Tarazi Claimant

TEAM TARAZI
INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES
ICSID Case No. ARB/22/99
Astracommex Regional Satellite Communication Inc.

(Claimant)
v.
The Republic of Celestria

(Respondent)
MEMORIAL FOR THE CLAIMANT

Memorial for the Claimant
LIST OF CONTENTS
List of Authorities ...................................................................................................................... v
List of Treaties, Conventions, and Rules ........................................................................ v
List of Cases ................................................................................................................... vii
List of Books ............................................................................................................... xxiv
List of Academic Articles and Publication(s)............................................................. xxvi
Statement of Facts ................................................................................................................xxvii
Summary of the Arguments .................................................................................................. xxxi
Arguments on procedural matters .............................................................................................. 1
I.THE TRIBUNAL HAS JURISDICTION RATIONE TEMPORIS OVER THE

DISPUTE .........................................................................................................................1
A. The Claimant seeks a mere Prospective Application of the BIT. ................................. 1
i. The composite breach materialized following the execution of the BIT .................... 1
ii. The Legal dispute between the parties crystallized following the execution of the
BIT. 2
B. The claimant asserts a retroactive interpretation of the treaty. ..................................... 4
i. The Original and natural interpretation of Article II of the BIT allows for a
retroactive application ................................................................................................. 5
ii. The Declaration dated 10 October 2022 is not applicable in the present case. ... 6
II.THE MARCIAL VENTURES LTD AND PLATONIAL INVESTMENTS ARE

NOT THE THIRD-PARTY FUNDERS AND THE TRIBUNAL SHOULD NOT
ORDER SECURITY FOR COSTS AGAINST THE CLAIMANT ............................... 7
A. The marcial ventures ltd and platonial investments are not the third-party funders ..... 8
i. Essentials of Third-Party Funder under Rule 14 has not Been met ........................... 8
ii. The respondent has not provided sufficient evidence to back its claim.................. 9
B. The tribunal should not order security for costs because there does not exist exceptional
circumstances in the present scenario. ............................................................................... 10
i. The claimant has the financial capacity to pay any adverse cost award .................... 11
ii
ii. The late payment of the advance cost was not due to the claimant’s unwillingness
or bad faith and claimant is willing to pay any adverse cost award ................................. 12
iii. In arguendo, mere existence of a third-party funding does not give rise to existence
of exceptional circumstances ......................................................................................... 13
Arguments on Substantial Matters ........................................................................................... 14
III.THE MEASURES UNDERTAKEN BY THE RESPONDENT ARE IN

VIOLATION OF ARTICLE 7 OF THE BIT. .............................................................. 14
A. The respondent’s measures amount to a creeping expropriation.......................... 15
i. There is a Substantial Deprivation of the value and benefits of the Claimant’s

investment..................................................................................................................... 16
ii. The measures have a permanent and adverse effect. ............................................ 19
B. THE REQUIREMENTS FOR LAWFUL EXPROPRIATION HAVE NOT

BEEN MET. ................................................................................................................ 19
i. The measures do not fulfill a public purpose. .......................................................... 20
a. The measures do not serve a public interest..................................................... 20
b. The Claimant’s operations did not harm the public interest. ............................ 20
ii. The measures were not in accordance with the due process. ............................... 22
iii. The measures were discriminatory. ...................................................................... 23
iv. There was no prompt, adequate and effective compensation. .............................. 25
C. The respondent’s measures are not justified under the applicable international law.
26
i. The Celestrian Space Agency’s measures are not a valid exercise of its Police Powers.
26
a. The CSA’s measures were not bona fide in nature. .......................................... 26
b. The CSA’s measures were disproportionate. .................................................... 27
ii. The National Frequency Agency’s approach does not align with the Precautionary
Principle. ....................................................................................................................... 27
iii. The National Security Concerns are baseless and exaggerated. ............................ 28
iii
a. The DoD order exceeded its jurisdiction. ........................................................ 29
b. The actions of the Claimant do not threaten Celestria’s national security interests.
29
c. Astracommex Satellites do not harm the environment ..................................... 30
IV.THE TRIBUNAL HAS THE POWER TO DRAW ADVERSE INFERENCES

FROM NON-COMPLIANCE WITH DOCUMENT PRODUCTION ..................... 30
A. The tribunal has the power to draw adverse inferences under rule 36(1) of the icsid
arbitration rules, 2022. ....................................................................................................... 31
B. Tribunal’s power to order Celestria to repeat the search ............................................ 32
C. The claimants have established the prima facie case; thus, the onus proponendi shifts to
the respondent. ................................................................................................................. 33
PRAYERS FOR RELIEF......................................................................................................... 35
iv
LIST OF AUTHORITIES
List of Treaties, Conventions, and Rules
Document Title Document Information
ARISWA International Law Commission, Draft Articles on Responsibility

of States for Internationally Wrongful Acts (2001)
IBA International Bar Association's rules on the Taking of Evidence

in International Arbitration 1999.
ICSID International Centre for Settlement of Investment Disputes

(ICSID) Convention on the Settlement of Investment Disputes
between States and Nationals of Other States signed on 18
March 1965, entered into force 14 October 1966
Joint Declaration Declaration concerning the Agreement on reciprocal promotion

and protection of investments between the Kingdom of
Nebuland and Republic of Celestria dated 10 Oct 2022
Nebuland-Celestria Agreement on Reciprocal promotion and Protection of

BIT Investments between The Kingdom of Nebuland and The
Republic of Celestria Signed on 1 February 2021
OECD OECD Draft Convention on the Protection of Foreign

Property 1967
Outer Space Treaty Treaty on Principles Governing the Activities of States in the
Exploration and Use of Outer Space, including the Moon and
Other Celestial Bodies. 10 October 1967
PCA Permanent Court of Arbitration 1899
v
Prague Rules Prague Rules on the Efficient Conduct of Proceedings in

International Arbitration 14 December 2018
UNCITRAL United Nations Commission on International Trade Law 1966
VCLT Vienna Convention on the Law of Treaties 1969 27 January

1980
vi
List of Cases
CASE CASE & DOCUMENT INFORMATION
ADC ADC Affiliate Limited and ADC & ADMC

Management Limited v. Republic of Hungary
Award
2 October 2006
Addiko Bank AG Addiko Bank AG and Addiko Bank d.d. v.

Republic of Croatia
Judgment of Supreme Court of Croatia on
Jurisdiction
3 Sept 2019
ADM Archer Daniels Midland and Tate & Lyle

Ingredients Americas, Inc. v. United Mexican
States ICSID Case No. ARB(AF)/04/5
Award
21 November 2007
Agility Agility Public Warehousing Company K.S.C.

v. Republic of Iraq,
Decision on Jurisdiction
9 July 2019
Air Canada Air Canada v. Bolivarian Republic of

Venezuela,
ICSID Case No. ARB(AF)/17/1
vii
Award
13 Sept, 2021
Al Behloul Mohammad Ammar Al-Bahloul v. The

Republic of Tajikistan
SCC Case No. 064/2008
Partial award on Jurisdiction and Liability
2 Sept 2009
Autobuses Autobuses Urbanos del Sur S.A., Teinver S.A.

and Transportes de Cercanías S.A. v.
Argentine Republic
Award
21 July 2017
Azurix Mohammad Ammar Al-Bahloul v. The

Republic of Tajikistan
SCC Case No. 064/2008
Decision on Application for annulment of the
Argentine Republic
1 Sept 2009
Bay View Bay View Group LLC and The Spalena

Company LLC v. Republic of Rwanda
Procedural Order No. 6 on the respondent’s
request for Security for Costs
28 Sept 2020
Biwater Biwater Gauff (Tanzania) Limited v. United

Republic of Tanzania
Award
24 July 2008
viii
BP BP Exploration Company (Libya) Limited v.

Government of the Libyan Arab Republic
Award (Merits) - 10 Oct 1973
Burlington Burlington Resources, Inc. v. Republic of

Ecuador ICSID Case No. ARB/08/5
Decision on Liability 14 December 2012
Carrizosa Astrida Benita Carrizosa v. Republic of

Colombia
ICDIS Case No. ARB/18/5
Award
19 April 2021
Chevron Corporation Chevron Corporation and Texaco Petroleum

Company v. The Republic of Ecuador (I) PCA
Case No. 2007-02/AA277
Interim Award
1 Dec 2008
CMS CMS Gas Transmission Company v. The

Republic of Argentina
Award
12 May 2005
CoconoPhillips ConocoPhillips Hamaca B.V., and

ConocoPhillips Gulf of Paria B.V. v. the
Bolivarian Republic of Venezuela, ICSID Case
No. ARB/07/30
Award
23 May 2019
ix
Commerce Group Commerce Group Corp. and San Sebastian

Gold Mines, Inc. v. Republic of El Salvador,
Decision on El Salvador’s Application for
Security for Cost
20 Sept 2012
Compañia del Desarrollo Compañia del Desarrollo de Santa Elena

S.A. v. Republic of Costa
Award
17 February 2000
Crystallex Crystallex International Corporation v.

Bolivarian Republic of Venezuela
Award
4 April 2016
Deutsche Bank Deutsche Bank AG v. Democratic Socialist

Republic of Sri Lanka, ICSID Case No.
ARB/09/2
Award
31 oct. 2012
Dirk Herzig Dirk Herzig as Insolvency Administrator over

the Assets of Unionmatex Industrieanlagen
GmbH v. Turkmenistan
Decision on Respondent’s request for security
for Cost
27 Jan 2020
x
Duke Energy Duke Energy International Peru Investments

No. 1 Ltd. v. Republic of Peru,
ICSID case no. ARB/03/28.
18 Aug 2008
El Paso El Paso Energy International Company v.

Argentine Republic
Award
31 Oct 2011
EMV European Media Ventures SA v. The Czech

Republic ICSID Case No. ARB/25/01.
Award
15 May 2007
Enron Enron Creditors Recovery Corporation

(formerly Enron Corporation) and Ponderosa
Assets, L.P. v. Argentine Republic, ICSID
Case No. ARB/01/3
Award
22 May 2007
Eskosol Eskosol S.p.A. in liquidazione v. Italian

Republic
Award
4 Sept 2020
Euro Gas EuroGas Inc. and Belmont Resources Inc. v.

Slovak Republic
xi
Procedural Order No.3

23 June 2015
Feldman Marvin Roy Feldman Ka¶ V. State of

Mexican States
ISCID Case No. ARB(AF)/99/1
Interim decision on Preliminary Jurisdiction
31 July 2007
Feldman Marvin Roy Feldman Karpa v. United

Mexican States
Award
6 February 2007
Feldman Feldman v. Mexico ICSID Case No.

ARB(AF)/99/1
Award
16 Dec 2002
GAMI GAMI Investments, Inc. v. United Mexican

States Final
Award
15 November 2004
Gemplus Gemplus, S.A., SLP, S.A., and Gemplus

Industrial
S.A. de C.V. v. United Mexican States ICSID
Case No. ARB(AF)/04/3
Award
16 June 2010
Genin Alex Genin, Eastern Credit Limited, Inc. and

A.S. Baltoil v. The Republic of Estonia, ICSID
Case No. ARB/99/2
xii
Award
25 June 2001
Glamis Glamis Gold Ltd. v. United States of America

UNCITRAL
8 June 2009
Gramercy Gramercy Funds Management LLC, and

Germany Peru Holdings LLC v. Republic of
Peru
ICSID Case No. UNCT 18/2
Award
6 Dec 2022
Green Power Partners Green Power Partners & SCE Solar v Spain
(Award of 16 June 2022) SCC Case No
V2016/13 [380].
Hydro Hydro S.r.l., Costruzioni S.r.l., Francesco

Becchetti, Mauro De Renzis, Stefania
Grigolon, Liliana Condomitti v. Republic of
Albania
Award
24 Apr 2019
Impreligo Impregilo S.p.A. v. Islamic Republic of

Pakistan (II)
22 Apr 2005
INA Corporation INA Corporation v. The Government of the

Islamic Republic of Iran IUSCT Case No. 161
Award 13 Aug 1985
xiii
Industria Astrida Benita Industria v. Republic of

Colombia
ICDIS Case No. ARB/18/5
Award
19 April 2021
Infracapital Infracapital F1 S.à r.l. and Infracapital Solar

B.V. v. Kingdom of Spain
Decision on Jurisdiction, Liability, and
Directions on Quantum
13 September 2021
Infrastructure Services Infrastructure Services Luxembourg S.à.r.l.

and Energia Termosolar B.V. (formerly Antin
Infrastructure Services Luxembourg S.à.r.l. and
Antin Energia Termosolar B.V.) v. Kingdom
of Spain, ICSID Case No. ARB/13/31
Order and Reasons for Judgement of Federal
Court of Australia
29 Aug 2024
Ipek Ipek Investment Limited v. Republic of

Turkey
Award
8 Dec 2022
Ireland Ireland v. United Kingdom PCA Case No.

