Memorial for the Respondent

TEAM CODE: T39

IN THE PERMANENT COURT OF ARBITRATION

UNDER THE PERMANENT COURT OF ARBITRATION RULES 2012

PCA CASE NO. NO 2017-71

Between

MENALCORP TRANMA LIMITED

(Claimant)

and

THE MILLENNIAL REPUBLIC OF TRANMA

(Respondent)

MEMORIAL FOR RESPONDENT

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 Memorial for the Respondent

TABLE OF CONTENTS
IN THE PERMANENT COURT OF ARBITRATION ....................................................... I
INDEX OF AUTHORITIES ................................................................................................ IV
STATEMENT OF FACTS ...................................................................................................... 1
PART ONE: JURISDICTION AND ADMISSIBILITY ...................................................... 3
Issue 1: Claimant’s claims are brought through an abuse of process consisting in the vesting of
these claims in a “Claimant of convenience”...................................................................................... 3
A. Treaty shopping in the present case is mala fide and amounts to abuse of process. ............... 3
i. Soabi v. Senegal is relevant to the present case. ................................................................. 5
B. The Timing of Transfer of Shares associated with Menalcorp Nambia Shows that Claimant
and Menalcorp Melein foresaw the dispute. ................................................................................... 6
Issue 2: Claimant’s Alleged Investments Does Not Fulfil the Inherent Characteristics of an
Investment 7
A. Commitment of an economic value ........................................................................................ 8
B. The alleged investment lacks any sort of Risk. ....................................................................... 9
C. DURATION; The investment is Ephemeral and lacks duration criteria ................................ 9
Issue 3: CLAIMANT DID NOT MAKE A PROTECTED INVESTMENT IN ACCORDANCE
WITH LAWS AND REGULATIONS OF HOST STATE .............................................................. 10
A. Claimant has failed to comply with the legality clause under Article 1 of the BIT and thus
violated the BIT ............................................................................................................................ 10
B. The evidence of corruption is sufficient................................................................................ 11
C. Respondent did not participate in the corruption .................................................................. 12
Issue 4: THIS TRIBUNAL SHOULD NOT ENTERTAIN CLAIMS IN RELATION TO THE
BREACHES OF THE ESA. ............................................................................................................. 13
A. ESA is only an ordinary sales contract holds purely commercial claims ............................. 13
B. ESA’S SPECIFIC FORUM SELECTION CLAUSE BARS THIS TRIBUNAL FROM
HEARING CLAIMS IN RELATION TO THE ESA ................................................................... 14
PART TWO: MERITS......................................................................................................................14
Issue 5: THAT THE RESPONDENT HAS NOT EXPROPRIATED CLAIMANT’S
ALLEGED PROPERTY EITHER DIRECTLY OR INDIRECTLY. .............................................. 14
A. ACTION OF THE RESPONDENT DOES NOT CONSTITUTE DIRECT
EXPROPRIATION ....................................................................................................................... 15
B. ACTION OF RESPONDENT DOES NOT CONSTITUTE INDIRECT EXPROPRIATION.
15
i. Claimant has not suffered any severe impact on its investment through the action of the
Nambian Government. .............................................................................................................. 15
a) There was no substantial deprivation of the claimant’s investment. ............................. 16
b) Claimant has not lost control over its investment. ........................................................ 16
c) Duration of the respondent’s action is not permanent................................................... 17

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 Memorial for the Respondent

ii. Claimant had no distinct, reasonable investment-backed expectation that respondent has
interfered with. .......................................................................................................................... 17
a) Claimant has failed to consider due risk associated with investment. .......................... 18
iii. Enactment of PCCE is proportional in nature. .................................................................. 18
Issue 6: ACTION OF THE RESPONDENT IS A NON-COMPENSABLE REGULATORY
MEASURE FOR WHICH NO COMPENSATION IS REQUIRED. .............................................. 18
A. ACTION IS FOR PURPOSE WHICH IS IN THE PUBLIC INTEREST. ........................... 19
B. ACTION IS NOT DISCRIMINATORY. ............................................................................. 19
C. ACTION WAS CARRIED OUT IN ACCORDANCE WITH DUE PROCESS OF LAW. 19
D. RESPONDENT IS NOT LIABLE TO PAY COMPENSATION. ....................................... 20
Issue 7: RESPONDENT TREATED CLAIMANT IN A FAIR AND EQUITABLE MANNER
21
A. Claimant could not have any legitimate expectations: .......................................................... 21
B. Expectation that legislation will be frozen for eternity is Unreasonable. ............................. 22
C. Respondent acted in good faith: ............................................................................................ 23
D. The BIT’s FET provision is Self-Judging: ............................................................................ 24
E. Respondent is exempt from any liability pursuant to Art. 8 of the BIT. ............................... 24
PRAYER FOR RELIEF........................................................................................................ 26

III
 Memorial for the Respondent

INDEX OF AUTHORITIES

CASES AND ARBITRAL AWARDS

Abbreviation Full Citation

ADC ADC v Hungary, (Award) [2006] ICSID Case No.

ARB/03/16

Anderson v Costa Rica, (Award) [2010] ICSID Case No.

Anderson
ARB(AF)/07/3

BG Group v Argentina, (Award) [2007] UNCITRAL

BG Group

BIVAC BIVAC B.V. v Paraguay, (Decision of the tribunal on

objections to Jurisdiction) [2009] ICSID Case No.

ARB/07/9

Caratube v Kazakhstan, (Award) [2012] ICSID Case No.

Caratube
ARB/08/12

CMS v Argentina, (Award) [2003] ICSID Case No.

CMS
ARB/01/08

Continental Continental v Argentina, (Award) [2005] ICSID Case No.

ARB/03/9

Crystallex Crystallex v Venezuela, (Award) [2016] ICSID Case

IV
 Memorial for the Respondent

No.ARB(AF)/11/2

Duke Duke Energy v Ecuador, (Award) [2008] ICSID Case No.

ARB/04/19

Feldman v Mexico, (Award) [2002] ICSID Case No. ARB

Feldman
(AF)/99/1

The Gabcikovo-Nagymaros Project (Judgement) (Hungary

Gabcikovo
V Slovakia) [1928] PCIJ

Garcia Serafín García v Venezuela, (DOJ) [2014] UNCITRAL,

CPA No. 2013-3

Generation Ukraine v Ukraine, (Award) [2003] ICSID Case

Generation Ukraine
No. ARB/00/9

Gustav Gustav v Ghana, (Award) [2010] ICSID Case No.

