5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.

MEHTA SCHOOL OE LAW TEAM CODE- 14

5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS MUMBAI,

KIRTI P. MEHTA SCHOOL OF LAW

BEFORE THE ARBITRAL TRIBUNAL

COMPRISING OF
DR. Morbi Casi KC Presiding Arbitrator

Mr. PisarskyValdimir KC Co-Arbitrator

Ms. Alder Snow Co-Arbitrator

SEATED AT
KETTARDAM
Under Art 10, Nigen-Kettardam BIT

IN THE MATTER BETWEEN

KUSHKAN CORPORATION (HOLDING) (CLAIMANT)
V.
DEMOCRATIC REPUBLIC OF NORTH NIGEN (RESPONDENT)

MEMORIAL ON BEHALF OF THE CLAIMANT

MEMORIAL ON BEHALF OF THE CLAIMANT 1|P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW

TABLE OF CONTENT

TABLE OF ABBREVIATION ……………………………………………………….……….......4

INDEX OF AUTHORITIES ……………………………………………………….……………..6
STATEMENT OF JURISDICTION……………………………………………………………….12
STATEMENT OF FACTS ……………………………………………………………..…… ….13
ISSUES RAISED …………………………………………………………………….…………15
SUMMARY OF ARGUMENTS ……………………………………………………………........16
ARGUMENTS ADVANCED …………………………………………...……………………..…18

A. CLAIMS RAISED BY KUSHKAN ARE MAINTAINABLE …………………………………18

[A.1] Award dated December 19, 2021 is an investment………………………..…..18

[A.2] Respondent is responsible under Art. 5 of the treaty.........................................19

[A.3] Unlawful Termination of the JV Agreement is in violation of the Treaty……..20

B. . KUSHKAN’S INVESTMENT IS COVERED BY THE NIGEN-KETTERDAM BIT………...20

[B.1] Kushkan is an investor under the Nigen-Kettardam BIT…………………….20

[B.2] Kushkan‟s investment falls under the ambit of “investment”…………………21

[B.3] The Joint Venture Agreement between Kushkan and COEC is lawful………23

C. NIGEN HAS VIOLATED THE ADEQUATE STANDARD OF FULL PROTECTION AND

SECURITY UNDER THE NIGEN-KETTERDAM BIT……………………………………23

[C.1] Nigen failed to accord Kushkan‟s investment Police Protection under

Customary International Law………………………………………………………..24
[C.1.1] Nigen failed to take reasonable measures to protect the Oil Rigs…...24
[C.1.2] Failed to punish the perpetrators…………………………………….25
[C.2] Respondent has breached autonomous treaty standard……………………….25
D. THE PURPORTED ACTS OF COEC OR NIGEN QUALIFY AS A BREACH OF THE FAIR AND
EQUITABLE TREATMENT UNDER THE NIGEN-KETTERDAM BIT……………………26

[D.1] Claimant‟s legitimate expectation of stability has been frustrated………….…26

MEMORIAL ON BEHALF OF THE CLAIMANT 2|P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW
[D.2] Measures taken by the Respondent are discriminatory in nature………….…27

E. THE ACTS AMOUNT TO UNLAWFUL EXPROPRIATION UNDER THE TREATY…………28

[E.1] Claimants' investments at risk of expropriation………………………………29

[E.2] Respondent‟s interference results in substantial deprivation of Claimants‟
economic benefits……………………………………………………………..…….30
[E.3] Deprivation does not result from a legitimate exercise of Respondent‟s police
powers……………………………………………………………………………….30
[E.3.1] Actions of Nigen were not in the nature of public purpose………….31
[E.3.2] Acts of the Nigen were not in accordance with due process of law…31
[E.3.3] Respondent is obligated to provide adequate compensation…………32
[E.3.4] Actions of the state are discriminatory in nature…………………….32
[E.4] Acts of Nigen constitutes breach of Art.8 of the treaty………………………..32
F. SC JUDGEMENT VIOLATES THE MOST FAVOURED NATION CLAUSE OF THE TREATY…….33

[F.1] MFN is an accorded “treatment”……………………………………………….33

[F.2] Claimant has received treatment “less favourable” ………………………..…..34
[F.2.1] Article 4 of the treaty incorporates Article 5 of the Nigen-Volantis
BIT.............................................................................................................34
[F.2.2] Non-recognition of SCA is discriminatory……………………….….35
[F.3] Article 4 of the BIT is in violation…………………………………………..…35
G. DR. MORBI CASI KC IS FIT TO CONTINUE AS A PRESIDING ARBITRATOR………….35

[G.1] There is no concrete evidence of Casi‟s impartiality………………………….35

[G.2] Dr. Casi did not have any disclosure obligations……………………………..36
[G.3] Dr. Casi‟s participation does not creates issue conflict……………………….37
PRAYER FOR RELIEF…………………………………………………….………………….38

MEMORIAL ON BEHALF OF THE CLAIMANT 3|P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW

TABLE OF ABBREVIATIONS

& And

¶ Paragraph

§ Section

BIT Treaty

FPS Full Protection and Security

FET Fair and Equitable Treatment

JV Joint venture

VCLT Vienna Convention on Law of Treaties

UNCITRAL United Nations Commission on International Trade Law

Art. Article

CLAIMANT Kushkan

RESPONDENT Nigen

v. Versus

Vol. Volume

Ltd. Limited

Hon‟ble Honourable

Id.
Immediate

i.e., That is

r/w Read with

SHA Shareholder agreement

MEMORIAL ON BEHALF OF THE CLAIMANT 4|P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW

WPN Workers Party of Nigen

PSA Product Sharing Agreement

SCA Share Charge Agreement

KALBAN TREATY Kalban Treaty on the Promotion of Renewable Energy

NSP National Socialist Party of Nigen

SNN Satellite News Network

USD United States Dollars

ACT Promotion of Renewable Energy, 2022

NIGEN COURT High Court of Justice of the Republic of Nigen

NOFSI Nigen Office of Financial Sanctions Implementation

PO1 Procedural Order no.1

HYPL
Herme Yevgnye Private Limited

TAPL Teriki Akomich Private Limited

PO2 Procedural Order no. 2

MFN Most Favoured Nation

MEMORIAL ON BEHALF OF THE CLAIMANT 5|P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW

INDEX OF AUTHORITIES

CASES REFERRED

S. NO. FULL CITATION

1. Associate Builders v. DDA, (2015) 3 SCC 49.

2. ONGC v. Saw Pipes, (2003) 5 SCC 705.
3. Renusagar Power Co. Ltd. (India) v. General Electric Co., 1994 Supp. (1) SCC
644
4. UHL Power Company Limited v. State of Himachal Pradesh, (2022) 4 SCC
116.
5. Ssangyong Engineering and Construction Company Limited v. NHAI, (2019)
15 SCC 131.
6. Vijay Karia v. Prysmian Cavi E Sistemi SRL, 2020 SCC OnLine SC 177.

INTERNATIONAL CASES

S. NO. FULL CITATION

1. AAPL v. Sri Lanka, ICSID Case No. ARB/87/3, Award, Jun. 27, 1990, ¶ 41.
2. Astrazeneca UK Ltd v. Albemarle International Corporation, [2010] EWHC
1028 (Comm).
3. Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. v. Islamic Republic of Pakistan,
ICSID Case No. ARB/03/29

4. Charanne and Construction Investments v. Spain, SCC Case No. V 062/2012,

¶357.
5. CMS Gas Transmission Company v. The Argentine Republic, ICSID Case No.
ARB/01/8, Award (12 May 2005).
6. Devas Employees Mauritius Private Limited and Telecom Devas Mauritius
Limited v. India, PCA Case No. 2013-09.
7. Eastern Sugar BV v The Czech Republic Partial Award, SCC Case No.

MEMORIAL ON BEHALF OF THE CLAIMANT 6|P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW
088/2004, IIC 310 (2007).
8. Emilio Agustín Maffezini v Kingdom of Spain, ICSID Case No ARB/97/7.
9. Fedax N.V. v. the Republic of Venezuela, ICSID Case No. ARB/96/3.
10. Fiona Trust v. Privalov, [2007] UKHL 40.
11. Parkerings-Compagniet AS v. Republic of Lithuania, ICSID Case No.
ARB/05/8 (Sept. 11, 2007).
12. Parsons Whittemore Overseas Co. Inc. v. Societe Generale de l‟Industrie du
Papier (RAKTA), 508 F.2d 969 (2d Cir. 1974).
13. Petrobart Limited v. the Kyrgyz Republic,Arbitral Award at 72 (March 29,
2005).
14. Phillips Petroleum Co. Iran v. Iran et al., 21 IRAN-U.S. C.T.R. 79.
15. RBRG Trading (UK) Ltd. V. Sinocore International Co. Ltd., [2018] EWCA
Civ 838.
16. Saba Fakes v. Republic of Turkey, ICSID Case No. ARB/07/20.
17. Saipem S.p.A. v. People‟s Republic of Bangladesh, ICSID Case No.
ARB/05/07.
18. Salini Construttori SpA and Italtrade SpA v. Kingdom of Morocco, ICSID Case
No. ARB/00/4.
19. Salini et al v. Morocco, ICSID Case No. ARB/00/4, Decision on Jurisdiction,
152 (Jul. 23, 2001), 42 I.L.M. 609 (2003).
18. SGS Société Générale de Surveillance S.A. v. the Islamic Republic of Pakistan,
ICSID Case No. ARB/01/13.
19. Siemens A.G. v. The Argentine Republic, ICSID Case no ARB/02/8.
20. Daimler Financial Services AG v. Argentine Republic (ICSID Case No.
ARB/05/1) ¶ 20.