2001-03
Award
2 July 2003
Kardassopoulos Ioannis Kardassopoulos v. The Republic of

Georgia, ICSID Case No. ARB/05/18 Award
- 3 Mar 2010
xiv
Kathryn Faye Hilt Kathryn Faye Hilt v. Islamic Republic of Iran

IUSCT Case No. 10427Award 16 March 1988
Krederi Krederi v. Ukraine ICSID Case No. ARB

23/11/03
Awards
25 Sept 2012
Lao Holdings Lao Holdings N.V. v. Lao People’s

Democratic Republic (I),
Award
6 Aug 2019
Lemire Joseph Charles Lemire v. Ukraine (II) ICSID

Case No. ARB/06/18
Decision on Jurisdiction and Liability 14
January 2010
LG&E LG&E Energy Corp., LG&E Capital Corp.

and LG&E International Inc. v. Argentine
Republic
Award
25 July 2007
LSF KEB Holdings LSF-KEB Holdings SCA and others v.

Republic of Korea
Decision on Ratification
8 May 2023
Maffezini Emilio Agustín Maffezini v. The Kingdom of

Spain
xv
Award
13 Nov 2000
Mark Dallal Mark Dallal v. Islamic Republic of Iran, Bank

Mellat (formerly International Bank of Iran)
IUSCT Case No. 149
Award
12 Jan 1984
Mason Capital Mason Capital L.P. and Mason Management

LLC v. Republic of Korea PCA Case No.
2018-55
Award
11 April 2024
Mathias Kruck & Ors Mathias Kruck, Frank Schumm, Joachim

Kruck, Jürgen Reiss and others v. Kingdom of
Spain, ICSID Case No. ARB/15/23 Award 6
October 2023
MCI MCI Power Group, L.c., and New Turbine

Inc. V. Republic of Ecuador
ISCID Case No. ARB/03/4
Award
31 July 2007
Melli & Saderat Bank Melli Iran and Bank Saderat Iran v. The
Kingdom of Bahrain, PCA Case No. 2017-25
Final Award - 9 Nov 2021
Metalclad Metalclad Corporation v. The United

Mexican States
Award
30 August 2000
xvi
Micula Ioan Micula, Viorel Micula and others v.

Romania (I), ICSID Case No. ARB/05/20
Middle East Cement Middle East Cement Shipping and Handling

Co.
v. Arab Republic of Egypt ICSID Case No.
ARB/99/6 Award
12 April 2002
Mondev Mondev International Ltd. v. United States of

America
Award
11 Oct 2022
Muszynianka v Slovakia Spółdzielnia Pracy Muszynianka v. Slovak

Republic, PCA Case No. 2017-08/AA629
Nachingwea Nachingwea U.K. Limited, Ntaka Nickel

Holdings Limited and Nachingwea Nickel
Limited v. United Republic of Tanzania,
Award
14 July 2023
Nordzucker Nordzucker AG v. The Republic of Poland, a

hoc arbitration.
Occidental Occidental Exploration and Production

Company v. Republic of Ecuador (I), LCIA
Case No. UN3467
Award
1 July 2004
OEG Olympic Entertainment Group AS v. Ukraine

PCA Case No. 2019-18
Award
xvii
15 April 2021
Pac Rim Canyaman Pac Rim Cayman LLC v. The Republic of El

Salvador
Award
29 Jan 2014
Pay Casado Víctor Pey Casado and President Allende

Foundation v. Republic of Chile
Judgement of Supreme Court of Chile
16 Aug 2024
Pope & Talbot Pope & Talbot v. Government of Canada Ad

Hoc Arbitration
Interim Award
26 June 2000
Quiborax Quiborax S.A., Non-biUNlic Minerals S.A. v.

Plurinational State of Bolivia, ICSID Case No.
ARB/06/2
27 Sept 2012
Ranco Renco (I) v Peru (Partial Award on

Jurisdiction of 15 July 2016) ICSID Case No
UNCT/13/1 [69]
RDC Railroad Development Corporation (RDC) v.

Republic of Guatemala,
Award
29 June 2012
xviii
Renee Rose Levy Renée Rose Levy and Gremcitel S.A. v.

Republic of Peru
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9 Jan 2015
Riverside Coffe Riverside Coffee, LLC v. Republic of

Nicaragua
Procedural Order No. 7
20 Dec 2023
RSM Rachel S. Grynberg, Stephen M. Grynberg,

Miriam Z. Grynberg and RSM Production
Corporation v. Grenada
Tribunal’s Decision on Respondnet’s
Application for Security for Cost
14 Oct 2010
Rumeli Rumeli Telekom A.S. and Telsim Mobil

Telekomunikasyon Hizmetleri A.S. v. Republic
of Kazakhstan, ICSID Case No. ARB/05/16
Award
29 July 2008
Saluka Saluka Investments BV v. The Czech

Republic PCA Case No. 2001-04
Partial
Award
17 March 2006
Sanum Investments Sanum Investments Limited v. Lao People’s

Democratic Republic (I)
xix
Award on Jurisdiction
13 Dec 2013
Sempra Sempra Energy International v. Argentine

Republic, ICSID Case No. ARB/02/16
Award
28 Sept 2007
Sevilla Beheer Sevilla Beher & Ors. v. Kingdom of Spain

Decision on Jurisdiction, liability and the
principles of quantum
11 Feb 2022
SGS SGS Société Générale de Surveillance S.A. v.

Republic of the Philippines
Decision of the Tribunal on Objection on
Jurisdiction
29 Jan 2004
Siemens Siemens A.G. v. The Argentine Republic

(ICSID Case No. ARB/02/8)
Award
6 February 2007
South American Silver South American Silver Limited v. The

Plurinational State of Bolivia
Procedural Order No. 10
Spence Aaron C. Berkowitz, Brett E. Berkowitz and

Trevor B. Berkowitz v. Republic of Costa Rica
ICSID Case No. UNCT/13/2
xx
Interim Award
30 May 2017
Starbag Strabag SE v. Libya, ICSID Case No.

ARB(AF)/15/1
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Starett Housing Venezuela US v Venezuela (Interim Award on

Jurisdiction of 26 July 2016) PCA Case No
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STEAG STEAG GmbH v. Kingdom of Spain

ISCID Case No. ARB/15/4
Decision on Jurisdiction, liability, and
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Suez Suez, Sociedad General de Aguas de

Barcelona S.A., and InterAgua Servicios
Integrales del Agua S.A. v. The Argentine
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Tashkent JSC Tashkent Mechanical Plant, JSCB Asaka,

JSCB Uzbek Industrial and Construction Bank,
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Kyrgyz Republic, ICSID Case No.
ARB(AF)/16/4
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17 May 2023
xxi
Tecmed Técnicas Medioambientales Tecmed, S.A. v.

United Mexican States
Award
29 May 2003
Teinver Teinver S.A., Transportes de Cercanías S.A.

and Autobuses Urbanos del Sur S.A. v.
Argentine Republic
21 Dec 2012
Telenor Telenor Mobile Communications AS v.

Republic of Hungary
Award
13 September 2006
Tradex Tradex Hellas S.A. v. Republic of Albania

Award
29 April 1999
Venuzuala US Venezuela US v Venezuela (Interim Award

on Jurisdiction of 26 July 2016) PCA Case No
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Vigotop Vigotop Limited v. Republic of Hungary

Award
1 October 2014
Vivendi Compañía de Aguas del Aconquija SA and

Vivendi
Universal SA v. Argentina ICSID Case No
xxii
ARB/97/3 Award II
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Waste Management Waste Management v. United Mexican States

(II), ICSID Case No. ARB(AF)/00/3 Award
30 April 2004
Wena Hotels Wena Hotels Ltd. v. Arab Republic of Egypt

Award
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xxiii
List of Books
Author(s) Title
DOLZER & SCHREUER Rudolph Dolzer & Christoph Schreuer, Principles

of International Investment Law, 2nd ed.
2012
ZACHARY Zachary Douglas, The International Law of

Investment Claims
Cambridge University Press, 2009
CHARLES & LUKE Charles T. Kotuby Jr. and Luke A. Sobota,

General Principles of Law and International Due
Process: Principles and Norms Applicable in
Transnational Disputes, Vol. 6
Oxford University Press
2017
RUBINS & LOVE Rubins, N. and Love, B., The Scope of Application of
International Investments Agreements: Ratione
Temporis, in Bungenberg, M., Griebel, J., Hobe, S. and
Reinisch, A. (eds.), International Investment Law: A
Handbook, Nomos, 2015.
SCHREUER Schreuer, C., What is a Legal Dispute? in Buffard, I.,

Crawford, J., Pellet, A. and Wittich, S. (eds.), International
Law between Universalism and Fragmentation, 2009.
MARISI Marisi, F., Chapter 6: Interpretation Doctrines, in

Environmental Interests in Investment Arbitration, 2020.
QIAN Qian, X., Cross-Regime Harmonization Through

Proportionality Analysis: Methods of Review, in Water
Services Disputes in International Arbitration:
Reconsidering the Nexus of Investment Protection,
Environment, and Human Rights, 2020, pp. 115-160.
xxiv
REINISCH Reinisch, A., Standards of Investment Protection,

Oxford Handbook of International
Investment Law, 2008.
xxv
List of Academic Articles and Publication(s)
Robert D. Sloane Indirect Expropriation and its Valuation in the Bit Generation
W. Michael
Reisman
Bishop, R., Foreign Investment Disputes – Cases, Materials and Commentary,

Crawford, J. and Kluwer Law International, 2005.
Reisman, W.
F. V. Garcia Responsibility of the State for Injuries Caused in Its Territory to the
Amador Person or Property of Aliens-Measures Affecting Acquired Rights:
International Responsibility. Fourth Report by F. V. Garcia Amador,
26 February 1959, Vol II. Yearbook of the International Law
Commission, para 41, p. 11, UN. Doc. A/CN.4/119
Henckels, C Indirect Expropriation and the Right to Regulate: Revisiting

Proportionality Analysis and the Standard of Review in Investor-State
Arbitration, 15 Journal of International Economic Law, 2012, pp.
223–55.
Ranjan Prabhash Using the Public Law Concept of Proportionality to Balance

Ranjan, Investment Protection with Regulation in International Investment
Law: A Critical Reappraisal Cambridge Journal of International and
Comparative Law, Volume 3, Issue 3 2014
xxvi
STATEMENT OF FACTS
Parties to the Dispute
1. Astracommex Regional Satellite Communications Inc. (“Astracommex Regional” or