ARB/07/24

Hulley v Russia (Final Award) [2014] PCA Case No. AA

Hulley
226

Incesya Inceysa v El Salvador, (Award) [2006] ICSID Case No.

ARB/03/26

Invesmart v Czech Republic, (Award) [2009] UNCITRAL

Invesmart

Joy Mining v Egypt, (Award on Jurisdiction) [2004] ICSID

Joy

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 Memorial for the Respondent

Case No. ARB/03/11

Kim Vladislav Kim v Uzbekistan, (DOJ) [2017] ICSID Case No.

ARB/13/6

KT Asia KT Asia Investment Group B.V. v Kazakhstan, (Award)

[2013] ICSID Case No. ARB/09/8

Lemire Joseph Charles Lemire v Ukraine, (DOJ) [2010] ICSID

CASE NO. ARB/06/18

LG&E v Argentina, (Decision on Liability) [2006] ICSID

LG&E
Case No. ARB/02/1

Metalclad Corporation v United Mexican States, (Award)

Metalclad
[2000] ICSID Case No. ARB (AF)/97/1

Metalpar v Argentina, (Award on the Merits) [2008] ICSID

Metalpar
CASE NO. ARB/03/5

MetalTech Ltd v Uzbekistan, (Award) [2013] ICSID Case

MetalTech
No. ARB/10/3

MHS MHS v Malaysia, (Decision on the Application for

Annulment) [2009] ICSID Case No. ARB/05/10

Mobil Mobil investments v Canada, (Award) [2015] ICSID Case

No. ARB(AF)/07/4

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 Memorial for the Respondent

MTD Equity MTD v Chile, (Award) [2004] ICSID Case No. ARB/01/7

Occidental petroleum v Ecuador, (DOJ) [2008] ICSID Case

Occidental
No. ARB/06/11

Occidental petroleum v Ecuador, (Decision on Annulment

Occidental I
of Award) [2015] ICSID Case No. ARB/06/11

Pac Rim v El Salvador, (Decision on the Respondent's

Pac Rim I
Jurisdictional Objections) [2012] ICSID Case No.

ARB/09/12

Parkerings Parkerings v Lithuania, (Award) [2007] ICSID Case No.

ARB/05/8

Paushkok v Mongolia, (Award on Jurisdiction & Liability)

Paushkok
[2011] UNCITRAL

Phillips v Iran, (Partial Award No. 425-39-2) [1989] 21

Philips
IRAN-US CTR 79

Phoenix v Czech Republic, (Award) [2009] ICSID Case No.

Phoenix
ARB/06/5

Plama Plama v Bulgaria, (Award) [2008] ICSID Case No.

ARB/03/24

Pope & Talbot Pope v Canada, (Interim Award) [2000] UNICTRAL

VII
 Memorial for the Respondent

Quiborax I Quiborax v Bolivia, (Award) [2015] ICSID Case No.

ARB/06/2

Quiborax v. Bolivia, (Decision on Jurisdiction) [2015]

Quiborax II
ICSID Case No. ARB/06/2

Romak v Uzbekistan, (Award) [2009] PCA Case No. AA280

Romak

Saba Fakes Mr. Saba Fakes v Turkey, (Award) [2010] ICSID Case No.

ARB/07/20

Salini v Morocco, (Decision on Jurisdiction) [2001] ICSID

Salini
Case No. ARB/00/4

Saluka Saluka v Czech Republic, (Partial Award) [2006]

UNICTRAL

SGS v Paraguay, (Decision on Jurisdiction) [2010] ICSID

SGS
Case No. ARB/07/29

Siag v. Egypt, (Award) [2009] ICSID Case No. ARB/05/15

Siag

Southern Pacific Limited v Egypt, (Award) [1992] ICSID

Southern Pacific
Case No. ARB/84/3

Standard Chartered Bank v Tanzania, (Award) [2012]

Standard
ICSID Case No. ARB/10/12

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 Memorial for the Respondent

Tecmed Tecmed v Mexico, (Award) [2003] ICSID Case No. ARB

(AF)/00/2

Thunderbird Thunderbird v Mexico, (Separate Opinion by Thomas

Walde ) [2005] UNCITRAL

Tidewater v. Venezuela, (Award) [2015] ICSID Case No

Tidewater
ARB/10/5

Toto v Lebanon, (DOJ) [2009] ICSID Case No. ARB/07/12

Toto

Veteran Petroleum Limited v Russia, (Award) [2014] PCA

Veteran
Case No. AA 228, UNCITRAL

Veteran Petroleum v Russia, (Interim Award on Jurisdiction

Veteran
and Admissibility) [2009] PCA Case No. AA 228

Waste Management Waste Management v Mexico, (Award) [2004] ICSID Case

No. ARB(AF)/00/3

Yukos v. Russia, (Final-Award) [2014] PCA Case No. AA

Yukos
227, UNCITRAL

SOABI v. Senegal, (Decision on Jurisdiction) [1984] ICSID

SOABI
Reports 182/3

BOOKS AND JOURNALS

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 Memorial for the Respondent

ABBREVIATION CITATION

Fatouros A A Fatouros, Government Guarantees to Foreign Investors,

(Columbia University Press, 1962)

Voss Jan Ole Voss, The Impact of Investment Treaties on Contracts

between Host States and Foreign Investors (Brill, Nijhoff 2011)

McLachlan et al Campbell McLachlan et al, International Investment Arbitration:

Substantive Principles (1st edn, Oxford University Press, 2008)

Newcome/Paradell Andrew Newcombe and Lluis Paradell, Law and Practice of

Investment Treaties: Standards of Treatment, (Kluwer Law

International, 2009)

Tudor Ioana Tudor, The Fair and Equitable Treatment Standard in the

International Law of Foreign Investment, (Oxford: Oxford

University Press, 2008).

