the basis for exercising
jurisdiction.
61 To conclude, the Claimant cannot rely on the MFN clause to broad a scope on
jurisdictional matters. If parties concluded a separate provision of jurisdictional matters,
there is no need to refer to the MFN clause to broaden the scope.
62 To conclude, the Claimant cannot use the MFN clause to avoid his obligations under the
Treaties between the Parties due to: (1) lack of the literally meaning of the MFN clause;
(2) inability of invoking the MFN clause to expand the scope of arbitration; and (3) no
need to refer to the MFN clause to broaden the scope.
III. THE CLAIMANT CANNOT BENEFIT FROM THE PROTECTION

OF THE TREATY SINCE IT DOES NOT HAVE “CLEAN HANDS”.
63 Peter Explosive has no ―clean hands‖. Article 1(1) of the Eastasia BIT provides that
investments shall be carried out in accordance with the laws and regulations of the host
state. [Record, p. 46, para. 1]. The claimant‘s investment is not protected, as he breached
Oceanian domestic laws by obtaining an environmental license through corruption.
64 The requirement of legality for investments is considered as a reflection of the clean hands
doctrine.
65 The ―clean hands‖ doctrine is a part of the applicable law and demands that whoever seeks
the protection of its rights has not acted illegally. It should be bear in mind, that the
fundamental principles of principles of equity and justice the dismissal of claims based on
unfair or illegal conducts. Since in the light of principle nemo auditor propiam
turpitudinem allegans, no right to action may have its origin in negligence and in general,
the rule must be that fraud shall be always punished nobody can benefit from its own
wrong doing [Vallisoletana, paras. 240-242].
66 Therefore, the Arbitral Tribunal has the duty to verify, that whoever presents a claim has
―clean hands‖. One tribunal indicated that if the tribunal will grant the claimant the relief
in case of ‗unclean hands‘ caused by corruption, this Tribunal would thereby appear to
assist and encourage the plaintiff in his illegal conduct [World, para. 178]. The corruption
it is not only domestic problem, but the prohibition of bribery forms part of international
public policy [Niko, para. 433; World, para. 157]
14
67 In the light of ―clean hands‖ an investment will not be protected if it has been created in
violation of national or international principles of good faith; by way of corruption, fraud,
or deceitful conduct; or if its creation itself constitutes a misuse of the system of
international investment protection under the ICSID Convention. It will also not be
protected if it is made in violation of the host State„s law [Hamester, para. 123].
Consequently, it should be noted that the clear hands doctrine requires the parties to the
dispute to appear before the court or tribunal with ‗clean hands‘ and the investor who lacks
―clean hands‖ cannot benefit from the protection of the Treaty. Such position is confirmed
by international tribunals and required by international laws principles.
68 The clean hands doctrine is commonly respected by the arbitral tribunal. For instance in
Fraport case tribunal acknowledged that investment treaty cases confirm that such treaties
do not afford protection to illegal investments based on rules of international law, such as
the „clean hands„ doctrine or doctrines to the same effect [Fraport, para. 328;
Vallisoletana, para. 257].
69 In case at hand the Contracting Parties have specifically and expressly conditioned access
of investors to a protection under the Eastasia BIT by an express requirement of the
investment compliance with the internal legislation of the host State. Claimant started
operated his Rocket Bomb Ltd investment through illegal conduct, namely he did not reach
the requirements of contained in the Environment Act 1996 and the secured an
environmental license in accordance with a crime [Record, UF, p. 32-33, para. 4]. The
Peter Explosion in order to obtain necessary environmental licenses has given bribes to the
President of the National Environmental Authority [Record, PO No2, p. 56, para. 5]. The
private meeting between them and corruption among the officials of the National
Environment Authority is uncontested [Record, UF, p. 33, para. 6; p. 36, para. 18].The
corrupt acts of Peter Explosion are evidenced by confession statements made by the
already convicted President of the National Environment and caused an initiation of
criminal proceedings against him by the General Prosecutor‘s Office. [Record, UF, p. 37,
para. 19, Record, PO No2, p. 56, para. 5].
70 Additionally, the fact that corruptions took place as a result of the corruption among the
officials of the National Environment Authority of the Oceania does not justify Peter
Explosion‘s crime. In afore mentioned World case the arbitral tribunal held that claims
based on contracts of corruption or on contracts obtained by corruption cannot be upheld
by this Arbitral Tribunal and underlined that the Tribunal does not identify the Kenyan
15
President with Kenya; and in any balancing exercise between Kenya and the Claimant, the
balance against the Claimant would remain one-sided [World, para. 157, 178].
71 It should be noted that corruption is by essence difficult to establish and that it is thus
generally admitted that it can be shown through circumstantial evidence [Metal-Tech,
para. 243]. Therefore, the circumstances of the present case constitutes enough strong
evidence to conclude that Peter Explosion ‗unclean hand‘ what precludes his investment
from protection.
72 Consequently as long as contracts, which have as their object the corruption of civil
servants, have been denied effect by international arbitrators the Claimant cannot benefit
from his licenses, which he obtained by corruption [Commentary on ICC Case No. 1110].
73 Since an investor who has obtained an investment in the host State only by acting in bad
faith or in violation of the laws of the host state (…) should not be allowed to benefit from
the Treaty the Peter Explosion cannot bribe and subsequently expect proper protection
under any BIT in accordance with its investment Rocket Bomb Ltd. [Yukos, para. 1352].
74 Moreover, some tribunal held that unclean hands is subject matter of the jurisdiction and
on this base declined its competence to solve the dispute [Niko, para. 484; Metal-Tech,
para. 413].
75 Consequently, the Tribunal ought to decline jurisdiction as the Claimant operated his
investment in disregard of Oceanian domestic laws and regulations and thus his investment
is not protected.
76 Even if the Tribunal will find that clean hands it is not a question of jurisdiction, this is
new ground for the inadmissibility of an application. In a recent decision, the Al-Warraq
tribunal, referring to Judge Crawford‘s expert opinion, stated that the „clean hands„
principle has been invoked in the context of admissibility of claims before international
courts and tribunals and the tribunal held the doctrine of „clean hands„ renders the
Claimant„s claim inadmissible [Al-Warraq, para. 646].
77 Hence, the Tribunal shall assume that considering the Claimant corruption in accordance
with operation of its investment, he is not able to seek protection under any BIT.
IV. THE CLAIMANT‟S INVESTMENT WAS NOT EXPROPRIATED BY