“Claimant”) is a corporation established in 2015 under the laws of the Kingdom of
Nebuland (“Nebuland”) with its principal place of business in Sterlia, Nebuland.
Astracommex Regional operates as a wholly owned subsidiary with all the shares held by
Astracommex Global Satellite Communication Inc. (“Astracommex Global”) which is
also organized under the laws of Nebuland. It was established to provide affordable internet
services in rural areas in the Astral Archipelago Region’s nations outside Nebuland.
2. The Republic of Celestria (“Celestria” or “Respondent”) is a middle-income island nation
with key economic sectors including traditional manufacturing, agriculture, and fishing.
Celestria’s government adhered to the idea of digitalizing the economy and channelizing
both public and private investments towards the development of digital infrastructures.
The Investment
3. In 2015, Celestria’s government was vigorously advancing its digitalization agendas like
establishing the digital health project aimed to create an integrated digital health information
system across Celestria. Eager to become the most investor-friendly regime for investments
in the Telecommunications sector launched a Rural Digitalization Fund (“RDF”) on 1
January 2016.
4. The RDF aimed to bridge the digital divide in Celestria by providing rural communities and
small businesses with equitable access to internet services. Celestria allocated USD 1 billion
over ten years to extend fixed broadband to unserved and underserved areas. The RDF,
jointly overseen by Celestria’s National Frequency Agency and the Rural Development
Agency invited bids from both domestic and foreign telecommunications and internet
service providers.
5. On 15 February 2016, Astracommex Regional applied to the RDF with its LEO satellite
mega constellation architecture named the Astra System. The application detailed a network
of 5000 satellites, set to operate at altitudes of 400, 450, 500, and 600 kilometers.
6. On 1 August 2016, the NFA and the RDA announced the successful applicants for the
RDF funding. Among these, Astracommex Regional was selected as one of the three
awardees, the other two being domestic terrestrial telecommunication companies.
xxvii
7. On 1 October 2016, Astracommex Regional entered into a Rural Digital Fund and
Frequency Agreement (the “RDF Agreement”) with the NFA and the RDA. It was also
granted the rights to utilize specific frequency spectrums within the allocated Ka-bands
over the territory of Celestria and 500 million USD dollars.
The Product
8. Astrocommex regional relied on the Low Earth Orbit (“LEO”) satellite mega constellation
architecture to provide internet services in the State of Celestria. This technology aims to
provide internet connectivity in areas typically unserved or underserved by traditional
terrestrial infrastructure, such as rural regions, remote islands, ships, and aircraft.
Change in the Government
9. On 1 April 2020 the Green Party came into power in Celestria to safeguard the environment
and promote sustainable innovations to protect the future of its citizens. It also enacted the
National Environmental Protection Act, 2020 (“NEPA”) which requires every
governmental agency to take full account of environmental impact assessments in
determining whether the planned activities may proceed.
Conflict in Domestic Legal Framework
10. The respondent applied NEPA to the claimant’s investment despite its non-retroactive
provisions and imposed several measures that caused the Claimant’s eventual loss of all of
its operations in relation to the territory of Celestria.
Reduction in the Communication Reach of Astra Satellites
11. On 1 June 2020 the Celestrian Space Agency implemented radio silence zones that reduced
the Astra System's communication coverage from 100% to only 40% of Celestria's territory,
based on an investigation under NEPA, which lacked substantial scientific evidence to
justify the decision.
Claimant’s Response to the Respondent’s Measure
12. The Claimant cooperated in good faith and offered new plans to mitigate any potential
impact on astronomy but to implement them it required a new Ku-Band Spectrum to
operate which could be granted as per Article 6 of the RDF Agreement which allows for
the modification of support from the National Frequency Agency (“NFA”) and Rural
Development Authority (“RDA”) under specific conditions.
xxviii
Denial of Ku-Band Spectrum under NEPA
13. On 1 September 2020, Astracommex Regional applied to the NFA for the required Ku-
band frequencies. On 2 October 2020, the NFA requested additional documentation from
Astracommex Regional to specifically address the atmospheric concerns cited in a study
conducted by a laboratory.
14. On 15 October 2020, Astracommex Regional responded to the NFA, declining to provide
the requested supplementary information. On 15 December 2020, the NFA rejected
Astracommex Regional’s application to Ku-band frequencies on the basis of NEPA which
acted as a hindrance for the claimants to remove the operational restrictions.
Collision between Astra Satellite and Valinor CubeSat
15. On 1 January 2021, an unfortunate collision happened between one of the Claimant’s
satellites, AS100, and a CubeSat owned by Valinor, a private company sponsored by the
Respondent’s Department of Defence (‘DoD”).
The investigation initiated on Astracommex Regional
16. On 5 January 2021, the DoD initiated an investigation and suspended the Claimant’s
operations on Celestria’s territory citing concerns related to the Autonomous Collision
Avoidance System employed in the Astra Satellite.
Directive Issued and Continuing Suspensions were Imposed
17. On 1 March 2021, the DoD ordered the Claimant to reposition all of its 400km altitude
satellites to new orbits below 350km and until then continuous suspension on the claimant’s
investment was imposed. To this, the claimant immediately objected and filed for
reconsideration.
Claimant’s Response to the Order Issued
18. On 1 April 2021, Astracommex Regional initiated proceedings against the DoD in the
domestic courts in accordance with Celestrian Administrative Law as the Respondent state
refused to reconsider the directive issue.
Respondent Suspended the Annual Payments under the RDF Agreement
19. On 15 October 2021, Astracommex Regional initiated proceedings against the DoD, the
RDA, the NFA, and the Space Agency in the domestic courts. However, the Supreme Court
xxix
rejected all the claims imposed against the agencies of the Respondent State and ordered it
to bear the costs of the proceedings.
Submission to ICSID Arbitration
20. Thereafter, Astracommex approached Celestria with a request to commence conciliation

proceedings under the ICSID Convention however, Celestria declined the request,
prompting Astracommex to initiate arbitration proceedings on 9 September 2022. The
case was registered on 25 September 2022.
xxx
SUMMARY OF THE ARGUMENTS

PROCEDURAL: PROSPECTIVE APPLICATION OF THE BIT AND
RETROACTIVE INTERPRETATION OF THE TREATY.
The Tribunal has Jurisdiction Ratione Temporis over the present dispute as the Claimant seeks a
prospective application of the BIT since the composite breach and the dispute materialized after
the BIT. Further, the Claimant seeks a retroactive application of the BIT because the original and
natural interpretation of Article II of the BIT allows for the same and the subsequent Declaration
signed between the two contracting parties is not applicable to the present case due to its timeline.
PROCEDURAL: NO THIRD-PARTY FUNDERS AND NO SECURITY FOR COSTS

SHOULD BE AWARDED.
Marcial Ventures Ltd. and Platonial Investment are not Third-Party funders as the essentials for
the same under Rule 14 of ICSID Arbitration Rules have not been met and the Respondent has
not provided sufficient evidence to back its claim. Claimant possesses the financial capacity for an
adverse cost award and the late payment of the advance cost was due to the unfortunate collision
and the subsequent series of events. Lastly, in arguendo the mere existence of Third Party Funders
in itself is not an exceptional circumstance.
MERITS: EXPROPRIATION
The Claimant’s investment has been indirectly expropriated via a series of measures taken by the
Respondent, in breach of the BIT, as the Claimant was substantially deprived of its investment in
Celestria. The expropriation was unlawful because it served no legitimate public purpose, was
discriminatory, conducted in violation of due process and was not accompanied by the payment
of prompt, adequate and effective compensation. Further, the Respondent’s measures are not
justified under the International Law, as the defences advanced by the Respondent, including
Police Powers, the Precautionary Principle, and National Security & Environment concerns, fail
to meet the established legal criteria for their invocation.
MERITS: ADVERSE INFERENCE
The Tribunal had ordered both parties to submit, on record, the documents necessary for the
conduct of proceedings. While the Claimants had submitted all the documents attached in
Celestria’s Redfern Schedule, the Respondent failed to do so for Astracommex Region. Therefore,
the Claimant submits that the Tribunal has power to draw adverse inference under the Rule 36(1)
xxxi
of the ICSID Arbitration Rules and the IBA and Prague Rules and should order the Tribunal to
repeat its search.
xxxii
ARGUMENTS ON PROCEDURAL MATTERS

I. THE TRIBUNAL HAS JURISDICTION RATIONE TEMPORIS OVER THE
DISPUTE
21. With respect to the Tribunal’s jurisdiction, the Claimant submits that this tribunal has
jurisdiction ratione temporis over the dispute. First, (A) the Claimant seeks a mere
prospective application of the BIT, in any case; Second, (B) the Claimant asserts a
retroactive interpretation of the BIT.
A. THE CLAIMANT SEEKS A MERE PROSPECTIVE APPLICATION OF THE BIT.
22. Unless explicitly restricted, jurisdiction ratione temporis extends to all the post-treaty acts of
the state.1 In some cases, tribunals denied protection when the dispute between the parties
crystallized before signing the BIT.2 In the present case, the respondent asserts a non-
retroactive interpretation of the BIT and that the dispute is outside the jurisdiction of this
tribunal because most of the facts and the dispute crystallized pre-BIT.3
23. Respondent’s allegations, however, are incorrect both as a matter of law and of fact. The
Claimant submits that even if the BIT is to be interpreted as non-retroactive, this tribunal
has jurisdiction ratione temporis over the present dispute because it is a mere prospective
application of the BIT for two reasons. First, (i) The composite breach materialized
following the execution of the BIT; second (ii) The Legal dispute between the parties
crystallized following the execution of the BIT.
i. The composite breach materialized following the execution of the BIT
24. In case of a non-retroactive interpretation of a treaty, a state is not responsible for the acts
or measures that date prior to the signing of the BIT.4 However, a breach through a series
of composite acts is an exception to the principle of non-retroactivity.5 The present BIT
and various tribunals recognize a breach through a series of composite acts.6 A composite
breach is through a series of acts or omissions that in the aggregate are wrongful.7 Such a
1
Duke Energy, ¶148; RUBINS & LOVE, pp. 481-494.
2
Micula, ¶ 154 and Lucceheti, ¶ 56;
3
Record, p.31.
4
VCLT, Article 28; ConocoPhillips, ¶ 287; PamRim, ¶ 3.34.
5
SGS, ¶166; Hydro, ¶558.
6
Nebuland-Celestria BIT.
7
ARISWA, Article 15.
1
composite breach starts with the first act or omission and gets consummated when the last
act necessary to constitute a wrongful breach of treaty occurs.8
25. The breach consummates on the date of the last composite act by the respondent state. 9
Several tribunals have decided that they have jurisdiction ratione temporis over such disputes
where the breach consummates after the BIT’s signing.10 Such a composite breach triggers
liability even if it involves various pre-BIT measures.11 Such Pre-BIT measures rather offer
a factual background to the final breach.12
26. The date of consummation of the breach is not necessarily the date of crystallisation of the
dispute.13
27. In the present case, the respondents contended that the dispute is majorly based on a pre-
BIT factual matrix, precluding the tribunal’s jurisdiction over such a dispute.14
28. However, the Claimant argues that the Respondent’s claim was unreasonable and ignorant
of the date of consummation of the breach. The present dispute pertains to the issue of
creeping expropriation, involving various series of measures. While the dispute involves
various pre-BIT measures including radio silence zones by the celestrian government,
retroactive application of NEPA, and more; the breach was consummated on the date of
the last composite act or the final executive order by the Respondent State.
29. The Final Post-BIT executive order dated 1 March 2021 by the state’s Department of
Defence (DoD) laying continuous suspensions on the claimant’s operations is the date of
consummation of the breach.15
30. In conclusion, the breach was consummated on the date of the last composite act by the
respondent state, on 1 March 2021. Hence this tribunal has jurisdiction ratione temporis
over such a breach, even if it involves pre-BIT acts because the date of consummation is
after the BIT’s signing.
ii. The Legal dispute between the parties crystallized following the execution of the BIT.
8
ILC draft conclusion 2.
9
ARSIWA, Article 15
10
Spence International, ¶ 208.
11
Carrizosa, ¶ 156.
12
Mondev, ¶ 68; Tecmed, ¶ 63
13
Teinver v. Argentina ¶ 123; Douglas, Z.
14
Record, p.32, ¶ 11.
15
Record, p.27.
2
31. Article II of the BIT states that “this agreement shall apply to legal disputes…”16 It is important
to objectively determine the date of crystallisation of a legal dispute for Jurisdiction ratione
temporis.17 In the case of a non-retroactive interpretation of the treaty, many tribunals have
asserted jurisdiction ratione temporis over disputes that crystallized after the signing of the
BIT.18
32. In the absence of a clear definition for legal disputes under the treaty, tribunals have referred
to the generally accepted definition of a ‘dispute.’ 19 The Permanent Court of International
Justice and the ICJ have taken a position of defining a dispute as “conflict of legal views or
interests between the parties”.20 Legal dispute refers to a conflict of legal rights or views.21
33. A dispute does not arise out of thin air.22 It may involve various acts or measures. It is not
the point in time when the factual matters on which the dispute is based took place but
rather the real cause of action of the dispute.23 Additionally, in order to qualify as a ‘legal
dispute’, there must exist a minimum level of communication of opposition between the
parties.24
34. The date of crystallisation is a point in time before which the dispute is incomplete.25 The
date of crystallisation of the Legal dispute is the point in a time of clear articulation of
opposition with regard to legal rights.26 Tribunals have drawn a clear distinction between a
mere conflict of interest or a disagreement and the crystallisation of a legal dispute. 27
Subsequently, for crystallization, there must be clear verbal or written evidence of a
disagreement.28
35. In the present case, the respondent argued that the dispute between the parties crystallized
before the signing of the BIT because most of the factual matrix of the dispute and the
refusal to comply with the NEPA and NFA’s request for additional documents dates before
signing of the BIT.29
16
Nebuland-Celestria BIT, Article II.
17
Ipek, ¶ 231; STEAG, ¶ 382; Duke Energy, ¶ 148.
18
MCI, ¶ 93; Feldman, ¶ 62; Spence International, ¶ 49.
19
Suez, ¶ 62; El Paso, ¶ 240; Impreligo, ¶ 309.
20
Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.J.I. Series A, No. 2, p. 11; Northern
Cameroons, Judgment, I.C.J. Reports 1963, p. 27
21
ICSID report of executive directors.
22
Sean D Murphy, Temporal Issues relating to BIT dispute resolution, ICSID Review, Vol. 37, No. 1-2 (2022).
23
Pay Casado, ¶ 211.
24
Gramancy, ¶ 77; Agility vs. Iraq ¶ 133.
25
Maffezini, ¶ 121.
26
LSF KEB, ¶ 90.
27
RDC, ¶ 87.
28
Lao Holdings.
29
Record, p.32 ¶11.
3
36. However, the claimant argues that the respondent is incorrect on a matter of fact and law.
The Claimant proffers that the legal dispute between the parties crystallized on the date of
the final executive order laying continuous suspensions on the Claimant’s operation dated
1 March 2021.30
37. The Claimant immediately objected to the executive order and applied for reconsideration.
on 2 March 2021, after the state adopted the disputed measure of a final order for
continuous suspension of the operations of the claimant, dated 1 March 2021.31 Hence,
there existed a clear articulation of opposition of opposition in the form of an objection
and request for reconsideration, qualifying the generally accepted definition of a legal
dispute.32
38. A dispute does not crystallize until a positive articulation of opposition in terms of legal
rights by both parties. In the present case, any disagreement before the consummation of
the breach by the final executive order on 1 March 2021 is not enough to constitute a Legal
Dispute.
39. Additionally, the factual matrix before the final executive order dated 1 March 2021
involves the facts on which the dispute is based and is not the real cause of the dispute.
40. The rejection to provide additional material is mere disagreement on the part of the
Claimant and subsequently, the Claimant fully cooperated and did not oppose the initial
investigation and suspension order dated 05.01.21.33
41. To conclude, the dispute crystallized on 2 March 2021, once there existed a clear
communication of disagreement with regard to legal rights.34 Hence, the tribunal has
jurisdiction over such post-BIT disputes.
B. THE CLAIMANT ASSERTS A RETROACTIVE INTERPRETATION OF THE TREATY.
42. Unless a different intention appears, a treaty must be interpreted as being non-retroactive.35
Several tribunals have interpreted a treaty in consonance with the intention of the parties.36
It is on this basis that the respondent contends that Article II of the BIT, in consonance
30
Record, p.31.
31
Rene´e Rose Levy, ¶ 144, MASSI, pp. 186-207.
32
Record, p.83.
33
Record, p.94 ¶10.
34
SCHREUER, pp. 960.
35
Article 28 of the VCLT.
36
ILC draft Conclusion 7; Gramercy, ¶ 335; Nordzucker, ¶ 113.
4
with Article 28 of the Vienna Convention and the declaration dated 10 October 2022 must
be interpreted as non-retroactive.37
43. Respondent's contention, however, is incorrect on the basis of law and facts. The Claimant
submits that the present BIT applies retroactively because (i) Article II of the BIT allows
for a retroactive application; (ii) The declaration dated 10 October 2022 is not applicable
in the present case.
i. The Original and natural interpretation of Article II of the BIT allows for a retroactive
application
44. Article II of the BIT states:

