TEAM VISSCHER ARBITRATION PURSUANT TO THE RULES OF ARBITRATION OF THE INTERNATIONAL CHAMBER OF COMMERCE ICC ARBITRATION NO. 28000/AC PETER EXPLOSIVE (CLAIMANT) Vs. REPUBLIC OF OCEANIA (RESPONDENT) SKELETON BRIEF FOR THE RESPONDENT
I. JURISDICTION AND ADMISSIBILITY A. CLAIMANT HAS NO LEGAL STANDING 1. The Euroasian Citizenship Act is not applicable to the claimant. 1.1. Rules of Succession of States in treaty law 1 shall not apply if there is a violation of international law. 2 1.2. Secession is not recognised under international law. The annexation of Fairyland was contrary to international law, in particular, the Charter of the United Nations. 3 1.3. As a result, the Euroasia-Oceania BIT ( Euroasia BIT ) does not extend to the territory of Fairyland and thereby the Claimant does not have a right to invoke the said BIT. 2. Claimant is not a national of Euroasia under international law. 2.1. The documents submitted in support of the claim of nationality of Euroasia are only prima facie 4 evidence, subject to the scrutiny of the Tribunal. 2.2. The Claimant does not possess real and effective nationality of Euroasia, and hence, does not meet the requirement under international law. 5 B. MFN TREATMENT IS NOT APPLICABLE TO DISPUTE RESOLUTION CLAUSES 3. The Claimant cannot rely on the MFN clause under Art 3(1) to override the requirements of Art 9(2) of the Euroasia BIT: 3.1. The MFN clause cannot be applied to a dispute resolution provision. 3.2. The interpretation of the MFN provision by the Claimant violates the ejusdem generis principle. 1 Article 29,1969 Vienna Convention on the Law of Treaties, 23 May 1969, 1151 U.N.T.S 331 ( VCLT ); Article 15, 1978 Vienna Convention on the Succession of States in Respect of Treaties, 23 August 1978, 1946 U.N.T.S 3( VCST ). 2 Article 6, VCST. 3 Article 2(4), Charter of the United Nations, 24 October 1945, 1 U.N.T.S XVI. 4 Waguih Elie George Siag and Clorinda Vecchi v. The Arab Republic of Egypt, ICSID Case No. ARB/05/15,paras 148-153. 5 Nottebohm Case (Liechtenstein v. Guatemala); Second Phase, International Court of Justice (ICJ) (6 April 1955) Pg.22.
3.3. While there is no jurisprudence constante, there is sufficient support in case law for the MFN provision not to apply to dispute resolution mechanism and particularly in the absence of a broad phrase such as all matters. 4. While the pursuance of dispute resolution of matters pertaining to investment in domestic courts is optional, the 24-month period is a mandatory pre-condition to invoke arbitration. 5. Application of the MFN clause to over-ride the 24-month litigation requirement would be in complete violation of the specific consent of the State parties. C. CLAIMANT HAS NOT MADE A VALID INVESTMENT 6. Requisite ratione materiae is absent even if the Claimant is permitted to invoke the Dispute Resolution clause of the Eastasia BIT by way of the MFN provision: 6.1. Art. 8 of the Eastasia BIT is related to Disputes concerning investments under its treaty and therefore the Claimant must comply with the definition of investment under Article 1(1) of the said BIT. 6.2. The Claimant has failed to comply with the legality clause under Article 1(1) of the Eastasia BIT as there has been violation of Oceania s domestic laws while making the investment. 7. Arguendo, even if there is requisite ratione materiae, the claim is inadmissible. 7.1. The doctrine of Clean Hands is implied in Article 1(1) of the Euroasia BIT. Moreover, it is also a general principle of International Law 6 and a matter of international public policy. 7 7.2. Claimant s conduct clearly indicates a case of unclean hands pertaining to his investment. 7.3. Consequently, Claimant cannot have a right under the treaty pursuant to the principle of Nemo auditur propriam turpitudinem allegans. Hence, the claim should not be admitted. 8. The burden of proof is on the Claimant: 6 Hesham Talaat M. Al-Warraq v. Republic of Indonesia, UNCITRAL, Award (December 15, 2014) 646. 7 World Duty Free Company Limited v. The Republic of Kenya, ICSID Case No. ARB/00/7 (4 October 2006) para 157.