Yannaca-Small Katia Yannaca-Small, Arbitration Under International Investment

Agreements: A Guide to Key Issues, (Oxford University Press, 2010)

Ursula Kriebaum, International Investment Law for the 21st Century:

Kriebaum Essays in Honour of Christoph Schreuer

Michael Waibel Michael Waibel, “Opening Pandora’s Box: Sovereign Bonds in

International Arbitration”, (2007)101 Am J Int’l L, 711

Wisner Robert Wisner & Nick Gallus, “Nationality Requirements in

Investor-State Arbitration”, (2004) 5 J. OF WORLD INVESTMENT

AND TRADE 927

Dumberry Dumberry P, “Compensation for Moral Damages in Investor-State

Arbitration Disputes”, (2010) Journal of International Arbitration, 27

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 Memorial for the Respondent

Nikièma Nikièma S H, “Best Practices: Indirect Expropriation, Best

Practices Series, (2012) International Institute for Sustainable

Development”

Andrew Newcombe, The Boundaries of Regulatory Expropriation in

Newcombe
International Law, (2005) 20:1 ICSID Review – FILJ

TREATIES & CONVENTIONS

Abbreviation Full Citation

ILC Articles International Law Commission, Articles on State Responsibility

for Internationally Wrongful Acts (including official

Commentary), Yearbook of the International Law Commission

2001, Vol. II (Part 2)

VCLT Vienna Convention on the Law of Treaties 23 May 1969 1155

U.N.T.S. 331

UNCAC United Nations Convention against Corruption, 55/61 of 4

December 2000.

ARSIWA Articles on responsibility of States for Internationally wrongful

Acts.2001

UNCTAD UNCTAD, Expropriation: UNCTAD Series on Issues in

International Investment Agreements II, 2012

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 Memorial for the Respondent

UNCTAD I UNCTAD Series on Issues in International Investment

Agreements, State Contracts (2004)

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 Memorial for the Respondent

STATEMENT OF FACTS

PARTIES

1. Menalcorp Tranma Limited (“Claimant”), an entity incorporated in Republic of

Tranma.

2. Menalcorp Nambia, a subsidiary of claimant, is an entity constituted under Nambia

for the production of solar powered renewable energy.

3. Menalcorp Melein, parent company of the claimant.

4. The Respondent is the Milennial Republic of Nambia.

TRANSACTION SUMMARY

5. On 19th December 2013, the government of Nambia adopted a new initiative – Great

expectations project (GEP) for supply of renewable energy for heartland. The goal of

the GEP was to attract investment in particular foreign investment by offering

premiums to qualified renewable energy companies. Notwithstanding the

underdeveloped legal and political system prevalent at that time. The chose

government went ahead with the project. On 3rd march Ministry of energy for the

province of heartland published a call for tenders for construction of a solar power

plant on Jenny’s Vineyard. The Menalcorp Melein, parent company of claimant, was

declared winner of the tender.

6. As Nambian law required that only a company registered in Nambia can enter into a

concession agreement, MenalCorp Nambia Limited (“MenalCorp Nambia”) was

incorporated under Nambian Law, with MenalCorp as its sole shareholder.

7. 21 June 2015- Menalcorp Nambia signed the EPA with the Ministry of energy for the

province of heartland , for Renewable Energy Supply (“ESA”), granting MenalCorp

Nambia the right to build and operate a solar power plant in Jenny’s Vineyard.

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 Memorial for the Respondent

8. On 21 June 2015, the Ministry and MenalCorp Nambia concluded a 15-year

Agreement for Renewable Energy Supply. Section 5 of the agreement stated payment

of annual premiums based on benchmarks established in GEP.

9. 20 May 2016- As part of Nationality Planning, Menalcorp Melein transferred all its

shares in Menalcorp Nambia to the Claimant.

10. In December 2016, Parliamentary elections took place in Nambia. One of the

principal issues in that political campaign was public backlash against controversial

decisions of the Federal Green Party, including the implementation of a hefty carbon

tax . Public was also agitated about sudden loss of employment due to GEP.

11. On 11 December 2016, OMG and his Fed-Up Party won a shocking victory by

gaining the most votes in the federal elections. Although Fed-Up had been gaining in

the polls before election day.

RESPONDENT MEASURES ON GEP

12. On 24th December 2016, Fed up party setup a special committee to study the pros and

cons of coal-fired energy compared to other forms of renewable energy, taking into

account various policy considerations, including economic development,

employment, and energy security.

13. Subsequent to the 2017 report of the special committee, the parliament duly passed

PCCE act According to Article 2 of the act, the great expectation project was

terminated. The Republic of Nambia sought to renegotiate the terms of the ESA

however no mutually satisfactory settlement was reached.

14. MenalCorp Tranma has repeatedly attempted to resolve this dispute amicably with

Nambia, but to no avail. Accordingly, by this Notice of Arbitration, MenalCorp

Tranma demands that the Parties’ dispute be referred to arbitration under the PCA

Rules.

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 Memorial for the Respondent

PART ONE: JURISDICTION AND ADMISSIBILITY

1) Wholly aside from the absence of any expropriation here (a subject addressed in the

‘merits’ section below), Respondent objects to the jurisdiction of this tribunal.

Claimants claims are brought through an abuse of process consisting in the vesting of

these claims in a “Claimant of convenience”, with the sole purpose of obtaining

jurisdiction through an impermissible transfer of asset.

2) Although this first objection is sufficient to put an end to the entire proceedings,

respondent respectfully submits that three additional points in same direction

3) Its second objection demonstrates that claimant’s alleged investments do not fulfill

the inherent characteristics of an Investment.

4) The third objection relates to the violation of local laws of the Host state in the

making of alleged investment.

Issue 1: CLAIMANT’S CLAIMS ARE BROUGHT THROUGH AN ABUSE OF PROCESS

CONSISTING IN THE VESTING OF THESE CLAIMS IN A “CLAIMANT OF CONVENIENCE”

5) Menalcorp Melein abused the arbitral and treaty process by deliberately transferring

Mnealcorp Nambia shares in a so called “restructuring”. Its sole purpose was to

permit Menalcorp Melein to invoke the BIT to seek redress for their corporate and

business failures. Respondent will show that (A) Treaty shopping in the present case

is malafide and amounts to abuse of process. (B) The timing of transfer of shares

associated with Mnealcorp Nambia shows that Claimant and its parent company

Foresaw the dispute.

A. Treaty shopping in the present case is mala fide and amounts to abuse of

process.

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 Memorial for the Respondent

6) Where legal process is used to accomplish an unlawful purpose, such behaviour can

be described as an ‘abuse of process’. Investments that are made with the sole goal of

gaining access to international jurisdiction are not bona fide investments and, thus,

they are not covered by the investment protection systems or BIT’s. 1In the case at

hand, Claimant sought protection under BIT solely in order to escape reasonable and

anticipated policy changes by the new Government2.The policy changes were based

on public policy and were in fact a produce of agitated public against huge loss of

jobs3. The coal fired plants were swiftly meeting the demands of 20 millions of

Nambian4 and huge work population of the Nambia was dependent upon coal-fired

plants for to meet their ends as it is the principal carrier of energy to 20 Million

Nambians5. But the sudden and unneeded introduction of automated renewable

energy6 posed a sudden job loss challenge to the Republic of Nambia7.

