17th FDI INTERNATIONAL ARBITRATION MOOT, 2024

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INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES

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Astracommex Regional Satellite Communication Inc.

(Claimant)

v.

The Republic of Celestria

(Respondent)

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ICSID CASE NO. ARB/22/99

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MEMORIAL ON BEHALF OF CLAIMANT

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-MEMORIAL FOR THE CLAIMANT-

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ARGUMENTS ADVANCED

The temporal scope of the BIT's adjudicatory authority encompasses the Claimant's
grievances, granting this Tribunal jurisdiction ratione temporis.
1. The exercise of jurisdictional authority by the Tribunal in the present contentious
matter hinges upon the existence of an investment dispute between the parties. It is
noteworthy that the Bilateral Investment Treaty (BIT) concluded between Nebuland
and Celestria on February 1, 2021 provides the relevant framework for the
adjudication of this specific issue.1
2. Astracommex Regional intends to convincingly demonstrate the arbitral tribunal's
temporal jurisdiction to adjudicate upon the claims presented by both parties. This
demonstration will be structured around four distinct arguments:
A. Applicability of the Bilateral Investment Treaty (BIT)
B. Investment-Related Violation
C. Continuous Impact of NEPA's Adoption
D. Application of Relevant Treaties

I. Fulfillment of Jurisdictional Threshold Based on the BIT

A. Claim arises after the effective date of agreement

3. While certain acts potentially relevant to the present legal dispute may have transpired prior to
February 1, 2021 it is crucial to emphasize that the dispute itself, as a crystallized legal claim, did
not formally materialize until after the effective date of Article II's limitation provision. 2 The
mere occurrence of antecedent acts, however pertinent, falls short of constituting a nascent legal
dispute. A legal claim, and consequently a "dispute," only acquires definitive form and substance
at the moment the aggrieved party initiates appropriate legal proceedings. Given the absence of
any evidence suggesting legal action commenced prior to February 1, 2021 it is clear that the
dispute, in its legally cognizable form, arose solely after the aforementioned threshold date.

B. Temporal Jurisdiction Under Article 2 of the BIT and the Ongoing Impact of Pre-
Existing Issues
1
BIT, pp. 84, 90.
2
BIT, Art. II.
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4. Despite the current legal dispute predating the Bilateral Investment Treaty's ("BIT") entry into
force, its ongoing nature potentially renders it a "violation" under the treaty, establishing
jurisdiction for the investor under the BIT's dispute resolution mechanisms. 3 This aligns with the
legal concept of continuous violation in BIT disputes.

5. The argument for jurisdiction based on continuous violation in BIT disputes hinges on the
principle that ongoing harm stemming from a pre-existing breach, even if it occurred before the
BIT's entry into force, can fall within the tribunal's purview.

C. Continuous Violation Concept

Pre-BIT breaches can constitute ongoing violations if their negative consequences persist after the
treaty's implementation.4

7. This interpretation finds support in Article 28 of the Vienna Convention on the Law of Treaties
(VCLT), stating that the non-retroactivity principle does not apply to situations continuing after
the treaty's entry into force.5

8. If an act or fact or situation which took place or arose prior to the entry into force of a treaty
continues to occur or exist after the treaty has come into force, it will be caught by the provisions
of the treaty.6

D. Breach of the Non-Discriminatory Treatment Obligation under the Article 6 of the BIT
9. At its core, non-discrimination mandates that a host state accord to foreign investors and their
investments treatment "no less favorable" than that granted to its own nationals and their
investments (national treatment) or to investors from any third country (MFN treatment) in "like
situations". 7

This principle serves a dual purpose:

a. National treatment safeguards foreign investors from being singled out for harsher
treatment compared to domestic counterparts. This fosters a level playing field within
the host country's jurisdiction, mitigating concerns of arbitrary discrimination and
ensuring equal access to opportunities.8
b. By guaranteeing treatment no worse than that accorded to any other foreign investor,
MFN fosters predictability and stability in the regulatory landscape. Investors can
3
BIT, Art. I(1)(b).
4
Joy Mining Machinery Limited v The Arab Republic of Egypt, ICSID Case No. ARB/03/11.
5
Vienna Convention on the Law of Treaties, Art. 28.
6
Vienna Convention Commentary, Art. 28, para 3.
7
BIT, Art. VI (1) and (2).
8
CSIS v Moldova, PCA Case No. AA/05/09/04, para 310.

