2020 Fdi Claimant Memorial (Final Draft - Rev 6)

TEAM RUDA
KOREAN COMMERCIAL ARBITRATION BOARD INTERNATIONAL

KCAB Case N° 15503/IS
THE 2020 FOREIGN DIRECT INVESTMENT

INTERNATIONAL ARBITRATION MOOT
ARBITRATION PURSUANT TO THE UNITED NATIONS COMMISSION

ON INTERNATIONAL TRADE LAW ARBITRATION RULES (2010)
IN PROCEEDING BETWEEN
Goliath National Bank JSC

(Claimant)
v.
The Republic of Laoc

(Respondent)
MEMORIAL FOR CLAIMANT

TABLE OF CONTENTS
TABLE OF CONTENTS...............................................................................................................I
INDEX OF AUTHORITIES......................................................................................................IV
LIST OF ABBREVIATIONS...................................................................................................XII
ARGUMENTS...............................................................................................................................3
PART ONE: ARBITRATOR CHALLENGE.............................................................................3
I. RESPONDENT’S CHALLENGE TO REPLACE MR. PERRY MASON SHOULD
BE DISMISSED.................................................................................................................3
A. Mr. Mason’s non-disclosure of his appointment in the Hewer and C-Energy cases
is not ground for challenge.............................................................................................4
B. Mr. Mason is not likely to prejudge the present case as there exists no issue
conflict between it and the Hewer case.........................................................................6
1. The facts are at a minimum not similar...................................................................7
2. The legal issues are different...................................................................................8
C. In any event, the publicly available information relied upon by Respondent, taken
individually or as a whole, do not indicate a strong predisposition in favour of
Claimant..........................................................................................................................9
1. Individually, the published information do not prove Mr. Mason’s partiality........9
i. Mr. Mason’s opinion voiced in the 9 May 2018 arbitration podcast is not pro-
investor...............................................................................................................10
ii. Neither do the information contained in the 2 June 2019 International
Arbitration News article prove any such predisposition....................................12
iii. Mr. Mason’s 3 June 2019 social media post is a neutral statement of fact.......12
2. Even taken collectively, the published information do not prove Mr. Mason’s
strong predisposition in favour of Claimant..........................................................13
PART TWO: JURISDICTION..................................................................................................14
II. CLAIMANT HAS LEGAL STANDING PURSUANT TO THE ASNEC ENERGY
INVESTMENT TREATY...............................................................................................14
A. As legal successor, Claimant fully owns MFNB’s investment in T1, including the
right to bring a treaty claim against Respondent......................................................14
1. Claimant’s right to succeed entails the acquisition of all investment rights,
including ownership and the right to bring a treaty claim against Respondent.....15
2. Moreover, Respondent’s allegation that investments are intuitu personae and bar
standing is not a general rule of investment arbitration and cannot be invoked
against Claimant....................................................................................................17
B. Claimant meets the jurisdictional requirements to file the present claim under
ASNEC Energy Investment Treaty.............................................................................18
1. Claimant’s investment meets the rationae loci requirement under Article I of the
ASNEC Energy Investment Treaty.......................................................................18
2. The Tribunal also has personal jurisdiction over Claimant as “investor” under
Article I (4) (b) of the ASNEC Energy Investment Treaty...................................19
3. Claimant’s investment remains protected..............................................................19
i. Guarantees inherited by Claimant under the AA are protected.........................20
ii. The loan to T1 remains “associated with an Economic Activity in the Energy
Sector” despite the transfer of ownership from MFNB to Claimant..................21
PART THREE: MERITS...........................................................................................................22
III. THE CHALLENGED MEASURES ARE ATTRIBUTABLE TO RESPONDENT. 22
A. Attribution and Responsibility are not the same under international law..............22
B. Respondent is solely responsible for the challenged measures.................................23
1. The Coal Directive is only binding as to its result.................................................23
2. Respondent can in fact implement the Coal Directive in a manner that respects
and complies with its existing obligations under the ASNEC Energy Investment
Treaty.....................................................................................................................26
3. Alternatively, Respondent is jointly responsible with ASNEC for the Challenged
Measures................................................................................................................27
C. Consequently, the remedy is merely to temporarily suspend proceedings and
require ASNEC to join as an indispensable party.....................................................28
IV. RESPONDENT TREATED CLAIMANT’S INVESTMENT UNFAIRLY AND
INEQUITABLY, BREACHING ARTICLE II OF THE ASNEC ENERGY
INVESTMENT TREATY...............................................................................................29
A. Respondent failed to provide Claimant with a stable legal and business
environment...................................................................................................................30
1. Respondent’s inherent obligation to maintain a stable legal and business
environment remains unaffected despite the absence of a stabilization clause.....30
2. As Respondent radically altered its legal and business environment, it violated its
FET obligation.......................................................................................................31
B. Respondent frustrated Claimant’s legitimate expectation of a stable legal and
economic environment..................................................................................................32
1. Specific assurances made to T1 and Mountaintop extended to MFNB.................33
2. Claimant’s expectations are reasonable under the laws prevailing at the time of
the investment........................................................................................................34
3. MFNB legitimately relied upon the assurances at the time of making the
investment..............................................................................................................34
C. Alternatively, Law 66/2016 as implemented by Law 72/2016 is discriminatory.....35
D. Respondent’s Measures are unreasonable as they were implemented without a
legitimate purpose.........................................................................................................35
1. Respondent’s Measures were not enacted based on a rational policy...................36
ii
2. Even if Respondent’s Measures were based on a rational policy, in its pursuit,
Respondent failed to appropriately tailor it in a way that paid due regard to
Claimant.................................................................................................................37
E. Moreover, Respondent is not entitled to invoke defences under the ASNEC Energy
Investment Treaty or customary international law...................................................38
1. Respondent may not invoke the NPM clause in the ASNEC Energy Investment
Treaty..............................................................................................................................38
i. Respondent’s Measures were not necessary to protect human, animal or plant
life.......................................................................................................................39
ii. Respondent’s Measures were not essential to the acquisition or distribution of
Energy Materials and Products in conditions of short supply...........................40
2. Respondent’s Measures were not necessary under customary international law. .40
i. The phase-out of coal-fired power plants was not the only way to avoid grave
and imminent peril..............................................................................................41
ii. Respondent contributed to the situation of necessity..........................................41
F. In any event, Respondent’s Measures were also disproportionate pursuant to
Article IX (2) of the ASNEC Energy Investment Treaty..........................................42
G. Claimant is entitled to compensation amount to no less than USD 450,000,000 for
the damages caused by Respondent’s Measure.........................................................43
PRAYERS OF RELIEF..............................................................................................................44
iii
INDEX OF AUTHORITIES
ARBITRAL DECISIONS
Abaclat Abaclat and others v. Argentine Republic,

Recommendation Pursuant to the Request by ICSID on
the Respondent’s Proposal for the Disqualification of
Arbitrator, 19 December 2011
ADC ADC Affiliate Limited and ADC & ADMC Management

Limited v. The Republic of Hungary, Award of the
Tribunal, 2 October 2006
AES AES Summit Generation Limited and AES-Tisza Eromu

Kft. v. Republic of Hungary, Award, 23 September 2010
Al-Bahloul Mohammad Ammar Al-Bahloul v. The Republic of

Tajikistan, Partial Award on Jurisdiction and Liability,
2 September 2009
AMTO Limited Liability Company AMTO v. Ukraine, Final

Award, 26 March 2008
iv
Azurix Azurix Corp v.The Argentine Republic, Award, 14 July
2006
BG Group BG Group Plc. v. The Republic of Argentina, Final

Award, 24 December 2007
Burlington Burlington Resources Inc v. Republic of Ecuador,

Decision on the Proposal for Disqualification of
Professor Francisco Orrego Vicuna, 13 December 2013
Caratube Caratube International Oil Company LLP & Mr.

Devincci Salah Hourani v. The Republic of Kazakhstan,
Decision on the Proposal for Disqualification of Mr.
Bruno Boesch, Arbitrator, 20 March 2014
CMS CMS Gas Transmission Company v. The Argentine

Republic, Award, 12 May 2005
Compania de Aguas Compania de Aguas del Aconquija S.A. & Vivendi

Universal v. Argentine Republic, Decision on the
Challenge to the Challenge to the President of the
Committee, 3 October 2001
Daimler Financial Services AG v. Argentine Republic, Award, 22

August 2012
Devas CC/Devas v. Republic of India, Decision on the

Respondent’s Challenge to the Hon. Marc Lalonde as
Presiding Arbitrator and Prof. Francisco Orrego
Vicuña as Co-Arbitrator, 30 September 2013
Eastern Sugar Eastern Sugar B.V. (Netherlands) v. The Czech

Republic, SCC, Partial Award, 27 March 2007
EDF EDF (Services) Limited v. Romania, Legal Opinion of

Claimant’s Expert, Prof. Christoph Schreuer, 4 June
2007
Eiser Eiser Infrastructure Limited and Energia Solar

Luxembourg S.A.R.I v. Kingdom of Spain, Award, 4 May
2017
Enron Enron Corporation and Ponderosa Assets, L.P. v.

Argentine Republic, Award, 22 May 2007
Gallo Vito G. Gallo v. Government of Canada, Decision on the

Challenge to Mr. J. Christopher Thomas, Q.C, 14
October 2009
v
Gabcikovo Case Concerning the Gabcikovo-Nagymaros Project,
(Hungary/Slovakia), Judgement of 25 September 1997
Glamis Glamis Gold, Ltd. v. The United States of America,

Award, 8 June 2009
Grand River Grand River Enterprises et al v. United States of

America, Decision on the Challenge to Arbitrator James
Anaya, 28 November 2007
Hydro Energy Hydro Energy 1 S.a.r.l. And Hydroxana Sweden AB v.

Kingdom of Spain, Decision on Jurisdiction, Liability
and Directions on Quantum, 9 March 2020
Lemire Joseph Charles Lemire v. Ukraine, Award, 28 March

2011
LG&E LG&E Energy Corp., LG&E Capital Corp., and LG&E

International, Inc. v. Argentine Republic, Decision on
Liability, 3 December 2006
Metalpar Metalpar S.A. and Buen Aire S.A. v. The Argentine

Republic, Award on the Merits, 6 June 2000
Micula Ioan Micula, Viorel Micula, S.C. European Food S.A.,

S.C. Starmill S.R.L and S.C. Multipack S.R.L. v.
Romania, Award, 11 December 2013
Mihaly Mihaly International Corporation v. Democratic

Socialist Republic of Sri Lanka, Award, 15 March 2002
National Grid National Grid plc v. The Republic of Argentina,

Decision on the Challenge to Mr. Judd L. Kessler, 20
June 2006
Occidental Occidental Exploration and Production Company v. The

Republic of Ecuador, Final Award, 1 July 2004
Parkerings Parkerings-Compagniet AS v. Republic of Lithuania,

Award, 11 September 2007
Perenco Perenco Ecuador Ltd v. Republic of Ecuador and

Petroecuador, Decision on Challenge to Arbitrator by
the Secretary General of the Permanent Court of
Arbitration (PCA), 8 December 2009
Plama Plama Consortium Limited v. Republic of Bulgaria,

Award, 27 August 2008
vi
PSEG PSEG Global, Inc., The North American Coal
Corporation, and Konya Ingin Electrik Uretim ve
Ticaret Limited Sirketi v. Republic of Turkey, Award, 19
January 2007
Rumeli Telekom Rumeli Telekom A.S. and Telsim Mobil

Telekomunikasyon Hizmetleri A.S. v. Republic of
Kazakhastan, Award, 29 July 2008
Saluka Saluka Investments BV (The Netherlands) v. The Czech

Republic, Partial Award, 17 March 2006
SGS SGS Société Générale de Surveillance S.A. v. Islamic

Republic of Pakistan, Decision on Claimant’s Proposal
to Disqualify Arbitrator J Christopher Thomas, 19
December 2002
Siemens Siemens A.G. v. The Argentine Republic, Award, 17

January 2007
Suez Suez, Sociedad General de Aguas de Barcelona S.A. v

Argentina, Decision on Proposal for Disqualification of
a Member of the Arbitral Tribunal, 22 October 2007
Urbaser Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia,

Bilbao Biskaia Ur Partzuergoa v. The Argentine
Republic, ICSID Case No. ARB/07/26, Decision on
Claimants’ Proposal to Disqualify Professor Cambell
McLachlan, 12 August 2010
Vannessa Vannessa Ventures LTD v. The Bolivarian Republic of

Venezuela, Award, 16 January 2013
Veteran Petroleum Veteran Petroleum Limited (Cyprus) v. The Russian

