CLAIMANTS

I. THE TRIBUNAL HAS JURISDICTION RATIONAE PERSONAE AND

RATIONAE MATERIA OVER THE PRESENT MATTER

The Ticadia-Kronos BIT is the lex specialis 1 governing the relationship between the
parties to the dispute. Accordingly, it delimits the scope of the (A) Tribunal’s
jurisdiction to claims brought forward by persons who are investors under the
Ticadia-Kronos BIT, and (B) claims arising out of investments under the Ticadia-
Kronos BIT.

(A) Done by Hola

(B) Claims arising out of investments under the Ticadia-Kronos BIT. (RATIONAE
MATERIA)

1. The tribunal must exercise its jurisdiction over the submission of claim because
under the Article 1.1 of the Ticadia-Kronos BIT the same can be defined as
investment, as activities Claimant has conducted in Respondent's territory result
from a contract entered into with Respondent and whose performance required that
Claimant constituted property in Respondent's territory.

2. The term “investment” as defined under Article 1.1 of the treaty would mean;
a) “an enterprise;
b) a share, stock or other form of equity participation in an enterprise
c) a loan made to an enterprise………whose territory the financial institution
is located,
d) an interest in an enterprise that entitles the owner thereof to a share in the
income or profits of the enterprise;
e) an interest in an enterprise that entitles the owner thereof to a share in the
assets of that enterprise upon dissolution;”

3. The term “covered investment” as defined under article 1 to mean, “with respect to
a Contracting Party, an investment: (i) in its territory; (ii) by an investor of the
other Contracting Party; (iii) existing on the date of entry into force of this
Agreement, as well as an investment made or acquired thereafter; and 1090 (iv)
that has been admitted in accordance with the hosting Contracting Party’s laws
and regulations.”

1
Serafín García Armas and Karina García Gruber v. The Bolivarian Republic of Venezuela,
UNCITRAL, Decision on Jurisdiction, (15 December 2014).
4. Also the Article 1.1, which must be interpreted in a manner consistent with Article
31(1) of the VCLT2 . Article 31(1) of the VCLT requires that the terms of a treaty
be given their ordinary meaning in light of its object and purpose.

5. In the present case a plain reading of the Article 1.1 of the Ticadia-Kronos BIT with
the facts of the present case would establish the fact that contact for exploitation of
Lindoro by Fenoscadia Limited (Claimants) is infact a covered investment under the
terms of the Ticadia-Kronos BIT. The Claimants exploitation of Lindoro was indeed
an enterprise, which was wholly owned by the claimants, whose profits or income
went to the claimants, therefore all the conditions mentioned by article 1.1 are met.

6. Additionally, the same is an investment under the Ticadia-Kronos BIT, which can
be proved by using the widely accepted Salini test 3 evolved by ICSID in the case of
Salini Costruttori SpA and Italstrade SpA v. Morocco 4 , the case of Fedax N. 1. v.
The Republic of Venezuela5 laid down elements that would eventually become a
four-part test. That test was finally formulated in 2001 by the case of Salini et al v.
Morocco, which is currently the leading case on the subject. which defines an
investment as having four elements:

a. A contribution of money or assets,

b. a certain duration,
c. an element of risk and,
d. a contribution to the economic development of the host state.

7. In this particular case, going over the uncontested facts of the case 6, it is clear that
there was a. a contribution of money or assets, as the concession agreement,
required the claimants to bring forth there own expertise (equipment, staff and
machinery), hence their was a contribution of money and assets the claimants.
Claimants also directly employed 200 people overall, all of them Respondent’s
citizens, which can also constitute a contribution of money.

2
Methanex Corporation v. United States of America, UNCITRAL, Final Award, (3 Aug. 2005);
Wintershall Aktiengesellschaft v. Argentine Republic, ICSID Case No. ARB/04/14, Award, (8
December 2008)
3
Salini Costruttori SpA and Italstrade SpA v. Morocco (ICSID Case No ARB/00/4, Decision on
Jurisdiction of 23 July 2001), Fedax N. 1. v. The Republic of Venezuela ICSID Case No. ARB/96/3,
Decision of the Tribunal on Objections tojurisdiction, 1381 16 (Jul. 11, 1997), 37 I.L.M. 1380
(1998), Saba Fakes v. Republic of Turk., ICSID Case No. ARB/07/20, Award, T 110 (Jul. 14, 2010);
Victor Pey Casado and President Allende Found. v. Republic of Chile, ICSID Case No. ARB/98/2,
Award, 232 (May 8, 2008); LESI S.p.A. et Astaldi S.p.A. v. People's Democratic Repubhc of Alge.,
ICSID Case No. ARB/05/3, Decision on Jurisdiction, 1 72 (Jul. 12, 2006) (Available in French).
4
Ibid
5
Fedax N. 1. v. The Republic of Venezuela ICSID Case No. ARB/96/3, Decision of the Tribunal on
Objections tojurisdiction, 1381 16 (Jul. 11, 1997), 37 I.L.M. 1380
6
para 8 &9 Pg 33 of the Moot Proposition
8. A duration of 80 years was fixed by the agreement and hence the second prong of
the test has also been satisfied

9. An element of risk was there in this transaction as, all the responsibility of sale,
exploitation of the resource was on the claimant’s and they would be liable to pay
the state of Kronos 22% of monthly gross revenue, irrespective of the loss or profit
borne by the Claimant.

10. There indeed was a contribution to the economic development of the host state as
the claimants under the term of agreement gave 22% of the monthly gross revenue
to the state. There also was employment of various citizens of the state of Kronos,
which can constitute a contribution to the economic development.

11. Hence the conditions laid by the Salini test are satisfied, therefore it can be held as
Investment under the same.