THE ARBITRATION INSTITUTE OF THE STOCKHOLM CHAMBER OF COMMERCE UNDER THE SCC RULES
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1 THE ARBITRATION INSTITUTE OF THE STOCKHOLM CHAMBER OF COMMERCE UNDER THE SCC RULES CALRISSIAN & CO., INC. CLAIMANT V. FEDERAL REPUBLIC OF DAGOBAH RESPONDENT SKELETON BRIEF ON BEHALF OF THE CLAIMANT 8 TH AUGUST 2014
2 ARGUMENTS ON JURISDICTION AND ADMISSIBILITY I. THE TRIBUNAL IS VESTED WITH JURISDICTION OVER THE CLAIMS SUBMITTED BY THE CLAIMANT. A. The jurisdiction emanates from the governing law of the sovereign bonds, i.e., the BIT. 1. The parties have consented to submit the present dispute to arbitration as under Article 8 of the BIT, and the Claimant exerted earnest efforts to settle the same amicably before filing for arbitration (rationae voluntatis). 2. The Claimant is an investor under the BIT and the bonds indeed possess a territorial link (rationae personae). 3. The subject matters of the claims are within the scope of the BIT, i.e., Article 1, which enunciates the definition of an investment (rationae materiae). 4. The BIT was in force when the dispute arose (rationae temporis). B. International investment arbitration, opinio juris and financial circles lend sovereign bonds a character of investment under International Investment Agreements ( IIAs ). 1. Reference to the travaux preparatoires methods of treaty interpretation brings to stark relief the fact that the immediate historical context leading the World Bank to contemplate the establishment of ICSID evidences that the new Center was intended to deal with investment dispute settlement such as the Suez Canal Compensation and City of Tokyo Bonds cases. 2. Adoption of the five element test by Schreuer satisfies the constitution of an investment under Article 25 of the ICSID Convention. 3. Findings of the UNCTAD, several landmark case laws, and contemporary jargon, use broad asset based definitions of investment covering every kind of asset owned and controlled by an investor. C. Sovereign bonds possess a territorial link with the host state as has also been ascertained in contemporary investment arbitration. 1. The question whether it is necessary that a purchase of a security entitlement on the secondary market must qualify as an investment was answered in the negative by tribunals, in both Fedax and ČSOB. Page 2
3 2. Although a solitary purchase of a bond on the secondary market can be viewed as a purely commercial transaction, it may be argued that already at the issuance of bonds, underwriters expect to list the bonds on stock exchanges and on the secondary market and the price of borrowing already reflects the existence of the secondary market as held in Abaclat. II. THE PCA ARBITRAL TRIBUNAL S DECISION ON THE JURISDICTION OF THIS TRIBUNAL IS FINAL AND BINDING. A. The jurisdiction and validity of the tribunal s final award emanating from the criteria mentioned in the BIT renders it undisputed. 1. The Sovereign Debt Restructuring ( SDR ) of 2001 led to the espousal by both states parties in agreement on the disputed issue of interpretation of the term investment pursuant to which the PCA Arbitral Tribunal under the force of UNCITRAL Rules and Article 7 of the BIT, issued a final and binding award deciding in favour of validating the Claimant s position as an investor. 2. The applicability of the UNCITRAL Arbitration Rules as per Article 32(2) also renders the award final and binding; the validity of which, is unremitting through the past and the future. B. The weightage of the dissenting opinion in arbitration. 1. Dissenting opinions do not adversely affect the validity of the arbitration process or the arbitral award. Since it has no binding value, it cannot conflict the jurisdiction upheld by the tribunal, as also observed by Albert Jan van den Berg. III. THE TRIBUNAL IS VESTED WITH AUTHORITY TO RULE ON THE BIT CLAIMS NOTWITHSTANDING THE BONDS FSC. A. The tribunal s jurisdiction supersedes the FSC under the ambit of Article 2 of the BIT or the umbrella clause. 1. The breach of a contract gives rise to international responsibility of the host state if at the same time it violates a treaty applicable between an investor and a host state. By virtue of the presence of an umbrella clause, a contractual breach hence transforms into a breach of the BIT. Page 3