AWARDS
S. NO. FULL CITATION

1. Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. V. Islamic Republic Of Pakistan,

Icsid Case No. Arb/03/29, Award (27 August 2009).
2. Chevron Corporation v. The Republic of Ecuador, Partial Award on the Merits,
30 March 2010

MEMORIAL ON BEHALF OF THE CLAIMANT 7|P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW
3. Duke Energy Electroquil Partners & Electroquil S.A. v. Republic of Ecuador,
ICSID Case No. ARB/04/19, Award (12 Aug. 2008).
4. Eiser Infrastructure Limited and Energía Solar Luxembourg S.à r.l. v. Kingdom
of Spain, ICSID Case No. ARB/13/36, Final Award (4 May 2017).
5. El Paso Energy International Company v. The Argentine Republic, ICSID Case
No. ARB/03/15, Award (31 Oct. 2011).
6. Inmaris Perestroika Sailing Maritime Services GmbH and others v. Ukraine,
ICSID Case No. ARB/08/8, Award (1 March 2012).

7. Metalclad Corporation v. The United Mexican States, ICSID Case No.

ARB(AF)/97/1, Award (30 Aug. 2000).
8. Romak S.A. v. Republic of Uzbekistan, PCA Case No. AA 280, Award (Nov. 26,
2009).
9. S.D. Myers, Inc. v. Government of Canada, UNCITRAL, Partial Award (Merits)
(13 November 2000)

10. Saluka Investments B.V. v. Czech Republic, UNCITRAL, Partial Award (17
Mar. 2006).

11. Técnicas Medioambientales Tecmed, S.A. v. The United Mexican States, ICSID
Case No. ARB (AF)/00/2, Award (29 May 2003).

12. White Industries Australia Limited v. The Republic of India, UNCITRAL, Final
Award (30 November 2011).
13. Daimler Financial Services AG v. Argentine Republic (ICSID Case No.
ARB/05/1) ¶ 20.
14. Impregilo S.p.A. v. Argentine Republic (I)(ICSID Case No. ARB/07/17) ¶99.

15. BP Exploration Co. v. Libya, Copenhagen, UNCITRAL AWARD (1971).

16. RosInvestCo UK Ltd. v. The Russian Federation (SCC Case No. 079/2005)¶132.

17. Norway v United States, Award, (1922) I RIAA 307.

18. Frontier Petroleum Services Limited v. The Czech Republic,UNCITRAL, Final

Award (12 November 2010).
19. OI European Group v. Venezuela, ICSID Case No. ARB/11/25, Award, Mar.10,
2015¶ 580,
20. Ampal-American Israel v. Egypt, ICSID Case No ARB/12/11, Decision on
Liability, (21.02.2017)¶ 245.
21. AMT v. Zaire, ICSID Case No. ARB/93/1, Award, Feb. 21, 1997.

22. Noble Ventures v. Romania, ICSID Case No. ARB/01/11, Award, Oct. 12, 2005 ¶
164.
23. Oxus Gol v. The Republic of Uzbekistan, Ad hoc Arbitration UNCITRAL 1976,
Final Award, Dec. 17, 2015, ¶ 355.

MEMORIAL ON BEHALF OF THE CLAIMANT 8|P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW
BOOKS REFERRED

S. NO. FULL CITATION PAGE NO.

1. CHRISTOPHER DUGANL, INVESTOR–STATE ARBITRATION
(Oxford University Press 2008) .
2. DAVID ST JOHN SUTTON ET AL., RUSSEL ON ARBITRATION
(24 ed. Sweet and Maxwell 2015).
3. HARRY G. HENN & JOHN R. ALEXANDER, LAW OF
CORPORATIONS 396-97 (3d ed. 1983).
4. REDFERN AND HUNTER, LAW AND PRACTICES OF
INTERNATIONAL COMMERCIAL ARBITRATION (5 ed. 2009).
5. R. Dolzer & C. Schreuer, Principles of International Investment
Law, (Oxford University Press, 2008)
6. WEILER, Todd and LAIRD, Ian, Chapter 8 – Standards of
Treatment in Investment Claims.

LEXICONS REFERRED

S. NO. FULL CITATION

1. Briyan A. Garner, Black‟s Law Dictionary (11th ed. 2019)

ARTICLES & JOURNALS REFERRED

S. NO. FULL CITATION

1. The Use of Arbitration in Loan Agreements in International Project Finance:
Opening Pandora‟s Box or an Unexpected Panacea?
2. K. Scott Gudgeon, United States Bilateral Investment Treaties: Comments on
their Origin, Purposes, and General Treatment Standards, 4 INT‟L TAX & BUS.
L. 105, 117 (1986).
3. Banifatemi, Y., The Emerging Jurisprudence on the Most-Favoured-Nation
Treatment in Investment Arbitration, in Andrea Bjorklund, A., Laird,
4. Ripinsky, S., (eds.), Investment Treaty Law: Current Issues III, British Institute
of International and Comparative Law, 2009
5. Burdeau, Geneviève: Les embargos multilatéraux et unilatéraux et leur incidence

MEMORIAL ON BEHALF OF THE CLAIMANT 9|P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW
sur l‟arbitrage commercial international, Revue de l'Arbitrage, Volume 2003,
Issue 3, pp. 753–776, 2003.
6. L. Yves Fortier , Stephen L. Drymer, Indirect Expropriation in the Law of
International Investment: I Know It When I See It, or Caveat Investor, ICSID
Review - Foreign Investment Law Journal, Volume 19, Issue 2, Fall 2004, p.
293–327.
7. August Reinisch, “Expropriation”, in Peter Muchlinski, Federico Ortino &
Christoph Schreuer, ed., The Oxford Handbook of International Investment Law
p. 421-426 (Oxford University Press, 2008).
8. Sekolec, Jernej and Eliasson, Nils: Chapter 9: The UNCITRAL Model Law on
Arbitration and the Swedish Arbitration Act: A Comparison in Heuman, Lars and
Jarvin, Sigvard (eds.) The Swedish Arbitration Act of 1999, Five Years on: A
Critical Review of Strengths and Weaknesses, p 156, (JurisNet LLC, Huntington,
2006).
9. Maria Davies, 'The Use of Arbitration in Loan Agreements in International
Project Finance: Opening Pandora‟s Box or an Unexpected Panacea?', (2015), 32,
Journal of International Arbitration, Issue 2, pp. 143-171.
10. Nartnirun Junngam, “The Full Protection and Security Standard in International
Investment Law: What and Who is Investment Fully[?] Protected and Secured
From?” American University Business Law Review, Volume 7 Issue 1, 2018.

INTERNATIONAL TREATIES & CONVENTIONS

S. NO. FULL CITATION

1. Vienna Convention on the Law of Treaties, 1986
2. The Treaty between the Government of the Russian Federation and the
Government of the Italian Republic on the Promotion and Protection of
Investments
3. UNCITRAL Model Law on International Commercial Arbitration
4. Australia-Argentina BIT
5. U.S.-Armenia BIT
6. ARTICLES ON RESPONSIBILITY OF STATES FOR INTERNATIONALLY
WRONGFUL ACTS (2001).

MEMORIAL ON BEHALF OF THE CLAIMANT 10 | P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW

REPORT REFERRED

S. NO. FULL CITATION PAGE

NO.
1. World Investment Report – UNCTAD

WEB SOURCES
S. NO. NAME OF THE SITE

1. Cambridge University E-book Collection.

2. Hein Online

3. JSTOR

4. Kluwer Arbitration

5. Manupatra

6. Oxford University Press

7. SCC Online

MEMORIAL ON BEHALF OF THE CLAIMANT 11 | P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW

STATEMENT OF JURISDICTION

The CLAIMANT has approached the Hon‟ble tribunal under Article 10 of the Nigen Ketterdam
BIT.

ARTICLE 10 OF THE NIGEN KETTERDAM BIT.

Any dispute in relation to investments under this Treaty, which concern an alleged breach of
an obligation of a Contracting Party shall be referred to ad hoc arbitration in accordance
with the United Nations Commission on International Trade Law (UNCITRAL) Arbitration
Rules as in force at the commencement of the proceedings.

The law governing the arbitration shall be UNCITRAL Model Law on International
Commercial Arbitration (2006 version).

The arbitral tribunal shall comprise of 3 arbitrators. Each party shall appoint one arbitrator.
The two arbitrators thus appointed shall choose the third arbitrator who will act as the
presiding arbitrator of the arbitral tribunal.

MEMORIAL ON BEHALF OF THE CLAIMANT 12 | P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW

STATEMENT OF FACTS

The CLAIMANT is a promoter-run company incorporated in Kettardam. It specializes in long-

term investment in oil and gas industry.
The RESPONDENT is a developing country located in Kalban region. It is known as a
biodiversity hub. In the year 2005, large oil deposits were discovered in the north-western
region of Ravka, an unexplored region of Nigen.

~BACKGROUND OF THE BIT ~

KETTARDAM BIT
KUSHKAN OIL EXPLORATION
LOAN AGREEMENT
19.02.2006
11.01.2009
49.99%

JOINT VENTURE

29.06.2008

EDORAS POWER LIMITED 50.01% COEC NIGEN

(Fig. 1.1)

~AGREEMENTS~
19th February 2006 Nigen and Ketterdam signed a BIT (“Nigen-Ketterdam BIT”) to
encourage investment in oil and gas sector of Nigen.
29 June 2008 Kushkan and COEC entered into a Joint Venture Agreement to
Operationalize Ravka Oil Fields.
28 August 2008 Edoras, a special purpose vehicle was incorporated in Nigen.
Kushkan owned 49.99% shares pursuant to USD 300,000,000
equity investment. COEC owned 50.01% shares.
11 January 2011 Kushkan, Edoras and COEC entered into a Loan agreement. A share
Charge Agreement (SCA) was executed for creation of charge of
25.01% in Kushkan‟s favor in case of non-repayment.
~DESTRUCTION CAUSED~
29 November 2017 Two major fires broke. One broke inside Edoras refinery and the
other in Ravka‟s residential area.