7) Respondent respectfully draws this Tribunal’s attention to the “uncontroversial

principle of international law” and “more general principle of international

investment law” that when a legal title is split between a nominee and a beneficial

owner, claimants are not permitted to submit claims “held (be it as nominees, agents

or otherwise) on behalf of third parties not protected by the relevant treaty” 8.

8) Both arbitral case law9and doctrine10 verify this fundamental proposition. This ruling

was also followed in Quiborax and Caratube cases11, while the KT Asia Tribunal

1
Nikiema ;16.
2
Facts [23].
3
Facts [30].
4
Facts [4].
5
Facts [3].
6
Facts [36].
7
Facts [29].
8
Occidental [259-262].
9
Siag [87-90];
10
Whiteman ; 1261;
11
Quiborax [232-233] ; Caratube [434-435].

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 Memorial for the Respondent

declined jurisdiction mainly based on the fact that the contribution was made by the

claimant’s beneficial owner, rather than claimant itself12.

9) In the case at hand which also almost carries similar situation as in Quiborax and

Caratube cases, the uncontested facts indicates that Claimant was incorporated as a

wholly owned subsidiary of Meleincorp Melein and that shares of Claimant are

ultimately controlled by Meleincorp Melein13 .It is thus evident that the ownership

title of the shares, the ESA and any relevant “overall investment operation” in Nambia

was thus divided between a nominee, i.e. Claimant, who held the legal title on behalf

of the beneficial owner, i.e. Meleincorp Melein. It was the latter who bore the costs,

profits, risks and rewards of ownership, and who controlled Claimant as its “puppet

master” via indirect 100% shareholding.

i. Soabi v. Senegal is relevant to the present case.

10) SOABI v. Senegal which is an identical twin of the present case where, a company

incorporated in Senegal, was controlled by a Panamanian company, Flexa, turn was

controlled by Belgian nationals. In this case, it was critical for SOABI to convince the

Tribunal to go beyond the first level of control since Panama was not a Contracting

State, whereas Belgium was (and is) a Contracting State. The Senegalese Government

disputed jurisdiction arguing that Panama was not a Contracting State, hence, the

nationality requirements of Article 25 were not met.

11) The Tribunal stated that the Convention was not only concerned with direct control

over a locally incorporated company. The Tribunal referred to the purpose of Article

25(2)(b) of the Convention in facilitating foreign investments through locally

incorporated companies while still retaining their standing before ICSID. In that

12
KT Asia [192- 206].
13
Facts [25]

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 Memorial for the Respondent

spirit, the Tribunal went beyond the direct control exercised by the Panamanian

company and found that SOABI was, in fact, controlled by Belgian nationals14.

12) As can be seen Soabi v Senegal, being a twin of present case, the counsel sees no

reason why the kind tribunal should deflect from the reasoning laid down in Soabi

case and end up doing the evil task of separating two twins brothers or sisters (As the

case may be).

13) This takes us to an inescapable conclusion that behind a gingerly planned façade of

restructuring of shares of Menalcorp Nambia, Menalcorp Melein is misusing

international law to foist on respondent the consequences of its own business failures.

B. The Timing of Transfer of Shares associated with Menalcorp Nambia Shows

that Claimant and Menalcorp Melein foresaw the dispute.

14) The tribunal in Pac Rim rule that the dividing lines occurs when the party can see a

dispute or can foresee a specific future dispute as a very high probability and not

merely as a possible controversy. The explicit manipulation of the system by seeking

to vest ‘a claim in a claimant of convenience’ after a dispute arose or became

reasonable foreseeable. This is the breach of fundamental principles of good faith,

which seeks to avoid a misuse or abuse of law15.

15) On 3rd March 2015, Ministry of energy for the province of Heartland (“Ministry”)

published a call for tenders for construction of a solar plant in Jenny’s Vineyard.

Menalcorp Melein, a company incorporated in Melein, was declared winner of the

tender16.

14
SOABI.
15
Dolzer & Schreuer 54; Pac rim 1 [2.44]; Mobil [169].
16
Facts [15].

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 Memorial for the Respondent

16) In 2016, elections took place in The Republic of Nambia. One of the principal

concern in that election campaign was public apprehension of sudden loss of jobs; a

genuine issue that in no way was galvanised or manipulated by the respondent17.

17) Predictably, when this concern began to fasten on the public’s consciousness,

Menalcorp Melein began to scour the legal landscape for ways to protect itself from

the consequences of reasonable regulations over the production of renewable energy

that were, even at the time of transfer of shares, a highly predictable result if and

when the new party secured political power18.

18) As a result, and in a blatant illustration of what has come to be known as “treaty

shopping”, Menalcorp Melein directed the transfer of all shares of Menalcorp Nambia

to Claimant.

19) From the above facts it is clear that claimant and Menalcorp Melein restructured its

investments at a time when a dispute was highly foreseeable.

Issue 2: CLAIMANT’S ALLEGED INVESTMENTS DOES NOT FULFIL THE INHERENT

CHARACTERISTICS OF AN INVESTMENT

20) In deciding whether an asset is protected under the BIT, recourse should be taken at

the ordinary meaning of the term “investment”, as mandated by the international

customary rules of treaty interpretation reflected in Art.31 VCLT. In this respect,

arbitral jurisprudence , following Romak Tribunal’s lead and looking beyond the mere

labelling of assets, has identified certain objective characteristics that form part of the

inherent meaning of the word “investment”19 commitment of capital, duration,

17
Facts [30].
18
Facts [23,25].
19
Romak [207]; Nova Scotia [76-78];

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 Memorial for the Respondent

regularity of profit and return , and investment risk20. These elements are cumulative

and failure to meet one of them would lead to refusing the BIT’s protection21.

