I.

THE BLOCKADE OF THE SUITE OF SOFTWARE OFFERED BY BATTERSOFT

ON ARSENALIAN TERRITORY IS IN CONSONANCE WITH THE PRINCIPLES OF
THE ARBIT, AND IS A JUSTIFIED, PROPORTIONAL, AND NECESSARY
UNILATERAL ECONOMIC SANCTION AGAINST THE STATE OF ROJO DIABLO

1. The Counsel of the Claimant submits before the Honorable Court that the Blockade of
the suite of software offered by Battersoft on Arsenalian Territory is in consonance
with the principles of the ARBIT, and is a justified, proportional, and necessary
unilateral economic sanction against the state of Rojo Diablo. The Government of
Arsenalia( hereinafter ‘Claimant’),on 1st October 2021,vide Notification No.
111/2021 dated October 1, 2021, the Ministry of Information Technology of
Arsenalia, invoking it’s power under the Information Technology Act of Arsenalia,
decided to block the entire suite of software offered by BatterSoft as these softwares
are engaged in activities which is “prejudicial to sovereignty and integrity of
Arsenalia, defence of Arsenalia, security of state and public order, and the blocking of
these software is a justified proportional and legitimate economic sanction for the
trans boundary harm caused due to Arsenalia by Rojo Diablo during the Wenger
Incident”1.
2. Small Ram is a company operating from a territory in Rojo Diablo, and Rojo Diablo
cannot avoid responsibility for the actions of the same. The failure to dispose of
hazardous materials from the Wenger River is a continuing violation of international
law and the responsibility for the Wenger Incident is directly attributable to Rojo
Diablo.
3. The Blockade of the suite of software offered by Battersoft on Arsenalian Territory is
vaild as: Firstly, the Blockade of the suite of software offered by Battersoft on
Arsenalian Territory is in consonance with the principles of the ARBIT and Secondly
the measure was justified and in consonance with the principles of necessity and
proportionality.

1
Moot Proposition,¶14
 A. The Blockade of the suite of software offered by Battersoft on Arsenalian
Territory is in consonance with the principles of the ARBIT

4. Notification No. 111/2021 dated October 1, 2021 was in consonance with the ARBIT.
The Claimant decided to block the entire suite of software offered by BatterSoft since
in view of the “information available with the Government of Arsenalia”, these
software are engaged in activities which is “prejudicial to sovereignty and integrity of
Arsenalia, defence of Arsenalia, security of state and public order, and the blocking of
these software is a justified proportional and legitimate economic sanction for the
transboundary harm caused due to Arsenalia by Rojo Diablo during the Wenger
Incident.”2

5. i. EXPROPRIATION
“Self-help” is a pivotal concept in the international legal system, Unilateral sanctions
are coercive measures or the threat of taking such measures in order to compel the
sanctioned states or persons to change their behavior in a particular manner.
Expropriation in simple terms is the action by the state or an authority of taking
property from its owner for public use or benefit.

6. According to Article VI of ARBIT states that-

“(a) Neither Party may expropriate or nationalise an investment either directly or

indirectly through measures equivalent to expropriation or nationalisation
("expropriation"), except for a public purpose; in accordance with due process of
law; in a non-discriminatory manner; and on prompt, adequate, and effective
compensation.”3

2
Moot Proposition,¶14
3
Article VI, Annexure I
 7. There is no specific rule in international law that prohibits states from resorting to
unilateral sanctions against other states. To the contrary, some self-help concepts are
recognized by international law under the name of “retorsions and countermeasures.”

8. “Countermeasures are a feature of a decentralized system by which injured States

may seek to vindicate their rights and to restore the legal relationship with the
responsible State which has been ruptured by the internationally wrongful act”4 

9. In the case of James and others v. United Kingdom, the Court held that the State’s
judgement should be accepted unless exercised in a manifestly unreasonable way.5

10. ii. NON-DISCRIMINATIONATORY AND FAIR AND EQUITABLE

TREATMENT

Article IV and Article V of the ARBIT stated that:

“Article IV
Each Party shall accord investments and investors of the other Party
treatment no less favourable than that it accords, in like circumstances, to its
own investors and to investors of any non-Party.
Article V
Each Party shall accord to investments treatment in accordance with
customary international law, including fair and equitable treatment, full
protection and security, and non-discrimination.”6

When it comes to the preservation of its public health and environment, it is

reasonable for Respondent to take measures.