Federation, Interim Award on Jurisdiction and
Admissibility, 30 November 2009
INTERNATIONAL COURT DECISION
Phosphates Phosphates in Morocco, PCIJ Series A/B No.74
Japan – Apples Panel Report, Japan –- Apples (Article 21.5 – US)
India – A. Products The Appellate Body in India – Agricultural
vii
TEXTBOOKS
Clayton/Tomlinson Richard Clayton and Hugh Tomlinson, The Law of

Human Rights, Oxford University Press, 2002
Crawford Professor James Crawford, SC, Energy Charter Treaty

Arbitration: Jurisdiction Issues
Dolzer/Schreuer R. Dolzer and C. Schreuer, Principles of International

Investment Law, 2008
Greer Steven Greer, The Margin of Appreciation:

Interpretation and Discretion Under the European
Convention on Human Rights, Council of Europe
Publishing, 2000
ICSID Review ICSID Review - Foreign Investment Law Journal,

Volume 10Newcombe/Paradell Andrew Paul
Newcombe and Lluis Paradell, Law and Practice of
Investment Treaties: Standard of Treatment, Kluwer
Law International, p. 280
Nollkaemper/Jacobs Andre Nollkaemper & Dov Jacobs, Shared

Responsibility in International Law: A Conceptual
Framework, 34 MICH. J. INT'L L. 359, 2013
Potesta Michele Potesta, Legitimate Expectations in Investment

Treaty Law: Understanding the Roots and the Limits of
a Controversial Concept, ICSID Review – Foreign
Investment Law Journal
Klager Roland Klager, Fair and Equitable Treatment in

International Investment Law, Cambridge Studies in
International and Comparative Law, Cambridge
University, 2011
Leal-Arcas Commentary on the Energy Charter Treaty, Rafael Leal-

Arcas, 2018
Litvinoff Saul Litvinoff, Subrogation, Louisiana Law Review,

Volume 50, Number 6, July 1990
Salacuse Jeswald W. Salacuse, The Law of Investment Treaties,

Oxford University Press
viii
Stefano Carlo de Stefano, Attribution in International Law and
Arbitration,Oxford University Press, 2020
Tzeng Peter Tzeng, Investments on Disputed Territory:

Indispensable Parties and Indispensable Issues,
Brazilian Journal of International Law, 2017
ARTICLES
Akpan Nsikan Akpan, Only 2 countries are meeting their

climate pledges. Here’s how the 10 worst could
improve, Public Broadcasting Service, PBS.org,
September 2019
ARIO International Law Commission, Draft Articles on the

Responsibility of International Organization, United
Nations, 2011
ASR International Law Commission, Articles on the

Responsibility of States for Internationally Wrongful
Acts, United Nations, 2001
Bastida Bruno Manzanares Bastida, The Independence and

Impartiality of Arbitrators in International Commercial
Arbitration from a Theoretical and Practical
Perspective, 2007
Burke-White/Staden William W. Burke-White and Andreas Von Staden,

Investment Protection in Extraordinary Times: The
Interpretation and Application of Non-Precluded
Measures Provisions in Bilateral Investment Treaties,
Virginia Journal of International Law, Volume 48, 2008
Dimitropoulos Georgios Dimitropoulos, Constructing the

Independence of International Investment Arbitrators:
Past, Present, and Future, 2016
EPA Environmental Protection Agency, BAT Guidance Note

on Best Available Techniques for the Energy Sector,
(Large Combustion Plant Sector), Ed. 1
Gehne/Brillo Katja Gehne and Rumulo Brillo, Stabilization Clause in

International Investment Law: Beyond Balancing Fair
and Equitable Treatment, Transnational Economic Law
Research Center
ix
Greenpeace Greenpeace Southeast Asia-Indonesia, Full Report Coal
Mines Polluting South Kalimantan’s Water, December
2014
Hajny/Shepson/ Kristian D. Hajny, Paul B. Shepson, Joseph Rudek,

Rudek/Stirm/ Robert Kaeser, Brian H. Stirm and Andrew A. Stuff,
Kaeser/Stuff Assessing the Greenhouse Gas Emissions from Natural
Gas Fired Power Plants, American Geophysical Union,
Fall Meeting 2017
Hwang/Lim Michael Hwang and Kevin Lim, Issue Conflict in ICSID

Arbitrations, 2011
Jeffries Jeffries, Master: Provision Case, Award, 20 June 1797

reprinted in John Bassett International Adjudications,
Vol. IV (1931)
Kemp Rene Kemp, The Dutch Energy Transition Approach,

International Economics and Economic Policy, 23 June
2010
Kirschbaum Erika Kirschbaum, Germany to close all 84 of its coal-

fired power plants, will rely primarily on renewable
energy, Los Angeles Times, 26 January 2019
Laird/Sabahi/ Ian A. Laird, Borzu Sabahi, Frederic G. Sourgens, and

Sourgens/Weiler Todd J. Weiler, Investment Treaty Arbitration and
International Law, 2015
Ortega Elena Laura Álvarez Ortega, The attribution of

international responsibility to a State for conduct of
private individuals within the territory of another State,
InDret Revista Para El Análisis Del Derecho, 2015
Ortino Federico Ortino, The Obligation of Regulatory Stability

in the Fair and Equitable Treatment Standard: How Far
Have We Come, Journal of International Economic
Law, Volume 21, Issue 4, December 2018
Popova/Polebaum Ina C. Popova, and Jessica L. Polebaum, Emerging

Expectations for Arbitrators: “Issue Conflict” in
Investor State Arbitration and Beyond, 2018
Thjoernelund Marie Christine Hoelck Thjoernelund, State of Necessity

as an Exemption from State Responsibility for Investors,
Max Planck Yearbook of United Nations Law Online,
Volume 13, Issue 1, January 2009
x
UNCTAD Fair and Equitable Treatment, UNCTAD Series on
International Investment Agreements II
Vasciannie Stephen Vasciannie, The Fair and Equitable Treatment

Standard in International Investment Law and Practice,
British Yearbook of International Law, 1999, Vol. 70,
Issue.1
Wilde Mark Wilde, Best Available Techniques (BAT) and

Coal-fired Power Stations: Can the Energy Gap Without
Increasing Emissions? Oxford Journals, Oxford
University Press, Journal of Environmental Law, 2008,
Vol. 20, No. 1
Willis Hugh Evander Willis, "Subject-Matter." Columbia Law

Review 9, No. 5, 1909
Zeyl Trevor Zeyl, Charting the Wrong Course: The Doctrine

of Legitimate Expectations in Investment Treaty Law,
Alberta Law Review, Vol. 29, No. 1
OTHERS
Climate Transparency Climate Transparency, Managing the phase-out of coal:

a comparison of actions in G20 countries, May 2019
Council of Europe Council of Europe, The Margin of Appreciation,

Judicial Professions, The Lisbon Network
EIA U.S. Energy Information Administration, Biomass and

the environment, 25 October 2019
Grand View Research Grand View Research, Electric Scooters Market Size,
Share & Trends Analysis Report By Product (Retro,
Standing/Self-Balancing, Folding), By Battery (Sealed
Lead Acid, NiMH, Li-Ion), By Voltage, And Segment
Forecasts, 2020 - 2030, February 2020
Osborn P.G. Osborn, A Concise Law Dictionary, 4th Edition,

London: Sweet & Maxwell, 1954
Rens van de Ven Rense van de Ven, The Netherlands in 2030: (Almost)
halfway the elimination of greenhouse gasses, Magnus
Commodities, 25 June 2019
The European Union’s EUR-Lex, The European Union’s External Action
xi
LIST OF ABBREVIATIONS
¶/¶¶ Paragraph(s)
AA Assignment Agreement
ASR Responsibility of State for Internationally Wrongful Acts
ARIO Articles on the Responsibility of International

Organization
ASNEC Association of Sovereign Nations for Economic

Cooperation
ASNEC Energy Treaty concerning the Encouragement and Reciprocal

Investment Treaty Protection of Energy Investments in the ASNEC Region
BAT Best Available Technique
BIT Bilateral Investment Treaty
Coal Directive Directive (ASNEC) 2016/87 of 17 February 2016 on the

renewable sources of energy
CBDR Common but Differentiated Responsibilities
xii
Exhibit C-1 IEO Article “Domestic coal sector remains one of the
pillars of the Laocan economy” dated 14 May 2008
Exhibit C-2 Minutes of the Meeting between Ticadian Municipal

Government, MFNB and Mountaintop on 1 December
2010
Exhibit C-3 Minutes of the MFNB Board Meeting dated 19

November 2010
Exhibit C-4 Financing Agreement N. 0940394 executed between

Ticadia-1, MFNB and Mountaintop on 1 December
2010
Exhibit C-5 Ticadian Weekly Journal article “Construction of

Ticadia-1 finally kicks off” dated 19 December 2010
Exhibit C-6 IEO Article “Renewables in ASNEC are booming as

their supporters to receive even more seats in national
legislatures” dated 23 February 2013
Exhibit C-7 Directive (ASNEC) 2016/87 of the Council of 17

February 2016 on the renewable sources of energy
Exhibit C-8 Law 66/2016 of 6 July 2016 “On the Phase-out of Coal
Energy on the Territory of the Republic of Laoc”
Exhibit C-9 Law 72/2016 of 5 December 2016 “on Energy

Transition”
Exhibit C-11 Mountaintop’s reply to the MFNB’s notice and request

under the Financing Agreement dated 10 February 2017
Exhibit C-12 Assignment Agreement between GNB and MFNB dated

1 July 2017
Exhibit R-1 License for the commercial operation of the 850 MW

Ticadia-1 Power Plant dated 25 September 2014
Exhibit R-2 IEO Article “The Government of Laoc is considering

capping coal emissions to combat floods” dated 10
December 2010
Exhibit R-3 Founding Charter of the Association of Sovereign

Nations for Economic Cooperation (ASNEC) dated 3
February 2012
Exhibit R-4 Seoul Agreement dated 6 December 2015
xiii
Exhibit R-5 ASNEC Declaration made upon the ratification of the
Seoul Agreement dated 13 December 2015
Exhibit R-6 KCAB International letter on the constitution of the

Arbitral Tribunal dated 5 March 2019
Exhibit R-7 Perry Mason’s Statement of Independence and

Impartiality dated 15 February 2019
Exhibit R-8 Transcript of The Arbitration Station podcast episode

featuring an interview with Perry Mason dated 9 May
2018
Exhibit R-9 International Arbitration News article “First tribunal

rules on ASNEC climate change measures” dated 2
June 2019
Exhibit R-10 Perry Mason’s post on social media dated 3 June 2019
FA Financing Agreement
FET Fair and Equitable Treatment
Founding Charter Founding Charter of the Association of Sovereign

Nations for Economic Cooperation (ASNEC)
GNB Goliath National Bank
IO International Organization
IWA Internationally Wrongful Act
KCAB Korean Commercial Arbitration Board
Law 66/2016 Law 66/2016 “On the Phase-out of Coal Energy on the
Territory of Republic of Laoc”
Law 72/2016 Law 72/2016 of 5 December 2016 “on Energy

Transition”
LRC Laocan Renewables Company
MFNB Mercurian First National Bank JSC
Mountaintop Mountaintop Investment LLC
NDC Nationally Determined Contribution
NPM Non-Precluded Measures
xiv
PO No. 1 Procedural Order No. 1
PO No. 2 Procedural Order No.2
PO No. 3 Procedural Order No.3
Respondent’s Measures Law 66/2016 and Law 72/2016
Seoul Agreement Seoul Agreement on Climate change
IBA Guidelines the IBA Guidelines on Conflicts of Interest in

International Arbitration
T1 Ticadia-1
UNCITRAL United Nations Commission on International Trade Law

Arbitration Rules (as revised in 2010)
VCLT Vienna Convention on the Law of Treaties, 1969
xv
STATEMENT OF FACTS
PARTIES TO THE DISPUTE
1. Mercurian First National Bank JSC [“MFNB”], having concluded a Financing