“This agreement shall apply to legal disputes in relation to the investments that existed at the time
of entry into force as well as investments made or acquired thereafter.”
45. A treaty must be interpreted in accordance with the ordinary meaning given to the terms
and in light of its object and purpose.38 While interpreting an article of a treaty, tribunals
have referred to the natural interpretation of a treaty to determine the intention of the
parties.39
46. The principle of non-retroactivity under the garb of Article 28 of the VCLT operates to an
extent until a different intention appears or the BIT is silent with regard to the retroactive
application.40
47. Presently, respondents contend the non-retroactive interpretation of Article II of the BIT
on the basis of its silence with regard to the temporal scopes as well as the non-retroactive
intention of the parties.
48. However, the respondent's contention was incorrect on the basis of fact and law. The
Claimant proffers that any contention with regard to the intention of the parties for the
temporal scope of the BIT would be a mere assumption as there exists no evidence with
regard to the temporal scope of the BIT.41 The intention of the parties with regard to the
temporal scope must be derived from the original interpretation of Article II of the BIT.
49. The emphasis of Article II of the BIT is on the term investments that exited as well as
acquired thereafter and not the term legal dispute, allowing this tribunal jurisdiction over
any legal dispute in relation to existing investments.
37
Record, p.31¶ 6 & 7.
38
Article 31(1) VCLT.
39
Cheveron & Texpet, ¶ 45.
40
Tecmed ¶ 64.
41
Record p. 92 ¶ 2.
5
50. In the present case. Astracommex Regional had an existing investment in the republic of
Celestria on the date of entry into force of the BIT on 1 February 2021. Hence, protecting
any legal dispute in relation to such investment, irrespective of its date of origin or
crystallization.
51. The original interpretation of Article II of the BIT provides for a different intention curbing
out any application of the principle of Non-retroactivity under Article 28 of the VCLT.
52. In conclusion, the original and natural interpretation of Article II of the BIT allows for a
retroactive interpretation. The principle of non-retroactivity does not persist because a
different intention appears.
ii. The Declaration dated 10 October 2022 is not applicable in the present case.
53. Several tribunals have previously referred to VCLT with regard to the interpretation of an
article. Article 31(3)(a) of the VCLT provides for a subsequent agreement between the
parties regarding the interpretation of the Treaty.42 BIT signatories may issue a joint
interpretative declaration under Article 31(3)(a) of the VCLT,43 and has been previously
issued under international investment Law, like the interpretative note by the North
American Free Trade Agreement (NAFTA) Commission.44
54. However, such joint interpretative declarations are not binding upon arbitration tribunals.45
Investment tribunals have held such agreements to be an object of interpretation,46 as
customary rules.47
55. Such declarations are intended only to provide a constructive meaning in case of any
ambiguity48, and cannot rewrite the ordinary meaning of the of the text.49
56. These declarations may support the interpretation derived by other methods but cannot
override it.50 Tribunals recognize disguised amendments in the form of such interpretative
or clarifying declarations or clarification.
57. Moreover, several tribunals have held that these declarations cannot be made retroactively
applicable over pending cases.51 Additionally, the tribunal in Adiko Bank held that such
42
VCLT, Article 31(3)(a).
43
Eskosol ¶ 44.
44
Pope & Talbot v. Canada.
45
ILC draft conclusions 10; Muszynianka ¶223.
46
Renco ¶ 69; Venezuela US ¶49.
47
P Merkouris, ‘Interpreting the Customary Rules on Interpretation’ (2017) 19 ICLR 154–5.
48
Sanum Investments, ¶ 77; G ZARRA, pp. 121.
49
Strabag ¶ 8
50
Enron ¶ 33.
51
Eskosol ¶ 225; Green Power Parners ¶ 380.
6
declarations are not a trump card provided to the states to alter the original interpretation
of the treaty.52
58. In the present case, the respondent refers to the interpretative declaration as binding upon
the tribunal and issuing a non-retroactive interpretation of Article II of the treaty.53
However, such a contention is legally and factually incorrect.
59. The claimant does not challenge the competence of treaty signatories to form such
interpretative declarations, however, proffers the non-binding and non-applicability of the
same in the present case.
60. The declaration changes the original interpretation of the treaty from being retroactive to
non-retroactive., and hence is a disguised amendment in the form of a clarification.54 Such
a change in the law cannot be made retroactively applicable and is against fair procedures.
61. Additionally, while the request for arbitration was filed on 9 September 2022 and the case
was registered on 25 September 2022, the declaration is dated 10 October 2022.55 The
present interpretative declaration cannot be made retroactively applicable over the present
case.
62. In conclusion, the declaration dated 10 October 2022 is not binding and cannot be made
applicable in the present case, and subsequently the tribunal must refer to the original
interpretation of the BIT, which allows for a retroactive interpretation.
II. THE MARCIAL VENTURES LTD AND PLATONIAL INVESTMENTS ARE

NOT THE THIRD-PARTY FUNDERS AND THE TRIBUNAL SHOULD
NOT ORDER SECURITY FOR COSTS AGAINST THE CLAIMANT
63. In respect to the issue of the third-party funding and the grant of security for costs the
claimant submits that, First, [A] The Marcial Ventures Ltd and Platonial Investments are
not the Third-Party Funders; Second, [B] The circumstances of the present case do not
warrant an order of security in the favour of the respondent.
52
Adiko Bank ¶ 224.
53
Record p. 31 ¶ 7.
54
Pope and Talbot ¶ 47.
55
Record, p.83.
7
A. THE MARCIAL VENTURES LTD AND PLATONIAL INVESTMENTS ARE NOT THE THIRD -
PARTY FUNDERS
64. Rule 14 of the ICSID Arbitration Rules 2022 mandates the disclosure of any third-party
funding arrangements.56 While the rule does not provide an explicit definition of a third-
party funder, a careful interpretation of Rule 14 (1) reveals that three essential elements
must be satisfied for an entity to be called as third-party funder.57 In the present case, the
Respondent contend that these two entities are the third-party funders to the present
proceedings.
65. However, Claimants submits that the respondent’s claim lacks substantiation, logic, and
evidence to support its assertion and these two entities are not the third-party funders due
to several reasons. [i] Essentials of third-party funder under Rule 14 has not been met; [ii]
the respondent has not provided sufficient evidence to back its claim; [iii] Lack of
Evidentiary Support and Precedential Risks in the Respondent’s Claim
i. Essentials of Third-Party Funder under Rule 14 has not Been met
66. Rule 14 (1) pertinently deals with the issue of the disclosure of the third-party funder Three
elements must be satisfied. Firstly, the entity providing funds must be a non-party to the
dispute. Secondly, the entity must have provided financial support directly or indirectly to
a party in the arbitration specifically for the purpose of pursuing or defending the
proceedings. Thirdly, the funding must be ‘contingent’ on the outcome of the proceedings,
meaning that the funder’s financial return or remuneration depends on the arbitration’s
resolution.
67. In the present case, the Respondent, through its request for security for costs, has argued
that the capital call notice issued to these two entities was intended to finance the current
proceedings, thereby classifying them as third-party funders.58 However, the Claimant
submits that these two entities do not meet the requisite criteria to be considered third-
party funders, as outlined in Rule 14.
68. Firstly, although these entities are not formally parties to the arbitration, they have existing
equity interests in Astracommex Global, the parent company of the claimant.59 As the
56
ICSID, Rule 14.
57
ICSID, Rule 14 (1).
58
Record, p.56.
59
Record, p.76, ¶7.
8
claimant is 100% owned subsidiary of its parent company, claimant is effectively