THE RESPONDENT.
78 The Claimant claims that its investment was expropriated by the Respondent‘s conduct.
However, the Respondent‘s act did not have expropriatory effect (1). Moreover, the
16
Executive Order was measure, which the Respondent was obliged to enact under the
principles of public international law (2).
1. The conduct of the Respondent do not amount to expropriation or

equivalent measures.
79 The Claimant sill enjoyed control over investment and use. (1.1). Moreover, the Claimant
should have considered business risk, which attend every investment (1.2).
1.1. The Claimant was not deprived control over investment.
80 The Executive Order introduced a system of sanctions to i.e. the Claimant‘s investment,
which caused some impediments to the Claimant to conduct business as before. However,
the Investor still maintains control over the investment. We cannot consider expropriation
where the Investment is impaired but the Investor maintains overall control of the
Investment. [Newcombe/Paradell, p. 378]
81 The expropriatory behavior of State was as also consider by the Tribunal in Pope&Tablot
case. The Tribunal found that Canada did not expropriate the Claimant‘s investment, since
the Investor remains in control of the Investment and it directs the day-to-dayoperations of
the Investment.[Pope&Talbot, para. 100] Since Canada did not have any influence on work
of officers or employees, as well as did not interfere in management or activities of
Investor, there was no expropriation [Pope&Talbot, para. 100]. These criterions were
applied by numerous arbitration tribunals in cases: LG&E [para. 188], CMS [para. 263],
Enron [para. 245] or Sempra [para. 284]. In present case the Claimant enjoys full control
of the investment, since the State did not interfere in any activity of Investor.
82 It is also worth to notice that the legal title of the Claimant‘s investment is not affected.
The Claimant is the owner of Rocket Bombs Ltd. since February 1998 and the Respondent
did not interrupt ownership during this time.
83 Moreover, as the Tribunal in Waste Management case found, even the loss of benefits or
expectations is not a sufficient criterion for an expropriation, even if it is a necessary one.
[Waste Management, para. 159] Thus, claim for expropriation should be rejected.
1.2. The Claimant did not take into account business risk.
84 Business environment and world change constantly, what carry a lot of risks for
investments. The Claimant, as every prudent investor, should have considered business
risk. The Respondent‘s conduct was not straight directed the Claimant‘s investment. The
17
Claimant fell victim of international response for unlawful actions of its State. [Record,
AtR, p. 16]
85 As Permanent Court of International Justice in Oscar Chinn case held: no enterprise can
escape from the chances and hazards resulting from general economic conditions. [Oscar
Chinn cited in LG&E, para. 197] There are times of general prosperity, as well as
investment is also exposed to the danger of ruin or extinction if circumstances
change. [Oscar Chinn cited in LG&E, para. 197] Every prudent investor takes into account
such possibility. Such sanctions are legal under principles of public international law. The
Respondent acted in that way to maintain international peace and security. [Record, AtR,
p.16]
86 Using of regulatory powers by the host State may create impediments to business, but
investor must be aware that every investment involves risks. Such impediments do not
constitute expropriation. [Telenor, para. 64] Even fact that an investment has become
worthless obviously does not mean that there was an act of expropriation;
investment always entails risk. [Generation Ukraine, para. 20.30]
87 The Claimant‘s claims indirect expropriation, since its investment became unprofitable.
Nevertheless, we should remember about business risk, which was taken by the Claimant
in the day of acquiring shares of Rocket Bombs Ltd. The Respondent is not responsible for
ensuring profitability of the Claimant‘s investment. Thus, the allegations that the
Respondent‘s conduct caused expropriation are unjustified.
2. The Respondent was obligated to enact the Executive Order under the
principles of public international law.
88 The Respondent impose sanctions legally (2.1). Furthermore, the Respondent‘s conduct
was taken within the sovereign powers of the Republic of Oceania, what indicate that the
Claimant is not entitled to get compensation for effect, which the Executive Order made on
its investment (2.2).
2.1. The Respondent acted legally by imposing sanctions.
89 As many countries, the Respondent highly doubt about lawfulness of the referendum held
on 1 November 2013 in Fairlyland. [Record, UF, para. 14] There was no international
organization, which supervised, or standards, which were implied to referendum and these
permit to think that it was manipulated by the Republic of Euroasia. The Respondent
18
recognizes the right nations to self-determination, but in that case, referendum was not
held with due process of law and thus it is an illegal act of annexation.
90 Moreover, the army of the Republic of Euroasia unlawfully entered to the territory of
Fairyland. [Record, UF, para. 14] The Claimant provided weapons to the Republic of
Euroasia [Record, UF, para. 10] and thus contributed to this illegal act. The Respondent
felt obligated to impose sanctions to protect international and national security. Protection
of such interests through the exercise of sovereign power is commonly accepted.