Agreement [“FA”] with Mountaintop Investments LLC [“Mountaintop”] and Ticadia-1
LLC [“Ticadia-1”] over their investment of a Coal Fired Power-plant [“T1”] in one of
Laoc’s municipality – Ticadia, assigned their rights under the FA to Goliath National
Bank JSC [“Claimant”] through an Assignment Agreement [“AA”]. Their decision to
do so was a result of the lack of liquidity engendered by the enactment of the Directive
(ASNEC) 2016/87 of the Council of 17 February 2016 on the renewable sources of
energy [“Coal Directive”] in the Republic of Laoc [“Respondent”]. Accordingly, all
rights under the FA, including potential claims against Laoc and Mountaintop were
assigned to Claimant.
2. Respondent, whose domestic electricity production is dominated by coal-fired power

plants, is a member of a regional economic integration organisation called the
Association of Sovereign Nations for Economic Cooperation [“ASNEC”].
RESPONDENT’S IMPLEMENTATION OF THE COAL DIRECTIVE
3. In response to the growing internal pressure and the recurring natural catastrophes in the
ASNEC region, Respondent, together with the other Contracting Parties of ASNEC,
signed the Seoul Agreement on Climate Change [“Seoul Agreement”] in December
2015 which was later ratified by Respondent on 11 January 2016. In compliance with the
Seoul Agreement, the ASNEC Council promulgated the Coal Directive on the renewable
sources of energy. The Directive requires all coal-fired power plants in the Member
States of ASNEC to be phased out by 31 December 2028. Moved by the Coal Directive,
Respondent enacted Law 66/2016 “On the phase-out of coal-fired power plants on the
Territory of the Republic of Laoc” [“Law 66/2016”]. Respondent also adopted Law
72/2016 “on Energy Transition” [“Law 72/2016”] on 5 December 2016 aimed to bolster
private investments into the renewable sector by virtue of the feed-in-tariff scheme.
1
IMPACT TO CLAIMANT’S INVESTMENT
4. Subsequent to the adoption of the Coal Directive, Respondent fundamentally changed the
legal framework under which the investment into T1 had been made, without taking into
account the impact it would cause on Claimant’s investment, thereby causing the value of
the assets held by Claimant to drop drastically. Consequently, the law directly
disregarded Claimant’s rights as an investor under the ASNEC Energy Investment
Treaty.
REFERRAL TO ARBITRATION
5. Despite being subject to Respondent’s discriminatory measures, Claimant continued to

settle the dispute amicably. However, as both parties failed to reach a compromise,
Claimant submitted the dispute to an arbitral tribunal constituted under UNCITRAL
arbitration rules pursuant to Article X of the ASNEC Energy Investment Treaty and
administered by KCAB. In light of Respondent’s failure to accord fair and equitable
treatment to Claimant’s investment, Claimant requests compensation for no less than
USD 450,000,000.
RESPONDENT’S CONTENTION TO REPLACE MR. MASON
6. On 16 June 2019, Respondent filed a notice of challenge against Claimant’s appointed

arbitrator, Mr. Perry Mason. The merits of the challenge mainly pertain to Mr. Mason’s
appointment as an arbitrator in Hewer Plants JSC v. Wellfalcon and his decision to not
disclose it. Claimant remains firm that Respondent’s challenge is meritless and must be
rejected.
2
ARGUMENTS
PART ONE: ARBITRATOR CHALLENGE
I. RESPONDENT’S CHALLENGE TO REPLACE MR. PERRY MASON SHOULD
BE DISMISSED
7. Following Respondent’s challenge to replace Mr. Mason, Claimant submits that said
challenge must be dismissed as Respondent has failed to prove that Mr. Mason has a
strong and inappropriate predisposition in favour of investors or their arguments on
climate change and against a state’s right to regulate for environmental protection so as to
give rise to justifiable doubts as to Mr. Mason’s impartiality and independence.
8. Article 11-13 of UNCITRAL Arbitration Rules, which govern the disposition of a

challenge, require the challenging party to prove that circumstances exist, which would
give rise to justifiable doubts as to an arbitrator’s impartiality or independence. Similarly,
Article 14 of KCAB International Arbitration Rules also imposes the same justifiable
doubts standard to challenge an arbitrator.
9. Accordingly, to assess an arbitrator challenge under the KCAB 1 and UNCITRAL rules,2
the remaining members of the tribunal must first determine the existence of
circumstances which in general, include professional or financial relationships between
arbitrators, parties, law firm, counsel, and chambers that acted in the same or relevant
case, repeated appointments of an arbitrator by the same party or counsel, conduct or
opinion given by an arbitrator that shows an adversity to a party or its counsel, and issue
conflict.3
10. Secondly, they must determine whether the established circumstances give rise to
justifiable doubts, which conclusion must be reached from the perspective of a reasonable
third person, who will assess whether the arbitrator may be influenced by factors other
1
Exhibit R-6, p.39
2
PO No.1, ¶8, p.42
3
Laird/Sabahi/Sourgens/Weilers, p.36
3
than the merits of the case.4 In interpreting justifiable doubts as to independence and
impartiality, a number of tribunals,5 including the Gallo tribunal, have set a lower
threshold than actual bias, entailing the mere appearance of bias from a reasonable third
party perspective.6 Since the mere appearance test and justifiable doubts are lower
thresholds than actual bias, the showing of an appearance of bias is therefore sufficient to
meet the justifiable doubts standard.7
11. Finally, the unchallenged arbitrators must evaluate whether the challenged arbitrator’s
independence or impartiality would be impaired. Impartiality refers to the absence of bias
or predisposition towards a party, whereas independence relates to the absence of
external control.8
12. Taking all these into consideration, Claimant objects to the disqualification of Mr.
Mason, in that [A] he has no duty to disclose his appointment in the Hewer and C-Energy
cases at the time of his appointment 9 or thereafter. [B] Mr. Mason is likewise not likely to
prejudge the present case as there exists no issue conflict between it and the Hewer
case.10 [C] In any event, the publicly available information relied upon by Respondent,
taken individually or as a whole, do not indicate a strong and inappropriate predisposition
towards investors in general and their arguments, and to Claimant in particular.11
A. Mr. Mason’s non-disclosure of his appointment in the Hewer and C-Energy

cases is not ground for challenge
13. The duty to disclose under Article 11 of UNCITRAL Arbitration Rules is merely to
inform the parties of a situation which they may wish to explore in order to determine
whether objectively or from the view of a reasonable third party having knowledge of the
relevant facts and circumstances, there are justifiable doubts as to an arbitrator’s
4
IBA Guidelines, General Standard Regarding Impartiality, Independence, and Disclosure 2 (c)
5
Perenco, ¶44; National Grid, ¶42
6
Gallo, ¶19
7
Dimitropoulus, p.415
8
Bastida, p.3-4; Burlington, ¶66
9
Perry Mason’s response to Respondent’s challenge, p.52
10
Respondent’s Challenge of Perry Mason, p.44
11
Respondent’s Challenge of Perry Mason, p.44
4
independence or impartiality.12 In fact, according to the IBA Guidelines, a later challenge
based on the fact that an arbitrator did not disclose such facts or circumstances should not
result “automatically” in non-appointment, later disqualification, or a successful
challenge to any award. “Nondisclosure cannot by itself make an arbitrator partial or
lacking independence; only the facts or circumstances that he or she failed to disclose
can do so.”13
14. As impartiality and independence are states of mind, 14 numerous tribunals, including
Suez15 and Compania de Aguas16 thus required the existence of established facts and not
mere speculation or inference, holding that participation in a prior case, by and of itself,
does not give rise to justifiable doubts as to an arbitrator’s impartiality; and that stronger
evidence beyond such inference to support a real risk of partiality is needed. 17 Likewise,
the Abaclat tribunal stated that the subjective belief of a party requesting disqualification
as to the possible impartiality of an arbitrator is not sufficient to result in the replacement
of an arbitrator.18
15. Respondent’s unsubstantiated inference of impartiality on the sole basis of Mr. Mason’s
failure to disclose his participation in two cases 19 should therefore be rejected by this
Tribunal. In fact, there are two undisputed factual bases as to why Mr. Mason, at the
time of his appointment, had no duty to make a disclosure on the two cases: [i] timeliness
and [ii] existence of a confidentiality obligation.
16. Firstly, as to the Hewer case, at the time Mr. Mason was approached by Claimant to be
its arbitrator, which was before the submission of the Notice of Arbitration on 31 January
201920 and his execution of the Statement of Impartiality and Independence on 15
12
IBA Guidelines No.4, p.18
13
IBA Guidelines No.5, p.18
14
Suez, ¶30
15
Suez, ¶41
16
Compania de Aguas, ¶25
17
SGS, ¶20
18
Abaclat, ¶92
19
Respondent’s Challenge of Perry Mason, ¶4, p.44
20
Notice of Arbitration, p.4
5
February 2019,21 there was yet no information to divulge and to explore objectively by
the parties for a possible conflict as the Hewer was still pending, and the award was
released only on 1 May 2019.22
17. Secondly, as to the C-Energy case, although hearings were conducted in 2019, the
tribunal also is yet to render an award and has not done so as of the filing of the present
claim.23 More importantly, the parties in that case are bound by a specific confidentiality
undertaking until the award is issued,24 and said obligation extends to their appointed
arbitrators, including Mr. Mason.
18. Accordingly, Respondent’s first ground for disqualification is simply a speculation or

inference unsupported by facts. Thus, the mere failure by Mr. Mason to disclose his
participation in a closed case, the Hewer v Wellfalcon case, and a pending one, C-Energy
v. Wellfalcon, clearly does not constitute a circumstance that would per se give rise to
justifiable doubts as to Mr. Mason’s impartiality or independence sufficient to cause his
replacement.
B. Mr. Mason is not likely to prejudge the present case as there exists no issue
conflict between it and the Hewer case
19. As its second basis to challenge Mr. Mason, Respondent has alleged that, given the
factual similarity between the present case and the Hewer case, there exists an issue
conflict, and as a consequence of his conscious or subconscious knowledge or opinion
therein, Mr. Mason should be deemed to have prejudged the present case, and replaced
on this ground.25
20. An issue conflict exists when an arbitrator has a pre-existing relationship to an issue in
the present case.26 An arbitrator would prejudge an issue when the dispute of the past
21
Exhibit R-7, p.47
22
Exhibit R-9, p.50
23
PO No.3, ¶17, p.70
24
PO No.3, ¶17, p.70
25
26
Hwang/Lim, p.16
6
arbitration in which he or she was appointed is factually or legally similar to the present
case such that the arbitrator would most likely be strongly influenced by his or her
knowledge and position taken in the prior case.27
21. Claimant therefore refutes Respondent’s claim of an issue conflict as [1] the facts in the
present case and Hewer case are not similar and [2] the facts of the latter case are not
potentially relevant for the determination of the legal issues in the present case. 28
1. The facts are at a minimum not similar
22. The Caratube tribunal has held that a challenging party must show that an arbitrator’s
knowledge of the facts of the past case would hinder his ability to arbitrate the present
case impartially.29 The tribunal likewise noted that it is immaterial that the parties to the
present dispute are privy to the circumstances as justifiable doubt should be viewed from
a reasonable third party’s perspective and not from Respondent’s unproven inference of
impartiality.30 According to the tribunal, to constitute a possible issue conflict that would
likely result in prejudgment by an arbitrator, the challenging party must establish that the
facts of both cases are at a minimum similar, in that [i] they must arise out of the same
factual context and [ii] must be relied upon by the claimants in both cases to present their
arguments.31
23. Firstly, Mr. Mason’s knowledge of the facts in the Hewer case clearly would not hinder
his ability to arbitrate the present case as the facts present different factual contexts, even
though both involve the issue of compliance with the Coal Directive that recommended
the phase-out of coal by 2028. For example, the national circumstances in and the type of
coal used by both states are inherently different. Respondent’s renewable energy sector is
still at a nascent state whilst the other ASNEC Member States, particularly Wellfalcon,
have had an increase of 300% in renewable energy sources from 2003-2013.32
27
Popova/Polebaum, p.940-942
28
Caratube, ¶88
29
Caratube, ¶77
30
Caratube, ¶89
31
Caratube, ¶78
32
Exhibit C-6, p.15
7
24. Secondly, the type of coal used in the Hewer case is lignite, which has a higher cost of
transportation and requires a specific type of lignite plant. 33 In contrast, the T1 plant uses
all other types of coal except lignite 34 that are widely available in the extensive coal
deposits in Laoc.35 As such, there is a stark contrast in the factual context of both cases.
25. Secondly, in view of the different factual contexts, it is highly likely that Claimant will
not rely on the same set of facts invoked by the claimant in the Hewer case. The situation
in the present case should be contrasted with that of the Caratube case where the
claimants in that case relied on the same set of facts involving frivolous criminal
proceedings filed against them; that arose from the same factual context of a campaign of
persecution against them by their host government and were thus commonly employed by
the various claimants to present their arguments against Kazakhstan.36
2. The legal issues are different
26. Moreover, as they clearly arose from a different set of facts, the legal issues raised in both
cases are also different. According to the Caratube tribunal, legal issues are similar if the
same breaches of legal obligations are raised by claimants in both cases.37
27. Although both cases involve a dispute relating to the Coal Directive, 38 the legal
obligations that are claimed to have been breached in the Hewer case and the present
arbitration are different. The 2 June 2019 International Arbitration News article 39 and 5
June 2020 International Arbitration News article40 only provide the breach of legitimate
expectation as the merit claim in the Hewer case. In contrast, the scope of legal
obligations brought before the Tribunal by Claimant is much broader and includes other
33
PO No.3, ¶15, p.69
34
Statement of Uncontested Facts ¶ 5, p.56
35
Statement of Uncontested Facts ¶4, p.56
36
Caratube, ¶78
37
Caratube, ¶87
38
39
Exhibit R-9, p.50
40
PO No.3, ¶16, p.70
8
bases of the breach of the FET standard including the stable legal and business
environment guarantee, legitimate expectations, unreasonableness, and discriminatory
treatment towards Claimant’s investment, infra Part IV.41
28. Claimant hereby submits that there is no issue conflict as the facts raised in the Hewer
case are not only not relevant for the determination of legal issues in the present case,
they are also not of sufficient similarity as to likely induce Mr. Mason to prejudge the
present case.
C. In any event, the publicly available information relied upon by Respondent,