representing the economic interests of the shareholders, as a proper party in these
proceedings.
69. While they may not be directly involved in the proceedings, the fact that they are investors
with equity interests in the parent company of the claimant makes their status distinct from
a typical third-party funder.
70. Secondly, there is no evidence of a contract or agreement between Marcial Ventures Ltd,
60
Platonial Investments, and Astracommex Global that explicitly refers to funding the
arbitration proceedings. The claimants contend that this lack of evidence demonstrates that
these entities have not provided any direct funding for the arbitration.
71. Thirdly, the Claimant assert that there is no remuneration or return on investment
contingent upon the outcome of the arbitration. The two entities were unaware of the
specific purpose behind the capital call notice, which did not mention the arbitration, and
thus cannot be deemed to have provided third-party funding.61 Therefore, the unknown
flow of funds without intention or knowledge from the capital call further precludes the
possibility of third-party funding.
72. In conclusion, Marcial Ventures Ltd and Platonial Investments do not meet the three
essentials of being a third-party funder under Rule 14 of ICSID Arbitration Rules 2022.
ii. The respondent has not provided sufficient evidence to back its claim
73. In the present case, the Respondent, in its request for security for costs, prematurely
characterized the funding obtained through the capital call notice as third-party funding,
without providing any evidence to demonstrate how the funds were connected to the
present proceedings.
74. However, the Claimants submits that the burden was on the Respondent to substantiate
this assertion. The party making a claim typically bears the burden of proof. The established
legal principle that ‘whoever asserts must prove’ is applicable here, as was held in Azurix
where the tribunal recognized that the burden of proof lies with the party making the
assertion.62
75. The tribunal in Al Bahloul refrained from making far reaching assumptions on the claimants
limited and incomplete evidence to substantiate its allegations although the tribunal
60
Record, p.92, ¶5.
61
Record, p.(s), 59 & 60.
62
Azurix
9
acknowledged that the claimant had little or no access to those documents located in the
respondent State. 63
76. The claimant argues that the respondent has failed to meet the burden of proof in
demonstrating that Marcial Ventures Ltd and Platonial Investments qualify as third-party
funders. The respondent's argument is based primarily on the issuance of a capital call
notice to raise funds from Marcial Ventures Ltd and Platonial Investments.
77. However, the claimant asserts that the capital call notice was issued in accordance with
Article VIII of the Bylaws and is a standard corporate practice, unrelated to the arbitration. 64
The claimant emphasize that capital call notices are routine mechanisms for raising equity
or fulfilling investment commitments, and general practice cannot be construed as evidence
of third-party funding specifically tied to the arbitration.
78. In conclusion, the respondent has failed to provide sufficient evidence to substantiate its
claim that the capital call funds constitute third-party funding related to the arbitration.
B. THE TRIBUNAL SHOULD NOT ORDER SECURITY FOR COSTS BECAUSE THERE DOES NOT
EXIST EXCEPTIONAL CIRCUMSTANCES IN THE PRESENT SCENARIO .
79. Rule 53 of the ICSID Arbitration Rules 2022 empowers the tribunal to order security for
costs.65 The claimant argues that the threshold for granting such an order is significantly
high and the grant of an order for security for cost requires the existence of an exceptional
circumstances.
80. The claimant seeks to rely on the factors listed in Rule 53(3), which include the party’s
ability and willingness to comply with an adverse costs decision, the impact of providing
security on pursuing the claim, and the conduct of the parties, to assert that these do not
meet the required standard for imposing security for costs in this instance.66
81. The claimant submits that the circumstances of the present case do not warrant an order
of security in the favour of the respondent because; [i] The claimant has the financial
capacity to pay any adverse cost award; [ii] The delay in payment of the advance cost was
not due to the claimant's unwillingness or bad faith, and the claimant is unwilling to pay any
adverse cost award; [iii] In arguendo, mere existence of a third-party funding does not give
rise to existence of exceptional circumstances.
63
Al-Bahloul ¶ 115.
64
Record, p 64.
65
ICSID, Rule 53.
66
ICSID, Rule 53 (3).
10
i. The claimant has the financial capacity to pay any adverse cost award
82. The Respondent, in its request for security for costs, has relied upon the alleged
impecuniosity of the Claimant as a ground for the granting of an order for security for costs.
67
83. However, the Claimant, while not admitting the alleged impecuniosity, respectfully submits
that this assertion is insufficient to warrant the granting of such an order. Furthermore, the
Claimant provides an alternative payment mechanism to satisfy any adverse costs award.
84. The Claimant contends that impecuniosity alone is not sufficient to justify an order for
security for costs. In Riverside Coffee this Tribunal held that the Claimant's impecuniosity
would not, in itself, constitute an exceptional circumstance justifying a security for costs, it
is an element to be taken into account, together with other elements, when determining
whether exceptional circumstances exist.68
85. The claimant asserts that proven financial difficulties, do not suffice to justify the granting
of security for costs.69 Moreover, in Bay view, the tribunal held that where a respondent
relies upon a claimant's impecuniosity as a ground for an order for security for costs, it can
be seen as relevant to consider whether the respondent may be responsible for that
impecuniosity.70
86. It is important to assert that the Claimants' financial difficulties stem from an unfortunate
collision and subsequent events, which contributed to the delay in making the advance
payment.
87. The claimant most humbly argues that the primary assets of the claimants and the claimant’s
71
parent company could be utilized to satisfy any future adverse costs award. It is not
uncommon for a claimant company in ICSID arbitrations to be supported by a parent
company. 72
88. Furthermore, the respondent state cannot challenge the claimant’s assets without providing
further evidence, and the liquidity of these assets cannot, on its own, be considered a
sufficient basis to establish impecuniosity.73
67
Record, p.57 ¶ 3.
68
Riverside Coffee, ¶ 74, Dirk Herzig ¶ 55.
69
South American Silver, ¶ 63.
70
Bay View ¶ 52.
71
Record, p.63 ¶ 3.
72
Bay View ¶ 61.
73
Riverside Coffee, ¶ 74
11
89. Additionally, in the event of an adverse costs award, the claimants would be in a position
to raise funds through their associated entities, Marcial Ventures Ltd and Platonial
Investments, thereby ensuring the availability of resources to meet any financial obligations.
90. In conclusion, the claimant argues that the respondent's reliance on alleged impecuniosity
is insufficient to justify an order for security for costs.
ii. The late payment of the advance cost was not due to the claimant’s unwillingness or bad faith and
claimant is willing to pay any adverse cost award
91. The Respondent has requested an order for security for costs, alleging the Claimants
continuing bad faith in the proceedings.74 The Claimant argue that its conduct in the
proceedings neither proves his unwillingness to pay any adverse cost order, not justify an
order for security for costs in the favour of the respondent state.
92. While the ICSID has the inherent power to order security for costs under Rule 53, this
power should only be exercised in exceptional circumstances ‘for example, where abuse or
serious misconduct has been evidenced.75
93. In RSM an ICSID tribunal ordered security for costs for the first time in the history; the
underlying facts in that arbitration were rather exceptional since the claimant was not only
impecunious and funded by a third party, but also had a proven history of not complying
with cost orders of the tribunal. As underlined by the arbitral tribunal, these circumstances
were considered cumulatively.76
94. In the case of Commerce Group, the claimants/applicants made the advance cost payment
after a delay of seven months. Thereafter, the respondent state security for cost arguing that
the Applicants were unable to fund the proceeding and might abandon it, leaving the
Respondent without reimbursement for its legal costs. This tribunal denied the respondent
state’s request of security for costs by stating that the power to order security for costs
should be exercised only in extreme circumstances. 77
95. The Claimant respectfully asserts that its late payment of the advance costs should not be
interpreted as unwillingness or bad faith.78 At the time, the request of the late payment was
made, the claimant was struggling from the financial difficulties which stemmed out from
74
Record, p 56, l. 1385
75
Commerce Group, ¶ 45.
76
RSM, ¶ 45.
77
Commerce Group, ¶ 45.
78
Record, p.56, ¶ 3.
12
an unfortunate collision and subsequent events. This late payment should not interpret in
a way that the claimant would be unwilling to pay.
96. They emphasize their willingness to pay any adverse cost awards rendered against them. 79
Furthermore, the Claimants have no history of non-compliance with ICSID cost orders,
aside from a seq1ttle case in the Supreme Court of Nebuland.80 This demonstrates that the
Claimants are committed to fulfilling their financial obligations in the current proceedings.
97. Thus, imposing a security for cost order would further exacerbate the Claimants' financial
hardship, unjustly benefiting the Respondent by placing additional financial burdens on the
Claimants.
iii. In arguendo, mere existence of a third-party funding does not give rise to existence of exceptional
circumstances
98. The Respondent, in its request for security for costs, through its unsubstantiated claim have
called the two entities as third-party funders and relied on the fact that as the claimant has
pursued third party funding, security for cost should be granted.
99. However, the claimant while does not admit these two entities as third-party funders,
however, in arguendo, submits that mere existence of third-party funding does not give rise
to existence of exceptional circumstances
100. The claimant argue that it is established in both ICSID and international arbitration
jurisprudence, the mere existence of third-party funding does not, in itself, create the
exceptional circumstances required to justify the imposition of security for costs.
101. In the Euro Gas case, this Tribunal held that financial difficulties and third party-funding –
which has become a common practice – do not necessarily constitute per se exceptional
circumstances justifying that the Respondent be granted an order of security for costs. 81
102. The PCA in the South American Silver held, ‘As a first approach, the decisions of
investment tribunals that have awarded costs against claimants have affirmed that the
existence of a third-party that finances the claimant is not, by itself, a factor that should be
considered in the determination of costs. The Tribunal shares this approach and considers
that it would not be consistent with such approach to consider the mere existence of a
79
Record, p.58, l. 1549.
80
Record, p.92, ¶ 7.
81
Euro Gas ¶ 123.
13
third-party funder as an exclusive factor to determine costs in an earlier stage of the

proceedings, this is, in the evaluation of a request for security for costs.’ 82
103. The Tribunal in Dirk Herzig readily accepted the submissions of the claimant’s submission
reliance on third-party funding is not sufficient, in and of itself, to meet the exceptional
circumstances standard. 83
104. The mere existence of third-party funding does not constitute exceptional circumstances
justifying an order for security for costs. As established by international arbitration
jurisprudence, the Respondent's request should therefore be denied.
ARGUMENTS ON SUBSTANTIAL MATTERS

III. THE MEASURES UNDERTAKEN BY THE RESPONDENT ARE IN
VIOLATION OF ARTICLE 7 OF THE BIT.
105. The Claimant, Astracommex Regional (“Astracommex”), is a satellite communication

company established in 201584. It made its investment in the Respondent-State, i.e., the
Republic of Celestria (“Celestria”) in 2016 to provide internet services to citizens, 60% of
which reside in rural areas.85 However, soon after a change in government in Celestria in
2020,86 a series of measures were taken against the Claimant’s investment through a targeted
multi-agency attack by the Respondent-State, which culminated in the suspension of the
Claimant’s entire operations in Celestria.87
106. Under customary international law, Expropriation is defined as a taking of the entire or a
significant portion of an investment by a State,88 which causes injury to an investor.89 It may
occur directly through a transfer of property to the state or indirectly through non-physical
measures that effectively lead to a loss of management, use, or control of an investment or
its market value.90
107. Article VII of the Bilateral Investment Treaty (“BIT”) prohibits Contracting Parties from
expropriating an investment either directly or indirectly, in the following language:91
82
South American Silver, ¶ 63.
83
Dirk Herzig ¶ 58.
84
Record, p.75, ¶ 5.
85
Record, p.75, ¶ 2.
86
Record, p.80, ¶ 28.
87
Record, p.25.
88
EMV, ¶47; Mathias Kruck and Others, ¶291.
89
Glamis Gold, ¶328
90
Genin, ¶332; Enron, ¶98; Enron (II), ¶245.
91
Nebuland-Celestria BIT, Article 7.
14
“Neither Contracting Party shall expropriate or nationalize a covered

investment either directly or indirectly through measures tantamount to
expropriation or nationalization, unless the following conditions are complied
with: (a) the measure is taken for a public purpose; (b) the measure is taken
under due process of law; (c) the measure is taken in a non-discriminatory
manner; and (d) the measure is taken against prompt, adequate and effective
compensation.”
108. The Claimants, therefore, submit that the Respondent-State has expropriated its investment
in Celestria, in violation of Article VII of the BIT because [A] The Respondent’s measures
amount to a Creeping Expropriation; [B] The expropriation is unlawful in nature; [C] The
measures of the Respondent-State are not justified under the applicable international law.
A. THE RESPONDENT’S MEASURES AMOUNT TO A CREEPING EXPROPRIATION.
109. The measures taken by the Republic of Celestria, starting from April, 2020, i.e, after the
enactment of the National Environmental Policy Act, 2020 (“NEPA”),92 have led to an
effective neutralization of the benefits derived from Astracommex Regional’s investment
in Celestria,93 making a case for a Creeping Expropriation, which is a form of Indirect
Expropriation, as defined in the BIT.
110. Article 7(3) of the BIT defines Indirect Expropriation:94
“3. Indirect expropriation occurs if a measure or a series of measures