21) Respondent is conscious that claimant may be tempted to import extraneous criteria to

the definition of investment of the BIT, as a last resort to push for the coverage of the

alleged investment thereunder. Therefore, Respondent will demonstrate that

claimant’s overall investment does not satisfy these element; i.e. The commitment of

an economic value (A), The duration (B) and the assumption of Risk (C)22

A. Commitment of an economic value

22) One of the first elements to be taken into consideration by many tribunals to

determine the standard of application and interpretation of the treaty is the preamble,

as it is a statement in which contracting parties outline their objectives in signing the

BIT23 In the present BIT, the preamble is clear in stating that

"Recognizing that agreement on the treatment to be accorded such

investment will stimulate the flow of private capital and the
economic development of the Parties"

Clearly, one of the purpose of this Bilateral Treaty is the stimulation of the capital

flow providing economic development of the states.

23) In Lemire v Ukraine case, the tribunal interpreting the preamble provision to promote

economic development states that

"economic development is an objective which should benefit all, primarily national

citizens and national companies, and secondarily foreign investors. Thus, the object

20
Saba Fakes [110]; Joy [53]; Caratube [360].
21
Saba Fakes [101]; KT Asia [206].
22
Saba Fakes [110]; KT Asia [173];
23
Occidental []; CMS []

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 Memorial for the Respondent

and purpose of the treaty is not to protect foreign investments per se, but as an aid to

the development of the domestic economy" 24.

24) In the present case the claimant does not fulfils the economic development criteria as

such can be imported from the facts that not only there is a lurking fear of huge loss of

jobs to common public25 but also as the report of the committee set up to review

automated renewable energy stated that early shift to renewable energy may hamper

the growth of coal fired plants which has created millions of jobs in Nambia. Not to

forget that the committee took into consideration the opinions of public as well26.

25) The counsel very much opines with the views laid down in Lemire as the case dealt

with almost same set of facts and therefore request the tribunal to Apply the same

definition of an “investment” to the present case and reject the claimant claim in this

regard.

B. The alleged investment lacks any sort of Risk.

26) Concerning the existence of risk, the Nova Scotia tribunal outlined that the risk

inherent in an investment is materially different from a pure commercial risk27, a view

which is shared among arbitral tribunals28. The KT Asia tribunal associated it with the

commitment of capital, finding that the relevant investor “having made no

contribution, incurred no risk of losing such contribution”.29 The same applies with

regard to Claimant’s Award: Claimant runs no risk whatsoever as it is a mere puppet

having no real investment of itself.

C. DURATION; The investment is Ephemeral and lacks duration criteria

24
Lemire [273].
25
Facts [30]
26
Facts [36].
27
Nova Scotia [105].
28
Romak [229] ; Joy [57].
29
KT Asia [219].

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 Memorial for the Respondent

27) Schreyer & Rubins opined that the investor’s commitment to the investment must be

evidenced by a certain length of time. Indeed, Investment cannot be ‘ephemeral’ if

they are so protected.30

28) Case law and scholars have established that the required duration is of at least two

years. The saline tribunal, for instance, verified that “the transaction, therefore,

compiles with the minimal length of time upheld by the doctrine, which is from two to

five years31.

29) In the case at bar, Claimant acquired Menalcorp Nambia shares on assets on 18th May,

201632. The fact that the alleged expropriation of Claimant’s Investment, as the

Claimant contends, occurred on 4th December 2017, only one and a half year after

Claimant’s purported Investment. On that basis alone, the two-year requirement

remains unfulfilled, and therefore no protected investment has taken place here.

Issue 3: CLAIMANT DID NOT MAKE A PROTECTED INVESTMENT IN

ACCORDANCE WITH LAWS AND REGULATIONS OF HOST STATE

30) The respondent submits that; Claimant has failed to comply with the legality clause

under Article 1 of the BIT and thus violated clean hands doctrine [A] and has also

violated Nambian laws in particular section 112 of the Nambian criminal code, which

forms part of investment making process. This is undoubtedly proven by the facts of

the case (B). The Respondent did not participate in the corruption (C). Therefore, this

tribunal lacks jurisdiction as corruption places investment outside the protection of the

BIT.

A. Claimant has failed to comply with the legality clause under Article 1 of the

BIT and thus violated the BIT

30
Schreuer [140]; Rubins [309].
31
Salini [54].
32
Facts [27].

10
 Memorial for the Respondent

31) It is submitted that provision ‘in accordance with law’33 must be read in line with

meaning of investment as stated in Article 1 of the BIT. Tribunal in Salini case held

that ‘in accordance with the law34’ provision has as the primary objective “to prevent

the Bilateral treaty from protecting investments that should not be protected35

particularly because they would be illegal36.

B. The evidence of corruption is sufficient.

32) The problem of evidence in the corruption cases and its treatment in investment

arbitration is highly controversial. The doctrine and case law provide two possible

approaches regarding evidence standards for corruption allegations raised in the

investment arbitration proceedings. According to the first approach the evidentiary

value should be very high37. The second approach takes into account the specifity of

situations, where corrupt acts occur. Scholars and practitioners, who follow this

approach admit circumstantial evidence as sufficient38. The tribunal in Metal-tech39

held that, circumstantial evidence is sufficient standard of proof to establish

corruption.

33) Respondent invites the tribunal to follow the latter approach due to the fact that the

meeting between the claimant’s parent company with the then minister of energy of

Nambia was private, it is very likely that it resulted in no documentation or protocol40.

Also, the subsequent and inescapable fact that newspapers reported about large

33
Incesya [96].
34
Salini [62].
35
Guyana [182].
36
Saba Fakes [112-118].
37
World Duty [130-136]; EDF [248-252]
38
Metal [243].
39
Metal [243].
40
Facts [12].

11
 Memorial for the Respondent

donation made by claimant post the meeting substantiate the charges of corruption as

alleged by the respondent41.

34) The corruption allegations are further supported by the imposition of hefty carbon tax

by then government on the coal fired plants42; principal energy suppliers to Nambian

population, such discriminatory exercise of public power must be seen as a deliberate

act for providing illegal and discriminatory access to the claimant to Nambian energy

market.

35) The above stated facts clearly generate sufficient chain of events so as to be

designated as circumstantial evidence.

36) Therefore, the tribunal should find that circumstantial evidence in this case is more

than sufficient to find that corruption occurred in breach of Nambian laws.

C. Respondent did not participate in the corruption

37) The then Minister of Energy’s corrupt conduct is not attributable to respondent given

its illegal character and the private interest involved43.The Minister used his public

power to unlawfully secure the ESA to Claimant and to get a personal economic gain

in return; Respondent did not participate in the illegality in any manner.