[Marossi/Bassett, p. 169]
91 Under principles of public international law a State‟s jurisdiction within its territory is
absolute and exclusive [Marossi/Bassett, p. 78] This is rooted in and based on the
generally accepted norms of international law. [Marossi/Bassett, p. 77] This gives
authority to the State to exercise its sovereign power and i.a. implement sanctions, which
are tool of foreign policy of the State, which aim to change another country‘s behaviour.
As Marossi/Basset concluded: under the law of state responsibility, it is possible for States
to unilaterally maintain lawful economic/financial sanctions that are applied in response
to an allegedly unlawful act of the target State [Marossi/Bassett, p. 90].
92 The Claimant and the Respondent are members of the United Nations, which obligates
them to act accordingly to laws of this organization. According to Draft articles on
Responsibility of States for Internationally Wrongful Acts [A/56/10] adopted by
International Law Commission, the countermeasures may be taken by injured state, as well
as another states may act on behalf of or at the request of an injured state. The Respondent
felt obligated to adopt such sanctions in behalf of the Republic of Eastasia, since
international peace and security are the highest priority.
93 Moreover, international law in case of imposing sanctions requires to follow principles of
proportionality, discrimination and necessity. According to first principle the state has to
consider social, economic and political effect of countermeasures. Second principle
requires certain precision when imposing sanctions. Third principle requires to keep
balance between countermeasure and intended purpose [Marossi/Bassett, p.80] There is no
doubt that the Respondent applied all these principles. Maintaining international peace and
security is essential and thus may need severe actions.
94 Additionally, International Court of Justice held in Gabčíkovo-Nagymaros Project case,
the countermeasures must be taken in response to a previous international wrongful act of
another State and must be directed against that State. [Gabčíkovo-Nagymaros Project,
19
para. 83] The Executive Order comply to these requirements and thus the Respondent
acted legally by implementing such countermeasures.
2.2. The Respondent‟s act was not expropriatory, since it was taken within
the sovereign powers of the Republic of Oceania and thus, the Claimant is
not entitled to get compensation.
95 The Executive Order was held in the public interest – its aim was to maintain international
peace and security. [Record, AtR, p. 16] It is well-established that the host State is entitled
to maintain a reasonable degree of regulatory flexibility to respond to changing
circumstances in the public interest. [Electrabel, para. 7.77] The Respondent has the
inherent right to regulate its affairs and adopt laws in order to protect the common good of
its people. [Lemire, para. 505] As the Tribunal in S.D. Myers case found, we should not
confuse measures of that nature with expropriation [S.D. Myers, para. 281]
96 As the Tribunal in LG&E case found: it can generally be said that the State has the right to
adopt measures having a social or general welfare purpose [LG&E, para. 195] The
Respondent adopted the Executive Order in international welfare purpose. A measure
adopted under such circumstances is a valid exercise of the State's police powers and, as
a result, does not constitute an expropriation [Chemtura, para. 266]
97 The Executive Order, which was regulatory act, do not amount to expropriation, since it
was enacted in public interest, in non-discriminatory manner and implemented in
accordance with due process. The Respondent did not give the Claimant any specific
commitments, which would refrain the Respondent from using its police powers.
[Methanex, part IV, chapter D, para 7] Sanctions were not imposed only in Peter Explosive
and Rocket Bombs Ltd, so they were not discriminatory. Moreover, the Executive Order
was prepared and published in accordance with Oceaninan law. This gives authority to the
President of the Republic of Oceania to enact such measures in case of existence of an
unusual and extraordinary threat, which also concerns situations when international
security is at risk [Record, PO No.2, para. 7].
98 It is commonly accepted under the principles of international public law that state does not
have to pay compensation to dispossessed alien investor if it adopts general regulation
[Suez, para. 128]. Governments must be free to act in the broader public interest and
this cannot be achieved if reasonable governmental regulation requires compensation to
affected businesses [Feldman, para. 103]. This rule was adopted by tribunals in many
20
cases: SEDCO [para. 249], Saluka [para. 255], Lauder [para. 198] or Tecmed [para. 119].
Thus, the Claimant is not entitled to any compensation.
99 Even if the Tribunal recognize that deprivation occurred in present case, it does not have to
indicate an expropriation. As the Tribunal in Saluka case found: deprivation can be
justified if it results from the exercise of regulatory actions aimed at the maintenance
of public order [Saluka, para. 254]. Regulations of host state are a lesser interference. We
cannot say this about expropriations, which tend to involve the deprivation of ownership
rights [S.D. Myers, para. 282].
100 From all reasons above, the Claimant‘s investment was not expropriated by the
Respondent.
V. THE CLAIMANT CONTRIBUTE TO THE DAMAGE SUFFERED