of a Contracting Party has an effect tantamount to direct
expropriation, in that it substantially deprives the investor of
the economic value of its investment, or of the fundamental attributes
of property in its investment, without formal transfer of title or outright seizure.”
111. Thus, Creeping Expropriation is a subset of Indirect Expropriation which substantially
impairs the value of an investment through a series of measures having an effect tantamount
to direct expropriation,95 whereby each measure, when individually taken, may or may not
be expropriatory in nature;96 however, each act will still have an adverse effect on the
investment.97
112. The measures of the Respondent amount to Creeping Expropriation because [i] There is a
Substantial Deprivation of the value and benefit of the Claimant’s investment; [ii] The
measures have a permanent and adverse effect.
92
Record, p.21.
93
Sempra, ¶ 284.
94
Nebuland-Celestria BIT, Article 7(3).
95
Foreign Relations Law of US; Santa Elena, ¶ 76; Teinver, ¶ 948; Glamis Gold, ¶ 355.
96
OECD Draft Convention, Article 3;Biwater, ¶ 455; Tradex, ¶ 191.
97
Reisman & Sloane, p. 123-124; Siemens, ¶ 263; Waste Management, ¶ 443; Philips Petroleum, ¶ 90-96.
15
113. Hence, this is a violation of Article 7 of the BIT.
i. There is a Substantial Deprivation of the value and benefits of the Claimant’s investment.
114. The Claimant has not been able to earn any revenue from its investment in Celestria for a
period of 3 years and 10 months now, due to the suspension of its operations via an order
of the Department of Defence (“DoD”) of Celestria dated 5th January, 2021, causing
significant losses to the company.98 This has led to a Substantial Deprivation of the
Claimant’s investment in Celestria.
115. The Substantial Deprivation Test is applied in cases alleging Indirect Expropriation,99 by
determining whether the enjoyment of the property has been effectively neutralized and
whether such deprivation has a permanent or lasting effect.100 To answer this question, the
degree of the interference in a property is looked at by using the severity and the duration
of an economic impact as the two criterion.101
116. In order to look at the severity of an economic impact on an investor, it must be first
determined if there has been a deprivation of the economical use and enjoyment of the
investment, as if the rights related to it had ceased to exist.102
117. In the present case, the Celestrian government retroactively applied their National
Environmental Policy Act, 2020 upon Astracommex Regional’s already existing investment
via three governmental agencies, i.e., the Celestrian Space Agency (“CSA”), the National
Frequency Agency (“NFA”) and the Department of Defence (“DoD”). Article 4 of the
NEPA states103:
“This Act does not apply retroactively. It shall guide future actions
of governmental agencies, particularly when authorizing new activities.”
Thus, all actions undertaken by the three agencies, as discussed below, are outside the
regulatory framework of Celestria.
118. The Respondent’s Celestrian Space Agency halted Astracommex’s uplink and downlink
communications and established radio silence zones that reduced its communication reach
to a mere 40% of the Celestrian territory.104 This was done based on a study published in
98
Record, p.61.
99
CMS, ¶ 262; Metaclad, ¶ 103; LG&E, ¶ 191.
100
Supra.
101
Glamis Gold, ¶ 356; Telenor, ¶ 70; Starett Housing, ¶ 122.
102
Tecmed, ¶ 115; Occidental, ¶ 85; Tippetts, ¶ 225; Gami, ¶ 133.
103
Record, p.22.
104
Record, p.81, ¶ 32.
16
the Celestrian Journal of Astrophysics by the Space Agency itself, 105 and an open letter issued
by a group of amateur astronomers in Astra Nature Astronomy.106
119. Not only did the CSA misuse the NEPA by applying it retroactively, its actions were based
on a single study which was not conclusive107 and was not an independent study, as it was
published by the CSA itself.108 This 60% reduction in communication reach significantly
impacted Astracommex’s revenue generation capacity, thereby reducing the benefits from
its investment.
120. In order to implement the counter-measures required for the lifting of the restrictions put
in place by the CSA, the Claimant required the Ku-band spectrum,109 the application for
which was denied by the Respondent’s National Frequency Agency,110 exhausting the
Claimant’s chance to return to the status quo ante. This was allegedly done because of the
Claimant’s non-cooperation with the NFA since it had refused to provide additional
documents for an Environmental Impact Assessment (“EIA”) under the NEPA.111
121. However, the Claimant submits that the NEPA can’t be applied to the present case as the
requirement of a “new activity” under Article 4 of the NEPA is not fulfilled.112 The Claimant’s
application was not for a new activity as it has been providing internet services in Celestria
since 2019,113 and this application for the Ku-band spectrum was simply a modification of
support to that effect. In any case, the Claimant had already submitted relevant technical
documentation required when it made its application in the first place.114 Therefore, a
complete re-evaluation of the Claimant under NEPA is outside the regulatory framework
of the Respondent-State.
122. Thus, the Claimant was left with no recourse to lift the restrictions put in place by the CSA
and continued to be stuck at a 40% operational capacity.
123. Lastly, the Department of Defence of Celestria suspended all operations of the Claimant
within the Celestrian territory. This was done via two adverse orders passed against the
Claimant after a collision that occurred on 1st January, 2021 between AS100 and CS007,115
105
Record, p.81, ¶ 30.
106
Record, p.81, ¶ 31.
107
Record, p.40.
108
Ibid.
109
Record, p.82, ¶ 34.
110
Record, p.82. ¶ 37.
111
Supra.
112
Ibid.
113
Record, p.80, ¶ 26.
114
Record, p.82, ¶ 35.
115
Record, p.82, ¶ 38.
17
which are satellites of Astracommex Regional and Valinor, respectively. Not only did the
DoD suspend the operations of the Claimant on the basis of some baseless and exaggerated
concerns,116 the lifting of such suspension was conditional upon the repositioning of its
satellites from the 400 km to the 350 km orbit.117
124. This was not possible because of two reasons – first, financial, as it would cost the Claimant
$1 Billion USD and second, technical, as this would require the Ku-band spectrum,118 the
application for which had already been rejected by the NFA, essentially trapping the
Claimant in a vicious cycle. This led to an effective taking of the Claimant’s property,119 since
the most viable economic use of the investment was rendered worthless by such a
suspension.120
125. In addition to this, to fulfil the threshold for Substantial Deprivation, an economic impact
should have a permanent and adverse effect.121 While the measures listed above prima facie
seem to be temporary, their effect on the Claimant’s investment in permanent.122 This is
because the lifting of these measures is contingent upon actions to be done by the Claimant
that are impossible in nature, as shown above. Thus, the Claimant would have to deal with
the effect of these measures till perpetuity, making them permanent in nature.123
126. Hence, there is a Substantial Deprivation of the Claimant’s investment as the threshold for
both the severity and duration of the economic impact has been met and no recourse is
available to the Claimant to go back to the status quo ante, thereby trapping it in a vicious
cycle.
127. Thus, a case for Creeping Expropriation is made because there is a cumulative taking of the
Claimant’s investment in Celestria124 in Celestria and there is a causal link, as established,
between each individual measure taken by the Respondent.125
116
Record, p.27.
117
Supra.
118
Record, p.83, ¶ 42.
119
Glamis, ¶ 357; Pope & Talbot, ¶ 102.
120
ADM, ¶ 246; CME, ¶ 606.
121
Telenor, ¶ 64.
122
LG & E, ¶ 193; S.D. Meyers, ¶ 283.
123
Middle East Cement, ¶ 107; OEG, ¶ 108.
124
Harvard Draft Convention, Article 10 (3)(a).
125
Teinver, ¶ 950.
18
ii. The measures have a permanent and adverse effect.
128. As it has already been established by the Claimant how the measures of the Respondent-
State have led to a substantial deprivation of its investment, the focus now shifts to the fact
that there is a permanent and adverse effect on the investment as well.
129. The Tribunal in LG&E v Argentina held that without a permanent, severe deprivation of a
Claimant’s rights with regard to its investment, the circumstances do not constitute
expropriation.126 Measures which, prima facie, appear temporary can have a permanent
effect,127 if the investor is prevented from generating commercial return out of its
investment128 or if there is a loss of expected economic benefit from the investment129.
130. In the present case, the orders of the Celestrian Space Agency and the Department of
Defence are permanent in nature, even though, prima facie, they may appear to be
temporary. This is because lifting of the restrictions put in place by both these agencies is
contingent upon activities that are impossible to perform.
131. Thus, the measures of the Respondent have a permanent and adverse effect on the
Claimant’s investment, making a case for Creeping Expropriation in violation of Article 7
of the BIT.
B. THE REQUIREMENTS FOR LAWFUL EXPROPRIATION HAVE NOT BEEN