MEMORIAL ON BEHALF OF THE CLAIMANT 13 | P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW
~KALBAN TREATY~
2 February 2019 Kalban Countries entered into Kalban Treaty for systematic phase
out of non-renewable energy sources.
Nigen took no steps in the implementation of the treaty.
February 2020 NSP Secured majority and formed the Government.
Government of Nigen enacted Kalban Treaty.
~ECONOMIC SANCTIONS~
04 January 2021 Nigen imposed unilateral economic sanctions on Molov (Nigen-
Molov Sanctions).
1 may 2021 Nigen Companies house refused to enforce the Share Charge (SCA)
citing sanctions.
15 June 2021 COEC Terminated the Joint Venture agreement claiming Kushkan
covered by Sanctions as Kushkan was controlled by Molov
21 June 2021 National.
~ARBITRATION PROCEEDINGS~
30 June 2021 Edoras initiated arbitration proceedings under JV agreement.
15 January 2022 Supreme Court of Nigen refused the award enforcement on grounds
of award being arbitrary, perverse and opposed to public policy.
30 June 2022 Kushkan accepted the termination by COEC. COEC upon receiving
exemption by NOFSI bought back 49.99% shares of Kushkan.
~BIT TRIBUNAL~
31 January 2023 Kushkan sent a notice of arbitration.
20 February 2023 Nigen sent a response nominating the arbitrator.
23 February 2023 Co-arbitrators jointly appointed Dr. Morbi Casi KC as the presiding
arbitrator.
~PROCEDURAL ORDER BY THE TRIBUNAL~
27 February 2023 Procedural order no. 1 passed by the tribunal.
10 March 2023 Procedural order no. 2 passed by the tribunal.

MEMORIAL ON BEHALF OF THE CLAIMANT 14 | P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW

ISSUES RAISED

Whether the claims raised by Kushkan are maintainable in view of the commercial arbitration
proceedings between Kushkan and COEC?

Whether Kushkan‟s investment is covered by the Nigen-Ketterdam BIT?

Whether Nigen afforded the adequate standard of full protection and security under the
Nigen-Ketterdam BIT?

Whether the purported acts of COEC or Nigen qualify as a breach of the fair and equitable
treatment under the Nigen-Ketterdam BIT?

Whether the following acts amount to unlawful expropriation under the Nigen-Ketterdam
BIT?
1. the termination of the JV Agreement by COEC
2. the SC Judgment refusing the enforcement of the Award
3. refusal by Nigen Companies‟ House to enforce the share charge as per the terms of
the SCA and the SCA Judgment
F

Whether the SC Judgment violates the Most Favoured Nation clause of the Nigen-Ketterdam
BIT?

G
Whether Dr. Morbi Casi KC is fit to continue as the presiding arbitrator due to the alleged
conflict of interest?

MEMORIAL ON BEHALF OF THE CLAIMANT 15 | P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW

SUMMARY OF ARGUMENTS

ISSUE A

The cause of action for invoking commercial arbitration proceedings was „unlawful
termination of the JV agreement‟ as compared to the cause of action under the BIT is breach
of treaty obligation. Nigen has defaulted in the treatment which it was obligated to maintain
under the treaty obligations. Therefore, it is submitted that Kushkan‟s claims constitute a
valid dispute in relation to investments under the Nigen Ketterdam BIT.

ISSUE B

It is submitted that Edoras, an enterprise incorporated in Nigen, is covered by the Nigen-

Ketterdam BIT. Kushkan provided technical expertise, held 49.99% of shares, bore the
majority of risks, and contributed to the host state‟s economy, thus fulfilling the criteria laid
down in Salini. Therefore, Kushkan‟s investment qualifies under the Nigen-Ketterdam BIT.

ISSUE C

The FPS standard required the government to have a more proactive measures to ensure
protection of both investor and investment. RESPONDENT did not accord the same in light of
the circumstances. The FPS protection states two full statements, each listing in sequence a
standard of treatment to be accorded to investments: full protection and security and police
protection under customary international law. Nigen has breached both the standards
therefore amounting to breach of full protection and security clause.

ISSUE D

The RESPONDENT has impaired the investment of the CLAIMANT by the way of a breach of
their legitimate expectation and discriminatory measures by Firstly, By enactment of the
Promotion of Renewable Energy Act, 2022 (“Act”) Secondly, rules enacted by NOFSI were

MEMORIAL ON BEHALF OF THE CLAIMANT 16 | P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW
discriminatory in nature and Lastly, refusal to enforce the arbitral award was unreasonable.
Therefore, the RESPONDENT has failed to conform to the FET standard.

ISSUE E

The measure of the RESPONDENT has resulted in a substantial deprivation of the economic
benefits to the CLAIMANT‟S investment. The actions are not exercised within the legitimate
powers of the state. The actions amount to unlawful expropriation as have not been exercised
following due process of law and also were not in the nature to fulfil public purpose.

ISSUE F

Treatment of Most Favoured Nation to the contracting party is a treaty obligation of the host
state. The state has acted discriminatory by providing an exemption only to its own nationals
and by refusing to enforce the Arbitral Award. Therefore, the RESPONDENT has violated the
MFN clause by not adhering to clause 4, 5 of article 5 of Nigen-Volantis BIT.

ISSUE G

The appointment of Dr. Morbi Case Kc does not give rise to any reasonable doubt in regards
to his impartiality and independence. It is submitted that a common third party funder in
another arbitration where the arbitrator has acted as a counsel does not form a ground to
challenge arbitrators removal quoting conflict of interest.

MEMORIAL ON BEHALF OF THE CLAIMANT 17 | P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW

ARGUMENTS ADVANCED

A. CLAIMS RAISED BY KUSHKAN ARE MAINTAINABLE IN VIEW OF COMMERCIAL

ARBITRATION PROCEEDINGS BETWEEN KUSHKAN AND COEC.

1. The scope and extent of an Arbitral Tribunal‟s jurisdiction can only be understood in
light of the arbitration agreement and the underlying agreement between the parties 1.
Art.10 of the treaty covers „any dispute‟2 in relation to an „investments‟. The
RESPONDENT submits that [A.1] The Award constitutes an investment [A.2] Breach of
the JV Agreement falls within the Umbrella clause and [A.3] Termination of the JV
Agreement amounts to a violation under Art. 9 BIT.

[A.1] AWARD DATED DECEMBER 19, 2021 IS AN INVESTMENT

2. The Tribunal in Romak v. Uzbekistan3 established the test to ascertain whether an

„Arbitral Award‟ would constitute an investment. If the underlying transaction is not an
investment within the meaning of the BIT, the mere embodiment or crystallisation of
rights arising thereunder in an arbitral award cannot transform it into an investment.4
3. The ICC Award crystallised the parties‟ rights and obligations under the original
contract. It can thus be left open whether the Award itself qualifies as an investment,
since the contract rights which are crystallized by the Award constitute an investment.
4. JV Agreement constitutes an investment and thus the award rendered in light of
International Commercial Arbitration constitutes a protected investment. Art.3 BIT also
covers assets of the enterprise which have the characteristics of an investment such as a
(i) commitment of capital, (ii) duration and (iii) risk.
(i) Commitment of an economic value: CLAIMANT has made a sufficient economic
commitment to its investment in pursuance to the JV Agreement. Investment is
not required to be monetary, and can take any form, including the commitment in
kind, know-how, or equipment.5

1
Blackaby, Nigel. Redfern and Hunter on International Arbitration. Oxford; New York: Oxford University
Press, 2009.
2
CASE RECORD, Art10, Annexure A.
3
Romak S.A. (Switzerland) v. The Republic of Uzbekistan, UNCITRAL, PCA Case No. AA280 Award (26
November 2009).
4
Saipem v. Bangladesh, ICSID Case No. ARB/05/07, Decision on Jurisdiction of 21 March 2007, ¶ 127.
5
White Industries Australia Limited v. Republic of India, Permanent Court of Arbitration, UNCITRAL, Final
Award (30 November 2011).

MEMORIAL ON BEHALF OF THE CLAIMANT 18 | P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW
(ii) Duration: It is a settled principle of law that if this Tribunal wishes to set such a
restriction, a duration of 2 to 5 years is more than sufficient. 6 In addition, the
various Tribunals have considered the element of duration as referring to the
intended duration of the investment.7 The CLAIMANT signed the JV Agreement in
2009 and it was terminated in 2021 giving it a lifespan of twelve years. The
operations under the JV Agreement and all the subcontracts under it were
operational till this very termination.
(iii) Risk: The element of risk is also satisfied in the present case. It has been
accepted that any kind of risk, even a commercial one is sufficient. 8 The
explosions in the territory of Nigen which caused „irreversible damages‟ to the
Edoras Oil Rigs, harassment of the investors, non-enforcement of contractual
rights has magnified the risk element and increased cooperation between the
parties until it became extremely difficult for the investor to survive.