38) Moreover, as stated in the ILC- Articles’ commentary, the corrupt official’s conduct is

not attributable to the state if the party who invokes the state liability had so

participated in the corrupt conduct.44 Given that the claimant clearly participated in

the corruption, the then Minister of energy’s conduct would not be attributable to the

respondent.

41
Facts [12].
42
Facts [21].
43
Llamzon ; 259.
44
Crawford ;146.

12
 Memorial for the Respondent

39) To conclude, As the Claimant have breached local laws, the fishy shareholding in

Menalcorp Nambia Ltd cannot be qualified as an investment under Art 1 of the BIT,

and, hence, it does not fall within the scope of the BIT. Therefore, the tribunal should

find that it has no jurisdiction upon this dispute.

Issue 4: THIS TRIBUNAL SHOULD NOT ENTERTAIN CLAIMS IN

RELATION TO THE BREACHES OF THE ESA.

40) This Tribunal should not examine claims over breaches of the ESA because it is only

an ordinary sales contract and holds purely commercial claims (A). In any case, the

ESA’s specific forum selection clause bars this Tribunal from hearing claims in

relation to the ESA (B).

A. ESA is only an ordinary sales contract holds purely commercial claims

41) Generally, a sales contract is not an investment45. Distinction must be drawn between

ordinary sales contracts, even the complex ones, and an investment contract46.

Otherwise, any one-off sales contract would qualify as an investment.47

42) The Nova Scotia tribunal illustrated that the coal supply contract is a mere sales

contract, as it is left with an arrangement that is essentially still a sale and purchase of

coal – even if it was more complicated in genesis and composition.48

43) In parallel, no matter how complex the ESA gets, it only obliged Claimant to supply

renewable energy and remains a mere sale and purchase agreement. The ESA’s form

and substance do not give rise to any investment by Claimant.

45
MHS [69-72];
46
Joy Mining [58].
47
Id [56-57].
48
Nova Scotia [113].

13
 Memorial for the Respondent

B. ESA’S SPECIFIC FORUM SELECTION CLAUSE BARS THIS TRIBUNAL

FROM HEARING CLAIMS IN RELATION TO THE ESA

44) Tribunals have refused to hear disputes where the parties have already agreed on a

specific forum to resolve contractual disputes49.Thus, even if this Tribunal finds

jurisdiction over claims in relation to the ESA, this Tribunal should not hear such

claims because the ESA contains a specific forum selection clause.

45) If a contract contains a specific forum selection clause, such forum has the exclusive

jurisdiction to resolve all disputes arising from the contract 50.In particular, when a

claim is essentially based upon a contractual breach; tribunals must respect the

contractual parties’ selected forum in the contract51.

46) Respondent and Claimant's parent company consented to settle disputes in relation to

the ESA to its specific forum selection clause. Despite that, Claimant now requests

this Tribunal to hear a claim that is essentially based upon the ESA’s breach.

47) Thus, even if this Tribunal finds that it has jurisdiction, it is barred from exercising

jurisdiction because of the specific forum selection clause within the ESA.

PART TWO: MERITS

Issue 5: THAT THE RESPONDENT HAS NOT EXPROPRIATED

CLAIMANT’S ALLEGED PROPERTY EITHER DIRECTLY OR
INDIRECTLY.

48) A party to the BIT regulates through a modification to its laws does not amount to

breach of an obligation under this BIT.52 In order for a right to be expropriated, it

49
BIVAC [292].
50
BIVAC [154].
51
BIVAC [149].
52
Article 8 BIT.

14
 Memorial for the Respondent

must first exist under the relevant domestic law.53 As already proved, Claimant’s

investments are illegal as being inflicted by corrupt practices and violative of

Nambian law. Claimant with unclean hands cannot demand any rights capable of

being expropriated. Alternatively, Respondent submits that it has not expropriated the

claimant’s alleged property either directly (A) or indirectly (B).

A. ACTION OF THE RESPONDENT DOES NOT CONSTITUTE DIRECT

EXPROPRIATION

49) Direct expropriation occurs when “there is an open, deliberate and unequivocal intent,

as reflected in a formal law or decree or physical act, to deprive the owner of his or

her property through the transfer of title or outright seizure.” 54 In the case at hand,

respondent contends that there is no deprivation of claimant’s property.

B. ACTION OF RESPONDENT DOES NOT CONSTITUTE INDIRECT

EXPROPRIATION.

50) Indirect expropriation has not occurred in the case at hand because Firstly, there is no

severe economic impact on the claimant’s investment (i), Secondly, respondent has

not interfered with the reasonable backed expectation of the claimant (ii) and Thirdly,

enactment of PCCE and termination of ESA were proportional (iii).

i. Claimant has not suffered any severe impact on its investment through the

action of the Nambian Government.

51) Respondent is not liable for causing any severe impact on its investment because

claimant has not substantially deprived of its investment (a), claimant has retain the

control over its investment (b), and government’s action is not of permanent nature

(c).
53
Quiborax [135].
54
UNCTAD, 6.

15
 Memorial for the Respondent

a) There was no substantial deprivation of the

claimant’s investment.

52) Standard of indirect expropriation under international law implies a substantial effect

on the property rights of an investor.55 Mere interference is not expropriation rather a

significant degree of deprivation is required.56 Premiums being a part of the GEP will

be given to the investors either for offsetting the investment cost or for compensating

the difference between the operating cost and revenue obtained in case if operating

cost is higher than the market price.57 Therefore, premiums are not definitive. It will

be given to the investors when they will incur losses. Claimant has not suffered any

loss rather income was stable.58 Hence, even if premiums would have crucial for

claimant’s business operations, they are not enough to have the claimant substantially

deprived from its investment.

53) Action of respondent did not involve cessation of operations, takeover of control of

the shares or management of MenalCorp Nambia. Instead enacting of PCCE act was

passed for the benefit of the 20 Million Nambians. Further, although action might

have affected the profitability, substantial derivation would not occur if claimant is

not deprived of all its property and assets.59 Thus, claimant has not substantially

deprived of its investment.

b) Claimant has not lost control over its investment.

54) “Interference directly in the operation of the business” is an essential factor to deprive

the claimant from controlling the business.60 Claimant has full autonomy over its

business affairs. Claimant is free to generate electricity and renegotiate terms with the

55
Charenne [461]; CMS [262]-[264].
56
Pope& Talbot [88].
57
Facts [9].
58
Facts [19].
59
Charenne [462].
60
Feldman v. Mexico Para [142].