MET.
132. While expropriation is a legal right of a state in the international arena130, it has to comply
with certain conditions in order to fulfil the criteria for a lawful expropriation.
133. In accordance with Article 7(1) of the BIT, in order to for an expropriation to be lawful,
the measures of the Respondent-State shall be (i) for a public purpose, (ii) in accordance
with the due process, (iii) non-discriminatory and (iv) accompanied by a payment of a
prompt, adequate and effective compensation. All these requirements have to be followed
in cohesion and violation of even one is sufficient to make the expropriation unlawful.131
134. However, the Respondent has violated all these requirements, making their expropriation
unlawful.
126
LG&E, ¶ 200.
127
Wena Hotels, ¶ 99.
128
Burlington, ¶ 398.
129
Vivendi (I), ¶ 7.5.34.
130
F.V.Garcia, Yearbook of ILC, pg. 11, ¶ 41.
131
Nebuland – Celestria BIT, Article 7(1).
19
i. The measures do not fulfill a public purpose.
135. For a measure to be considered lawful expropriation, the first criterion is that it must fulfil
a legitimate public purpose.132 The Claimant submits that this was not the case in the present
scenario as [a] The measures do not serve a public interest and [b] The Claimant’s
operations did not harm the public interest allegedly being fulfilled.
a. The measures do not serve a public interest
136. The DoD’s actions do not serve the interest of the people of Celestria.
137. A measure may serve the public interest if it was intended to protect the environment, 133
public health,134 cultural resources,135 public morality,136 and consumers.137 In BP v. Libya,
the expropriation of Claimant’s investment was found to violate ‘public international law’
because it was made for purely extraneous political reasons.138
138. In the present case, while the justification given by the DoD in order of 1 March, 2021 cites
national security and environmental concerns pertaining to the Claimant’s operations in
Celestria, it is submitted that this is just a façade to hide the actual political interests of the
Respondent-State.
139. It is submitted that the DoD’s orders were issued after a conclusion of the investigation
into the collision. Valinor is a domestic investor collaborating with the DoD.139 It is further
submitted that the investigation was exclusively directed at Astracommex Regional, and the
adverse orders dated January 1, 2021, and March 1, 2021, were similarly imposed solely on
Astracommex. The DoD disregarded Valinor’s contribution to the collision, which will be
elaborated upon in subsequent sections.
140. Hence, the actions of the DoD are malafide in nature because they were targeting
Astracommex Regional to protect a domestic investor.
b. The Claimant’s operations did not harm the public interest.
141. The DoD, in its order, had cited both security and environmental concerns posed by the
operations of Astracommex Regional in Celestria. However, it is submitted that the
132
Supra.
133
Vigotop, ¶441.
134
Philip Morris, ¶291.
135
Lemire, ¶505.
136
OEG, ¶95.
137
Infracapital, ¶672
138
BP, ¶ 111.
139
Record, p.82, ¶ 38.
20
operations of the Claimant did not cause any threat to either the national security or the
environment of Celestria.
142. In the present case, Astracommex had been operating in Celestria since 2016 and the
collision took place in 2021, i.e., after a period of 4 years and it was because of solar
radiation, which was beyond the control of the Claimant.140 Moreover, the data of the
collision was used to make software updates, thus preparing all existing and future Astra
satellites to prevent interference from extreme space weather events.141
143. It is further submitted that the trial defense system, of which CS007 was a component, was
reportedly launched in 2017.142 This demonstrates that, until 2021, the Claimant caused no
interference or harm to the DoD’s space assets. Moreover, it is argued that the DoD’s
operation was covert, and thus, no relevant information was provided to the Claimant,
preventing it from adjusting the paths of its satellites.143 Therefore, it is the DoD which
bears responsibility for the collision, which could have been avoided through proper
communication with the Claimant.
144. Moreover, the environmental concern raised by the DoD in its order of 1 March 2021
pertains to the space debris (or space junk) caused after the collision. However, it is
submitted that it was the cubesat, CS007, which was smashed into small debris upon the
collision whereas AS100 was only partially damaged.144 This shows that AS100 did not cause
any space debris after the collision and it was the DoD’s own cubesat, thereby eradicating
any residual concerns with respect to the Claimant’s operations in Celestria.
145. Lastly, the burden of proof to show that the measures in question were enacted to serve a
legitimate public purpose falls on Respondent,145 and it has failed to do so in the present
case.
146. In conclusion, the national security and environmental concerns raised by the Respondent
State, following four seamless years of Astracommex Regional’s operations in Celestria,
clearly suggest a calculated, fabricated, and politically motivated response.
140
Supra.
141
Supra.
142
Record, p.23.
143
Supra.
144
Record, p.82, ¶ 38.
145
ADC, ¶ 432.
21
ii. The measures were not in accordance with the due process.
147. The Respondent-State has vehemently disregarded the due process of law while
undertaking measures to expropriate the Claimant’s investment.
148. Arbitral tribunals have held that without mechanisms such as a reasonable advance notice,
a fair hearing, and an unbiased and impartial adjudicator to assess the actions in dispute, the
state’s claim of following the due process of law rings hollow.146
149. In the present case, no such mechanisms were made available to the Claimant. As
mentioned above, the Celestrian Space Agency’s investigation into Astracommex was
launched on 16 May 2021, based on a single report which was published on 15 May 2021
by the CSA itself. This was against the non-retroactive application principle of the NEPA.
This also shows that no reasonable advance notice was given to the Claimant as this step
was taken overnight by the Respondent, causing reasonable doubts as to its bona fide
nature.
150. Further, no provision was granted to the Claimant to appeal against the orders of the
Celestrian Space Agency. An affected investor must be granted a reasonable chance within
a reasonable time to claim its legitimate rights and have its claims heard.147 As can be seen
above, the Claimant was not able to coordinate with the Celestrian Space Agency adroitly
or have its side heard as they were quick to impose restrictions on the Claimant even before
it could implement any counter-measures.
151. Additionally, the National Frequency Agency’s rejection of the Claimant’s application for
the Ku-band spectrum was also against the due process of law as the requirement of a “new
activity” under Article 4 of the NEPA was not fulfilled.148 The Claimant’s application was
not for a new activity as it has been providing internet services in Celestria since 2019, and
this application for the Ku-band spectrum was simply a modification of support to that
effect. Therefore, a complete re-evaluation of the Claimant under NEPA was outside the
regulatory framework of the Respondent-State.
152. In conclusion, the disregard of the procedure of law by the Respondent State’s agencies
makes the case for non-fulfillment of the due process of law requirement.
146
ADC, ¶ 435.
147
Nachingwea, ¶ 269; Tashkent, ¶ 568; Krederi, ¶ 705; Kardassopoulos, ¶ 397.
148
Record, pg. 22.
22
iii. The measures were discriminatory.
153. On 1 January 2021, one of Astracommex Regional’s satellites, AS100, collided with a
cubesat that wandered around the adjacent orbit on a crossed orbital plate. The cube
satellite was run by Valinor, a private company, in partnership with Celestria’s Department
of Defense. The DoD’s series of measures after this collision were discriminatory towards
Astracommex Regional and in favour of Valinor.
154. Article VI of the BIT states:149
“Each Contracting Party shall accord to an investor of the other Contracting
Party and to an investment of an investor of the other Contracting Party,
treatment no less favorable than the treatment it accords, in like
situations, to its own investors and to their investments with respect to
conduct, operation, management, maintenance, use, enjoyment and sale or
disposal of their investments in its territory.”
155. To show discrimination, the investor must prove that it was subjected to (A) different
treatment in (B) like circumstances (C) without reasonable justification, typically on the basis of its
nationality or similar characteristics.150 The Claimant submits that all these conditions are
met here.
156. In the present case, the differential treatment is clearly evident because after the collision, an
investigation was launched into Astracommex and it was also ordered to suspend its
operations within the territory of Celestria until the conclusion of the investigation,
however, no such investigation was launched against Valinor nor was it ordered to suspend
its operations.151
157. Subsequently, by its order of 1 March 2021, the DoD asked the Claimant to relocate its
satellites in the 400 km orbit to the 350 km orbit along with a continuous suspension of its
operations in Celestria and again, no such adverse order was passed against Valinor.
158. The Claimant submits that no action was taken against Valinor because it is in a long -term
partnership with the DoD for research and development of advanced satellite technologies
and it has also received a grant from the DoD for the same.152
159. Further, it is also asserted that the Celestrian Space Agency succumbed to public pressure
to put restrictions on the Claimant’s operations when it had no substantial basis to do so.
160. Past tribunals have found that measures are discriminatory when their introduction is
prompted by the media’s and public’s opposition to the investor’s activities.153 The CSA
149
Nebuland-Celestria BIT, Article 6.
150
Crystallex, ¶ 616; Saluka, ¶ 313.
151
Record, p.25-28.
152
Record, p.93, ¶ 16.
153
Quiborax, ¶ 251.
23
launched an investigation into Valinor on the basis of a single report published by it which
was also inconclusive in nature. In addition to this, the pressure put by the astronomy
community on Astracommex Regional to stop its operations in Celestria also prompted the
agency to take harsh and disproportionate measures against the Claimant.154 This further
cements the fact that Astracommex Regional was accorded differential treatment in
Celestria.
161. In the present case, Astracommex Regional and Valinor are also under like circumstances.
162. The Tribunal in S.D.Meyers observed:155
The concept of "like circumstances" invites an examination of whether a non-
national investor complaining of less favourable treatment is in the same
"sector" as the national investor. The Tribunal takes the view that
the word "sector" has a wide connotation that includes the concepts of
"economic sector" and "business sector".
163. Astracommex Regional works in satellite communication technologies, while Valinor also
works in satellite technologies. Both of them operate in the same business sector and hence,
fulfil the “like circumstances or like situations” test.
164. In the present circumstance, the differential treatment accorded to Astracommex Regional
also had no reasonable justification.
165. Post the collision, the DoD ordered the Claimant to reposition its satellites to avoid such
events in the future. It is asserted that this response would have been proportionate had
the collision actually taken place due to the Claimant’s fault. However, this was not the case.
166. The DoD failed to take into consideration the solar storm which actually led to the collision.
Based on the Claimant’s post collision assessment of its software, it was found that the
collision was due to an electronic malfunction induced by an unusual solar radiation storm.156
The video of the storm had also caught the attention of the Celestrian Space Agency. 157
This shows how the Respondent-State chose to ignore this crucial fact and put the sole
blame on the Claimant. Therefore, the Claimant maintains that the collision was not their
fault, thereby disproving any rational relationship between the means and the end employed
by the Respondent.
167. In addition to this, the DoD also overlooked the contribution of Valinor in the collision.
168. The cubesat which was involved in the collision is said to be a component of a trial missile
defense system developed by Valinor in partnership with the DoD, as a covert operation.158
154
Record, p.81, ¶ 31.
155
S.D.Meyers, ¶ 250.
156
Record, p.23.
157
Record, p.24.
158
Ibid.
24
Additionally, the cubesat was still in its trial stage and non-maneuverable, which heightened
its potential to cause damage to other objects in space.159 Further, there were no public
records of a cubesat operating in the same orbit as the AS100 satellite, meaning thereby
that Astracommex could not have designed its path to avoid the collision.160 Lastly,
Astracommex had launched its satellites in the 400 km orbit in 2016,161 and the defence
system was launched in 2017,162 therefore, the onus was on the DoD to have prepared the
path of the cubesat so that it doesn’t collide with already existing objects in space or at the
very least, to make it maneuverable.
169. In conclusion, all the reasons mentioned above cement the fact that there was a lack of any
rational basis for the DoD to take aggravating measures against the Claimant in order to
avoid collisions in space as this collision was not their fault in the first place, making the
Respondent’s measures discriminatory in nature.
iv. There was no prompt, adequate and effective compensation.
170. The Respondent-State has not paid any compensation to the Claimant for expropriating its
investment in Celestria.
171. As per Article 7(1) of the BIT, expropriation has to be accompanied by a prompt, adequate
and effective compensation even if it is for a public purpose, in accordance with the due
process and non-discriminatory in nature.163
172. It is widely known in the realm of international arbitration that lack of payment is sufficient
for the expropriation to be deemed unlawful.164 It is undisputable in the current case that
Respondent has not offered any compensation even though they suspended the Claimant’s
operations without any reasonable justification.
173. Thus, the Respondent’s actions have unlawfully expropriated Claimant’s investment by
violating their obligation to provide compensation.
174. To conclude, the Republic of Celestria has violated Article 7 of the BIT as they have
expropriated the Astracommex Regional’s investment in Celestria without showing that the
measures serve a legitimate public purpose, in a discriminatory manner, in disregard of due
process and without providing any compensation for the same.
159
Record, p.93, ¶ 16.
160
Ibid.
161
Record, p.77, ¶ 11.
162
Ibid.
163
Nebuland-Celestria BIT, Article 7(1).
164
ADC, ¶ 444; Rumeli,¶ 793; Gemplus, ¶ 8.25.
25
C. The respondent’s measures are not justified under the applicable international law.
175. In its Response to the Request for Arbitration, the Respondent has attempted to justify the
measures undertaken by it towards the Claimant under international law. While the
Claimant recognizes the Respondent’s right to regulate to protect its interests within its
territory, the manner in which the Respondent undertook its measures was in violation of
the law invoked by the Respondents themselves.
176. The Claimants submit that (i) The Celestrian Space Agency’s measures are not a valid
exercise of its Police Powers, (ii) The National Frequency Agency’s approach does not
align with the Precautionary Principle, (iii) The DoD’s National Security and
Environmental concerns are baseless and exaggerated.
i. The Celestrian Space Agency’s measures are not a valid exercise of its Police Powers.
177. The Police Power doctrine does not provide a blanket exception to all regulations in public
interest.165
178. In order for a State's actions in exercise of its Police Powers to not constitute indirect
expropriation, the action has to comply with certain conditions - the action must be bona
fide for the purpose of protecting the public welfare, must be non-discriminatory and
proportionate.166
179. The Claimant, therefore, submits that the Celestrian Space Agency’s measures were not a
legitimate exercise of its Police Powers as [a] They were not bona fide [b] They were
disproportionate to the aim they sought to achieve.
a. The CSA’s measures were not bona fide in nature.
180. The CSA’s aim in restricting the Claimant’s operations was to minimize astronomical light
interference from Astra Satellites.
181. It is submitted that the Claimant had been allowed to set up its operations in Celestria on
the basis of its RDF Application of 15 February 2016, in which it had clearly stated that the
laser wavelength utilized by the Astra satellites is distinct from the wavelengths observable
by optical telescopes, thereby mitigating the risk of interference with astronomical
165
Tecmed, ¶ 121.
166
Philip Morris, ¶ 305; Air Canada, ¶ 353; Hydro, ¶ 698; Marfin, ¶ 826-829; Deutsche Bank, ¶ 522.
26
observations.167 Thus, since there was no reasonable cause for the CSA to take any action
against the Claimant, it published a study in the Celestrian Journal of Astraphysics, 168 and
used it as a basis to launch an investigation into the Claimant.
182. To conclude, the actions of the CSA were not bona fide in nature.
b. The CSA’s measures were disproportionate.
183. The Claimant submits that the reduction of its communication reach to a mere 40% was an
excessive measure.
184. A measure is not proportionate if there are less restrictive means at the disposal of the state.
169
This essentially means that the measure must be the least restrictive means in achieving
the public interest.170
185. Instead of restricting its operations, the CSA could have asked the Claimant to adopt one
of the various other ways to coordinate with the astronomy community, such as sharing of
data, alternative timings for telescopic observations, ignoring certain satellite signals, etc.
However, none of these were considered by the Respondent.
186. Further, Astracommex’s continuous cooperation with all agencies of the Respondent-State,
evidenced by the fact that it provided internet services to the citizens of Celestria after the
volcanic eruption on 15 August 2019 when it had no obligation to do so,171 and also, that it
implemented counter-measures to mitigate the concerns regardging its operations, shows
its dedication to public welfare and protection of the environment of Celestria. 172
187. To conclude, in such a scenario, the measures of the CSA prove to be excessive in nature.
ii. The National Frequency Agency’s approach does not align with the Precautionary Principle.
188. The Respondent-State has also used the Precautionary Principle to justify the National
Frequency Agency’s rejection of the application for the Ku-band spectrum.
189. The Precautionary Principle adopted by the United Nations Conference on Environment
and Development in Rio de Janeiro, Brazil, 1992, under Article 15 of the Rio Declaration
states:
167
Record, p.13-14.
168
Ibid.
169
OEG, ¶ 89.
170
Melli & Saderat, ¶ 683-689.
171
Record, p.93, ¶ 11.
172
Record, p.96, ¶ 9.
27
“In order to protect the environment, the precautionary approach shall be widely
applied by States according to their capabilities. Where there are threats of
serious or irreversible damage, lack of full scientific certainty shall not
be used as a reason for postponing cost-effective measures to prevent
environmental degradation.”
190. It is submitted that the Respondents are misusing the Precautionary Principle to suit their
needs since the Claimant’s operations are in compliance with the aim of the principle, which
is prevention of serious or irreversible damage to the environment.
191. In its RDF Application, the Claimant had stated that atmospheric re-entry is the best
option for post-mission disposal of satellites. Astra satellites are fully demisable in nature.
This approach to atmospheric re-entry with fully demisable satellites is preferred over
leaving satellites in orbit or constructing them from materials that could survive re-entry,
posing a risk of human casualties. Hence, this is the safest approach for atmospheric re-
entry till date.173 If the Claimant is asked to adopt the other approaches, as stated above, it
would be going against the very aim of the Precautionary Principle which is the prevention
of environmental degradation.
192. In any case, it is also pertinent to mention that the study relied upon by the National
Frequency Agency is inconclusive in nature.174 Further, is it submitted that deorbiting and
subsequently, re-entry of Astracommex satellites into the atmosphere takes place once in
10 years and hence, if there exists even some veracity in the Respondent’s report, the fact
remains that this is not a serious or irreversible damage since the frequency of re-entry is
not sufficient to cause such a damage to the atmosphere.175
193. Therefore, the Claimant maintains its earlier stance that its satellites are engineered to be
fully demisable, ensuring that they burn up entirely upon re-entry into the Earth’s
atmosphere, leaving no physical debris that could contribute to environmental harm.176
194. In conclusion, the application of Precautionary Principle by the Respondent is flawed.
iii. The National Security Concerns are baseless and exaggerated.
195. The DoD has cited both environmental and security concerns in its order of 1st March,
2021 to justify the order of repositioning of the Claimant’s satellites and the suspension of
its operations within the territory of Celestria.
173
Record, p.14.
174
Record, p.43.
175
Record, p.96, ¶ 8.
176
Ibid.
28
196. The Claimant submits that the claims raised by the DoD are baseless and exaggerated as
[a] The DoD order exceeded its jurisdiction, [b] The actions of the Claimant do not
threaten Celestria’s national security interests and [c] Astracommex Satellites do not cause
harm to the environment.
a. The DoD order exceeded its jurisdiction.
197. The Department of Defence is using the NEPA and the Celestrian National Security Act
to regulate activities of the Claimant in Outer Space. This is a violation of international law
under the Outer Space Treaty, 1967.
198. Article 1 of the Outer Space Treaty states:177
“Outer space, including the moon and other celestial bodies, shall be free for
exploration and use by all States without discrimination of any
kind, on the basis of equality and in accordance with international law, and
there shall be free access to all areas of celestial bodies.”
199. The DoD can’t order the Claimant to reposition its satellites in outer space as it doesn’t
have the power to regulate activities beyond its territory, making it a blatant violation of
international law.178
200. Moreover, as all launched satellites in the Astra System are properly registered by
Astracommex Regional in their respective launching states,179 Cosmosis has quasi-territorial
jurisdiction over the 400km satellites as they were launched from Cosmosis. 180 Hence, the
DoD can’t enforce its order.
201. Therefore, the Respondent-State is barred by jurisdiction to make or enforce any order
affecting activities in outer space.
b. The actions of the Claimant do not threaten Celestria’s national