taken individually or as a whole, do not indicate a strong predisposition in
favour of Claimant
29. As its third ground for challenge, Respondent contended that the circumstances reported
in the publicly available information would individually and collectively raise grave
doubts as to Mr. Mason’s impartiality or independence. 42 Claimant submits that this is not
likely to arise as [1] individually, the circumstances do not prove Mr. Mason’s
impartiality, and [2] even taken collectively with his participation in the Hewer case and
other disclosures, the published information do not prove Mr. Mason’s inappropriate
predisposition in favour of Claimant as would warrant his replacement.
1. Individually, the published information do not prove Mr. Mason’s

partiality
30. According to the IBA Guidelines, an arbitrator who has publicly advocated a position on
the case, whether in a published paper, or speech, or otherwise, is not ground to replace
an arbitrator,43 unless the facts of a given case may raise justifiable doubts as to the
arbitrator’s impartiality.44 Claimant therefore submits that the facts of the published
information individually do not give rise to justifiable doubts as [i] Mr. Mason’s opinion
41
Statement of Uncontested Facts, ¶27, p. 59; Notice of Arbitration, ¶13, p.7
42
43
IBA Guideline 3.5.2, p.25
44
IBA Guideline No.3, p.18
9
voiced in the 9 May 2018 Arbitration Podcast is not pro-investor, 45 [ii] neither do the
information contained in the 2 June 2019 International Arbitration News article prove any
such predisposition,46 and [iii] similar to the information contained in the Arbitration
News, his 3 June 2019 social media post is a neutral statement of fact.47
i. Mr. Mason’s opinion voiced in the 9 May 2018 arbitration podcast

is not pro-investor
31. The IBA Guidelines in its Green List provides that an arbitrator’s previously expressed
opinion concerning an issue that also arises in the arbitration does not amount to a
conflict of interest.48 Such opinion is generally not deemed partial as the requirement to
arbitrate impartially is the ability to consider and evaluate the merits of each case without
relying on factors having no relation to such merit. 49 A strongly held opinion can only be
deemed partial when it is inappropriate50 and “of such force as to prevent the arbitrator
from taking full account of the facts, circumstances, and arguments presented by the
party in the present case.”51
32. In Urbaser, an arbitrator’s opinion in a scholarly book that states:

“Great weight should be given to the Committee’s categorical view on the
central issues confronted in these cases and that the errors it identified in the
decision under its scrutiny was that it was taking the customary doctrine first,
and then conflating its test with that of the Treaty, without close consideration
of the differences, which contributed to the errors of the CMS Tribunal and
those which follow it.”
was considered a proper ground for challenge as the challenging party alleged that
the mention of “CMS Tribunal” in the book shows how the challenged arbitrator
may likely prejudge the issue of defence of necessity which was an issue in the
CMS tribunal.52
45
Exhibit R-8, p.48
46
Exhibit R-9, p.50
47
Exhibit R-10, p.51
48
IBA Guidelines 4.1.1, p. 25
49
Urbaser, ¶40
50
Popova/Polebaum, p.939
51
Urbaser, ¶49
52
Urbaser, ¶53
10
33. However, the Urbaser tribunal ultimately dismissed the challenge ruling that the
foregoing opinion just indicates an analysis of international law, the relationship between
general and customary law, and the law of BITs involved, 53 and concluded that the
opinion does not preclude the challenged arbitrator from taking into account the facts,
circumstances, and arguments of that case.54
34. Similarly, Mr. Mason’s opinion in the podcast where he stated:

“On the other hand, I do not see how climate change adds anything new to the
debate in investment law that would make it worthwhile for the next generation
to rehearse the police powers arguments again. Also, whether climate change
treaties, if they can be considered treaties at all, can come into play as a part
of applicable law in investment treaty arbitrations is understandably subject to
debate.”55
despite its strong tone, likewise just presents a general analysis of the continuing debate
on climate change in investment law, the binding nature of climate change treaties, and
their relationship to the applicable law in investment treaty arbitrations.
35. Respondent’s unproven allegation that Mr. Mason’s opinion indicates that he does not
consider environmental law argument relevant and distrusts states in the exercise of their
regulatory power56 is to be refuted as the opinion, even if sounding strong, without further
proof does not show that the opinion would prevent him from considering and evaluating
the merits of the present case to the prejudice of the Respondent.57
36. Conclusively, Mr. Mason’s opinion in the podcast is not pro-investor
ii. Neither do the information contained in the 2 June 2019

International Arbitration News article prove any such
predisposition
53
Urbaser, ¶54
54
Urbaser, ¶59
55
Exhibit R-8, p.48
56
57
Devas, ¶66
11
37. Claimant further submits that Respondent’s reliance on the International Arbitration
News article58 to compare the similarities of both cases is inadequate as an award of past
cases has to be used to compare and contrast the similarities of facts and legal issues
between two cases, an approach employed by the Suez tribunal.59 In the absence of an
award, the June 2019 International Arbitration News article to prove Mr. Mason’s
predisposition60 is of limited information and value.
38. The fact that Mr. Mason voted in the Hewer tribunal to uphold Wellfalcon’s violation of
FET standard and to find ASNEC internationally responsible for the coal phase-out
reflects a position different from his opinion voiced in the 9 May 2018 podcast regarding
climate change,61 thereby supporting the conclusion that Mr. Mason is capable of
reassessing his strong opinion on climate change treaties’ non-binding and soft nature and
enable him to decide solely on the merits in the Hewer case.
39. Accordingly, without the award which needs to be studied further, this Tribunal should
not hastily conclude that Mr. Mason has a strong predisposition in favour of the issue of
climate change and would likely decide against Respondent’s right to regulate to protect
its environment.
iii. Mr. Mason’s 3 June 2019 social media post is a neutral statement
of fact
40. According to the IBA Guidelines, an arbitrator’s legal opinion on an issue that arises in
the arbitration is not a ground for challenge. 62 Thus, an expressed factual declaration,
which is not even a legal opinion, should not be taken into account by the unchallenged
members of this Tribunal in determining whether to replace Mr. Mason or not. His 3 June
2019 social media post is merely a factual declaration of his joy and pride in serving as an
58
59
Suez, ¶37
60
61
Exhibit R-9, p.50
62
IBA Guidelines 4.1.1, p.25
12
arbitrator in the Hewer case,63 a neutral statement of fact, and not a legal opinion, which
could entail predisposition.64
2. Even taken collectively, the published information do not prove Mr.

Mason’s strong predisposition in favour of Claimant
41. The Grand River tribunal has held that consideration of all relevant facts and
circumstances,65 assessed on a case-by-case basis, is necessary for reaching a judgement
that they would give rise to justifiable doubts as to an arbitrator’s impartiality.66
42. Claimant hereby submits that Mr. Mason’s apparent failure to disclose his participation in
both the Hewer and C-Energy cases, his ruling in favour of the claimant in the Hewer
case, his strong opinion on climate change, and a state’s right to regulate to protect the
environment which he voiced in an arbitration podcast, 67 and his social media post, 68 even
if taken collectively, still do not prove that Mr. Mason will not be able to approach the
present case with an open mind and decide the case on its merits. 69 Similar to the
challenge to Hon. Marc Lalonde in the Devas case, inappropriate predisposition is absent
as Mr. Mason was in fact able to change his view on climate change from what he
previously expressed in the arbitration podcast. 70 Mr. Mason’s ability to arbitrate the
present matter fairly and objectively should therefore not be doubted by this Tribunal.
43. Conclusively, Respondent’s challenge of Mr. Mason must be dismissed by this Tribunal
as a third party undertaking a reasonable evaluation 71 would conclude that the
Respondent has not met its evidentiary burden to establish 72 that the circumstances relied
63
Exhibit R-10, p.51
64
Perenco, ¶59
65
Grand River, p.1-2
66
IBA Guidelines (6), p.19
67
Exhibit R-8, p.48
68
Exhibit R-10, p.51
69
Devas, ¶66
70
Exhibit R-9, p.50
71
Burlington, ¶80
72
Caratube, ¶57
13
upon in its Notice of Challenge73 show an appearance of lack of impartiality, 74 and are not
mere unsubstantiated inferences and hasty conclusions, that would unquestionably raise
justifiable doubts as to his ability to decide the present case on its merits objectively and
impartially.
PART TWO: JURISDICTION

II. CLAIMANT HAS LEGAL STANDING PURSUANT TO THE ASNEC
ENERGY INVESTMENT TREATY
44. Having proved that Respondent’s challenge to replace Mr. Mason must be dismissed,
Claimant argues that Respondent’s objection to the legitimacy of Claimant’s legal
standing75 pursuant to Article X of the ANSEC Energy Investment Treaty should not be
upheld.76 Claimant’s legal standing is established as [A] it has full ownership of MFNB’s
investments in T1, including the right to bring a treaty claim. Moreover, [B] the basic
jurisdictional requirements are met to file the present claim against Respondent.
A. As legal successor, Claimant fully owns MFNB’s investment in T1, including

the right to bring a treaty claim against Respondent
45. Although the ASNEC Energy Investment Treaty does not contain any legal framework
regarding the assignment or transfer of treaty claims, 77 previous tribunals and scholars78
have asserted that the transfers of investments and treaty claims are compatible with
Investor-State Dispute Settlement clauses.79 Accordingly, the AA allows for [1] the
transfer of investment and rights to raise a potential claim, 80 thereby making it possible to
bring a treaty claim against Respondent. [2] Moreover, Respondent’s allegation that
investments are intuitu personae and bar standing is unfounded.
73
74
Burlington, ¶80
75
Respondent’s Response to Notice of Arbitration, ¶3, p.26
76
ASNEC Energy Investment Treaty, Article X, p.61
77
Respondent’s Response to Notice of Arbitration, ¶7, p.27
78
ICSID Review, p.232–257
79
Daimler, ¶144
80
Exhibit C-12, Article 1 (1.1.), p.23
14
1. Claimant’s right to succeed entails the acquisition of all investment rights,
including ownership and the right to bring a treaty claim against
Respondent
46. As a preliminary matter, it is to be noted that Respondent concedes that MFNB is an