16
 Memorial for the Respondent

Ministry of Justice provided a proposal is proposed.61 Respondent submits that the

claimant cannot demand control over the investment when the investments has been

made through corrupt and malign ways.

c) Duration of the respondent’s action is not

permanent.

55) Expropriation would occur if the impact of the have a destructive and long-lasting

effect on the economic value of the investments and its benefit to the investor.62 A

measure that leads to a temporary diminution in value or loss of control would

normally not be viewed as expropriatory.63 In the present case, the action has been

taken for the time being64 with the view of achieving legitimate public welfare

objectives. Hence, the measure of the government is not permanent in nature.

ii. Claimant had no distinct, reasonable investment-backed

expectation that respondent has interfered with.

56) An investor must consider the vicissitudes of the economy of the state that is host to

the investments.65 Thus, it is unreasonable to expect laws never to change;

expectations and reliance are a matter of degree. 66 Respondent had just exercised its

regulatory power in the public interest pursuant to Article 8 of the BIT. Therefore,

claimant would have expected these policy changes while investing in Nambia.

57) The obligations of the host State towards foreign investors derive from the terms of

the applicable investment treaty and not from any set of expectations investors may

61
Facts [44].
62
UNCTAD, 63.
63
UNCTAD, 69.
64
Facts 36.
65
Generation Ukraine [20.37].
66
Newcombe, 33.

17
 Memorial for the Respondent

have or claim to have. 67 Respondent is not liable for any other set of expectations that

claimant would have anticipated.

a) Claimant has failed to consider due risk associated with investment.

58) General risk which includes political risk of doing a business in host country

encompasses the country risk premium68. It is not the function of international law of

expropriation to eliminate normal commercial risks of foreign investors.69

Materialization of these risks does not necessarily mean that property rights in

premiums deemed to have been taken by the respondent.

iii. Enactment of PCCE is proportional in nature.

59) Tribunal in Tecmed v. Mexican held that there must be a reasonable relationship of

proportionality between the means employed and the aim sought to be realised. 70

Respondent argues that its action was in the public interest to achieve a legitimate aim

which is to safeguard the employment crisis that was created with the increased

competition in energy sector. Enacting of PCCE was the bona fide way to achieve the

purpose.

Issue 6: ACTION OF THE RESPONDENT IS A NON-COMPENSABLE

REGULATORY MEASURE FOR WHICH NO COMPENSATION IS
REQUIRED.

60) Respondent vigorously asserts that it has not violated Article 10 of the BIT. Even if

such measure is found to have been taken then it is non-compensable because

measure met all the condition specified below.

67
MTD Equity, Para [67].
68
Tidewater [186].
69
Waste Management [159].
70
Tecmed [122].

18
 Memorial for the Respondent

A. ACTION IS FOR PURPOSE WHICH IS IN THE PUBLIC INTEREST.

61) In customary International Law, deprivation of property is justified when it is due to a

state action regulating public affairs.71 Action taken by the government is in the

utmost interest of the public because sovereign state is the best authority to decide for

itself what is useful or necessary for the public good.72

62) A presumption exists that any state action is generally within the scope of police

powers.73 In the present case also, action taken by the respondent come under police

power.

63) Stability of the income and job are the genuine interests of the public. Hence,

respondent’s action was for protecting legitimate public purpose.

B. ACTION IS NOT DISCRIMINATORY.

64) Respondent argues that advisory opinion of the Supreme Court of Nambia and

termination of GEP applies against all persons and business entities and therefore

cannot be said to be discriminatory against the Claimants.

65) Further, an expropriation that targets a foreign investor is not discriminatory per se.

The expropriation must be based on, linked to or taken for reasons of, the investor’s

nationality.74 In the present case, respondent’s action is not based on the nationality of

the investor. Hence the action is not discriminatory.

C. ACTION WAS CARRIED OUT IN ACCORDANCE WITH DUE PROCESS

OF LAW.

71
Saluka [254],.
72
UNCTAD, 32.
73
Feldman [103].
74
UNCTAD, 34.

19
 Memorial for the Respondent

66) The due-process principle requires (a) that the expropriation comply with procedures

established in domestic legislation and fundamental internationally recognized rules

in this regard and (b) that the affected investor have an opportunity to have the case

reviewed before an independent and impartial body, and (c) that the expropriation

process must be free from arbitrariness.75

67) Some basic legal mechanisms, such as reasonable advance notice, a fair hearing and

an unbiased and impartial adjudicator to assess the actions in dispute, are basic

requirements for making legal procedure meaningful.76 Respondent has complied with

all the above requirements and hence the act by the respondent had been carried out in

accordance with due process of law.

D. RESPONDENT IS NOT LIABLE TO PAY COMPENSATION.

68) It is a part of International Customary law that host states are not entitled to pay

compensation to foreign investor if they adopt non-discriminatory, bona fide

regulation in the normal exercise of their regulatory powers.77 Thus, uncompensated

taking in exercise of State police powers are not wrongful78 and government's liability

to compensate for expropriation does not depend on proof that the expropriation was

intentional.79 Hence, the respondent had not breached any provision of BIT as the

action was a non-compensable regulatory one.

69) In Arguendo, even if the tribunal finds that the act of the respondent infringes with the

right of the investor to have its investment respected then analysis of state of necessity

defence is required by the tribunal.80 BIT does not rule out the possibility of invoking

the defence of the State of necessity. Respondent would be entitled to take the defence
75
UNCTAD, 36.
76
ADC [435].
77
Saluka, [255]-[262].
78
Article 10(5) of 1961 Harvard Draft.
79
Philips [115].
80
MetalPar [213].

20
 Memorial for the Respondent

of necessity under Article 25 of the ILC that would, in any event, render its action

entirely lawful and will absolve Nambia from the ensuing responsibilities to pay

damages.81 Thus, respondent would not be liable for its act against the claimant.

Issue 7: RESPONDENT TREATED CLAIMANT IN A FAIR AND EQUITABLE

MANNER

70) The Respondent did not breached Article 9 of the BIT as it provided Claimant with

FET. Though FET is an “absolute”, “non-contingent” standard of treatment82 but the

FET standards in the instant case would be deciphered based on the exceptions

granted under Article 8(2) of the BIT.