BY HIS INVESTMENT.
101 The Claimant contributed to the damage suffered by his investment by virtue of his own
conduct. If the Claimant had not supplied the weapons to Euroasia, he would not have
aggravated his financial situation. Moreover, the Claimant continue to supply weapons to
the Euroasia even after he should have known of Euroasia‘s intention to incorporate
Fairyland into its territory by direct military intervention which led to the imposition of
sanctions upon Rocket Bomobs Ltd. [Record, AtR, p.16]
102 Meanwhile, the Claimant try to convince the Tribunal that he does not contribute to his
damage and claim for 120,000,000 USD. This is a wrong statement and should be
dismissed on the following grounds: (1) The Claimant contribute to the damages by his
own wrongful conduct, therefore the Tribunal is entitled to reduce or even to void the
compensation; (2) If the Tribunal awards that the damage have not been foreseen or was
too remote, the Tribunal may consider to reduced amount of compensation; (3)
Alternatively, If the Tribunal recognize the Claimants‘ investment as an expropriated by
the Respondent, the Tribunal may award the compensation which is filed only with lost
profit; (4) If the Tribunal consider to award a compensation in the amount indicted by the
Claimant, the Tribunal may consider that the Claimant failed to apply the ‗fair market
value‘ standard.
21
1. The Claimant contribute to the damages by his own wrongful conduct,