security interests.
202. The DoD has cited hardware and software flaws in the Claimant’s Astra System to contend
that they cause a harm to the Celestrian space assets.181 It is submitted that no such flaws
exist and the Claimant’s activities are safe and sound.
203. The Respondents argue that the accuracy of the Space Surveillance Network utilized by the
Claimant has been compromised due to severed diplomatic ties between Celestria and
177
Outer Space Treaty, Article 1.
178
Supra.
179
Record, p.93, ¶ 12.
180
Record, p.77, ¶ 11.
181
Ibid.
29
Cosmosis.182 However, this assertion is incorrect because the Claimant also utilitizes the
onboard sensors on its satellites,183 which enables orbit adjustments to prevent collisions as
determined- a fact conveniently overlooked by the Respondent. Thus, the Astra System's
accuracy remains optimal.
204. Further, the Astracommex retains the capability to remotely update the software of the
collision avoidance system and the data received by it after the collision was used to prepare
software updates for all existing and future Astra satellites, thus equipping them to prevent
interference from extreme space weather events.184
c. Astracommex Satellites do not harm the environment
205. The DoD has also raised environmental concerns in outer space due to the space junk, i.e.,
space debris arising out of collisions in space. The Claimant submits that its activities do
not cause any debris in space.
206. It is submitted that in the present case, after the collision on 1 January 2021, space debris
was generated from CS007 and not AS100. It was the cubesat operated by Valinor, i.e.,
CS007 which was smashed into small debris upon the collision whereas AS100 was only
partially damaged.185 This shows that AS100 did not cause any space debris after the
collision.
207. Further, it is asserted that collisions in outer space are a rare occurrence and do not take
place periodically. This can be evidenced from the fact that Astracommex had been
operating in Celestria since 2016 and the collision took place in 2021, i.e., after a period of
4 years.
208. To conclude, all claims raised by the Respondent-State, after a smooth four-year operation
of Astracommex Regional in Celestria, seem to be a strategic and politically driven response.
This action appears to be aimed at managing public opinion and to fulfil the government’s
election manifesto.
IV. THE TRIBUNAL HAS THE POWER TO DRAW ADVERSE INFERENCES
FROM NON-COMPLIANCE WITH DOCUMENT PRODUCTION
209. The tribunal in its Procedural Order No. 2 has explicitly stated that both parties were to
submit the documents pertaining to any and all communications between Celestria and
182
Record, p.25.
183
Record, p.14.
184
Record, p.82, ¶ 38.
185
Supra.
30
Valinor between December 2020 and June 2021 regarding the collision between
Astracommex’s AS100 and Valinor’s satellite, including, without being limited to, emails or
other communications, minutes of meetings, reports, presentations and/or decisions of
authorities.186
210. However, even after such an order from the respected tribunal, the Respondents have failed
to bring to the table the document of AS 100 Valinor Collison report to which the
Claimants contend that (A). Tribunal’s power to draw adverse inferences under Rule 36(1)
of ICSID Arbitration Rules, 2022 (B). Tribunal’s power to order Celestria to repeat the
search (C). Tribunal’s power of adverse inference under the Prague and IBA Rules (D). In
arguendo, the Sharpe test is satisfied (E). The Claimants have established their prima facie
case.
A. THE TRIBUNAL HAS THE POWER TO DRAW ADVERSE INFERENCES UNDER RULE 36(1)
OF THE ICSID ARBITRATION RULES, 2022.
211. Rule 36(1) of ICSID Arbitration Rules, 2022 which states that “The Tribunal may call upon a
party to produce documents or other evidence if it deems it necessary at any stage of the proceeding”
underlines the same power to appraise the probative value of evidence.
212. The argument finds more strength in light of the resemblance of Article 27(4) of
UNCITRAL Arbitration Rules with Rule 34(1) of Arbitration Rules, 2006. Article 27(4)
provides similar wordings to Rule 34(1) of Arbitration Rules, 2006, which permits the
tribunal to evaluate evidence’s admissibility and probative value. Several commentators
have accepted and furthered the tribunal’s mandate to include the discretion to draw
reasonable inferences when functioning under UNCITRAL Arbitration Rules.187
213. The tribunals in Sevilla Beher have relied on their discretionary powers in matters of evidence
under the ICSID Arbitration Rules for drawing adverse inferences.188 Although the ICSID
Rules, 2022 has omitted Rule 34(3) of the ICSID Rules 2006 regarding the tribunal’s power
to make a formal note, it does not necessarily imply that the tribunal’s power to draw
adverse inferences has also been omitted.
214. Additionally, the tribunals in Discovery Global have stated the discretion to infer facts in light
of the evidence available, and their broader procedural powers support such inferences even
without specific textual endorsement in the rules. The tribunal has ample discretion in ruling
186
Record, p 55
187
David D. Caron & Lee Caplan, The UNCITRAL Arbitration Rules
188
Sevilla Beher. ¶ 30. ICSID Case No. ARB/16/27
31
on evidence189, the decision is generally based on two factors190: the specificity of the request
for a document or a category of documents and its relevance and materiality to the outcome
of the case191.
215. In the present case, the tribunal clearly made an order to both parties to bring onto the
table the documents pertaining to the AS 100 Valinor Collison report. Even though the
claimants produced all the documents in the email sent to the respondent state and apart
from that they also attached the confidential reports to the privileged log, the same was not
done by the Kingdom of Celestria. They have simply refused to submit the document
because it is likely to entail the data protection issue to them without any substantial
explanation.
216. In conclusion, the Tribunal has the inherent power to order the Kingdom of Celestria to
submit the document under Rule 34(3) of the ICSID Arbitration Rules, 2022. The Tribunal
can also draw an adverse inference from its inherent adjudicative mandate. Thus, the
tribunal’s authority to manage the proceedings and ensure fair and equitable treatment may
include drawing adverse inferences as a response to non-compliance of the party.
B. TRIBUNAL’S POWER TO ORDER CELESTRIA TO REPEAT THE SEARCH
217. Rule 36(3) of the ICSID Arbitration Rules, 2022 states that “The Tribunal may call upon a party
to produce documents or other evidence if it deems it necessary at any stage of the proceeding”.
218. The tribunal found it ‘entirely reasonable’ to rule for the claimant based on prima facie
evidence and an inference drawn from the respondent’s failure ‘to introduce any credible
evidence into the record’ rebutting a presumption of unlawful discrimination against the
claimant192.
219. Further, the tribunal has also drawn an adverse inference against the Kingdom of Spain on
their failure to produce the requested documents when no convincing reason for failure to
submit the document was provided by the respondent state”193.
220. In the present case, the incident dated 01.01.2021 has been used by the Celestrian
government to suspend the operation of the satellites being operated by the Claimants and
the Celestria’s investigation is discriminatory as no investigation and suspension has been
done to the Valinor. This is not the first time that the Respondents have made a backtrack
189
Discovery Global. ¶ 31. ICSID Case No. ARB/21/51
190
Infrastructure Services (Antin). ¶ 27. ICSID Case No. ARB/13/31
191
South America Silver. ¶ 556 PCA Case No. 2013-15
192
Feldman. ¶ 126. ICSID Case No. ARB(AF)/99/1
193
Sevilla Beheer. ¶ 30. ICSID Case No. ARB/16/27
32
on their commitment. Since, the government has changed in the year 2020, since then the
kingdom of Celestria has taken multitude of measures to hamper the stake of Astracommex
Regionals.
221. Further, they aggravated the stake when despite the order of the tribunal they did not submit
the collision report without any substantiated reason. The Respondents has not produced
the AS 100 Valinor Collison report by citing the reason in the Redfern schedule as likely to
entail the data protection issues of their territory and the request to be ‘unreasonably
burdensome’ to them194.
222. The respondents has failed to substantiate the alleged “data protection issues”. They did
not even attempt to conduct a reasonable search and only speculated that such a search
would “likely entail” and unspecified “data protection issues.” This objection is therefore
too unspecific for Astracommex to respond to. no concrete justification of the same has
been provided to the tribunal which will adversely affect the Claimant’s position in the
arbitration. Further, the request is reasonable in its scope and is not burdensome as Celestria
again only “expects” the search to be burdensome, without providing any substantial
reason.
223. In the conclusion, the Claimants submits that the tribunal has power under Rules 36(3) to
order the Respondent state for the document production of the AS100 Valinor’s Collision
report, failing to do which will lead to the drawing of adverse inference as the document
requested are relevant to assess whether the behaviour of the Department of Defence was
non-discriminatory and justified.
C. THE CLAIMANTS HAVE ESTABLISHED THE PRIMA FACIE CASE; THUS, THE ONUS
PROPONENDI SHIFTS TO THE RESPONDENT.
224. A Prima facie Case is proof that is sufficient, if not contradicted, to establish a party’s
contention. Once a party bearing the ultimate burden of proof establishes a prima facie
case, the burden of production, or onus proponendi, shifts to the responding party to rebut
that evidence. Thus, if a party, be it claimant or respondent, fails to provide sufficient
evidence to substantiate its position, it risks not satisfying the tribunal of its case195.
225. The investment arbitration tribunals have ruled in various instances that the respondent
state cannot declare all documents immune from production merely based on its national
194
Record, p 55
195
Kathryn Faye Hilt, ¶ 27.
33
laws or its designation, but that it would have to justify how it substantively qualifies
documents as state secret.
226. It is established that when the claimant has established a prima facie case and the
respondent has offered no evidence in rebuttal the latter may not insist that the former pile
up evidence to establish its allegations beyond a reasonable doubt without pointing out
some reason for doubting else, the tribunal shall draw an adverse inference.
227. Further, the tribunal has also held that when the claimants had established a prima facie
case, and the respondent’s failure ‘to introduce any credible evidence into the record’ was
sufficient to justify a ruling in the claimant's favour196.
228. In the present case, it is pertinent to mention that the Celestrian government has refused
to produce the collision report by citing it to “likely entail the data protection issues”, that
could be classified as “state secrets”. Celestria has failed to substantiate the alleged “data
protection issues”. They did not even attempt to conduct a reasonable search and only
speculated that such a search would “likely entail” and unspecified “data protection issues.”
This objection is therefore too unspecific for Astracommex to respond to no concrete
justification of the same has been provided to the tribunal which will adversely affect the
Claimant’s position in the arbitration.
229. The request is reasonable in its scope and is not burdensome as Celestria again only
“expects” the search to be burdensome, without providing any substantial reason. The two-
page redacted version of the collision report also suggests that it was prepared in tandem
with the Valinor and the government of Celestria, despite that the respondents have refused
to produce it before the tribunal even after the issuance of Procedural Order No. 2.
230. In the conclusion, the Claimants have established their prima facie case and the onus
proponendi now shifts onto the Respondents for providing substantial and convincing
reasons to the tribunal failing to which leads to drawing of the adverse inference197.
196
Feldman, ¶ 126.
197
Record, p 55.
34
PRAYERS FOR RELIEF
For the foregoing reasons, Claimant respectfully requests this Tribunal to render an award in
favour of Claimant, as follows:
To declare that it has jurisdiction Ratione Temporis over the present dispute;
II
To declare that Marcial Ventures Ltd. and Platonial investments are not Third Party Funders and
no Security For Costs should be awarded in the present case;
III
To declare that the Respondent has violated Article 7 of the BIT;
IV
To declare that the Tribunal has the power to draw adverse inference in the present case and
should order Celestria to repeat its search.
35

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TEAM TARAZI

INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES

ICSID Case No. ARB/22/99

Astracommex Regional Satellite Communication Inc.

The Republic of Celestria

MEMORIAL FOR THE CLAIMANT

List of Authorities ...................................................................................................................... v

List of Treaties, Conventions, and Rules ........................................................................ v

List of Cases ................................................................................................................... vii

List of Books ............................................................................................................... xxiv

List of Academic Articles and Publication(s)............................................................. xxvi

Statement of Facts ................................................................................................................xxvii

Summary of the Arguments .................................................................................................. xxxi

Arguments on procedural matters .............................................................................................. 1

I.THE TRIBUNAL HAS JURISDICTION RATIONE TEMPORIS OVER THE

A. The Claimant seeks a mere Prospective Application of the BIT. ................................. 1

B. The claimant asserts a retroactive interpretation of the treaty. ..................................... 4

II.THE MARCIAL VENTURES LTD AND PLATONIAL INVESTMENTS ARE

Arguments on Substantial Matters ........................................................................................... 14

III.THE MEASURES UNDERTAKEN BY THE RESPONDENT ARE IN

A. The respondent’s measures amount to a creeping expropriation.......................... 15

i. There is a Substantial Deprivation of the value and benefits of the Claimant’s

ii. The measures have a permanent and adverse effect. ............................................ 19

B. THE REQUIREMENTS FOR LAWFUL EXPROPRIATION HAVE NOT

i. The measures do not fulfill a public purpose. .......................................................... 20

a. The measures do not serve a public interest..................................................... 20

iii. The measures were discriminatory. ...................................................................... 23

iv. There was no prompt, adequate and effective compensation. .............................. 25

a. The CSA’s measures were not bona fide in nature. .......................................... 26

b. The CSA’s measures were disproportionate. .................................................... 27

a. The DoD order exceeded its jurisdiction. ........................................................ 29

c. Astracommex Satellites do not harm the environment ..................................... 30

IV.THE TRIBUNAL HAS THE POWER TO DRAW ADVERSE INFERENCES

B. Tribunal’s power to order Celestria to repeat the search ............................................ 32

PRAYERS FOR RELIEF......................................................................................................... 35

Document Title Document Information

ARISWA International Law Commission, Draft Articles on Responsibility

IBA International Bar Association's rules on the Taking of Evidence

ICSID International Centre for Settlement of Investment Disputes

Joint Declaration Declaration concerning the Agreement on reciprocal promotion

Nebuland-Celestria Agreement on Reciprocal promotion and Protection of

OECD OECD Draft Convention on the Protection of Foreign

PCA Permanent Court of Arbitration 1899

Prague Rules Prague Rules on the Efficient Conduct of Proceedings in

UNCITRAL United Nations Commission on International Trade Law 1966

VCLT Vienna Convention on the Law of Treaties 1969 27 January

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