[A.2] RESPONDENT IS RESPONSIBLE UNDER ART. 5 OF THE TREATY

5. It is a settled principle of law that the ground of public policy is extremely narrow and
restricted. An exceptional case has to be made to demonstrate that the award was in
conflict with the public policy. This position is prevalent in almost all the countries
including UK,9 USA,10 and India.11
6. This is so because under the New York Convention, there is a general pro – enforcement
bias.12 In Associate Builders v. DDA,13 the Supreme Court quoted and followed ONGC v.
Saw Pipes14 to explain that public policy under the Indian law refers to matters which
concern public good and public interest. Even an award in violation of a statutory
provision does not violate public policy.15

6
Salini Costrutorri S.p.A and Italstrade S.p.A v. Kingdom of Morocco, ICSID Case No. ARB/00/4, Decision on
Jurisdiction (23 July 200).
7
Deutsche Bank AG v. Democratic Socialist Republic of Sri Lanka, ICSID Case No. ARB/09/2, Award (31
October 2012) ¶303.
8
Toto Costruzioni Generali S.p.A. v. The Republic of Lebanon, ICSID Case No. ARB/07/12, Decision on
Jurisdiction (11 September 2009) ¶78.
9
RBRG Trading (UK) Ltd. v. Sinocore International Co. Ltd., [2018] EWCA Civ 838.
10
Parsons Whittemore Overseas Co. Inc. v. Societe Generale de l‟Industrie du Papier (RAKTA), 508 F.2d 969
(2d Cir. 1974).
11
Renusagar Power Co. Ltd. (India) v. General Electric Co 1994 Supp. (1) SCC 644; Ssangyong Engineering
and Construction Company Limited v. NHAI, (2019) 15 SCC 131.
12
Blackaby, Nigel. Redfern and Hunter on International Arbitration. Oxford; New York :Oxford University
Press, 2009
13
Associate Builders v. DDA, (2015) 3 SCC 49.
14
ONGC v. Saw Pipes, (2003) 5 SCC 705.
15
Id ¶ 31.

MEMORIAL ON BEHALF OF THE CLAIMANT 19 | P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW
7. Although these judgments of Ssangyong v. NHAI,16 Associate Builders v. DDA17 and
ONGC v. Saw Pipes18 are in the context of section 34 of the Arbitration Act which deals
with challenge to domestic awards, as per the law laid down in Vijay Karia,19the
expression public policy appearing in section 34 has the same meaning to public policy
under section 48 of the Arbitration Act, which deals with enforcement of foreign awards.
8. The arbitral tribunal, being the ultimate master of facts and evidence before it, arrived at
a plausible interpretation that the Molov was not a significant shareholder. This finding
could not have been interfered unless found to be perverse or irrational.

[A.3] UNLAWFUL TERMINATION OF THE JV AGREEMENT IS IN VIOLATION OF THE TREATY

9. RESPONDENT should be held responsible “for violations of the BIT”. The fact that
CLAIMANT relies on the termination of the JV Agreement for the breach of the umbrella
clause does not mean that it brings before this Tribunal a purely contractual claim. The
JV Agreement‟s termination is simply the source of two different claims; a contract
claim and a treaty claim,20which remain “analytically distinct”, and the pursuance of the
one does not impede the investor from claiming its rights under the other.

B. KUSHKAN’S INVESTMENT IS COVERED BY THE NIGEN-KETTERDAM BIT

10. The CLAIMANT‟S investment qualifies as an investment pursuant to the Treaty. To that
effect, the CLAIMANTS will put forward three following contentions, [B.1] Kushkan is an
investor under the meaning of the Nigen-Ketterdam BIT [B.2] Kushkan‟s investment
falls under the ambit of “investment” [B.3] The Joint Venture Agreement between
Kushkan and COEC is lawful.

[B.1] KUSHKAN IS AN INVESTOR UNDER THE MEANING OF THE TREATY

16
Ssangyong Engineering and Construction Company Limited v. NHAI, (2019) 15 SCC 131.
17
Supra note at 13.
18
Supra note at 14.
19
Vijay Karia v. Prysmian Cavi E Sistemi SRL, 2020 SCC OnLine SC 177.
20
SGS Société Générale de Surveillance S.A. v. The Republic of Paraguay, ICSID Case No. ARB/07/29,
Decision on Jurisdiction (12 February 2010), ¶135.

MEMORIAL ON BEHALF OF THE CLAIMANT 20 | P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW
11. The bilateral investment treaties offer protection to the investments of investors from the
host state to the contracting state. Thus, a particular corporation has to be recognized as
an "investor" within the meaning of a treaty, to benefit from the protection offered by.21
12. The treaty defines this term by reference to two categories of investors, namely natural
persons22 and enterprise,23 which under the legislation of the contracting party have the
right to make investments in the territory of another contracting party.24
13. The meaning of the term „investor‟ in the status quo shall be understood in accordance
with the general rules of treaty interpretation, as consolidated in Articles 3125 and 3226 of
the VCLT along with a general interpretation of the term through various BIT‟s.
14. In the present instance, Kushkan Corporation (Holdings) Limited (“Kushkan”), a
promoter-run company incorporated in Ketterdam, investing in the oil and gas sector of
Nigen, falls under the criteria of a company incorporated in accordance with the laws of
the contracting party.27

[B.2] KUSHKAN’S INVESTMENT FALLS UNDER THE AMBIT OF “INVESTMENT” IN PURSUANCE

OF THE NIGEN- KETTERDAM BIT.

15. A clear four-pronged test that arbitrators are to use to determine whether the two
companies had in fact made an investment has been introduced through Salini.
16. The test requires (1) a contribution of money or assets; (2) an investment shall have a
certain duration; (3) an element of risk; and (4) a contribution to the host state's
economy.28 The standard meaning of the term “asset” is property of all kinds, both in
tangible and intangible form.29
(i) Contribution of Money or Assets: An investment is a contribution. It may be
understood as any dedication of resources that has economic value, whether in the
form of financial obligations, services, technology, patents, or technical

21
K. Scott Gudgeon, United States Bilateral Investment Treaties: Comments on their Origin, Purposes, and
General Treatment Standards, 4 INT‟L TAX & BUS. L. 105, 117 (1986).
22
Austl.-Arg. BIT, art. 1(1)(c)
23
U.S.-Arm. BIT, art. I(1)(b)
24
The Treaty between the Government of the Russian Federation and the Government of the Italian Republic on
the Promotion and Protection of Investments
25
Vienna Convention on the Law of Treaties Art 31.
26
Id, art 32.
27
Case record, ¶ 8 and 9.
28
Salini et al v. Morocco, ICSID Case No. ARB/00/4, Decision on Jurisdiction, 152 (Jul. 23, 2001), 42 I.L.M.
609 (2003).
29
Romak S.A. v. Republic of Uzbekistan, PCA Case No. AA 280, Award, ¶177 (Nov. 26, 2009).

MEMORIAL ON BEHALF OF THE CLAIMANT 21 | P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW
assistance.30 In the case at hand, the JV agreement signed between the CLAIMANT
and COEC contemplated using Kushkan‟s infrastructure, technical expertise, and
connections. 31 In addition, the CLAIMANT also owned 49.99% shares in Edoras.32
(ii) An investment shall have a certain duration: In Petrobart Limited v. Kyrgyz
Republic,33 the tribunal recognized as an "investment", Petrobart‟s shares under
an enterprise, even though the usual criteria for investment, notably a contribution
which extends over a certain period of time, were not met. In the current factual
scenario, even though there is an absence of explicit duration of investment, the
CLAIMANT specializes in long-term investments in the oil and gas industry.
Moreover, in Fedax v. Venezuela,34 Salini v. Morocco, 35
and SGS v. Pakistan, 36
the tribunal concluded that it was not unusual that claims to money, even if not
based on any long-term involvement in a business in another country, were
included in treaties within the concept of investment.
(iii) An element of risk: Unlike ordinary commercial risk of non-performance of
contractual obligations, the risk associated with an investment involves a situation
when an investor cannot be sure of a return on his investment, and may not know
the amount he will end up spending, even when all relevant counterparties
discharge their contractual obligations. The CLAIMANT owned 49.99% shares in
Edoras and also bore most of the risk.37
(iv) Contribution to the host state‟s economy: Although, the benefits of a particular
investment for the state shall be seen as its desirable result, but not as its essential
characteristic. While certain investments may turn out to be useless for the host
state, they should not fall, for that reason alone, outside the ambit of investment.38
17. In order to be covered under the criteria of investment laid down in Salini39, the shares
representing equity participation in a company shall possess all the characteristics of
"investment”.

30
Id.
31
Case record, ¶ 9.
32
Id, ¶ 10.
33
Petrobart Limited v. the Kyrgyz Republic, Arbitral Award at 72 (March 29, 2005).
34
Fedax N.V. v. the Republic of Venezuela, ICSID Case No. ARB/96/3.
35
Salini Construttori SpA and Italtrade SpA v. Kingdom of Morocco, ICSID Case No. ARB/00/4.
36
SGS Société Générale de Surveillance S.A. v. the Islamic Republic of Pakistan, ICSID Case No. ARB/01/13.
37
Case record, ¶ 10.
38
Victor Pey Casado v. Republic of Chile, Saba Fakes v. Republic of Turkey.
39
Salini Construttori SpA and Italtrade SpA v. Kingdom of Morocco, ICSID Case No. ARB/00/4.

MEMORIAL ON BEHALF OF THE CLAIMANT 22 | P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW
18. First, a share represents a contribution to the share capital of a company, which has an
economic value.40 Second, assuming that purchased shares are not immediately re-sold,
the "duration" characteristic of "investment" will also be present. Consequently, shares
involve the risk of not receiving the expected benefits as well as the risk of completely
losing the contribution. This means that in the case of shares the "risk" characteristic of
"investment" will also be present.