therefore the Tribunal is entitled to reduce or even to void the compensation.
103 The Claimant provided the weapons even after he should have known that there could be a
conflict involving the Parties standing on the separate sides. [Record, UF, para.13] The
Claimant should have known that weapons which he produced may be use by the soldiers
in the future armed conflict and at the same time may be consider to be harmful conduct.
104 In the Occidental Petroleum Corp. (“Oxy”) v. Republic of Ecuador, the Tribunal reduced
Oxy‘s damages because of its own wrongful conduct, namely its violation of Ecuadorian
law in entering the Farmout Agreement without ministerial authorization. Accordingly, the
tribunal found that Oxy contributed to the extent of 25% to the prejudice which it suffered
when Ecuador issued the Caduciad Decree. The tribunal reasoned that the assignment of
rights under the Participation Contract pursuant to the Farmout Agreement was null and
void because it lacked ministerial authorization, as required by Ecuadorian law. Thus, no
reduction based on the assignment was possible, given the nullity of the transfer of rights.
[Petroleum, para.142] Therefore, the Claimants‘ compensation should be diminished due
to his wrongful conduct as a contribution to the damage.
105 In MTD v. Chile Malaysia, Tribunal considers that the investor should bear the
consequences of their own actions as experienced businessmen and decided to split the
damages 50/50. [MTD, para.178] Therefore, the Claimant as an experienced arms dealer
should has foreseen the consequences on his business. The consequences should include:
the proper protection and insurance in case of future assumptions which would not
materialize. [MTD, para.178]
106 Moreover, the Claimant argues that there is a causal link between the sanctions imposed by
the Respondent and his loss, but failed to mentioned that there will be no sanctions if the
Claimant would have complied with the Oceania law.
107 To conclude, the Claimant contribute to the damages by his own wrongful conduct,
therefore the Tribunal is entitled to reduce or even to void the compensation. According to
a type of the Claimants‘ business the damage should have been foreseen by him.
Therefore, there is a causal link between the Claimant conduct and his financial problems.
2. If the Tribunal awards that the damage have not been foreseen or was too
remote, the Tribunal may consider to reduced amount of compensation.
108 The aim of damages is to compensate a claimant for the loss it has suffered. But there are
also some limitations at that point. Damages which are not foreseeable or are too remote
22
will not be awarded. [Pryles, p.1] The main aim of the compensation is to place the
aggrieved party in the same pecuniary
position they would have been in had the contract been performed. [Sapphire International
Petroleums, p.6] Therefore, if the Tribunal awards that the damages: (2.1) are not
foreseeable or (2.2) are too remote, the Tribunal may consider to reduce amount of
compensation.
2.1. The damage was not foreseeable.
109 Firstly, the damage may be considering by the Tribunal as not foreseeable. In that case,
recovery is limited to damages that were foreseeable when the contract was made and that
are the immediate and direct result of the breach. [Karaha Bodas Company, p.52]
Therefore, the Tribunal has a reasonable ground to reduce the compensation.
2.2. The compensation pointed out by the Claimant is at least too remote.
110 The Claimant asks for compensation for loss not less than 120,000,000 USD without
giving any mathematics calculations or even estimated result rate. Therefore, the
compensation pointed out by the Claimant is too remote and this amount should be limited.
111 In the AMT v Zaire the Tribunal stated its discretionary and sovereign power to
determinate (sic) the quantum of compensation….taking into account the circumstances of
the case before it. [AMT, para.7.16] Therefore, the Tribunal has a power to award reduced
amount of compensation.
112 To conclude, Tribunal has a reasonable ground to reduce the amount of compensation due
to (1) unforeseeability of the damage or (2) remoteness of the compensation.
3. Alternatively, if the Tribunal recognize the Claimants‟ investment as an