investor qualified to bring a claim.81 Thus, MFNB is perfectly capable to transfer a treaty
claim to Claimant by subrogation along with the investment under the FA through the
AA.82
47. In light of the above, Claimant is the legal successor of MFNB as MFNB has
comprehensively assigned the rights and obligations of the FA to Claimant by way of
subrogation. This means that Claimant has stepped into MFNB’s shoes and claimed all of
MFNB’s rights, claims, and defences under the FA, 83 which gives Claimant the right to
bring a treaty claim against Respondent.84 Although the ASNEC Energy Investment
Treaty is silent on the mechanism of an assignment or subrogation of rights, Respondent
cannot contend that such right can only be assigned under international law as, if the
latter is possible, so is the former.85
48. In order to assign a treaty claim to a third party under the principle of separability of
underlying investments and treaty claims,86 the validity of the assignment has to be seen
through the intent of the parties of the agreement as held by the Daimler tribunal. More
importantly, according to Daimler, if a right to bring a treaty claim was transferred, the
intent of the authors of the agreement must not leave any ambiguity in transferring the
right to bring a treaty claim.87
81
Respondent’s to Notice of Arbitration, ¶5, p.26
82
Mihaly, ¶24
83
Osborn, ‘Subrogation’
84
Mihaly, ¶24
85
Litvinoff, p.1152
86
Daimler, ¶145
87
Daimler, ¶146
15
49. Adopting the approach in Daimler, where the parties’ intention to transfer rights under an
agreement must be clear and is not ambiguous, MFNB intended to transfer all rights,
including the treaty claim against Respondent as the AA was written without ambiguity
on the parties’ intention. This is evident as [i] the AA has clearly assigned the right to
bring any potential claims against Respondent, [ii] MFNB’s rights under the FA are
subrogated to Claimant where in fact, [iii] MFNB’s transfer of legal rights had already
been practiced and recognized under international arbitration.
50. Firstly, the parties have expressed their intention to transfer MFNB’s rights, including to
invoke a treaty claim against Respondent as the AA stated that “For the avoidance of
doubt, this assignment includes any potential claims against… and the Republic of
Laoc”88
51. Secondly, MFNB has subrogated their rights under the FA, as Article 1.2. of the AA
states “…all references to MFNB in the Financing Agreement shall now be read as
referring to GNB…”. This form of subrogation mechanism is recognized by a number of
judicial decisions of domestic courts, including but not limited to Louisiana, which
validates subrogation by way of writing. 89 This establishes Claimant’s assumption over
all rights and defences that were previously held by MFNB. Such rights include the right
to claim compensation from Laoc and to extract the full amount of the loan provided to
Mountaintop.90 This indicates that by virtue of the AA, Claimant is lawfully entitled to
invoke a claim against Respondent and acquire the compensation for damages.
52. Finally, the parties’ intention to transfer the right to bring a claim is undeniable as
Claimant exercised their subrogated rights under the FA by invoking a claim against
Mountaintop in the ICC arbitration.91 With that in mind, the Tribunal cannot deem the
transfer of the treaty invalid due to the parties’ express intent of transferring MFNB’s
rights to Claimant and the exercise of such right without any limitations as to procedural
88
Exhibit C-12, Article 1 (1.1.), p. 23
89
Litvinoff, p. 1155. Such is seen from the cases of Cox v. W.M Heroman & Co., Inc. (1866); Succession of
Virgin; Bank of Bienville v. Fidelity & Deposit Co. of Maryland (1931)
90
Exhibit C-12, Article 1 (1.1.) p.23
91
Statement of uncontested facts, ¶31, p.60
16
remedies. Claimant therefore holds the right to bring the present treaty claim against
Respondent under the ASNEC Energy Investment Treaty.92
2. Moreover, Respondent’s allegation that investments are intuitu personae

and bar standing is not a general rule of investment arbitration and cannot
be invoked against Claimant
53. An intuitu personae link is established when a contract was concluded due to the unique
characteristic of either party,93 which is absent in the present case. In fact, the FA does
not entail a complicated selection process of an investor and the assignment clause in the
AA only requires consent from the Lender to the transferee and not the borrower. 94
Moreover, the transfer of rights under the AA did not entail the transfer of the
government license of the T1 plant issued by the Respondent that would necessitate the
Respondent’s government approval.95
54. The AA in the present case has to be contrasted with the facts in the Vannessa case in
which the tribunal deduced that an intuitu personae nature within the contract only exists
by virtue of a “complex selection process” requiring a screening process for each
investor,96 which was a material element in the conclusion of the contract with the
investor97 in that case, resulting in the claims being dismissed due to an unauthorized
transfer of shares.98 In contrast to the Vannessa case, not only did the selection process by
Mountaintop consist only of willing investors,99 but the FA also did not require the
consent of both parties to be assigned to a third party. This indicates that the personality
of MFNB was not important or essential in the conclusion of the original contract.100
92
Statement of Uncontested Facts, ¶30, p.60
93
ICSID Review, p.255; Daimler, ¶141
94
Vannessa, ¶149
95
Exhibit C-12, p.23
96
Vannessa, ¶149
97
Vannessa, ¶154
98
Vannessa, ¶154
99
100
Exhibit C-4, Article 7, p.12
17
55. Thus, as there is no general rule governing intuitu personae transfer of contracts, which is
highly fact-dependent, there is no bar standing of Claimant to bring the present claim,
which can only be decided pursuant to the relevant rules on jurisdiction under the
ASNEC Energy Investment Treaty.
B. Claimant meets the jurisdictional requirements to file the present claim

under ASNEC Energy Investment Treaty
56. Claimant’s investment fulfils the [1] rationae loci, [2] rationae personae [3] rationae
materiae jurisdictional requirements set out under the ASNEC Energy Investment Treaty.
1. Claimant’s investment meets the rationae loci requirement under Article I

of the ASNEC Energy Investment Treaty
57. Claimant’s guarantees and other assets have fulfilled the requirement of “Area” stipulated
under Article I (6) of the ASNEC Energy Investment Treaty, which requires investments
to be “…within the Area in terms of Article I (6) (b)”. On this basis, the requirement is
merely for the investments to be located within the territory of a Contracting Party, 101
irrespective of its location in which it was made, as supported by the Al-Bahloul
tribunal.102
58. In light of the above, the place of execution of the agreement and the transfer of
investment between MFNB and GNB are irrelevant and the rationae loci requirement is
still met due to Claimant’s investment of guarantees and assets being situated in the
territory of Laoc.103
59. Thus, Claimant’s guarantees and assets have fulfilled the requirement of rationae loci
under Article I of the ASNEC Investment Treaty.
101
Leal Arcas, ¶1.2
102
Al-Bahloul, ¶140
103
Statement of Uncontested Facts, ¶11
18
2. The Tribunal also has personal jurisdiction over Claimant as “investor”
under Article I (4) (b) of the ASNEC Energy Investment Treaty
60. The rationae personae requirement under Article I (4) (b) of the ASNEC Energy
Investment Treaty is fulfilled due to the office of Claimant being situated under a
Contracting Party of ASNEC.104
61. While Claimant is not situated in the territory of Laoc, Article I (4) (b) of the ASNEC
Energy Investment Treaty simply requires companies to be incorporated under the law of
Contracting Parties in ASNEC regardless of the nationality of shareholders, nationality of
directors of management, or origin of investment capital 105 as was laid down in the
Veteran Petroleum case.106 Thus, it is absurd to impose a limitation of control or
nationality as the ASNEC Energy Investment Treaty only requires companies to be
incorporated under the laws of ASNEC Contracting Parties.
62. In the present case, since Claimant is incorporated under the laws of Mercuria, a
Contracting Party of ASNEC, the same jurisdiction as MFNB, 107 the ratione personae
requirement is thus fulfilled.
3. Claimant’s investment remains protected
63. Claimant’s investment fulfils the requirements of a protected investment as [i] Claimant’s
inherited guarantees are considered as an investment by Article I of the ASNEC Energy
Investment Treaty and [ii] are also “associated with Economic Activity in the Energy
Sector.”
i. Guarantees inherited by Claimant under the AA are protected
104
105
Crawford, p.126
106
Veteran Petroleum, ¶411
107
19
64. The tangible and intangible assets, which include assets, mortgages, and leases 108
transferred to Claimant must be seen as treaty investments as they fulfil the requirement
of rationae materiae pursuant to Article I (c) of the ASNEC Energy Investment Treaty. 109
These tangible and intangible assets include mortgages over the facilities and land on
which they are located, personal guarantee of Mountaintop, and pledge of shares of stock
of T1.110
65. Firstly, the phrase “every kind of asset owned or controlled…” is to be interpreted in
good faith and in accordance with the ordinary meaning of its terms as mandated by
Article 31 VCLT.111 Thus, the scope of investment cannot be inferred to have any limits
as to what constitutes an asset, and encompasses ownership of shares, debt to monetary
claims, and contractual performance as well as any right conferred by law.112
66. Additionally, Respondent cannot argue an element of control, as the wording provides the
widest possible definition of an interest in a company, indicating that the drafters of the
Treaty did not intend to limit the ownership merely to a “beneficial” one. Such
interpretation is echoed by the Veteran Petroleum.113 It is evident that while Claimant has
not practiced control or a form of “beneficial” ownership, the pledged assets of Ticadia-1
owned by Claimant and the rights that come with the FA are sufficient to constitute
investment under the treaty.114
67. Accordingly, Claimant is in possession of assets that are protected under Article I
ASNEC Energy Investment Treaty.
108
109
ASNEC Energy Investment Treaty, Article I (c), p.61
110
111
VCLT, Article 31
112
ASNEC Energy Investment Treaty, Article 1, p.61
113
114
Exhibit C-11, p.22
20
ii. The loan to T1 remains “associated with an Economic Activity in
the Energy Sector” despite the transfer of ownership from MFNB
to Claimant
68. The broadness of the wording “associated with…” in Article I of the ASNEC Energy
Investment Treaty indicates that Claimant’s factual relationship under the FA regarding
the loan, assigned pledges, and assets of T1 sufficiently invokes the protection of the
ASNEC Energy Investment Treaty due to its investment being “associated with an
Economic Activity within the Energy Sector”.
69. The Amto tribunal suggests that the term “associated with…” does not require Claimant’s
investment to be an “Economic Activity within the Energy Sector” but only to be
associated with such activity.115 This association refers to a factual rather than contractual
association between Claimant’s investment and the activity. Thus, a mere contractual
relationship does not call for treaty protection, whereby the subject matter of the contract
has a functional relationship with the energy sector.
70. In this case, Claimant’s “association” arises out of its ownership of the loan granted to
T1, which was assigned to it by MFNB. The factual relationship with Ticadia-1, which is
in charge of the operations of a coal-fired power plant 116 is met as the company is
engaged in an “Economic Activity within the Energy Sector” in generating and
distributing electricity from coal in the municipality of Ticadia. 117 Conclusively,
Claimant’s loan to T1 and its guarantees qualify as investments under Article I ASNEC
Energy Investment Treaty.
115
Amto, ¶42
116
117
21
PART THREE: MERITS
III. THE CHALLENGED MEASURES ARE ATTRIBUTABLE TO

RESPONDENT
71. As the Tribunal retains jurisdiction over the present dispute, it has the power to
adjudicate this dispute in accordance with the ASNEC Energy Investment Treaty, 118 other
relevant treaties entered into by the parties and general international law.
72. Respondent must be held responsible for breaching its obligations under the ASNEC
Energy Investment Treaty as [A] the notions of Attribution and Responsibility are not the
same. [B] It is solely responsible for the enactment of Law 66/2016 and Law 72/2016. In
any event where ASNEC is also responsible, [C] the remedy is merely to suspend
proceedings and require the organisation to join as an indispensable party.
A. Attribution and Responsibility are not the same under international law
73. Respondent’s contention that the enactment of Law 66/2016 and Law 72/2016 is solely
attributable to ASNEC as the power to phase out coal-fired power plants within the
organisation’s exclusive competence119 is baseless. Respondent has clearly failed to
distinguish the two concepts. Even though there has been a finding by the Hewer tribunal
that the Coal Directive is attributable to ASNEC and was responsible for the breach in
that case,120 it does not automatically imply that the said entity would also be responsible
for the internationally wrongful act [“IWA”] committed by another Member State such
as Respondent. Claimant therefore requests the Tribunal to note the differences between
the notions of Attribution and Responsibility by way of their [a] content and [b] legal
consequences.
118
ASNEC Energy Investment Treaty, Article X, p.64
119
Respondent’s Response to the Notice of Arbitration, p.27
120
Exhibit R-9, p.50
22
74. Firstly, Attribution questions whether there is a sufficiently close link between a certain
conduct and an organ or agent of an International Organisation [“IO”],121 while
Responsibility requires the existence of both Attribution and breach of an international
obligation by the IO.122 Secondly, on the legal consequences, Attribution only identifies
organs, agents or persons123 who may have committed the act or omission, whereas
Responsibility looks into the obligation of the organs 124 or agents125 and whether the act
or omission constitutes an IWA so as to make the later solely responsible for reparations
for injury caused by them.126
75. Thus, having established that Attribution and Responsibility are different concepts under
international law, Claimant would now address the issues of Attribution and
Responsibility for the enactment of Law 66/2016 and Law 72/2016 below before
addressing the violations of Fair and Equitable Treatment obligations in Part IV, infra.
B. Respondent is solely responsible for the challenged measures
76. Respondent should be solely responsible for the enactment of Law 66/2016 and Law
72/2016 as [1] the Coal Directive is only binding as to the result to be achieved, and [2]
the Respondent, as a sovereign nation, can in fact decide to implement the Coal Directive
in a manner that respects and complies with its existing obligations under the ASNEC
Energy Investment Treaty. [3] Alternatively, as Respondent has adopted the Coal
Directive as if it was a binding legal act of ASNEC, it should be held jointly responsible
with Respondent.
1. The Coal Directive is only binding as to its result