-MEMORIAL FOR THE CLAIMANT-

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operate with greater confidence knowing their treatment will not be capriciously
undermined by preferential concessions granted to competitors from other countries.9

E. Non-Discrimination and MFN

10. Non-discrimination establishes a minimum standard of fair treatment, ensuring foreign
investors are not subjected to outright disadvantage compared to domestic or other foreign
counterparts.10 MFN, building upon this foundation, elevates the standard by preventing
discrimination based on nationality among foreign investors. This combined effect creates a
robust regime for investor protection, safeguarding against both direct and indirect
discrimination.

F. International Legal Underpinnings and Guiding Principles

11. The principles enshrined in the BIT find further reinforcement in the broader framework
of international law and investment agreements. The World Trade Organization's (WTO)
Most-Favored-Nation Principle stands as a cornerstone of international trade relations,
promoting non-discrimination between trading partners. 11 Similarly, the UNCTAD Model
Bilateral Investment Treaty incorporates provisions on non-discrimination and MFN
treatment, reflecting their widespread recognition as essential safeguards in international
investment law.12 12. Moreover, the ICSID Convention guarantees "fair and equitable
treatment", a concept interpreted to encompass both non-discrimination and MFN principles
within the context of investor-state disputes.13
G. Article 9 (1) of the BIT establishes arbitration as the binding and exclusive forum for
settling any legal disputes arising under the Agreement
13. Any dispute should, as far as possible, be settled amicably through negotiations,
conciliation
or mediation. A disputing party shall give favorable consideration to a request for
negotiations,
conciliation or mediation by the other disputing party.14

9
Salini v Madagascar, ICSID Case No. ARB/07/24, para 129.
10
Churchill Falls (Labrador) Corp. v Hydro-Québec, 2018 SCC 46, [2018] 3 S.C.R. 101; Metalclad
Corporation v The United Mexican States, ICSID Case No. ARB(AF)/97/1.
11
General Agreement on Tariffs and Trade, Art. I.
12
India - Mozambique BIT (2009), Art. 4.
13
ICSID Convention, Art. 25(1).
14
BIT, Art. 9(1).

-MEMORIAL FOR THE CLAIMANT-

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II. The present matter constitutes an investment related violation subject to the
adjudication procedures outlined within the BIT
14. The definition of "investment" within the specific BIT governing the current dispute is
crucial. According to the excerpt provided, the BIT defines an investment as "every kind of
asset that has the characteristics of an investment, which includes a certain duration, the
commitment of capital or other resources, the expectation of gain or profit, and the
assumption of risk."15 This aligns with the widely used Salini test.16
The Salini test requires that, for something to qualify as an investment under the BIT:
a) There must be a contribution of money or other resources by the investor to the host
state.
b) There must be a genuine intention for long-term commitment to the investment.
c) The investor must assume some degree of economic, political, or legal risk associated
with the investment.
d) The investment should aim to benefit the host country through job creation,
technology transfer, tax revenue, etc.17

III.NEPA's Continuous Regulatory Effect: Jurisdiction Extends Beyond the Effective Date
15. The adoption and implementation of the National Environmental Protection Act
("NEPA") by Celestria established a dynamic and pervasive regulatory framework with
continuous implications for existing and future investments within its jurisdiction. 18 NEPA's
regulatory scope and ongoing effect extend beyond its effective date, creating an
interconnected environment influencing the legal and operational landscape for investments
like Astracommex Regional's. Therefore, any legal dispute arising from the application or
interpretation of NEPA, in its interaction with the disputed investment, falls squarely within
the temporal jurisdiction of this Honorable Tribunal.19
16. The BIT's purpose of promoting and protecting investments extends to situations where
regulatory changes, like NEPA's adoption, create ongoing effects impacting investments made
prior to those changes. Excluding such disputes from the Tribunal's jurisdiction would

15
BIT, Art I(1)(a).
16
Salini Costruttori S.p.A. and Italstrade S.p.A. v. Kingdom of Morocco, ICSID Case No. ARB/00/4.
17
BIT, Art I(1)(a).
18
Moot Case, p. 21.
19
Occidental Exploration and Production Company v Republic of Ecuador (I), LCIA Case No. UN3467.

-MEMORIAL FOR THE CLAIMANT-

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undermine the BIT's objective of providing stable and predictable legal frameworks for
investors.20
IV. Treaty Provisions Reinforce Tribunal's Jurisdiction over the current Legal Disputes
17. The Vienna Convention plays a crucial role in establishing the framework for determining
the relevant timeframe for a tribunal's authority.