[B.3] THE JOINT VENTURE AGREEMENT BETWEEN KUSHKAN AND COEC IS LAWFUL.

19. The RESPONDENT may wish to argue that, the Joint venture agreement between Kushkan
and COEC has been vitiated by fraud and corruption and thus the dispute becomes non-
arbitrable.
20. However, the UNCITRAL Model Law on International Commercial Arbitration
incorporates the doctrine of Separability under Article 16 (1).41 Hence if a party claims
that the main contract itself was induced by fraud, the doctrine of separability should
mean that in such circumstances the arbitration clause will not be affected, so a tribunal
will have jurisdiction to determine the dispute. 42
21. Additionally, the court in Astrazeneca UK Ltd v. Albemarle International Corporation43
held that in any case of vitiation of contract by fraud or corruption, a high standard of
proof is required to show that the agreement to arbitrate is itself invalid and affirmed that
the alleged duress was not sufficiently related to the arbitration clause to impeach it.
22. Mere allegations of fraud would not accord COEC the right to terminate and appropriate
the shares of Kushkan in Edoras. Therefore, CLAIMANT would like to maintain that the
44
Joint venture is lawful.

C. NIGEN HAS VIOLATED THE ADEQUATE STANDARD OF FULL PROTECTION AND

SECURITY UNDER THE NIGEN-KETTERDAM BIT.

40
Harry G. Henn & John R. Alexander, Law of Corporations 396-97 (3rd ed. 1983).
41
UNCITRAL Model Law on International Commercial Arbitration, Art; 16(1).
42
Fiona Trust v. Privalov [2007] UKHL 40.
43
Astrazeneca UK Ltd v. Albemarle International Corporation [2010] EWHC 1028 (Comm).
44
CASE RECORD, ¶ 30.

MEMORIAL ON BEHALF OF THE CLAIMANT 23 | P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW
23. The CLAIMANT submits that Nigen breached Art.5 of the treaty as [C.1] it failed to
accord Kushkan‟s investment Police Protection under Customary International Law
[C.2] it has breached autonomous treaty standard.

[C.1] NIGEN FAILED TO ACCORD KUSHKAN’S INVESTMENT POLICE PROTECTION UNDER

CUSTOMARY INTERNATIONAL LAW

24. Art. 5 of the treaty prescribe International Minimum Standard of Treatment (“MST”) for
aliens, which require host states to provide Full protection and Security (“FPS”) to
investors. Investment arbitral decisions generally regard FPS as a duty of due diligence.
The principle of due diligence obligation is referred as an obligation of vigilance.45
25. The host State must exercise reasonable care46 and take reasonable actions within its
power to prevent injury of the investor.47 Once injuries have already happened, the State
is expected to sanction the perpetrators.48 In the present case, [C.1.1] RESPONDENT failed
to take reasonable measures to protect the Oil Rigs [C.1.2] Failed to punish the
perpetrators.

[C.1.1] NIGEN FAILED TO TAKE REASONABLE MEASURES TO PROTECT THE OIL RIGS

26. The tribunal in AMT49 held that the obligation to ensure investors FPS is an obligation of
vigilance. Under this the host state shall take all measures within its power to avoid
injury when it is, or should be, aware that there is a risk of injury.50
27. If the risk is foreseeable and still the state fails to take measures that are proportional to
risk foreseeable the state is held liable for breach of due diligence standard. 51
Additionally, in the case of AAPL, the Sri Lankan Security Forces had destroyed the
investment during a counter-insurgency operation.52
28. The tribunal held that the RESPONDENt through said inaction and omission violated its
due diligence obligation which requires undertaking all possible measures that could be

45
Infinito Gold Ltd. v. Republic of Costa Rica, ICSID Case No. ARB/14/5, Award, Jun. 3, 2021 ¶ 627
46
Id
47
Noble Ventures v. Romania, ICSID Case No. ARB/01/11, Award, Oct. 12, 2005 ¶ 164
48
Oxus Gol v. The Republic of Uzbekistan, Ad hoc Arbitration UNCITRAL 1976, Final Award, Dec. 17, 2015,
¶ 355
49
AMT v. Zaire, ICSID Case No. ARB/93/1, Award, Feb. 21, 1997
50
Paushok v. Mongolia, Ad hoc Arbitration, UNCITRAL Arbitration Rules 1976, Award on Jurisdiction and
Liability, Apr. 28, 2011 ¶ 325
51
Toto Construzioni Generali S.p.A. v. Lebanon, ICSID Case No. ARB/07/12, Award, Jun. 7, 2012 ¶ 200
52
AAPL v. Sri Lanka, ICSID Case No. ARB/87/3, Award, Jun. 27, 1990, ¶ 41

MEMORIAL ON BEHALF OF THE CLAIMANT 24 | P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW
reasonably expected to prevent the eventual occurrence of killings and property
destructions.53
29. In the case of Ampal-American, the tribunal held that the failure on behalf of
government to protect the investment from the militant attack is a prima facie violation
of FPS clause.54 The lack of steps, measures, or sufficient police protection, is a violation
of FPS standard under international law.55
30. Similarly, the RESPONDENT cannot plea lack of resources as a defence as it did not accord
Edoras Oil Rigs sufficient police protection when it was the only one prone to harm. 56
Additionally several managers and workers resigned fearing their safety. Thus Nigen
breached the Minimum standard of treatment.

[C.1.2]NIGEN FAILED TO PUNISH THE PERPETRATORS

31. The RESPONDENT has acted negligently in not concluding any of its investigations. The
RESPONDENT, until now, has not taken any step to restore the condition of plants to its
original state and has not punished the perpetrators of injury. In cases57 where a host state
fails to grant full protection and security, it is obliged to redress the injuries caused by
actions by its authorities by providing legal remedies to the investor. 58

[C.2] IT HAS BREACHED AUTONOMOUS TREATY STANDARD AS IT FAILED TO PROTECT

INVESTMENTS FROM LEGAL HARM

32. Providing international investors with a swift and well-functioning judicial system59 is
part of the stable legal environment obligation underlying the FPS standard, but a major
backlog in Nigen courts and administration compromised CLAIMANT‟S investments and
share value.

53
Supra note at 8, ¶ 85(b)
54
Ampal, ¶ 245
55
OI European Group v. Venezuela, ICSID Case No. ARB/11/25, Award, Mar.10, 2015¶ 580,
56
Omar Moussly, “Same Concept Different Interpretation, The Full Protection and Security Standard in
Practice”; Wolters Kluwer, October 27, 2019
57
R. Dolzer & C. Schreuer, Principles of International Investment Law, (Oxford University Press, 2008)
58
Parkerings-Compagniet AS v. Republic of Lithuania, ICSID Case No. ARB/05/8 (Sept. 11, 2007), ¶ 355.
59
Nartnirun Junngam, “The Full Protection and Security Standard in International Investment Law: What and
Who is Investment Fully[?] Protected and Secured From?” American University Business Law Review, Volume
7 Issue 1, 2018.

MEMORIAL ON BEHALF OF THE CLAIMANT 25 | P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW
33. In that sense, in Frontier v. Czech Republic60 case the obligation of a stable legal
environment under the FPS standard was described as the duty imposed at the State to
have a well-functioning system of courts and legal remedies available to the investor.61
34. The enforcement proceedings in light of the award passed by the Arbitral Tribunal is a
clear denial of justice and against the ethos of the New York Convention. COEC has
been citing mere allegations of fraud which have not been proven in light of the
investigation and neither has COEC established clear and convincing evidence of the
same. The administrative action of the NOFSI has resulted in heavy losses incurred by
Kushkan.

D. THE PURPORTED ACTS OF COEC OR NIGEN QUALIFY AS A BREACH OF THE FAIR AND
EQUITABLE TREATMENT UNDER THE NIGEN-KETTERDAM BIT

35. The measures of the State have clearly violated the FET clause of the treaty. The
CLAIMANT submits that [D.1] CLAIMANT‟S legitimate expectation of stability has been
frustrated [D.2] Measures taken by the RESPONDENT are discriminatory in nature

[D.1] FRUSTRATION OF CLAIMANT’S LEGITIMATE EXPECTATION OF STABILITY

36. It is widely accepted that the obligation to accord FET requires the host State to protect
the investor‟s legitimate expectations62 which is a „dominant element‟63 of this standard
and is regarded „central‟ 64 to its definition.
37. According to the tribunal in Duke Energy, certain requirements must be met for there to
be legitimate expectations that are protected by the FET obligation:65
a. Legitimate expectations may arise only from a State‟s specific representations, on
which the latter has relied. Statements made by government officials directly or
indirectly to an investor are capable of giving rise to such assurances.66

60
Frontier Petroleum Services Limited v. The Czech Republic,UNCITRAL, Final Award (12 November 2010)
61
Saluka v. Czech Republic, Ad hoc Arbitration, UNCITRAL 1976, Partial Award, Mar. 17, 2006¶ 448
62
Técnicas Medioambientales Tecmed, S.A. v. The United Mexican States, ICSID Case No. ARB (AF)/00/2,
Award (29 May 2003) ¶154.
63
Saluka Investments B.V. v. Czech Republic, UNCITRAL, Partial Award (17 Mar. 2006), ¶302.
64
El Paso Energy International Company v. The Argentine Republic, ICSID Case No. ARB/03/15, Award (31
Oct. 2011), ¶348.
65
Duke Energy Electroquil Partners & Electroquil S.A. v. Republic of Ecuador, ICSID Case No. ARB/04/19,
Award (12 Aug. 2008)., ¶340.