121
Ortega. p.4
122
Phosphates, “This act being attributable to the State and described as contrary to the treaty right of another
State, international responsibility would be established immediately as between the two States”, p.18
123
Stefano, p.1
124
ARIO, Article 2 (3) “organ of an international organization” means any person or entity which has that status in
accordance with the rules of the organisation.
125
ARIO. Article 2 (4) “agent of an international organization” means an official or other person or entity, other
than an organ, who is charged by the organisation with carrying out, or helping to carry out, one of its functions,
and thus through whom the organisation acts.
126
Stefano, p.1
23
77. Claimant argues that the Coal Directive is not binding in its entirety and it should not be
interpreted to require that all Member States must transpose its provisions into their
domestic laws.127
78. Claimant relies on two reasons in support of this interpretation: [i] nature of a directive,
and [ii] the competence of ASNEC on climate change protection.
79. Firstly, Article 115 (3) of the Founding Charter states that a directive is only binding as
to the result to be achieved while the choice of form and methods shall fall under the
national authorities of each Member State. 128 A directive is to be distinguished from a
regulation that is binding in its entirety and must therefore be strictly complied by the
ASNEC Member States.129
80. The result to be achieved by the Coal Directive, as generally stated in its preamble, 130 is
to promote renewable forms of energy, which is an important part of the package of
measures to reduce greenhouse gas emissions, and to comply with the Seoul Agreement
and the Nationally Determined Contribution [“NDC”] of the Association to cut
emissions by at least 50% below 2012 levels by 2030. 131 This result is more specifically
laid down in Article 2, which obliges Member States to collectively ensure that the share
of energy in ASNEC’s gross final consumption is at least 75%.132
81. According to Article 31 VCLT, treaties on the same subject matter, such as ASNEC
Founding Charter and the Seoul Agreement must be interpreted harmoniously 133 in good
faith and in light of their object and purpose. 134 The goal of the Seoul Agreement as set
forth in Article 2 (1) (a) is to strengthen the parties’ global response to the threat of
127
128
Exhibit R-3, Article 115 (3), p.33
129
Exhibit R-3. Article 115 (2), p.33
130
Exhibit C-7, Preamble, p.17
131
Exhibit C-7, Preamble, p.17
132
133
VCLT, Article 30
134
VCLT, Article 31
24
climate change by holding the increase in global average temperature to well below 2°C
above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C
to significantly reduce the risks and impacts of climate change. 135 Article 2 (2), in turn,
obliges the parties to implement this goal in a manner that reflects equity, and the
principle of common but differentiated responsibilities [“CBDR”] and respective
capabilities, in light of different national circumstances of the Member States. 136
82. Clearly, Article 3 on the support scheme for energy from renewable sources, 137 the
reduction of the percentage of final gross production of energy from coal-fired power
plants to 0 by 31 December 2028138 in Article 7,139 and the obligation of transposition of
both articles in Article 18,140 are merely forms and methods and fall under the exclusive
competence of national authorities of each ASNEC Member State, which retain the
inherent discretion to adopt them or to pursue other forms and methods in a manner
consistent with the foregoing principles,141 while enabling them to achieve the result
intended by the Coal Directive.
83. Secondly, as to the competence of ASNEC, its Declaration on 13 December 2015 142 upon
its accession to the Seoul Agreement states as follows:
“ASNEC declares that, in accordance with its Founding Charter, in particular
Article 61 and 62 (1) thereof, the Association is competent to enter into
international agreements, and to comply with the obligations resulting
therefrom, which contribute to the pursuit of the following objectives:
a. Preserving, protecting and improving the quality of the environment
b. Protecting human health
c. Prudent and rational utilization of natural resources;
d. Promoting measures at international level to deal with regional or
worldwide environmental problems, and in particular, combating climate
change.”
135
Exhibit R-4, Article 2 (1) (a), p.35
136
137
Exhibit R-4, Article 3, p.35
138
Exhibit C-7, p.17
139
Exhibit C-7, Article 7 (1), p.17
140
141
Clayton/Tomlinson, “The principle of proportionality requires that there be a reasonable relationship between a
particular objective to be achieved and the means used to achieve that objective ”, p.278
142
Exhibit R-5, p.38
25
84. As Articles 61 and 62 (1) only grant the power to determine policy goals and actions in
regard to the environment, this declaration of competence must be interpreted to entail
external competence143 to deal with non-ASNEC states requiring the authority to enter
into international agreements with them in regard to the goal of protecting the
environment.144
85. In fact, this external competence is to be contrasted to Article 75 of the Founding Charter,
which clearly makes a reference to the functioning of the internal market and provides
that with regard for the need to preserve and improve the environment, ASNEC’s policy
on energy shall aim to ensure the functioning of the energy market, the security of energy
supply, the promotion of energy efficiency, saving, and development of new renewable
forms of energy; and the promotion of the interconnection of energy networks.145
86. Moreover, Article 20 (2) of the Seoul Agreement is clear on the issue of competence and
provides that the Organisation shall decide on the respective capabilities of the
Organisation and the Member States for the performance of their obligations under the
treaty, and that they are not entitled to exercise rights under the agreement
concurrently.146
2. Respondent can in fact implement the Coal Directive in a manner that

respects and complies with its existing obligations under the ASNEC
Energy Investment Treaty
87. Accordingly, cognizant of the principles of equity and CBDR, Respondent should have
exercised its margin of appreciation147 and discretion148 to implement the goal sought to
be achieved by the Coal Directive in a manner that complies with its FET obligation
143
The European Union’s External Action, “external competences are those that fall within the framework of the
EU's relations and partnerships with non-EU countries and international, regional or global organisations”
144
Exhibit R-3, Article 61-62, p.32-33
145
Exhibit R-3, Article 75, p.33
146
147
Council of Europe, The Margin of Appreciation
148
Greer, p.22, “implementation discretion” from the principles of effective protection and proportionality
26
under the ASNEC Energy Investment Treaty,149 in light of its national circumstances. In
contrast to the other Member States of ASNEC, Respondent remains dependent on the
coal industry150 and its renewable energy sector has remained in a nascent state in
comparison to the other ASNEC Member States.151 The principle of ‘margin of
appreciation’ grants Respondent as a sovereign state the regulatory space to maneuver 152
so that it is able to balance its obligations to its stakeholders, particularly ASNEC, the
other ASNEC Member States, and its investors.
88. As will be further proven in Part IV, infra, Respondent should have first considered the
proportionality of the measures it took by balancing the result sought to be achieved, the
means used to achieve it, and the impacts on existing investors such as Claimant. 153
Moreover, the continued operation of T1 beyond 2028 is in no way a hindrance for
ASNEC to achieve the Association target of 75% usage of renewable energy in the region
by 2030.154 T1 has not even operated for 10 years of its 40 year license period and is
already using the BAT, which meets international standards for greenhouse gas
emissions.155
89. Accordingly, this Tribunal should hold Respondent solely responsible for its strict
compliance with the non-binding provisions of the Coal Directive through its enactment
of Law 66/2016 and Law 72/2016 that disregard the accrued rights of investors, in light
of its national circumstances.
3. Alternatively, Respondent is jointly responsible with ASNEC for the

Challenged Measures
149
ASNEC Energy Investment Treaty, Article II (1), p.62
150
Exhibit C-1, p.9
151
Exhibit C-6, p.15
152
Greer, p.5
153
Clayton/Tomlinson, p.278
154
155
Exhibit C-1, p.9
27
90. Alternatively, as Respondent has opted to adopt as its own 156 and strictly implemented the
Coal Directive as if it was binding, clearly placing itself at the disposal and under the
effective control of ASNEC157 the only legal consequence is to hold Respondent jointly
responsible with ASNEC. The principle of joint responsibility is a rule of customary law
that is codified in Article 48 of the ARIO. If this alternative mode of Attribution is upheld
by this Tribunal,158 Respondent should be held responsible with ASNEC, as it has acted
as an organ or agent of ASNEC, 159 and assisted in the commission of an IWA, 160 which is
a violation of both ASNEC and Respondent’s obligations under the ASNEC Energy
Investment Treaty, Part IV, infra.161 In fact, Article 62 of ARIO provides that Member
States may be regarded as jointly responsible or subsidiary responsible entities based on
their aid or assistance to the IWA, without affecting the Responsibility of IO over the
matter.162 Moreover, Article 40 (1) of the ARIO ensures that when an IO such as ASNEC
is responsible for an IWA, it shall take appropriate measures to ensure that its members
provide means for fulfilling its obligation such as compensation, 163 which Article 62 (2)
of the Founding Charter in fact adopts that “…the Member States shall finance and
implement the environment policy.”
91. Hence, Respondent can be held responsible along with ASNEC for the challenged
measures.
C. Consequently, the remedy is merely to temporarily suspend proceedings and

require ASNEC to join as an indispensable party
92. Should this Tribunal find that the Coal Directive is binding and ASNEC is jointly
responsible with Respondent, the proper course of action to take is to require ASNEC to
156
ASR, Article 11
157
ARIO, Article 7
158
Nollkaemper/Jacobs, p.380-381
159
ARIO, Article 48, Exhibit R-3, Article 120, p.33
160
ARIO, Article 58
161
ASNEC Energy Investment Treaty, Article II (1), p.62
162
ARIO, Article 62
163
ARIO, Article 40
28
join as an indispensable party164 in the present proceedings. An indispensable party is a
doctrine in which an international court or tribunal cannot exercise jurisdiction over a
dispute without the presence of a State or in this case, ASNEC, over whom it has not
acquired jurisdiction ratione personae, and whose legal interests form the ‘very subject-
matter’165 of the dispute thus requiring a ‘prerequisite determination’166 of the legal
responsibility of ASNEC of the matter before it can be finally resolved.167
IV. RESPONDENT TREATED CLAIMANT’S INVESTMENT UNFAIRLY AND

INEQUITABLY, BREACHING ARTICLE II OF THE ASNEC ENERGY
INVESTMENT TREATY
93. Respondent’s strict implementation of the Coal Directive and its manner of transitioning
to cleaner energy168 through the phase-out of all coal-fired power plants 169
[“Respondent’s Measures”] resulting in a 50% reduction in the value of Claimant’s
investment,170 transforming it to a distressed asset and an economic burden, 171 without
due regard to Claimant’s rights, constitutes as a Fair and Equitable Treatment [“FET”]
violation. The FET standard stipulated under the ASNEC Energy Investment Treaty has
been breached as [A] Respondent failed to maintain a stable legal and business
environment for investment as inherently required. Moreover, Respondent’s Measures
[B] frustrated Claimant’s legitimate expectations of a stable legal and economic
environment, [C] violated Respondent’s obligation of non-discrimination, [D] were
implemented unreasonably and [E] were disproportionate. In addition, [F] Respondent is
not exempt from liability, thus [G] entitling Claimant to compensation amounting no less
than USD 450,000,000.
164
Tzeng, p.123
165
Willis, “subjects or matters presented for consideration-of either the whole of the law or by some particular part
of it, and these are always legal rights.”, p.1
166
Tzeng, “…the ‘prerequisite determination’ test is just as important: there is no question that courts and tribunals
consider the ‘prerequisite determination’ test to be determinative on whether they can exercise jurisdiction over a
dispute.”, p.124
167
Tzeng, p.125
168
Exhibit C-9, p.19
169
Statement of Uncontested Facts, ¶2; Exhibit C-8, p.18
170
Exhibit C-11, p.22
171
Notice of Arbitration, ¶12
29
A. Respondent failed to provide Claimant with a stable legal and business
environment
94. Consistent with the object and purpose of the ASNEC Energy Investment Treaty, 172 the
FET standard entails the need for Respondent to provide regulatory stability irrespective
of Claimant’s expectation such that the [1] the absence of any stabilization clause does
not exempt Respondent’s duty to maintain a stable legal and business environment. In
light of this, [2] Respondent’s radical alterations to the coal energy regulatory regime
undeniably amount to a violation of FET.
1. Respondent’s inherent obligation to maintain a stable legal and business

environment remains unaffected despite the absence of a stabilization
clause
95. Absent any “express reference to the customary minimum standard”, the FET clause in
Article II of the ASNEC Energy Investment Treaty qualifies as an autonomous one 173 and
must be interpreted in a broad manner.174
96. A stabilization clause indeed accommodates risk of regulatory changes 175 and awards
investors with the right to regulatory stability. 176 However, Claimant relies on the
decisions of Plama,177 LG&E,178 Occidental179 and Saluka180 whereby the tribunals
maintained that despite the lack of a stabilization clause, it is still necessary for the host-
State to ensure the stability of the legal and business environment, as it is an inherent
element of the FET standard. In fact, this guarantee is expressly assumed by Respondent
172
VCLT, Article 31 requires for a treaty to be “be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”
173
Saluka, ¶294
174
Saluka, ¶286
175
Gehne/Brillo, p.5
176
Eiser, ¶362
177
Plama, ¶173
178
LG&E, ¶125
179
Occidental, ¶183
180
Saluka, ¶300
30
and is proven through the context of the treaty; evident in the Preamble, which records
the need to encourage and create “stable, equitable, favourable and transparent
conditions for Investors of other Contracting Parties to make Investments in the ASNEC
Region.”181
2. As Respondent radically altered its legal and business environment, it