11. The Claimant had a right as per the ARBIT to take measures necessary for ‘public
purposes.The exercise of this right carried a condition that the measures undertaken

4
Article 48, Commentary of of the ARSIWA
5
James and others v. United Kingdom [1986] ECHR 2
6
Article IV, Article V, Annexure I
 pursuant to the above-mentioned resources must not be applied in a manner that
constitutes arbitrary or unjustifiable discrimination between investments or between
investors; or a disguised restriction on international trade or investment. This
condition have been duly met by the Respondent.

12. Most of the tribunals have interpreted lack of arbitrariness and non-discrimination as
elements of the fair and equitable treatment standard. In Rupert Joseph Binder v.
Czech Republic, it was held that the:

“The standard of fair and equitable treatment also ensures that a state acts in good
faith in its dealings with the investor or its investment and that it does not coerce,
threaten or harass the investor or its investment. Similarly, if the state conducts itself
in an arbitrary or discriminatory way, it will have violated the fair and equitable
treatment standard.”7

13. The conduct of the Claimant, therefore, is not tantamount to the prohibited acts. The
Claimant fulfilled its obligation to treat the respondent fairly and without
discrimination and the measure that was taken to preserve the environment and the
economy of Arsenalia were done in accordance with the principles laid down in the
ARBIT.

A. THE MEASURE WAS JUSTIFIED AND IN CONSONANCE WITH THE

PRINCIPLES OF NECESSITY AND PROPORTIONALITY

14. The Respondents alleged that the harm that was caused was attributed to a Force
Majeure event and, owing to the different standards of care during the COVID-19
pandemic8. Small Ram was manning barges carrying 100,000 units of batteries each
with only two bargemen (including the captain) when there was an increase in the
demand of smartphones etc. which exposed the mismanagement on part of the
company.9

7
Rupert Joseph Binder v. Czech Republic
8
Moot Preposition,¶16
9
Moot Preposition,¶9
 15. On October 23, 2020, Meekalar Teta, the Chancellor of Arsenalia released a
statement on the official website of the Government of Arsenalia which included a
demand by the Claimant to the government of Rojo Diablo to work towards coming
up with solutions to clean up the Wenger River which is a common resource to both
states10 but the responsibility was out rightly denied to take sole responsibility for
what he believed was an entirely Force Majeure situation. 11Arsenalia is dependent on
its agricultural produce, including the fruits of pisciculture on the Wenger River. The
pisciculture industry was hit severely in Arsenalia with demand related to fisheries
falling by 62%.12

16. NECESSITY AND PROPORTIONALITY

The measures taken by the Claimant in accordance with the requirements to claim
a defense of necessity. Art. 25 of ARSIWA talks about these requirements.
The following requirements are the measures:
“
a. The measures were the only way to avoid a grave and imminent peril; and,
b. The measures don‘t impair other states ‘or international community‘s essential
interests. The measures were not exempt if:

i. The obligation excludes the possibility of invoking the necessity

defense; or,
ii. If the state contributed to the situation of necessity.”13

17. The Claimant had the right and the duty towards its people, to ensure that all
exploitation of natural resources was done in an environmentally sustainable manner.
The priority of the Government of Arsenalia was to take swift measures to prevent or

10
Moot Preposition,¶11
11
Moot Preposition,¶12
12
Moot Preposition,¶13
13
Article 25, Responsibility of States for Internationally Wrongful Acts 2001
 minimize environmental degradation. The decree was passed without arbitrariness
and discrimination and was treated with the urgency and care it warranted.

18. The pollution caused by the Respondent, proves that Claimant’s efforts were neither
substantial nor sufficient. There must be a reasonable relationship of proportionality
between the charge or weight imposed by the measure and its aim which was also
followed in the present case In MTD v Chile, the parties accepted that the host state
was obligated to treat the investment fairly and equitably. The parties also agreed with
Judge Schwebel’s statement that ‘the meaning of what is fair and equitable is defined
when that standard is applied to a set of specific facts, fair and equitable treatment is a
broad and widely-accepted standard encompassing such fundamental standards as
good faith, due process, non-discrimination, and proportionality’ Since the principle
of proportionality balances competing interests, it seems to be reasonable to regard it
as a part of the fair and equitable principle.14

19. CONCLUSION TO THE ISSUE: In conclusion, it is humbly submitted before this

court that the Blockade of the suite of software offered by Battersoft on Arsenalian
Territory is vaild as: Firstly, the Blockade of the suite of software offered by
Battersoft on Arsenalian Territory is in consonance with the principles of the ARBIT
and Secondly the measure was justified and in consonance with the principles of
necessity and proportionality.

14
ICSID, MTD v. Chile, Case No. Arb/01/7 Award (2004)