71) The Respondent will show that while there arose no legitimate expectations for

Claimant (A). The BIT Does Not Protect Claimant’s Hopes for a Frozen Legal

Framework (B). Tribunal should also entertain the fact that BIT’s FET definition is

self-judging subject to Art. 8 of BIT and every Expectation needs to be balanced with

State’s right to regulate.

A. Claimant could not have any legitimate expectations:

72) The FET is a fact-specific standard. It turns on the specific circumstances of the case

and on the interpretation of the BIT that governs the case83.while claimant is trying to

establish that it has not been treated as it wished to, Respondent submits that one

should not lose sight of the then prevalent circumstances in Nambia that render any

allegations for mistreatment unmeritorious. Faced with an unemployment epidemic,

respondent undertook the necessary measures in order to secure public order by

enacting law for termination of GEP.

81
Continental [161].
82
Fatuoros [135-141].
83
KLEIN, p.621.

21
 Memorial for the Respondent

73) Respondent never assured Claimant that it would not modify its legal framework,

especially in the face of a serious public concern about job loss and deliberate

dismantling of principal source of energy to Nambia. Respondent is then required take

measures – if not, such epidemic could spiral into national crisis.

74) The State representations that were obtained by fraud, bribery and coercion don’t give

rise legitimate expectation. The ICSID tribunal in Inceysa case concluded that :

“The investment was made in a manner that was clearly illegal, which is not
included within the scope of the consent of the parties to BIT and, consequently,
the disputes arising from it are not subject to the jurisdiction of the center.”84

75) The parties agreed that BIT will be applicable only if the investments have been made

in accordance with local laws.85 If the investment has been made in contravention

with local laws, it shall lead to dismissal of claims.86 As proved supra with sufficient

evidence that the claimant corrupt act in order to get illegal access to Nambian market

must be dismantled to dust. In this vein Claimant being a criminal enterprise must not

be allowed to gain anything by using the sacrosanct BIT as shield to protect his evil

acts.

B. Expectation that legislation will be frozen for eternity is Unreasonable.

76) It is requested that Tribunal must peruse whether the investor considered the political

and socio-economic situation in the host state while investing.87 For instance, in

Parkerings case, the tribunal noted that investor could not legitimately expect

84
Inceysa [257].
85
BIT Art 1.
86
MetalTech [372].
87
Duke [340].

22
 Memorial for the Respondent

legislation to remain unchanged.88 The same approach was applied in Paushok v.

Mongolia.89

77) Expectations are not “unconditional and everlasting90. It is unreasonable for investor

to expect that legal framework would remain unchanged in future, particularly in light

of circumstances where in host state lacked fully developed system for foreign

investment.91

78) It is submitted that the reliance of investor can’t be reasonable as Coal is the principal

source of energy for Nambia with millions of Nambian population dependent on it for

their daily survival. 92

C. Respondent acted in good faith:

79) An action to be defined as bad faith must be outcome of “conscious combination of

various agencies of government without justification to defeat the purposes of an

investment agreement”93. Since the state action affects both the domestic and foreign

actors equally, there was no violation of the FET standard.94

80) The aim of PCCE ACT was saving jobs of populace working in Coal mining sector.

As a result, Respondent did not violate its obligation to accord Claimant’s investment

FET.

81) The Respondent submits that the Act enacted, was to be applied to all investors, both

domestic and foreign. The claimant has failed to put forth any unflinching evidence

suggesting that the impugned act was oriented to harm “solely” the claimant.

88
Parkerings [335].
89
Paushok [302] [305].
90
Thunderbird [30].
91
Facts [8].
92
Facts [4].
93
Waste Management [138].
94
Mclachlan [245].

23
 Memorial for the Respondent

Consequently, actions were taken in good faith and did not constitute a violation of

FET standard.

D. The BIT’s FET provision is Self-Judging:

82) The Treaty is the first source (lex specialis) the Tribunal shall refer to as the claims

and defenses submitted by the Parties in this proceeding derive from the BIT. 95 The

BIT provides for an autonomous standard, which contains its own concepts of

“necessity” or “essential security interests.” Only if there has been a breach of a treaty

obligation and the treaty exception contained in article 8(2) does not save that breach,

then and only then can the adjudicator analyze whether under customary law (Article

25 of the ILC Articles) can the host State be exempt of international responsibility.

83) Therefore, it should not be read merely as a reflection of customary defense of

necessity. To the contrary, it constitutes a separate, self-sufficient treaty-based

defense that may be invoked in situations of emergency.

E. Respondent is exempt from any liability pursuant to Art. 8 of the BIT.

84) The Respondent is not liable for any losses incurred by the Claimant as a result of

Nambia’s scrapping of GEP. Nambia and Tramna have decided to depart from

customary necessity as a defense and introduce a separate and self-sufficient defense

into their BIT which would allow them to refrain from fulfilling their obligations in

exceptional circumstances. They executed it by enacting Art. 8 of the BIT.

85) While legitimate expectations can be created by contractual commitments, the breach

of a contract does not automatically amount to a breach of legitimate expectations. As

specified by Schreuer, "not every legitimate expectation under a contract may be

95
LG&E [206].

24
 Memorial for the Respondent

similarly legitimate under an investment treaty."96 In addition, he contends, "a simple

breach of contract is part of normal business risk and does not violate the FET

standard."97

86) Since it was a legitimate action of a government undertaken in the state of necessity,98

Claimant cannot pursue compensation for the losses it incurred. As a result,

respondent is exempt from liability for the alleged breach of the FET standard

pursuant to Art. 8 of the BIT.

87) This conclusion is supported by a logical explanation – had it been the intention of the

parties to adopt customary international defense of necessity (assuming that it had

existed before its codification into the ILC Draft), there was no need to introduce Art.

8 to BIT or, in any event, deviate from the prerequisites which were later laid down in

Art. 25 of the ILC Draft.

96
Voss [207].
97
Waibel 751.
98
Facts [30].

25
 Memorial for the Respondent

PRAYER FOR RELIEF

The Respondent respectfully requests this Tribunal to find that:

1. Tribunal does not have jurisdiction over claims raised by the claimant.

2. The Claimant has been denied the benefits of the BIT because it does not

have substantial business activities in Tranma and it is owned and controlled

by nationals of a third state.

3. The Respondent has not violated its obligations under the standards of FET

and not acted in a discriminatory manner as against the Claimant in passing

PCCE Act.

4. The Respondent has not violated any of its obligation under Article 8 and 10

of the BIT.

5. The Tribunal may pass any such order as it may think fit.

Word Count: 7980

26