violated its FET obligation
97. Respondent violated its obligation of stability under the FET standard due to radical
alterations made to its legal and business environment. The tribunal in CMS recognized
that it is possible for changes to occur to a host-State’s legal framework as it adapts to
changing circumstances. However, such changes should not radically transform and alter
the legal and business environment in which the investment was decided and made. 182 On
this basis, the threshold in determining the radicality of an alteration is for it to involve an
outright termination and not a mere trimming down 183 of the legal and business
environment of an investment.184
98. In the present case, Respondent has radically altered the legal and business environment
through the outright termination and a complete removal of coal-fired power plants to an
exaggerated 0%,185 cutting down 26 years of T1’s original lifetime.186 Moreover, Law
72/2016 did not only trim the regime187 but virtually turned T1 into a distressed asset and
an economic burden188 as it eliminated T1’s ability to generate income during the
transition period189 by establishing a feed-in tariff scheme which provides for premium
rates for installations generated by renewable sources. 190 Subsequently, Respondent also
provides priority of access to its electricity grid not only for installations generating
181
ASNEC Energy Investment Treaty, Preamble, p.61
182
CMS, ¶277
183
Micula, ¶684
184
LG&E, ¶139
185
Exhibit C-7, Article 7 (1), p.17
186
Notice of Arbitration, ¶12, p.6
187
Micula, ¶684
188
189
Exhibit C-11, p.22
190
Exhibit C-9, Article 3(2), p.19
31
electricity from renewable sources in Respondent191 but in the ASNEC region by virtue of
its interconnection of energy networks.192 This is also evident through the establishment
of the LRC to compete against Claimant as well as to support the establishment of
companies in the renewable sector,193 providing no compensation to those affected by
Law 66/2016.194
99. Unlike other countries, for example, European states such as Germany 195 and
Netherlands196 which plan to eliminate their coal-fired power plants by 2030, these
countries allowed for sufficient time to transition to renewable energy, 197 provided
compensation to affected coal plants,198 and promised support to the coal industry and
electricity generation workers affected by the closure, 199 Respondent clearly failed to
maintain a stable and legal business environment for Claimant’s investment.
B. Respondent frustrated Claimant’s legitimate expectation of a stable legal and

economic environment
100. In addition to failing to maintain a stable legal and business environment, Respondent’s
Measures have also frustrated Claimant’s legitimate expectations of a stable legal and
economic environment.
101. Legitimate expectations have been consistently confirmed by past arbitral practices as an
inherent element of the FET standard,200 which relies on a Contracting Party’s conduct,
whereby failure to honour such expectations would cause an investor or its investment to
suffer damages.201 The legitimacy of the expectations held by Claimant is established as
191
Exhibit C-9, Article 3(1), p.19
192
Exhibit R-3, Article 75 (1) (d), p.33
193
194
195
Kirschbaum, Los Angeles Times
196
Rens van de Ven, Magnus Commodities
197
Kemp, p.294
198
Kemp, p.294
199
Climate Transparency, p.13/27
200
Dolzer/Schreuer, p.134; Newcombe/Paradell, p.280; Saluka, ¶302; Enron, ¶206
201
Zeyl, p.207
32
[1] Respondent made a specific promise or assurance, [2] such expectation was
reasonable, [3] Claimant relied on the promise or assurance.202
1. Specific assurances made to T1 and Mountaintop extended to MFNB
102. In the event where a host-State extends specific commitments to an investor, it

significantly restricts its power to change the rules in relation to it in the future.203
103. There is no dispute that specific commitments were made by the Ticadian Municipal
Government to Mountaintop and T1 on several occasions, ensuring that the construction
of T1 would be economically beneficial for them.204 The Governor of Ticadia also
encouraged MFNB on a separate occasion to invest in the coal energy industry in
Respondent.205
104. Claimant submits that such assurances to Mountaintop and T1 should be deemed to
extend specifically to MFNB206 not only because it was continuously present in all their
negotiations with the Governor of Ticadia207 but because MFNB is the lender without
whose funding, the construction of the power plant would not have been possible. 208 In
fact, MFNB itself considered and referred to the loan to Mountaintop as an investment in
the Respondent’s energy sector,209 indicating that the T1 investment would not have
materialized if not for MFNB’s loan.210Absent extension of such specific assurances to it,
MFNB would not have made a decision to invest in and extend a loan to Mountaintop.211
202
Micula, ¶668
203
UNCTAD, p. 69; CMS, ¶277
204
Exhibit C-2, p.10
205
Exhibit C-4, p.14; Notice of Arbitration, ¶8, p.6
206
207
Exhibit C-2, p.10
208
209
Exhibit C-3, p.11
210
Lemire, ¶244
211
Exhibit C-3, p.11
33
105. As Claimant has been assigned to MFNB as the lender and inherited all rights pertaining
to the FA, supra Part II,212 the assurances extended to MFNB should be deemed made to
Claimant as legal assignee of the MFNB loan to Mountaintop.
2. Claimant’s expectations are reasonable under the laws prevailing at the

time of the investment
106. Claimant’s expectations of a stable legal and economic environment are reasonable under
prevailing laws. The Micula tribunal held that a host-States’ decision to confirm a
promise to an investor via a new legislation makes it reasonable for said investor to
believe that the host-State would maintain them for the stated period. 213 A license for
commercial operation is a piece of legislation issued by Respondent, 214 which is
inherently in line with higher rank norms. 215 Respondent’s decision to issue an operating
license after the loan extended by MFNB 216 and completion of the T1 power plant by
virtue thereof confirms the eligibility for Claimant’s assignor MFNB to operate and
therefore makes it reasonable for Claimant to expect that Respondent should maintain a
stable legal and economic environment as it is in compliance with prevailing laws.
3. MFNB legitimately relied upon the assurances at the time of making the
investment
107. Claimant can legitimately rely on the assurances extended by Respondent to MFNB for
repayment of the loan made under the FA. 217 Similar to the case in Micula, where there
was a reliance on the previous legal regime to develop their investments, 218 Claimant as
the new lender should expect to continue receiving profits or, at minimum, operate for 20
years in order to break even,219 such that Ticadia-1 can repay the loan to it under the FA
212
Exhibit C-3, p.12
213
Micula, ¶678
214
Exhibit R-1, p.30
215
Micula, ¶712
216
Exhibit C-3, p.11
217
Exhibit C-11, p.22
218
Micula, ¶551
219
34
and AA. Thus, proving that MFNB and Claimant, as its successor, relied upon the
assurance that the operations of T1 would continue for at least half of its expected
lifetime.
C. Alternatively, Law 66/2016 as implemented by Law 72/2016 is discriminatory
108. Non-discrimination is an essential element, inherent in the concept of FET. 220 Claimant
asserts that Respondent acted in a de facto discriminatory manner as it solely stunted the
operations of Claimant’s investment.221 De facto discrimination looks at differential
treatment and the impact of the measure instead of the intent, as was the approach
employed by the Siemens222 and Eastern Sugar223 tribunals. Claimant submits that even if
Respondent did not have the intent to discriminate, the sole effect of Law 66/2016 is de
facto discriminatory.224
109. In contrast to Claimant’s investment, natural gas-fired power plants, which are also
present in the territory of Laoc, 225 still enjoyed the benefit of uninterrupted operations
without facing similar repercussions as coal-fired power plants. Even though the main
components of these power plants are methane and diesel, which are potent greenhouse
gas emitters, these installations were not subject to the same laws as those of the coal-
fired power plants in Respondent.
110. Respondent’s Measures are therefore discriminatory.
D. Respondent’s Measures are unreasonable as they were implemented without

a legitimate purpose
220
Klager, p.187.
221
Exhibit C-8, p.18 & Exhibit C-9, p.19
222
Siemens, ¶321
223
Eastern Sugar, ¶338
224
Hajny/Shepson/Rudek/Stirm/Kaeser/Stuff, p.1
225
PO No.3, ¶7, p.68
35
111. Claimant does not question Respondent’s “undeniable right and privilege to exercise its
sovereign legislative power” and “to enact, modify or cancel a law at its own
discretion.”226 However, in exercising such right, Respondent failed to consider Article II
(1) of the ASNEC Energy Investment Treaty, which inherently precludes arbitrary and
capricious actions against investors.227
112. The AES tribunal,228 in measuring a state’s reasonable act, established that it is necessary
for the state’s acts to be based on a [1] rational purpose and [2] to be appropriately
tailored to the pursuit of the rational policy with due regard for the consequences
imposed on the investors.229 This threshold of unreasonableness was further echoed by
both Micula230 and Hydro Energy231 tribunals.
1. Respondent’s Measures were not enacted based on a rational policy
113. A rational policy is one taken by a host-State that follows a logical explanation and is
done with the aim of addressing a public interest matter.232
114. Claimant submits that Law 66/2016 was not based on a rational policy due to [i] a lack of
reference to the catastrophic floods and [ii] T1 already meets global emission standard.
115. Firstly, Respondent’s Measures were not enacted based on a rational policy and were
instead taken for reasons different from those put forward by the decision-maker. 233
Respondent now claims that these Measures were proposed based on the need to control
catastrophic floods that continuously occurred in most ASNEC Member States. 234
However, in an attempt to address the floods through the phase-out of coal-fired power
226
Parkerings, ¶332
227
Vasciannie, p.133
228
AES, ¶10.3.7
229
AES, ¶10.3.7
230
Micula, ¶525
231
Hydro Energy, ¶569
Micula, ¶525
232
AES, ¶10.3.8
233
Schreuer in EDF, ¶303
234
Statement of Uncotensted Facts, ¶17, ¶20, p.58
36
plants by virtue of Law 66/2016 and Law 72/2016, decision-makers of Respondent,
particularly the Laocan Parliament, did not in any way provide a reference as to the
floods and also failed to provide explanation as to how the phase-out served a legitimate
purpose in addressing the public interest matter of reducing flooding. A close reading of
the above laws instead shows that Respondent’s decision-makers invoked the Coal
Directive, not for the purpose of combating floods.235
116. Secondly, Claimant’s investment already met the legally enforceable and global emission
standard by employing the BAT236 as warranted by Laocan regulation for installations
operating in the coal mining industry. 237 The compliance of the BAT standard by
Claimant’s investment meant that it is able to achieve reduction rates of greenhouse gas
emissions by 70%-95%.238 As the BAT standard is already able to ensure reduced rates of
emissions, Respondent should have just allowed T1 to operate until the expiration of its
license.
2. Even if Respondent’s Measures were based on a rational policy, in its

pursuit, Respondent failed to appropriately tailor it in a way that paid due
regard to Claimant
117. In order for a State’s conduct to be reasonable, it is insufficient for it to be related to a

rational policy; rather it is imperative for the implementation of said conduct to be
appropriately tailored to the pursuit of that rational policy with due regard to investors. 239
118. Respondent may argue that their Measures were enacted against the pressure of the other
ASNEC Member States and ASNEC itself to sign the Seoul Agreement. 240 However, to
pursue the Association target of 75% electricity generated by renewable sources, there
was no need for ASNEC nor Respondent to completely phase-out coal-fired power plants
235
Exhibit C-7, p.16
236
Wilde, p. 110, “The BAT standard must be applied by regulators and adhered by operators”
237
Exhibit C-1, p.9
238
EPA, p.11
239
Micula, ¶525
240
Respondent’s Response to the Notice of Arbitration, ¶10, p.27
37
to 0%, and in doing so, Respondent failed to appropriately tailor it in a way that still
allowed T1 to profitably operate and to pay Claimant during its intended operation
period.
E. Moreover, Respondent is not entitled to invoke defences under the ASNEC