MEMORIAL ON BEHALF OF THE CLAIMANT 26 | P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW
b. The investor must be aware of the general regulatory environment in the host country,
in other words, it must perform regulatory due diligence. The CLAIMANT conducted an
exhaustive due diligence exercise before deciding to invest in Nigen.67
38. The CLAIMANT submits that the FET obligation embraces an obligation upon the host
State to maintain a predictable and stable legal framework. This view is shared by the
award rendered in CMS, where the tribunal held that “there can be no doubt that a stable
legal and business environment is an essential element of fair and equitable treatment.”68
This view is squarely applicable, as with the enactment of the Promotion of Renewable
Energy Act, 2022 (“Act”), the RESPONDENT has stained the stability of the legal and
business environment.
39. The tribunal in Charanne clarified this view by stating that, even in the absence of a
specific commitment of the State, legitimate expectations could be breached, as “an
investor has the legitimate expectation that, when the State modifies the regulation under
which the investor made the investment, it will not do so unreasonably, contrary to the
public interest, or in a disproportionate matter”.69
40. The tribunal in Eiser v. Spain considered that the FET obligation “necessarily embraces
an obligation to provide fundamental stability in the essential characteristics of the legal
regime relied upon by investors in making long-term investments regulatory regimes
cannot be radically altered as applied to existing investments in ways that deprive
investors who invested in reliance on those regimes of their investment’s value.” 7071
41. Nigen, which has always been an oil-fired energy industry has with one single law made
the oil-fired industry a thing of the past. The legal regime in which the investment was
made has not just been radically modified but has been wiped out in totality.

[D.2] MEASURES TAKEN BY THE RESPONDENT ARE DISCRIMINATORY IN NATURE

66
Metalclad Corporation v. The United Mexican States, ICSID Case No. ARB(AF)/97/1, Award (30 Aug.
2000), ¶89.
67
CASE RECORD, ¶ 9.
68
CMS Gas Transmission Company v. The Argentine Republic, ICSID Case No. ARB/01/8, Award (12 May
2005), ¶274.
69
Charanne and Construction Investments v. Spain, SCC Case No. V 062/2012, ¶357.
70
Eiser Infrastructure Limited and Energía Solar Luxembourg S.à r.l. v. Kingdom of Spain, ICSID Case No.
ARB/13/36, Final Award (4 May 2017), ¶382.
71
SICAR v. The Kingdom of Spain, SCC Case No. 2015/063, Final Award (15 Feb 2018), ¶694.

MEMORIAL ON BEHALF OF THE CLAIMANT 27 | P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW
42. The RESPONDENT under Article 5 of the treaty72 has an obligation to ensure fair and
equitable treatment and not impair investments by discriminatory measures. The
CLAIMANT has been left with no option but to knock the doors of this Hon‟ble Tribunal
as it has incurred heavy costs due to the conduct of the state.
43. The promotion of “non-discriminatory” treatment to foreign investors is one of the
fundamental goals of the international investment regime which Nigen has breached.73
44. In order to determine if discrimination occurred, the usually applied standard is the
“minimum standard of treatment”; which is mostly an appellation for fair and equitable
treatment.74
45. This was exactly the understanding adopted in Quiborax v. Bolivia,75 where the Tribunal
found that “general” measures applied in such a manner as to affect only an individual or
a small group of foreigners cannot be held as justification for discrimination due to
particularities such as the nationality of the shareholders of a company.
46. In the instant case, NOFSI the administrative body of Nigen by way of which it is an
organ of the state, enacted rules and regulations which were discriminatory in nature.76
77
47. In Eastern Sugar BV v The Czech Republic, the CLAIMANT invested in sugar factories
in the Czech Republic. Those subsidiaries were then targeted by a decree passed by the
Czech authorities in a very different manner from its application to domestic entities. As
a result, the tribunal held that one of the decrees imposed effective discrimination of host
states in favour of domestic entities., and therefore was in violation of the Netherlands–
Czech and Slovak Federal Republic BIT.

E. THE ACTS AMOUNT TO UNLAWFUL EXPROPRIATION UNDER THE TREATY

48. Art. 8 of the treaty oblige the host-state to compensate foreign investors in cases of
indirect expropriation. In the instant case, the following acts of the state - Termination of
JV Agreement (A) Refusal to enforce the Arbitration Award (B) Refusal to enforcement
of SCA as per terms of the SCA Judgement (C) constitutes unlawful expropriation.

72
CASE RECORD, ART 5, ANNEXURE A.
73
K. Von Moltke, p.3; World Investment Report - UNCTAD, p.105.
74
Markert, L., & Freiburg, E. (2013). Moral Damages in International Investment Disputes – On the Search for
a Legal Basis and Guiding Principles, The Journal of World Investment & Trade, 14(1), 1-43., p.262.
75
Perkings-Compagniet v. Lithuania, Award, ¶368.
76
CASE RECORD ¶ 26.
77
Eastern Sugar BV v The Czech Republic Partial Award, SCC Case No. 088/2004, IIC 310 (2007).

MEMORIAL ON BEHALF OF THE CLAIMANT 28 | P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW
49. In Bayindir, the tribunal stressed that the analysis of an expropriation comprises of four
steps. First, identification of the assets expropriated.78 Second, identification of the
intensity of the State‟s conduct in the interference with the investor‟s property rights. 79
Third, examination of whether the interference has been made in the exercise of the
State‟s police powers.80 Fourth, examination of whether the expropriation is in breach of
the BIT.81
50. Therefore, CLAIMANTS submits that RESPONDENT has unlawfully expropriated their
investments under Art.8 of the treaty. [E.1] CLAIMANTS' investments at risk of
expropriation [E.2] RESPONDENT‟S interference constitute a substantial deprivation of
CLAIMANTS‟ economic benefits. [E.3] this deprivation does not result from a legitimate
exercise of RESPONDENT‟S police powers. [E.4] Thus, it constitutes breach of Art.8 of the
treaty.

[E.1] CLAIMANTS' INVESTMENTS AT RISK OF EXPROPRIATION

51. In the present case, CLAIMANTS‟ contracts and contractual rights constitute an
“investment” susceptible to expropriation. Contractual rights are a type of property that
can be the subject of claims for indirect expropriations, even if these „rights‟ may not be
formally recognised under the host state law.828384
52. Award determines the rights and obligations arising out of an investment that is clearly
under the permissible boundaries of the Investment Treaty.85 In the White Industries
case86 it has been clearly indicated by the tribunal that foreign arbitral award is an
„investment‟ under the BIT and that the setting aside of such valid foreign awards could
constitute expropriation under the BIT. Rights under the award constitute part of white‟s

78
Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. v. Islamic Republic of Pakistan, ICSID Case No. ARB/03/29,
Award (27 August 2009)¶442.
79
Id, ¶443.
80
Id, ¶444.
81
Id, ¶446.
82
R.F.C.C. v. Kingdom of Morocco , ICSID Case No. ARB/00/6, ¶ 61. (citing the Norwegian Shipowners
Claim for the proposition that international law recognises the possibility of expropriation of contractual rights),
ICSID Case No. ARB/05/07, Saipem S.p.A. v. People‟s Republic of Bangladesh.
83
Saipem S.p.A. v. People‟s Republic of Bangladesh. ICSID Case No. ARB/05/07.
84
Norway v United States, Award, (1922) I RIAA 307.
85
CHRISTOPHER DUGANL, Investor–State Arbitration (Oxford University Press 2008) p. 675-700.
86
ARTICLES ON RESPONSIBILITY OF STATES FOR INTERNATIONALLY WRONGFUL ACTS (2001), White Industries
Australia Limited v. Republic of India, UNCITRAL, Final Award (30 November 2011).

MEMORIAL ON BEHALF OF THE CLAIMANT 29 | P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW
original investment and therefore are subject to protection afforded to investments under
BIT.87
53. The lender bears the status of an investor, and therefore the loan agreement constitutes
investment capable of being expropriated.88 Such a claim of expropriation is possible
where a bilateral investment treaty (BIT) exists between the state which the lender is a
national of and the state where recognition of such agreement is sought. As a
consequence, CLAIMANTS‟ contracts individually constitute an “investment” under the
BITs, and are susceptible to expropriation.89

[E.2] RESPONDENT’S INTERFERENCE CONSTITUTES A SUBSTANTIAL DEPRIVATION OF

CLAIMANTS’ ECONOMIC BENEFITS

54. Indirect expropriation arises when the State's interference results in the loss of the
investment's reasonable economic utilization.909192 Even temporary93 and profound
interference by the State can constitute an expropriation, as the intensity of the
interference complements its duration.
55. In the instant case the termination of JV Agreement has led to termination of various
other sub-contacts of Edoras and therefore impacted the operations in the Oil Rigs.
Edoras has suffered loss amounting over USD 100,000,000. It has destroyed the value of
the CLAIMANTS‟ contractual rights, and that the decrease in value due to the lasting
damage to CLAIMANTS‟ business, for all intents and purposes, permanent.94

[E.3] THIS DEPRIVATION RESULT FROM A LEGITIMATE EXERCISE OF RESPONDENT’S

POLICE POWERS

87
Id, ¶7.6.8.
88
Maria Davies, 'The Use of Arbitration in Loan Agreements in International Project Finance: Opening
Pandora‟s Box or an Unexpected Panacea?', (2015), 32, Journal of International Arbitration, Issue 2, pp. 143-
171.
89
Phillips Petroleum Co. Iran v. Iran et al., 21 IRAN-U.S. C.T.R. 79.
90
L. Yves Fortier , Stephen L. Drymer, Indirect Expropriation in the Law of International Investment: I Know It
When I See It, or Caveat Investor, ICSID Review - Foreign Investment Law Journal, Volume 19, Issue 2, Fall
2004, Pages 293–327.
91
August Reinisch, “Expropriation”, in Peter Muchlinski, Federico Ortino & Christoph Schreuer, ed., The
Oxford Handbook of International Investment Law p. 421-426 (Oxford University Press, 2008).
92
Hoffmann, Anne K., 'Indirect Expropriation', in August Reinisch (ed.), Standards of Investment Protection p.
421-426 (Oxford, 2008; online edn, Oxford Academic, 22 Mar. 2012).
93
S.D. Myers, Inc. v. Government of Canada, UNCITRAL, Partial Award (Merits) (13 November 2000). ¶283.
94
Inmaris Perestroika Sailing Maritime Services GmbH and others v. Ukraine, ICSID Case No. ARB/08/8,
Award (1 March 2012).