expropriated by the Respondent, the Tribunal may award the compensation
which is filed only with lost profit.
113 The Respondent argues that there was no expropriation by him to the Claimants‘
investments. However, if the Tribunal recognizes the Claimants‘ investment as an
expropriated by the Respondent, the Tribunal may award the compensation which is filed
only with lost profit.
114 As stated in Himpurna and Patuha Tribunals awarded that in case of the expropriation
there is generally no basis to apply the contractual reliance damages (damnum emergens),
but only the expectancy damages (lucrum cessans). [Mealey's International Arbitration
Report, pp. A-1 - A 58; B-1-B-49]
23
115 In conclusion, the Tribunal alternatively may reduce the compensation to damnum
emergens.
4. If the Tribunal consider to award a compensation in the amount indicted

by the Claimant, the Tribunal may consider that the Claimant failed to apply
the „fair market value‟ standard.
116 Finally, if the Tribunal consider to award a compensation in the amount indicated by the
Claimant, the Tribunal may consider that the Claimant failed to apply the ―fair market
value‖ standard.
117 In Santa Elena v Costa Rica Tribunal noted that the protection of the environment does not
alter the level of compensation that must be paid. The same tribunal also noted that the
international source of the obligation to protect the environment makes no difference to the
level of compensation payable. [Santa Elena, paras.71-72] Therefore, the action which
have been taken to fulfil the conditions under the Environment Act 1996 [Record, UF,
para.13] makes no difference to the amount of compensation.
118 As Kantor stated, investment treaty tribunals may determine a ‗fair market value‘ in
respect of a unique asset which the seller does not want to sell and for which no willing
buyer is likely to appear following an expropriation. [Kantor, p.15] Moreover application
of the „fair market value‟ and „full reparation‟ standards involve a significant element of
arbitral discretion. [Serkin, pp.725-727; Desierto, p.46] Hence, the Tribunal may take into
account the fair market value to estimate more precisely than the Claimant did the value of
the compensation.
119 To conclude, the Tribunal has its own discretion to estimate the value of compensation by
taking into account the fair market values standard.
120 To conclude, the Claimant made a wrong statement and his claims for 120,000,000 USD
should be dismissed. The Claimant contributed to his damage and his conduct should be
also take into account when Tribunal will be calculating the loss. The Tribunal has its own
discretion to properly calculate the amount of compensation.
24
REQUEST FOR ARBITRATION
On the jurisdictional matters:
1. The Tribunal has no jurisdiction over this case because the Claimant failed to comply
with the jurisdictional provisions incuded in the Euroasia BIT.
2. The Tribunal has a reasonable ground to dismiss all the claims invoked by relaying on
the fact that the Claimant is not an investor under the Euroasia BIT.
If Tribunal decides to go ahead despite the abovementioned arguments, the Tribunal

shall proceed as follows:
On the substantive rights:
1. The Claimant is not entitled to the compensation due to non-compliace with the pre-
arbitral steps, therefore, the Tribunal shall exclude the Claimant‘s loss.
2. Compensation in amount given by the Claimant is at least too remote and should be
diminished by the Tribunal.
3. The Claimant cannot benefit from the protection of the Treaty since it does not have
―clean hands‖ doctrine.
4. The Claimant contributed to the damage suffered by his investment, therefore, he is

not entitled to the compensation.
5. The Claimant‘s investment was not expropriated by the Respondent, who acted legally
under principles of international law and thus the Claimant is not entitled to compensation.
6. Alternatively, if the Tribunal recognizes the Claimant‘s investment as expropriated by

the Respondent, the Tribunal may award the compensation which is filed only with lost profit
and ‗fair market value standard‘.
25

