GERMAN INSTITUTION OF ARBITRATION UNDER THE UNCITRAL ARBITRATION RULES ADMINISTERED BY THE DIS

Transcription

1 Team code: ALFARO GERMAN INSTITUTION OF ARBITRATION UNDER THE UNCITRAL ARBITRATION RULES ADMINISTERED BY THE DIS CONTIFICA ASSET MANAGEMENT CORP. Claimant v. REPUBLIC OF RURITANIA Respondent SKELETON BRIEF ON BEHALF OF THE CLAIMANT 16 AUGUST 2013

2 ISSUE 1: Whether the tribunal has jurisdiction over the claims submitted by Contifica Asset Management Corporation ( CAM or Claimant ) and whether those claims are admissible in light of the facts surrounding acquisition of the shares in Freecity Breweries Inc. ( FBI ) by CAM? 1. THE TRIBUNAL HAS JURISDICTION OVER CLAIMS SUBMITTED BY CAM UNDER ARTICLES 2, 3, 4 AND 6 OF THE BILATERAL INVESTMENT TREATY ( BIT ) AND THE CLAIMS ARE ADMISSIBLE IN LIGHT OF THE FACTS SURROUNDING ACQUISITION OF THE SHARES IN FBI BY CAM. 1.1 CAM is an investor as per the definition under the BIT CAM is a legal entity duly established under the laws of Cronos Purchase of shares through the Share Purchase Agreement ( SPA ) constitutes a valid investment under the BIT The share acquisition was done in good faith and in accordance with the SPA The timing and manner of acquisition of shares does not constitute an abuse of process. 1.2 The Tribunal is vested with the jurisdiction through Article 8(1) ( ratione materie ) and Article 6(2) of the BIT Article 6(2) binds the Republic of Ruritania ( Respondent ) to fulfill all obligations entered into with an investor CAM has the right to claim damages for breach of assurance under the SPA A breach of a contract can simultaneously and independently give rise to a breach of the substantive obligations in the BIT. 2

3 Issue 2:Whether the Tribunal has jurisdiction over CAM s claims based on the breach of the SPA by the State Property Fund of Ruritania ( SPFR ) and whether those claims are admissible? 2. THE CLAIMS BASED ON BREACH OF THE SPA ARE ADMISSIBLE. 2.1 The SPFR is a State entity The decision for privatisation of FBI was taken by the Respondent The SPFR was established by the Respondent The management and control of the SPFR vest with the Respondent. 2.2 The acts of SPFR are attributable to the Respondent as per the principles of Customary International Law The SPFR was exercising governmental authority when entering into the SPA Arguendo, SPFR was acting on the instructions of the Respondent. Issue 3: Whether the Respondent violated any obligations under BIT or International Law towards CAM by adopting restrictive measures for the regulation of marketing and sale of alcohol and imposing further requirements for marketing and sale of FREEBREW beer? 3. THE RESPONDENT HAS VIOLATED ITS OBLIGATION UNDER THE BIT BY ADOPTING VARIOUS MEASURES. 3.1 The Respondent has violated Article 2 of the BIT The Standard of Fair and Equitable Treatment ( FET ) is a higher one than that of the Minimum standard of Protection under International law The following components of the FET have been violated by the Respondents: a. Legitimate Expectations of the Claimant. b. Due Process and Freedom from Procedural Impropriety from administrative and regulatory authorities. 3

4 c. Arbitrariness and Proportionality. d. Lack of Good Faith. 3.2 The Respondent has violated Article 3 of the BIT The provisions pertaining to the Most Favoured Nation principle and the National Treatment principle have been violated by the Respondent The Respondent s actions have impaired the Claimant s investments. 3.3 The Respondent has violated Article 4 of the BIT CAM made a legitimate investment in the State of Ruritania The investment falls within the definition of Investment as per BIT The Respondent s measures amount to expropriation since they have a cumulative effect of depriving the investor of substantial benefits from the investment. Issue 4: Whether moral damages may in principle be awarded by the tribunal to Claimant for the arrest of Messers Goodfellow and Straw, which the Respondents accept constitute a breach of its obligation to provide full protection and security? 4. THE ILLEGAL DETENTION OF MESSERS GOODFELLOW AND STRAW CONSTITUTES AN INTERNATIONALLY WRONGFUL ACT BY THE STATE AND HENCE MORAL DAMAGES SHOULD BE AWARDED. 4.1 This Tribunal can award moral damages to the Claimant. 4.2 The actions of the State and the Police constitute an internationally wrongful act. 4.3 The Respondent is responsible for the wrongful acts and is liable to pay moral damages to the Claimants under rules of customary international law. 4

5 Issue 5: Whether the loss of sales by CAM s subsidiaries located outside of Ruritania to FBI constitutes a recoverable item of damages? 5. LOSS OF SALES BY CAM S SUBSIDIARIES LOCATED OUTSIDE OF RURITANIA CONSTITUTES A RECOVERABLE ITEM OF DAMAGE. 5.1 CAM has a locus standi to claim damages for loss incurred by the subsidiaries CAM as a parent company can claim damages caused to its subsidiaries CAM as majority shareholder in all its subsidiaries can claim damages on behalf those subsidiaries. 5.2 The material supplied by the subsidiaries is covered within the definition of investment in the BIT. 5