8.1. The meeting with the President, as well as the receipt of the license without complying with the requirements of the Environment Act, 1996, points to a prima facie case of corruption. 8.2. Once a prima facie case has been made, the burden shifts to the Claimant to prove that there has been no corruption. 9. Arguendo, if the burden of proof is on the State, circumstantial evidence is sufficient standard of proof. 8 The circumstances surrounding the grant of the license in clear violation of the Environment Act, 1996 tilts the balance of probabilities in favour of a finding of corruption. II. MERITS AND LIABILITY D. THE EXECUTIVE ORDER OF THE REPUBLIC OF OCEANIA IS IN PROTECTION OF ITS ESSENTIAL SECURITY INTEREST 10. The Republic of Oceania has an erga omnes obligation to protect and maintain international peace and security. 9 11. The Executive Order issued by the President of Oceania in May 2014 is only in pursuance of its obligations for the maintenance of International Peace and Security and to protect the State s essential security interest. This is a valid measure under Art. 10 of the Euroasia BIT. 12. The secession of Fairyland from Eastasia posed an unusual and extra-ordinary threat to National and International Security and is in violation of international law. 13. Economic sanctions are one of the most benign forms to ensure maintenance of international peace and security and are not contrary to international law. 14. Moreover such sanctions are not precluded by the UN Charter but are to be considered as measures independent of resolutions under the UN Security Council. 15. The Executive Order is also a valid countermeasure as under Art. 49 of ARSIWA 10 : 15.1. It is in response to the illegal annexation of Fairyland by Euroasia and is to encourage and ensure that Euroasia restores Fairyland to status quo ante. 15.2. A Countermeasure by third state is not contrary to international law. 8 Metal Tech Ltd. v. Republic of Uzbekistan, ICSID Case No. ARB/10/3 Amard (4 October 2013) para 303. 9 Barcelona Traction (Belgium v Spain) (Second Phase)[1970] ICJ Rep 3[33]. 10 Articles on Responsibility of States for Internationally Wrongful Acts.
E. REPUBLIC OF OCEANIA HAS NOT EXPROPRIATED THE CLAIMANT S INVESTMENT 16. The Respondent s executive order does not amount to a measure that has the effect tantamount to expropriation. 16.1. It is meant for a legitimate public purpose and in pursuance of its obligations to maintain its essential security interest. 16.2. The Respondent has a margin of appreciation in determining public purpose. 16.3. The duration of the executive order is not permanent. 16.4. The effect of the measure does not amount to substantial deprivation as per the Pope & Talbot test. 16.5. The measure was taken in a non-discriminatory and non-arbitrary manner to ensure that Euroasia and its supporters do not benefit from an internationally wrongful act. F. CLAIMANT IS A MAJOR CONTRIBUTOR TO ANY DAMAGES INCURRED 17. The Claimant is himself responsible for any damages suffered by his investment: 17.1. It is a recognised principle that secession is contrary to international law and against the principle of territorial integrity. 17.2. The Claimant has had ample opportunity to realise the potential risk to his investments by way of Euroasia s continuous unlawful action with respect to the territory of Fairyland. 17.3. The pursuit of an arms contract with Euroasia despite the widespread condemnation of its action by the international community was an act of complete negligence on the part of the investor. 17.4. The Claimant was well aware of the possibility of an armed invasion by Euroasia by virtue of the fact that the Euroasian parliaments debates were public knowledge and aired on National Television. 17.5. The doctrine of contributory fault precludes any claim of full compensation for any damages suffered. 11 11 G Arangio-Ruiz, Second Report on State Responsibility (1989) A/CN,4/425
III. REMEDIES SKELETON BRIEF FOR THE RESPONDENT G. DAMAGES 18. The respondent requests the tribunal to: 18.1. To find that the tribunal lacks jurisdiction. 18.2. Declare that the claims are inadmissible. 18.3. Find that there has been no violation of its obligations under the BIT. 18.4. Dismiss the investor s claim for compensation.