17th FDI INTERNATIONAL ARBITRATION MOOT, 2024

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INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES

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Astracommex Regional Satellite Communication Inc.

(Claimant)

v.

The Republic of Celestria

(Respondent)

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ICSID CASE NO. ARB/22/99

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MEMORIAL ON BEHALF OF CLAIMANT

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ARGUMENTS ADVANCED

The temporal scope of the BIT's adjudicatory authority encompasses the Claimant's
grievances, granting this Tribunal jurisdiction ratione temporis.
1. The exercise of jurisdictional authority by the Tribunal in the present contentious
matter hinges upon the existence of an investment dispute between the parties. It is
noteworthy that the Bilateral Investment Treaty (BIT) concluded between Nebuland
and Celestria on February 1, 2021, provides the relevant framework for the
adjudication of this specific issue.1
2. Astracommex Regional intends to convincingly demonstrate the arbitral tribunal's
temporal jurisdiction to adjudicate upon the claims presented by both parties. This
demonstration will be structured around four distinct arguments:
A. Applicability of the Bilateral Investment Treaty (BIT)
B. Investment-Related Violation
C. Continuous Impact of NEPA's Adoption
D. Application of Relevant Treaties

A. Fulfillment of Jurisdictional Threshold Based on the BIT

1. Claim arises after the effective date of agreement:

While certain acts potentially relevant to the present legal dispute may have transpired prior to
February 1, 2021, it is crucial to emphasize that the dispute itself, as a crystallized legal claim,
did not formally materialize until after the effective date of Article II's limitation provision. 2
The mere occurrence of antecedent acts, however pertinent, falls short of constituting a
nascent legal dispute. A legal claim, and consequently a "dispute," only acquires definitive
form and substance at the moment the aggrieved party initiates appropriate legal proceedings.
Given the absence of any evidence suggesting legal action commenced prior to February 1,
2021, it is clear that the dispute, in its legally cognizable form, arose solely after the
aforementioned threshold date.3

2. Temporal Jurisdiction Under Article 2 of the BIT and the Ongoing Impact of Pre-
Existing Issues:

1
;
2
3

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Despite the current legal dispute predating the Bilateral Investment Treaty's ("BIT") entry into
force, its ongoing nature potentially renders it a "violation" under the treaty, establishing
jurisdiction for the investor under the BIT's dispute resolution mechanisms. 4 This aligns with
the legal concept of continuous violation in BIT disputes.
The argument for jurisdiction based on continuous violation in BIT disputes hinges on the
principle that ongoing harm stemming from a pre-existing breach, even if it occurred before
the BIT's entry into force, can fall within the tribunal's purview
Continuous Violation Concept: Pre-BIT breaches can constitute ongoing violations if their
negative consequences persist after the treaty's implementation. 5 (Joy Mining Machinery
Limited v. The Arab Republic of Egypt, ICSID Case No. ARB/03/11).
This interpretation finds support in Article 28 of the Vienna Convention on the Law of
Treaties (VCLT), stating that the non-retroactivity principle does not apply to situations
continuing after the treaty's entry into force.6
If an act or fact or situation which took place or arose prior to the entry into force of a treaty
continues to occur or exist after the treaty has come into force, it will be caught by the
provisions of the treaty. 7(Vienna Convention Commentary, Art. 28, para. 3)
3. Breach of the Non-Discriminatory Treatment Obligation under the Article 6 of the BIT:

At its core, non-discrimination mandates that a host state accord to foreign investors and their
investments treatment "no less favorable" than that granted to its own nationals and their
investments (national treatment) or to investors from any third country (MFN treatment) in
"like situations" (Article VI(1, 2)). 8

This principle serves a dual purpose:

1. National treatment safeguards foreign investors from being singled out for harsher
treatment compared to domestic counterparts. This fosters a level playing field within
the host country's jurisdiction, mitigating concerns of arbitrary discrimination and
ensuring equal access to opportunities.9 (See CSIS v. Moldova, PCA Case No.
AA/05/09/04, para. 310).
2. By guaranteeing treatment no worse than that accorded to any other foreign investor,
MFN fosters predictability and stability in the regulatory landscape. Investors can

4
5
6
7
8
9

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operate with greater confidence knowing their treatment will not be capriciously
undermined by preferential concessions granted to competitors from other countries. 10
(See Salini v. Madagascar, ICSID Case No. ARB/07/24, para. 129).