MEMORIAL ON BEHALF OF THE CLAIMANT 30 | P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW
56. Article 8 of the treaty provides that investment shall not be directly or indirectly
expropriated. Except for the following [E.3.1] For public purpose [E.3.2] In accordance
with due process of law; [E.3.3] Against the payment of adequate compensation. [E.3.4]
In a non-discriminatory manner.

[E.3.1] ACTIONS OF NIGEN WERE NOT IN THE NATURE OF PUBLIC PURPOSE

57. It is submitted before the tribunal that as a general rule, the mandatory or public law
nature, sanction does not as such prevent the arbitrability of the matters. 95 The scope of
arbitrability has constantly expanded, making it ever more probable that matters of
sanctions be subjected to arbitration.96 Therefore, the Tribunal is competent to exercise
its jurisdiction to decide on the issue of sanction.
58. In Air France v. Libyan Airlines,97 it was held that UN sanctions against Libya did not
hinder the arbitrability of the dispute and that the tribunal did not violate international
public policy by declaring itself competent to adjudicate the dispute. Therefore, SC
cannot challenge the award or hinder enforcement of award of the ground of Public
Policy.
59. In BP Exploration Co. v. Libya,98 the ad hoc arbitrator held that the taking of a foreign oil
company as an act of political retaliation did not qualify as a public purpose. Similarly,
the non-enforcement of award, non-enforcement of SCA are purely extraneous political
reasons99 and are arbitrary and discriminatory in character.
[E.3.2] ACTS OF THE NIGEN WERE NOT IN ACCORDANCE WITH DUE PROCESS OF LAW

60. There was a substantial and procedural denial of due process. The CLAIMANTs, under the
treaty has experienced a violation of their right to substantive due process as their
contract was unlawfully terminated without any reasonable justification and their

95
Sekolec, Jernej and Eliasson, Nils: Chapter 9: The UNCITRAL Model Law on Arbitration and the Swedish
Arbitration Act: A Comparison in Heuman, Lars and Jarvin, Sigvard (eds.) The Swedish Arbitration Act of 1999,
Five Years on: A Critical Review of Strengths and Weaknesses, p 156, JurisNet LLC, Huntington, 2006.
96
Burdeau, Geneviève: Les embargos multilatéraux et unilatéraux et leur incidence sur l‟arbitrage commercial
international, Revue de l'Arbitrage, Volume 2003, Issue 3, pp. 753–776, 2003.
97
Air France v. Libyan Airlines, Cour supèrieure du Quèbec R.J.Q. 717, J.Q. No. 410, [2000].
98
BP Exploration Co. v. Libya, Copenhagen, UNCITRAL AWARD (1971).
99
CASE RECORD ¶ 29.

MEMORIAL ON BEHALF OF THE CLAIMANT 31 | P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW
investment was expropriated without giving any due notice and were also not given the
chance of fair hearing,100 therefore this constitutes procedural abuse.101

[E.3.3] RESPONDENT IS OBLIGATED TO PROVIDE ADEQUATE COMPENSATION

61. Acts of the RESPONDENT were arbitrary and disproportionate, which places the
RESPONDENT under the obligation of full reparation. The buy-back of shares was a
measure for the investor to stop its operation in Nigen. The amount of buy-back does not
constitute compensation. The State‟s unlawful act consists of the failure to provide
prompt, adequate, and effective compensation as required. Thus, the failure to pay
compensation is a violation of a treaty standard as provided within Article 8 of the treaty.

[E.3.4] ACTIONS OF THE STATE ARE DISCRIMINATORY IN NATURE

62. The actions of the RESPONDENT were purposeful and clearly targeted the investor from
Kettardam. The buyback of the shares after the implication of sanctions was allowed,
whereas the Share Charge agreement was not even recognised. For the recognition of
any trade activity after imposition of actions required an approval of NOFSI.

[E.4] THE RESPONDENT HAS ENGAGED IN AN UNLAWFUL EXPROPRIATION OF THE

CLAIMANTS' INVESTMENTS

63. The RESPONDENT'S failure to pursue its public purpose proportionately and observe due
process and non-discrimination constitutes a blatant violation of Article 8 of the treaty.102
Also, the CLAIMANT was forced to sell the shares due to incurring heavy costs. The
RESPONDENT'S failure to promptly provide just compensation further breaches Article 6
of the treaty.103 As a result, the measure in question constitutes an unlawful indirect
expropriation of the CLAIMANTS' investments.

F. SC JUDGEMENT VIOLATES THE MOST FAVOURED NATION CLAUSE OF THE NIGEN-

KETTERDAM BIT

100
CC/Devas (Mauritius) Ltd., Devas Employees Mauritius Private Limited, and Telcom Devas Mauritius
Limited v. Republic of India, PCA Case No. 2013-09, Award on Jurisdiction and Merits, )¶417 (25 July 2016).
101
Waguih Elie George Siag and Clorinda Vecchi v. Arab Republic of Egypt, ICSID Case No. ARB/05/15,
Award, ¶442 (1 June 2009).
102
CASE RECORD, art, 8, Annexure A.
103
Id, art. 6.

MEMORIAL ON BEHALF OF THE CLAIMANT 32 | P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW
64. CLAIMANT submits to the Arbitral Tribunal that Article 4 of the Nigen-Ketterdam BIT is
the provision which entails most favoured nation clause, which allows to proceed to the
importation of dispute settlement clause from a third-party BIT, namely Article 5 of the
Nigen-Volantis BIT, between the Republic of Nigen and the Republic of Volantis.
65. As compared, Clause 5 of the Nigen-Volantis BIT,104 states that it becomes a duty cum
obligation to apply international practices and the conventions for the enforcement of
award.
66. It is submitted that the CLAIMANTS were not accorded with the benefits of most favoured
nation clause as the CLAIMANTS were denied the enforcement of award. The NOFSI
treated a contracting party invariably different from its own. CLAIMANT therefore
contents that [F.1] MFN is accorded “treatment”; [F.2] CLAIMANT has received treatment
“less favourable” [F.3] Article 4 of the BIT has been violation

[F.1] MFN IS AN ACCORDED “TREATMENT”

67. CLAIMANT submits that the exact expression used by Article 4 of the Nigen-Ketterdam
BIT is a “treatment”. This word is of utmost importance in the interpretation of the
applicable scope of the MFN clause..
68. In the absence of a technical definition crafted by the contracting parties, it should thus
be concluded that the intention of the contracting parties was to leave the expression
―treatment to its ordinary meaning.
69. The term “treatment” is “a broad term which refers to the legal regime that applies to
investments once they have been admitted by the host State.105106107108 Since a „dispute
resolution clause‟ is the clause of a contract that concerns the way, a dispute is handled
in order to reach its resolution through a certain procedure, it is therefore reasonable to
conclude that the ordinary meaning of the word „treatment‟ may embrace and include the
concept of a dispute resolution clause.109

104
Id, art. 5, Annexure B.
105
Rudolf Dolzer and Christoph Schreuer, PRINCIPLES OF INTERNATIONAL INVESTMENT LAW (2012),
¶58.
106
Daimler Financial Services AG v. Argentine Republic (ICSID Case No. ARB/05/1) ¶ 20.
107
Impregilo S.p.A. v. Argentine Republic (I)(ICSID Case No. ARB/07/17) ¶99.
108
RosInvest Co UK Ltd. v. The Russian Federation (SCC Case No. 079/2005)¶132.
109
Banifatemi, Y., The Emerging Jurisprudence on the Most-Favoured-Nation Treatment in Investment
Arbitration, in Andrea Bjorklund, A., Laird, I., and Ripinsky, S., (eds.), Investment Treaty Law: Current Issues
III, British Institute of International and Comparative Law, 2009.

MEMORIAL ON BEHALF OF THE CLAIMANT 33 | P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW
[F.2] RESPONDENT HAS VIOLATED THE MFN CLAUSE, CLAIMANT RECEIVED LESS
FAVOURABLE TREATMENT.