A. Preserving the BIT's Integrity: Applying Article 18 to Prevent Treaty Undermining

18. This article imposes an obligation on signatory states to refrain from acts that would
undermine the treaty's goals before its entry into force. Arguably, denying jurisdiction for pre-
treaty claims could frustrate the treaty's objective of resolving disputes peacefully and
efficiently.21
B. Temporal Scope and Application of the VCLT under Article 24
19. While Article 24 primarily clarifies the timing of treaty effectiveness, its focus on
establishing consent creates an ongoing process even before formal entry. This can be
interpreted as implying an ongoing obligation to comply with the treaty's dispute resolution
mechanisms, including for pre-treaty claims.22
C. Application of Provisional Application under Article 25 of the Vienna Convention
20. Although rarely used, Article 25 allows partial or full provisional application of treaties
before formal entry. If the arbitration clause falls under this category, it could support
arguments for jurisdiction over pre-treaty claims.23

21. The International Centre for Settlement of Investment Disputes (ICSID) plays a critical
role in resolving investment disputes between investors and host states under Bilateral
Investment Treaties (BITs). Establishing the temporal jurisdiction of the tribunal, determining
its power to adjudicate the specific dispute, is a crucial preliminary step in any ICSID
arbitration. This intricate process goes beyond the mere application of the Vienna Convention
on the Law of Treaties (VCLT) and involves a nuanced interplay of factors. Establishing
ratione temporis jurisdiction in ICSID arbitration for pre-treaty disputes often hinges on
interpreting Articles 25 and 26 of the ICSID Convention.

20
Vienna Convention on the Law of Treaties, Art. 31(1).
21
Vienna Convention on the Law of Treaties, Art. 18; Nuclear Tests Case (Australia & New Zealand v. France)
1974 I.C.J. 253; Gabčíkovo-Nagymaros Project (Hungary v. Slovakia) 1997 I.C.J. 7, reprinted in 37 I.L.M. 162
(1998).
22
Vienna Convention on the Law of Treaties, Art. 24; Philippe Sands, 'Evolution of International Investment
Law: Trends and Uncertainties' (2014) 48 J World Trade Law 1.
23
Vienna Convention on the Law of Treaties, Art. 25.

-MEMORIAL FOR THE CLAIMANT-

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D. Jurisdiction Established under Article 25 of the ICSID Convention: Addressing

Investment Dispute and Consent Requirements

22. The Clause (1)(a) allows states to submit existing disputes to ICSID arbitration through a
separate agreement.24 Arguably, such an agreement could effectively extend the arbitration
clause's scope to pre-treaty claims.25

23. The Clause (1)(b) empowers investors to initiate arbitration for disputes arising after their
investment was made, even if the investment agreement predates the ICSID Convention's entry
into force for the host state.26 This principle could be extrapolated to cover pre-treaty disputes
significantly impacting subsequent investments.27

E. Invoking Article 26's Consent Clauses: Multiple Avenues to ICSID Jurisdiction

24. Article 26 allows states to consent to ICSID jurisdiction through various acts, including
concluding treaties or exchanging written instruments.28 Some argue this constitutes a "broad
consent" approach, potentially encompassing disputes arising before such acts, especially if
directly related to the investment protected by the treaty.29

25. Recent arbitral decisions increasingly acknowledge the dynamic nature of investment law and
principles like good faith. This could support arguments that consent under Article 26 should
evolve alongside these principles, potentially covering pre-treaty acts impacting protected
investments.30

26. This article also allows Contracting States to "require the exhaustion of local administrative or
judicial remedies as a condition of its consent to arbitration under this Convention." 31

24
ICSID Convention, Art. 25(1)(a).
25
Metalclad Corporation v The United Mexican States, ICSID Case No. ARB(AF)/97/1.
26
ICSID Convention, Art. 25(1)(b).
27
Metalclad Corporation v The United Mexican States, ICSID Case No. ARB(AF)/97/1.
28
ICSID Convention, Art. 26.
29
Philippe Sands, 'Evolution of International Investment Law: Trends and Uncertainties' (2014) 48 J World
Trade Law 1.
30
Achmea B.V. (formerly Eureko B.V.) v. The Slovak Republic (I), PCA Case No. 2008-13.
31
Statement of Uncontested Facts, para 45.

-MEMORIAL FOR THE CLAIMANT-

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PRAYER FOR RELIEF

In light of the above submissions, Astracommex Regional respectfully requests this Honorable
Tribunal to declare that:
The dispute is within the competence of the Centre and the jurisdiction of the Tribunal.

Respectfully Submitted,
Counsel for Astracommex Regional
AstroJuris Arbitration

-MEMORIAL FOR THE CLAIMANT-