4 2. The umbrella clause or the pacta sund servanda requires observance of all investment obligations assumed between the two contracting states and any investors involved. Any other interpretation of the umbrella clause effectively eviscerates it and renders the same useless and contrary to the principle of effet utile. 3. The broad definition of the umbrella clause conforms to the object and purpose of the BIT in consonance with Article 31 of the Vienna Convention on the Law of Treaties. B. Enforceability of the umbrella clause in the realm of investment arbitral practice. 1. Several decisions made by the ICSID tribunal represent a growing trend of stark examples construing BIT provisions broadly to permit parties to assert their claims via arbitration to avoid potentially hostile local courts, such as the cases of SGS v. Paraguay, LG&E v. Argentine Republic and Aguas del Tunari S.A v. Republic of Bolivia. 2. Cases like Impregilo v. Argentina and Plama v. Bulgaria, not ruling out the Abaclat case, allow the Claimant to avoid a requirement of the FSC as per the tribunal s weighing of interests approach. C. The FSC is seen to not reconcile with principles of international law. 1. The FSC is a redacted version of the Calvo Clause because this precludes arbitration and requires disputes to be resolved in national courts, a sine qua non of which is that the investor is to exhaust judicial remedies in the host state beforehand. 2. Article 26 of the ICSID Convention also does away with the requirement to exhaust local remedies unless otherwise specified. Page 4
5 ARGUMENTS ON MERITS IV. THE RESPONDENT S ENACTMENT OF THE SOVEREIGN RESTRUCTURING ACT ( SRA ) AND THE SUBSEQUENT BOND EXCHANGE IS AN INFRACTION OF THE UMBRELLA CLAUSE OF THE BIT. A. The applicable standard of protection is that of FET and not Minimum Standard of Protection ( MST ) under international law. 1. An autonomous FET standard does not require serious acts of maladministration by the State. 2. Article 2(3) of the BIT is silent on reference to international law or customary international law and thus accords for following the FET standard and not the MST. B. The Respondent has breached its obligations due under Article 2 of the BIT flowing from the principles enshrined under FET. 1. The Respondent has dishonoured the legitimate financial expectations of the Claimant by the restructuring of the bonds on two consecutive occasions with estimated haircuts of 20% and 30%, signifying a calamitous loss. 2. The Respondent s actions leading up to the SDR of 2013, and the form and ceremony of the enforcement of the SRA, are in gross violation of due process norms disregarding good faith. C. Legislating the SRA and Collective Action Clauses ( CACs ) tantamount to expropriation by the Respondent State. 1. CACs are expropriatory in scope and application. 2. Greater comprehension for the same is provided by historical examples of critically undesirable SDRs, including the Argentine and the Greek cases, as well as the perspectives of Eurozone and G-7 member states. 3. The SRA assumes a garb of creeping expropriation and thus leads to a devaluation of the Claimant s investment. Page 5
6 D. The Respondent s actions are discriminatory and attract a breach of its obligations of National Treatment ( MFN ) under Article 2(3) of the BIT. 1. Article 2(3) of the BIT lends itself to a pari passu undertaking and as per this clause a creditor possesses the same legal ranking as all others when it comes to claims owed against the sovereign state. 2. The Respondent has brazenly violated the MFN clause as stipulated in the BIT. V. THE RESPONDENT S SDR IS DEVOID OF THE NATURE OF AN ESSENTIAL SECURITY MEASURE. A. The claim for essential security herein will not qualify under international law. 1. The customary international law defence does not remove the requirement to compensate investors for losses or damages incurred as a result of the state s actions during a crisis situation, as held by the tribunals in the cases of CMS, Enron and Sempra. 2. An alternative measure present indicates that the undertaken measure may not be necessary, in keeping with the ILC s Draft Articles 25 and The necessity defence is not applicable when the State has contributed to the situation of necessity. B. The government of a host nation cannot act in necessity for one interest while blatantly harming another of its essential interests. 1. Widespread use of CACs would limit the demand for emerging market bonds and lead to a prohibitive increase in borrowing costs, contributing to a lower credit rating for the State. 2. The IMF, and its framework on SDR, has failed nations and the times alike. Page 6
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