Non-Discrimination and MFN

Non-discrimination establishes a minimum standard of fair treatment, ensuring foreign

investors are not subjected to outright disadvantage compared to domestic or other foreign
counterparts.11 MFN, building upon this foundation, elevates the standard by preventing
discrimination based on nationality among foreign investors. This combined effect creates a
robust regime for investor protection, safeguarding against both direct and indirect
discrimination.

International Legal Underpinnings and Guiding Principles

The principles enshrined in the BIT find further reinforcement in the broader framework of
international law and investment agreements. The World Trade Organization's (WTO) Most-
Favored-Nation Principle (Article I of the General Agreement on Tariffs and Trade (GATT))
stands as a cornerstone of international trade relations, promoting non-discrimination between
trading partners.12 Similarly, the UNCTAD Model Bilateral Investment Treaty incorporates
provisions on non-discrimination and MFN treatment, reflecting their widespread recognition
as essential safeguards in international investment law. 13 Moreover, the ICSID Convention
guarantees "fair and equitable treatment" in Article 25(1), a concept interpreted to encompass
both non-discrimination and MFN principles within the context of investor-state disputes.14
4. Article 9 (1) of the BIT establishes arbitration as the binding and exclusive forum for
settling any legal disputes arising under the Agreement.15
Any dispute should, as far as possible, be settled amicably through negotiations, conciliation
or mediation. A disputing party shall give favorable consideration to a request for
negotiations,
conciliation or mediation by the other disputing party.

B. The present matter constitutes an investment related violation subject to the

adjudication procedures outlined within the BIT.
10
11
12
13
14
15

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The definition of "investment" within the specific BIT governing the current dispute is
crucial. According to the excerpt provided, the BIT defines an investment as "every kind of
asset that has the characteristics of an investment, which includes a certain duration, the
commitment of capital or other resources, the expectation of gain or profit, and the
assumption of risk."16 This aligns with the widely used Salini test, developed in the seminal
case of Salini Costruttori S.p.A. and Italstrade S.p.A. v. Kingdom of Morocco. 17 (ICSID Case
No. ARB/00/4).
The Salini test requires that, for something to qualify as an investment under the BIT: 18
a) There must be a contribution of money or other resources by the investor to the host
state.
b) There must be a genuine intention for long-term commitment to the investment.
c) The investor must assume some degree of economic, political, or legal risk associated
with the investment.
d) The investment should aim to benefit the host country through job creation,
technology transfer, tax revenue, etc.

C. NEPA's Continuous Regulatory Effect: Jurisdiction Extends Beyond the Effective Date:
The adoption and implementation of the National Environmental Protection Act ("NEPA") by
Celestria established a dynamic and pervasive regulatory framework with continuous
implications for existing and future investments within its jurisdiction. 19 NEPA's regulatory
scope and ongoing effect extend beyond its effective date, creating an interconnected
environment influencing the legal and operational landscape for investments like
Astracommex Regional's. Therefore, any legal dispute arising from the application or
interpretation of NEPA, in its interaction with the disputed investment, falls squarely within
the temporal jurisdiction of this Honorable Tribunal.20
The BIT's purpose of promoting and protecting investments extends to situations where
regulatory changes, like NEPA's adoption, create ongoing effects impacting investments made
prior to those changes. Excluding such disputes from the Tribunal's jurisdiction would
undermine the BIT's objective of providing stable and predictable legal frameworks for
investors.21 ( vlct article 31 (1) )
16
17
18
19
20
21

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D. Treaty Provisions Reinforce Tribunal's Jurisdiction over the current Legal Disputes
The Vienna Convention plays a crucial role in establishing the framework for determining the
relevant timeframe for a tribunal's authority.22