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TEAM GOLUNSKY

I NTERNA TI ONA L COUR T OF

MEMORIAL FOR RESPO NDENT

September 26, 2016

INDEX OF AUTHORITIES – BOOKS AND ARTICLES v

LIST OF AUTHORITIES – MISCELLANEUS viii

INDEX OF ARBITRAL AWARDS xi

INDEX OF LEGAL SOURCES xx

INDEX OF ABBREVIATIONS xxi

I. THE TRIBUNAL HAS NO JURSIDICTION OVER THE DISPUTE

3. The Euroasian nationality of Peter Explosion is not effective. 7

II. THE CLAIMANT CANNOT BROADEN THE SCOPE OF THE ARTICLE

1.2.1. Meaning of the word „may‖ is obligatory „must‖ or ―shall‖. 10

1.2.2. Expressed consent to prior arbitration of the other contracting party is

2.1. There is no literal meaning of the MFN clause. 12

2.3. If parties concluded a separate provision of jurisdictional matters, there is no

III. THE CLAIMANT CANNOT BENEFIT FROM THE PROTECTION OF

IV. THE CLAIMANT‘S INVESTMENT WAS NOT EXPROPRIATED BY

1. The conduct of the Respondent do not amount to expropriation or equivalent

1.1. The Claimant was not deprived control over investment. 17

2.1. The Respondent acted legally by imposing sanctions. 18

V. THE CLAIMANT CONTRIBUTE TO THE DAMAGE SUFFERED BY HIS

1. The Claimant contribute to the damages by his own wrongful conduct,

2.1. The damage was not foreseeable. 23

3. Alternatively, if the Tribunal recognize the Claimants‘ investment as an

4. If the Tribunal consider to award a compensation in the amount indicted by

REQUEST FOR ARBITRATION 25

INDEX OF AUTHORITIES – BOOKS AND ARTICLES

Desierto D. Human Rights and Investment in Economic

Cited as: Desierto

Dolzer R., Schreuer C. Principles of International Investment Law, Oxford

Cited as: Dolzer/Schreuer

Douglas Z. The International Law of Investment Claims,

Cited as: Douglas

Gillis Wetter J. Issues of Corruption before International Arbitral

and True Meaning of Judge Gunnar Lagergren‘s 1963

Cited as: Commentary on ICC Case No. 1110

Dugan Ch., Wallace Jr D, Rubins Investor-State Arbitration, Oxford University Press,

Cited as: Dugan/Wallace/Rubins/Sabahi

Kantor M. Valuation for Arbitration: Uses and Limits of Income-

Cited as: Kantor

Kohen M., Hébié M. Territory, Acquisition, MPEPIL, Oxford University

Cited as: Kohen/Hébié

Marossi A., Bassett M. Economic sanctions under International Law:

Cited as: Marossi/Bassett

Mikulka V. The Impact of International Rules on Nationality, [in]:

Cited as: Mikulka

Newcombe A., Paradell I. Law and Practice of Investment Treaties: Standards of

Cited as: Newcombe/Paradell

Salacuse J. W. The Law of Investment Treaties, Oxford University

Cited as: Salacuse

Schwarzenberger G. A Manual of International Law, 5th ed., London,

Cited as: Schwarzenberger

Serkin Ch. The Meaning of Value: Assessing Just Compensation

Cited as: Serkin

LIST OF AUTHORITIES – MISCELLANEUS

International Law Comission Draft Articles on Responsibility of States for

Cited as: A/56/10

Mealey's International Mealey's International Arbitration Report, December

Cited as: Mealey's International Arbitration Report

The UN General Assembly United Nations General Assembly Resolution adopted

Cited as: A/RES/25/2625

United Nations General Assembly Resolution adopted