70. The RESPONDENT has discriminated the CLAIMANTS against their own nationals. Also,
the non-enforcement of award has violated the Most-Favoured nation clause. Therefore,
the RESPONDENT submits that [F.2.1] Article 4 of the BIT110 incorporates Article 5 of the
Nigen-Volantis BIT [F.2.2] Non-recognition of the Share Charge Agreement was
discriminatory in nature

[F.2.1] ARTICLE 4 OF THE BIT INCORPORATES ARTICLE 5 OF THE NIGEN-VOLANTIS BIT

71. The RESPONDENT might argue that the BIT did not incorporate Article 5 of Nigen-
Volantis BIT as it fundamentally subverts the carefully negotiated BIT. Therefore
RESPONDENT submit that it is not seeking to incorporate Dispute Resolution provision
instead is availing itself the right to rely on more favourable substantive provision in the
third-party treaty.111
72. The CLAIMANT assets that this does not "subvert" negotiated balance of the BIT. Instead,
it achieves same the result which the parties intended by the incorporation of an MFN
clause.112 Dispute resolution and substance of the issue is part of the treatment of foreign
investors and investments and of the advantages accessible through a MFN clause.113
73. CLAIMANT asserts that Article 4 provides for express exceptions regarding the scope of
application of the MFN clause. None of these exceptions, that restrict the applicable
scope of the MFN clause, does refer to procedural rights, therefore there lies no question
to the incorporate of award enforcement in the treaty in hand.
74. Relying on the conclusion of the tribunal in Chevron - Texaco v Ecuador,114 evaluation
of effective means for the CLAIMANT to assert claims and enforce rights relies on an
objective international standard.115 The denial of enforcement of award without a
reasonable cause in a country which is a party to the New York Convention is an
unacceptable.

110
CASE RECORD, art. 4, Annexure A.
111
White Industries Australia Limited v. Republic of India, UNCITRAL, Final Award (30 November 2011).
112
Id.
113
Siemens A.G. v. The Argentine Republic, ICSID Case No. ARB/02/8, Decision on Jurisdiction (2004).
114
Chevron Corporation and Texaco Petroleum Company v. Republic of Ecuador, PCA Case No. 200923, Third
Interim Award on Jurisdiction and Admissibility, ¶¶ 242, 244, 250, 262, 263 (Feb. 27, 2012).
115
Emilio Agustin Maffezini v. The Kingdom of Spain, ICSID Case No. ARB/97/7, Decision on Objections to
Jurisdiction, 25 January 2000.

MEMORIAL ON BEHALF OF THE CLAIMANT 34 | P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW
75. Kushkan has pursued with the enforcement of award which has been denied on the
ground of public policy. Whereas the award is in no violation to the public policy.
Accordingly, Nigen‟s failure to enforce the award constitutes a breach of the "effective
means" obligation under Article 4 of the BIT, under which CLAIMANT is entitled to the
benefit of Article 5(5) of the Nigen-Volantis BIT.

[F.2.2] Non-recognition of the Share Charge Agreement

76. In Parkerings v. Lithuania,116 the tribunal established that, to constitute a violation of

international law, discrimination had to be unreasonable or lacking proportionality, and
that an objective reason may justify differentiated treatment in similar cases.
77. The general principle that, as a result of the MFN clause, the content of “FET” had to be
determined in the light of fair and equitable treatment provisions of other BITs entered
into by host state.117 Thus, it is submitted that the non-recognition of the SCA has led to
violation of the Article 4 of the BIT.

[F.3] THE ACTIONS OF THE STATE ARE IN VIOLATION TO ARTICLE 4 OF THE BIT.

78. CLAIMANT submits that through the reasoning of arbitrators in multiple arbitration, of the
use of an MFN clause to incorporate a dispute settlement clause in a treaty. It is
submitted that measure of the state in respect to the Nigen-Molov Sanctions goes against
the procedural and substantive part of the treaty and vis-à-vis the MFN Clause.
Therefore, it is conclude that in the instant case the SC has violated the MFN clause by
not adhering to clause 4,5 of article 5 of Nigen-Volantis BIT.

G. DR. MORBI CASI KC IS FIT TO CONTINUE AS A PRESIDING ARBITRATOR

79. The RESPONDENT has raised concerns about the appointment of Dr. Casi KC as the
presiding arbitrator, citing his involvement in other arbitrations where a common third
party funder HYPL, was present. The RESPONDENT questions Dr. Casi‟s impartiality and
independence based on this association.

116
Parkerings-Compagniet AS v. Republic of Lithuania, ICSID Arbitration Case No. ARB/05/8, Award (11
September 2007).
117
Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. v. Islamic Republic of Pakistan, ICSID Case No. ARB/03/29,
(12 August 2009).

MEMORIAL ON BEHALF OF THE CLAIMANT 35 | P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW
80. The CLAIMANT submits that [G.1] There is no concrete evidence of Casi‟s impartiality
[G.2] Dr. Casi did not have any disclosure obligations [G.3] Dr. Casi‟s participation does
not creates issue conflict.

[G.1] THERE IS NO CONCRETE EVIDENCE OF DR. CASI’S IMPARTIALITY

81. The UNCITRAL Rules state that „Any arbitrator may be challenged if circumstances
exist that give rise to justifiable doubts as to the arbitrator‟s impartiality or
independence‟118 The RESPONDENT has merely relied on common third-party funder
present in previous arbitrations where arbitrator acted as a counsel. Performance of
multiple roles does not raise the doubt of impartiality or lack of independence of the
arbitrator.
82. CLAIMANT asserts that the fact that a funder is present in an arbitration proceeding and
the arbitrator‟s law firm is present in an unrelated arbitration proceeding where the same
third-party funder is funding an action, is not a conflict for the reason that third-party
funders are not affiliates in the sense of the IBA Guidelines on Conflict of Interest.119
83. Applying the similar reasoning, presence of a common third party funder in an unrelated
arbitration does not form a ground for challenge and removal of the presiding arbitrator
quoting the conflict of interest.
[G.2] DR. CASI DID NOT HAVE ANY DISCLOSURE OBLIGATIONS

84. It is asserted by the RESPONDENT that non-disclosure by Dr. Casi by participation in

previous arbitration violated his duty to disclose, as is mandated by the Art.11. However,
the CLAIMANT submits that Dr. Casi‟s involvement is not in violation of Art.11 of the
rules.
85. For an arbitrator to even disclose any conflict of interest that it is cognizance of, it must
first be aware of who the funder is. Here, in the instant case the arbitrator was completely
unaware and was only informed about participation of a third party funder by a letter
from the RESPONDENT. To its response the arbitrator clarified his position. And
represented his impartiality and independence.
86. The OLG Karlsruhe120 held that neither the mere failure to disclose nor the non-disclosed
facts give rise to justifiable doubts as to impartiality. Article 11 only requires question of

118
UNCITRAL Rules, Art. 12.1.
119
Christopher P. Bogart, OVERVIEW OF ARBITRATION FINANCE, ICC Dossier No. 752E 50, Valentina Frignati,
“ETHICAL IMPLICATIONS OF THIRD-PARTY FUNDING IN INTERNATIONAL ARBITRATION” Oxford, 2016.
120
OLG Karlsruhe, Decision of 01 June 2018, 10 Sch 12/13.

MEMORIAL ON BEHALF OF THE CLAIMANT 36 | P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW
disclosure of the obligation under such circumstances which gives rise to justifiable
doubts. An arbitrator need not disclose facts which do not meet the test of justifiable
doubt.121 The involvement does not act as a justifiable ground for objective bias of the
arbitrator.
87. The tribunal in Vivendi v. Argentina,122 determined that the standard for disclosure is that
of real bias or apparent prejudice. The RESPONDENTS are incorrectly asserting an
apparent bias in the current debate. An apparent bias occurs when a judge or other
decision-maker is not a party to the dispute and has no stake in how it is resolved, but
through his or her actions or demeanor creates the impression that they are not unbiased.

[G.3] DR. CASI’S PARTICIPATION DOES NOT CREATES ISSUE OF CONFLICT OF INTEREST

88. According to IBA Guidelines, a potential conflict of interest should be evaluated based
on its actual circumstances. To determine if they are adequate to cast "reasonable doubts"
about the arbitrator's objectivity and independence, a "reasonable third party" must
evaluate them.
89. The English court held that „an arbitrator who is from the same chambers as counsel for
one of the parties did not give rise to justifiable doubts as to his impartiality or
independence.123
90. The earlier participation of the presiding arbitrator as a counsel where HYPL was a third-
party funder of companies he represented. Therefore, it is submitted that Dr. Casi‟s
appointment in the other arbitration with a common third party funder does not raise an
“issue conflict”, as such does not rise to “justifiable doubts” as to his impartiality and
independence. Hence the presiding arbitrator is fit for the tribunal. Thus, there lies no
grounds for the removal.

121
Suez v. The Argentina Republic, ICSID Case No. ARB/03/19, Decision on a Second Proposal for the
Disqualification of a Member of the Arbitral Tribunal (12 May 2008).
122
Vivendi v. Argentina. ICSID (Case No. ARB/97/3) Final Award on Jurisdiction(2007) ¶ 46.
123
Laker Airways v. Sabena, Belgian World Airlines, 10 N.C. J. INT'L L. 251 (1985).

MEMORIAL ON BEHALF OF THE CLAIMANT 37 | P A G E

 5TH INTERNATIONAL MOOT COURT COMPETITION SVKM’S NMIMS, MUMBAI, KIRIT P.
MEHTA SCHOOL OE LAW

PRAYER FOR RELIEF

In the light of all the submissions made, the CLAIMANT hereby respectfully requests the
tribunal that to FIND and DECLARE that:

a. The claims raised are maintainable before this tribunal.

b. Investments are qualified and covered under the treaty.
c. State‟s actions have violated its obligation to provide fair and equitable treatment, full
protection and security to CLAIMANTS investment and most favoured nation treatment.
d. RESPONDENT has unlawfully expropriated CLAIMANTS investments.
e. CLAIMANT is entitled to compensation.
f. Dr. Morbi Casi KC should not be removed from the present proceedings.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

Sd/

(Counsel on behalf of the Claimant)

MEMORIAL ON BEHALF OF THE CLAIMANT 38 | P A G E