1. Preserving the BIT's Integrity: Applying Article 18 to Prevent Treaty Undermining:

This article imposes an obligation on signatory states to refrain from acts that would
undermine the treaty's goals before its entry into force. Arguably, denying jurisdiction for pre-
treaty claims could frustrate the treaty's objective of resolving disputes peacefully and
efficiently.23 (See Amethyst Resources Corp. v. Kinross Gold Corp. and its interpretation of
Article 18).
2. Temporal Scope and Application of the VCLT under Article 24:
While Article 24 primarily clarifies the timing of treaty effectiveness, its focus on establishing
consent creates an ongoing process even before formal entry. This can be interpreted as
implying an ongoing obligation to comply with the treaty's dispute resolution mechanisms,
including for pre-treaty claims.24 (See Philippe Sands and Alain Pellet's Commentary on the
VCLT regarding the potential ongoing effect of Article 24).
3. Application of Provisional Application under Article 25 of the Vienna Convention:
Although rarely used, Article 25 allows partial or full provisional application of treaties
before formal entry. If the arbitration clause falls under this category, it could support
arguments for jurisdiction over pre-treaty claims.25

The International Centre for Settlement of Investment Disputes (ICSID) plays a critical role in
resolving investment disputes between investors and host states under Bilateral Investment
Treaties (BITs).26 Establishing the temporal jurisdiction of the tribunal, determining its power
to adjudicate the specific dispute, is a crucial preliminary step in any ICSID arbitration. This
intricate process goes beyond the mere application of the Vienna Convention on the Law of
Treaties (VCLT) and involves a nuanced interplay of factors.Establishing ratione temporis
jurisdiction in ICSID arbitration for pre-treaty disputes often hinges on interpreting Articles
25 and 26 of the ICSID Convention.

1. Jurisdiction Established under Article 25 of the ICSID Convention: Addressing

Investment Dispute and Consent Requirements:

22
23
;
24
;
25
26

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Clause (1)(a): Submission to Arbitration: This clause allows states to submit existing disputes to
ICSID arbitration through a separate agreement.27 Arguably, such an agreement could effectively
extend the arbitration clause's scope to pre-treaty claims. 28 (See Tomen Corporation v.
Government of Pakistan, where the tribunal considered a subsequent agreement as relevant to
ratione temporis jurisdiction).

Clause (1)(b): Investment after Contract: This clause empowers investors to initiate arbitration for
disputes arising after their investment was made, even if the investment agreement predates the
ICSID Convention's entry into force for the host state. 29 This principle could be extrapolated to
cover pre-treaty disputes significantly impacting subsequent investments. 30 (See Metalclad Corp.
v. Government of Mexico, where the tribunal emphasized the ongoing nature of investment
protection).

2. Invoking Article 26's Consent Clauses: Multiple Avenues to ICSID Jurisdiction:

"Broad Consent" Interpretation: Article 26 allows states to consent to ICSID jurisdiction through
various acts, including concluding treaties or exchanging written instruments. 31 Some argue this
constitutes a "broad consent" approach, potentially encompassing disputes arising before such
acts, especially if directly related to the investment protected by the treaty. 32 (See Philippe Sands
and Alain Pellet's commentary on the VCLT suggesting a wider concept of consent relevant to
Article 26). Evolution of Investment Law: Recent arbitral decisions increasingly acknowledge the
dynamic nature of investment law and principles like good faith. This could support arguments
that consent under Article 26 should evolve alongside these principles, potentially covering pre-
treaty acts impacting protected investments. 33 (See Slovak Republic v. Achmea B.V. where the
tribunal emphasized the evolving nature of investor-state dispute settlement).

Exhaustion of local judicial remedies: This article also allows Contracting States to "require the
exhaustion of local administrative or judicial remedies as a condition of its consent to arbitration
under this Convention." 34

27
28
29
30
31
32
33
34

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PRAYER FOR RELIEF

In light of the above submissions, Astracommex Regional respectfully requests this Honorable
Tribunal to declare that:
Declare that the dispute is within the competence of the Centre and the jurisdiction
of the Tribunal

Respectfully Submitted,
Counsel for Astracommex Regional
AstroJuris Arbitration

-MEMORANDUM FOR THE APPLICANT-