TEAM TARAZI

ARBITRATION PURSUANT TO THE INTERNATIONAL CENTER FOR SETTLEMENT OF

INVESTMENT DISPUTES (ICSID)

Delorean Technologies LLC

(Claimant)

Republic of Martineek
(Respondent)

SKELETON BRIEF FOR RESPONDENT

10th August 2023

Jurisdiction
The Tribunal lacks Jurisdiction as claimant does not have a valid investment under the BIT
(A) as the claimant does not have a valid investment under the BIT. Since the investments
were not made in accordance with the laws of Martineek (B).

A. This Tribunal lacks jurisdiction because claimant does not have a valid investment
under the Albion – Martineek BIT (the BIT)

1. Claimant’s investment does not meet the validity requirements for protection under the
BIT.
2. Article 1 of the BIT requires that an investment is owned or controlled in accordance with
the domestic laws of Martineek.
3. This is an admission criterion for the validity of any investment.1
4. Claimant does not meet these requirements of owning an investment in accordance with
domestic law.

B. Response to the claim of estoppel

1. Respondent is not estopped from denying the jurisdiction of this Tribunal. Claimant does
not satisfy all the requirements of Estoppel.
2. Estoppel requires proof of a clear and Unambiguous statement, made by a person with
the authority to make it that induces reliance.2
3. Respondent does not make any clear or unambiguous statement or demonstrate a clear
and unambiguous conduct to demonstrate to the claimant that the state has waived the
validity requirement.
4. Claimant cannot prove reliance because the conduct of the state did not cause them to
make the investment.
5. Therefore, Respondent is not estopped from denying the jurisdiction of this Tribunal.

1 Rabat Ali Rizvi v Indonesia Award on Jurisdiction, 64.

2 Duke Power Company v Peru, 249.

2
 I. MERITS

If the Tribunal disagrees that the Claimant’s investment is not valid, we will proceed on the
merits.

A. Expropriation

The Respondent submits that the challenged measures (a) do not amount to an
expropriation as they fall within the Article 6 defence, and (b) in any case, they are exempted
from liability for such expropriation under Article 8 of the BIT.

a. There is no expropriation as the Respondent exercised their police powers

contained in Article 6 read with Article 4(2)

An article 6 defence as read with Article 4(2) prevents measures taken under it from
violating a treaty obligation.

To succeed, Respondent must prove the elements in both article 6 (the specific rule) and
article 4(2) (the general rule).

i. The requirements of Article 6 were met

The respondent’s measure is necessary as it explored other less restricive means which
proved ineffective before turning to the sanctions. The three challenged measures were
taken to protect national security and to fulfil obligation on the maintenance of international
peace and security.

ii. The requirements of Article 4(2) were met

The respondent’s measure was non-discriminatory because although it treated differently

Albionese and non-Albionese companies, this was in calibration of the risk posed between
the two groups. The measures were reasonable, being grounded in the concern for and actual

3
use of FTPG technology in military conflict. The measures were proportionate as they were
suitable, necessary, and balanced between the interests of the investor and that of the state.

b. Alternatively, Respondent is exempt from liability under the Article 8 exception

clause

Article 8 is crafted similarly to other exception provisions.3 To succeed under the Article 8
defence, the Respondent must fit its measure under at least one of the paragraphs (a) to (c).
In addition, it must satisfy the elements in the introductory clause; lack arbitrary or
unjustifiable discrimination between investments or investors and be necessary.

1. Provisional justification under (a)-(c)

The respondent invokes paragraphs (b) and (c) on protection of human life and safety
respectively. This is in connection with the destruction, injury and death caused by FTPG
technologies in armed conflict.

2. Confirmation of justification under introductory clause

Other less restrictive alternatives have been explored and have failed making the sanctions
necessary. The discrimination between Albion and non-albionese companies is neither
arbitrary or unjustified based on the rational of the differentiation; the level of risk posed.

B. Date of valuation

1. The Respondent submits that the appropriate date of valuation ought to be the date of
the sale as of 24 December 2022.
2. Article 1 of the ILC Articles places responsibility of a State for its internationally wrongful
act. The corollary of this is that a state is obliged to pay damages for harm it has caused.4
This is the full repatriation principle codified in Article 31 of the ILC Articles.

3 GATT Article XX, Canada-Peru BIT Article 10, Singapore-Japan New Age Economic Partnership Article 83.
4 Factory at Chorzow.

4
3. To reflect the actual damage suffered by the Claimant and not merely the value of their
investment at the time of the expropriation, unlawful expropriation ought to be
determined ex-post that is at the date of the award.5 However, this method is seen as
equivalent to determining the value as of the expropriation date and factoring in loss of
profits until the date of the award.
4. However, an adequate causal link must exist between the harm and the wrongful act. The
question to be asked is whether the act was objectively capable of causing the harm.6 The
loss in value of the investment before the listing in the Sanction’s Law was attributable
to rumours not the state.
5. The FMV and loss of profits as of 30 December 2022 thus becomes the appropriate
valuation date. 24 December 2022 serves as a proxy for the relative value on 30
December 2022.

C. Costs

Article 13(7) provides that each party is to pay the cost of its own arbitrator and its
representative at the hearing. Further, it states that the President’s costs and other costs
shall be divided equally between the Contracting Parties.

5 Quiborax v Bolivia (2015).

6 Quiborax v Bolivia (2015).

5
 TEAM TARAZI

ARBITRATION PURSUANT TO THE INTERNATIONAL CENTER FOR SETTLEMENT OF

INVESTMENT DISPUTES (ICSID)

Delorean Technologies LLC

(Claimant)

Republic of Martineek
(Respondent)

REQUEST FOR COUNSEL RESIGNATION

Skeleton Brief for Respondent

10th August 2023

6
Counsel resignation

The ICSID Tribunal has the inherent power to hear and decide on the question of counsel
resignation(A). The Tribunal should be guided by Narnian Domestic Laws (B) and in doing
So, the Tribunal should grant Respondent’s counsel’s request to resign (C).

A. This Tribunal should allow counsel for respondent to resign from these
proceedings.

1. Jurisdiction of this Tribunal to hear this claim is provided for under Article 44 of the ICSID
Convention. This provision guides the Tribunal on questions of procedure not covered
by the ICSID Convention, ICSID Arbitration Rules or any other rules agreed on by the
parties.
2. This inherent power has been successfully invoked where a question of procedure is not
provided for in cases such as Rompetrol v Romania.

B. The Tribunal should be guided by the Narnian Bar rules in hearing this application
for counsel resignation.

1. specifically, counsel requiring the permission of the Tribunal is a question arising

specifically from the Narnian Bar Association Rules Rule 16.1 (c).
2. Because there exists no such requirement under international law, it is a creature of
domestic law and should therefore be decided based on domestic law.
3. We rely on the sentiments of the Tribunal in where the Tribunal stated that questions
that are a creature of domestic law should be decided based on domestic law.7

C. The Tribunal should grant Respondent’s counsel’s request to resign.

7 Cortec Mining v Kenya, 222.

7
1. Rule 16.1(b)(9) of Narnian Bar Associations rules provides for other good cause as a
ground for resignation.
2. Article 12(7) of our BIT provides for rules of interpreting domestic law. Domestic law
should be interpreted based on the prevailing interpretation given by Tribunals or
authorities in that territory.
3. The Council for the Narnian Bar association have interpreted rule 16.1 of the Narnian Bar
Association Rules. In paragraph 4 of their decision, the council elaborates that “any other
good cause” includes resigning in support of the rights of other advocates and condemn
violations of these rights in Martineek.
4. Respondent’s counsel should be allowed to resign in support of Miss Alia Azadi who is
under detention in the state of Martineek. She is being detained and is facing up to 5 years
in prison and is being denied access to a legal representative.
5. Allowing resignation of counsel does not prejudice the interests of Justice for the
claimant or respondent. This is because the harm is not severe. The counsel is resigning
for good cause, and the overall proceedings retain its integrity and fairness.8
6. Therefore, counsel for Respondent should be allowed to resign.

8 Churchill Mining v Indonesia.