Energy Investment Treaty or customary international law
119. There is no doubt that arbitral practice recognizes a host-State’s inherent right to regulate
its domestic affairs.241 Claimant asserts that Respondent may not be exempted from
liability or exceed the boundaries set by [1] Article IX of the ASNEC Energy Investment
Treaty’s Non-Precluded Measures [“NPM”] clause nor by [2] invoking preclusion under
customary international law.242
1. Respondent may not invoke the NPM clause in the ASNEC Energy
Investment Treaty
120. An NPM clause limits the applicability of an investor’s protection under the treaty in
exceptional circumstances, allowing host-States to take actions that would otherwise be
inconsistent with the treaty.243 For a measure to preclude liability under an NPM clause,
there is a requirement for it to be taken in pursuit of the permissible objectives set out
within the clause.244
121. Considering the present NPM clause is a non-self-judging one, 245 Respondent shall not be
the sole arbiter in assessing whether the scope and application of the measure meet the
necessary requirements and precludes wrongfulness.246
241
Ortino, p.2
242
Approach taken by various tribunals, including CMS, ¶315.
243
Burke-White/Staden, p.311
244
The permissive objective of public health is included in Germany’s NPM clauses, several BITs concluded by
China and in Canadian BITs as it allows “necessary to protect human, animal or plant life or health” or
sometimes includes “the prevention of diseases and pests in animal and plants”
245
The present NPM clause is non self-judging in nature because it lacks explicit language to that effect, stating that
a party was precluded from taking measures that “it considers necessary”
246
Thjoernelund, p.451
38
122. Claimant therefore argues that Respondent may not invoke preclusion based on the NPM
clause in Article IX of the ASNEC Energy Investment Treaty as Respondent’s Measures
[i] were not necessary to protect human, animal or plant life or health and [ii] were not
essential to the acquisition or distribution of Energy Materials and Products in conditions
of short supply.
i. Respondent’s Measures were not necessary to protect human,

animal or plant life
123. Claimant asserts that Respondent’s Measures were not necessary as it firstly, fails to fulfil
the nexus requirement and secondly, were not in line with the permissible objective
protected under the NPM standard of Article IX (1) (a).
124. Firstly, Respondent’s decision to phase-out coal-fired power plants fails to fulfil the
nexus requirement as it was based on insufficiently substantiated information 247 and lacks
a rational link to the present case. This is evident as Respondent’s Measures were merely
based on the findings of a task force which inconclusively held that the operation of coal
plants may be one of several probable explanations as to the occurrence of floods.248
125. Secondly, Respondent’s Measures were not in line with the permissible objective as it
lacked a rational link to the presented evidence. A rational relationship between a
measure and the scientific evidence involves an inquiry regarding the particular risks that
the measure is said to protect against and to whom the risk is posed. 249 This argument is
substantiated as Respondent’s decision to cut down emission levels through the phase-out
of coal-fired power plants holds no direct correlation to the protection of humans whose
lives are at risk in times of intense floods. 250 Indeed coal-fired power plants indirectly
247
Japan – Apples, ¶8.45
248
Exhibit R-2, p.31
249
India – A. Products, “A rational and objective relationship between the SPS measure and the scientific
evidence”
250
39
contribute to said floods as they require land clearance, which destroys the water
retention capacity of the soil, leading to quick runoff after rainfall causing large
discharges which clog waterways, thus contributing to massive floods. 251 In that, to
eliminate flooding, water retention has to be improved in the various coal mines in
Respondent. Accordingly, human life will continue to be at risk in times of heavy floods
if the soil in those areas do not undergo any rehabilitation.
126. Evidently, Respondent’s Measures were not necessary to protect human life and could
not be a ground to preclude Respondent’s liability for its FET violation.
ii. Respondent’s Measures were not essential to the acquisition or

distribution of Energy Materials and Products in conditions of
short supply
127. Claimant asserts that Respondent’s Measures were not necessary as it firstly, fails to fulfil
the nexus requirement and secondly, were not in line with the permissible objective
protected under the NPM standard of Article IX (1) (b).
128. Article IX (1) (b) of the ASNEC Energy Investment Treaty allows for Respondent to
enact Measures essential to the acquisition or distribution of the Energy Materials and
Products. However, Claimant argues that although there was indeed a short supply of
renewable energy materials due to the sector being in a nascent state, 252 the Measures
enacted by Respondent were not essential. There remain other methods that could have
been exhausted to meet the established target, such as creating the LRC without requiring
the phase-out of coal-fired power plants. This way, the LRC can develop the Laocan
renewables sector without impairing operations of Claimant’s investment.
2. Respondent’s Measures were not necessary under customary international

law
251
GreenPeace Southeast Asia-Indonesia
252
Exhibit C-6, p.15
40
129. Respondent also may not rely on the defence of necessity under customary international
law as there are strict requirements which are reflected in Article 25 (1) of the ASR
which do not entitle invocation of the defence of environmental protection unless [i] it is
the only way for a state to safeguard an essential interest against a grave and imminent
peril and [ii] the State has not contributed to the present situation that requires
environmental protection.
i. The phase-out of coal-fired power plants was not the only way to
avoid grave and imminent peril
130. In order for a State to be precluded from liability, the act in question could not be taken
‘until all other means of relief consistent with the necessity have been tried and found
inadequate’.253 In the present case, Respondent did not attempt other means of relief at
solving the environmental crisis at hand and instead immediately opted the extreme step
of phasing out coal-fired power plants. Less restrictive methods such as the utilization of
biomass gasification plants, which requires minimum investment to reconfigure the
existing coal-fired power plants, may be implemented as it is proved to significantly
reduce emission levels.254
131. Furthermore, Respondent as a developed economy could have also further modernized its
transportation system and utilized newer technology such as electric-powered scooters
and three-wheelers as was done by most developed economy, 255 and even emerging
economies such as India, which have been proved to maintain India’s emission level to a
minimum.256
132. Therefore, it cannot be concluded that Respondent’s Measures were the only way
available because it is the only one they attempted.
253
Jeffries, p.372
254
U.S. Energy Information Administration
255
Grand View Research
256
Akpan, PBS.org
41
ii. Respondent contributed to the situation of necessity
133. A state that “helped, by act or omission to bring about” the situation of alleged necessity,
would not be able to rely on said situation to preclude liability. 257 Additionally, in LG&E,
the tribunal held that failure to implement preventive measures is seen equal to
contributing to the situation of alleged necessity. 258 Similarly, Respondent has failed to
implement the principle of preventive action to prevent environmental damage pursuant
to Article 61 of the ASNEC Founding Charter and contributed to the situation by
omission.259
134. Having contributed to the situation of necessity, Respondent could thus not rely on the
customary defence of necessity.260
F. In any event, Respondent’s Measures were also disproportionate pursuant to

Article IX (2) of the ASNEC Energy Investment Treaty
135. Respondent claims that its Measures are primarily to combat floods that continuously
occurred in the region.261 In determining the legitimacy of its environmental measures,
there is a need to ensure that the effects of Respondent’s Measures and the aim sought are
equal,262 in that they should be duly motivated and shall not nullify or impair any benefit
reasonably expected under the ASNEC Energy Investment treaty to an extent greater than
it is strictly necessary to that stated end.263
257
Gabcikovo, ¶57
258
LG&E, ¶256
259
260
LG&E, ¶256
261
Statement of Uncontested Facts, ¶17, p.58; Exhibit R-2, p. 31, Respondent’s Response to Notice of Arbitration,
¶10, p.27
262
Azurix, ¶311
263
ASNEC Energy Investment Treaty, Article IX (2), p.63
42
136. Respondent’s Measures are therefore disproportionate as they levied an excessive burden
on Claimant,264 nullifying or impairing its investment, turning it to an economic burden 265
due to the inability of T1 to realize revenues, generate income, and operate profitably for
its projected lifetime. Respondent’s decision to phase-out coal-fired power plants are
disproportionate as it was not strictly necessary to the stated ends, particularly
considering that the coal-fired power plants in Respondent can still be accommodated by
the reasonable targets laid down by the Seoul Agreement and Coal Directive.
137. Conclusively, Respondent’s Measures are disproportionate.
G. Claimant is entitled to compensation amount to no less than USD 450,000,000

for the damages caused by Respondent’s Measure
138. As already submitted in Part II, supra, all the rights have been acquired by GNB,
including the right to file a treaty claim. Claimant in the present case has therefore
inherited all the rights of MFNB under FA that includes the right to claim compensation
from Respondent pertaining to the unfair and inequitable treatment of Claimant’s
investment. Thus, Claimant, as the new lender taking over MFNB through the AA, is
entitled to the difference between the USD 150,000,000 which was 25% of the original
loan amount invested by MFNB for the construction of T1, 266 and the 600,000,000 which
is the initial loan;267 thus amounting the compensation to USD 450,000,000 which this
Tribunal must direct Respondent to pay including all costs of this arbitration.268
264
EDF, ¶293
265
266
PO No.2, ¶30, p.60
267
Statement of Uncontested Facts, ¶13, p. 57
268
Notice of Arbitration, ¶17 (b), p.8
43
PRAYERS OF RELIEF
In light of the above submission, Claimant respectfully requests this Tribunal to

find that:
a. Mr. Perry Mason is not to be replaced
b. Claimant has legal standing in the present proceeding
c. The challenged measures are attributable to Respondent
d. Respondent’s Measures breached Article II of the ASNEC Energy
Investment
e. Claimant is entitled to damages in the amount of no less than USD
450,000,000
Submitted on 16 September by TEAM RUDA

On behalf of Claimant
GOLIATH NATIONAL BANK JSC
44

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TEAM RUDA

KOREAN COMMERCIAL ARBITRATION BOARD INTERNATIONAL

THE 2020 FOREIGN DIRECT INVESTMENT

ARBITRATION PURSUANT TO THE UNITED NATIONS COMMISSION

Goliath National Bank JSC

The Republic of Laoc

MEMORIAL FOR CLAIMANT

Abaclat Abaclat and others v. Argentine Republic,

ADC ADC Affiliate Limited and ADC & ADMC Management

AES AES Summit Generation Limited and AES-Tisza Eromu

Al-Bahloul Mohammad Ammar Al-Bahloul v. The Republic of

AMTO Limited Liability Company AMTO v. Ukraine, Final

BG Group BG Group Plc. v. The Republic of Argentina, Final

Burlington Burlington Resources Inc v. Republic of Ecuador,

Caratube Caratube International Oil Company LLP & Mr.

CMS CMS Gas Transmission Company v. The Argentine

Compania de Aguas Compania de Aguas del Aconquija S.A. & Vivendi

Daimler Financial Services AG v. Argentine Republic, Award, 22

Devas CC/Devas v. Republic of India, Decision on the

Eastern Sugar Eastern Sugar B.V. (Netherlands) v. The Czech

EDF EDF (Services) Limited v. Romania, Legal Opinion of

Eiser Eiser Infrastructure Limited and Energia Solar

Enron Enron Corporation and Ponderosa Assets, L.P. v.

Gallo Vito G. Gallo v. Government of Canada, Decision on the

Glamis Glamis Gold, Ltd. v. The United States of America,

Grand River Grand River Enterprises et al v. United States of

Hydro Energy Hydro Energy 1 S.a.r.l. And Hydroxana Sweden AB v.

Lemire Joseph Charles Lemire v. Ukraine, Award, 28 March

LG&E LG&E Energy Corp., LG&E Capital Corp., and LG&E

Metalpar Metalpar S.A. and Buen Aire S.A. v. The Argentine

Micula Ioan Micula, Viorel Micula, S.C. European Food S.A.,

Mihaly Mihaly International Corporation v. Democratic

National Grid National Grid plc v. The Republic of Argentina,

Occidental Occidental Exploration and Production Company v. The

Parkerings Parkerings-Compagniet AS v. Republic of Lithuania,

Perenco Perenco Ecuador Ltd v. Republic of Ecuador and

Plama Plama Consortium Limited v. Republic of Bulgaria,

Rumeli Telekom Rumeli Telekom A.S. and Telsim Mobil

Saluka Saluka Investments BV (The Netherlands) v. The Czech

SGS SGS Société Générale de Surveillance S.A. v. Islamic

Siemens Siemens A.G. v. The Argentine Republic, Award, 17

Suez Suez, Sociedad General de Aguas de Barcelona S.A. v

Urbaser Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia,

Vannessa Vannessa Ventures LTD v. The Bolivarian Republic of

Veteran Petroleum Veteran Petroleum Limited (Cyprus) v. The Russian

INTERNATIONAL COURT DECISION

Phosphates Phosphates in Morocco, PCIJ Series A/B No.74

Japan – Apples Panel Report, Japan –- Apples (Article 21.5 – US)

India – A. Products The Appellate Body in India – Agricultural

Clayton/Tomlinson Richard Clayton and Hugh Tomlinson, The Law of

Crawford Professor James Crawford, SC, Energy Charter Treaty

Dolzer/Schreuer R. Dolzer and C. Schreuer, Principles of International

Greer Steven Greer, The Margin of Appreciation:

ICSID Review ICSID Review - Foreign Investment Law Journal,

Nollkaemper/Jacobs Andre Nollkaemper & Dov Jacobs, Shared

Potesta Michele Potesta, Legitimate Expectations in Investment

Klager Roland Klager, Fair and Equitable Treatment in

Leal-Arcas Commentary on the Energy Charter Treaty, Rafael Leal-

Litvinoff Saul Litvinoff, Subrogation, Louisiana Law Review,

Salacuse Jeswald W. Salacuse, The Law of Investment Treaties,

Tzeng Peter Tzeng, Investments on Disputed Territory:

Akpan Nsikan Akpan, Only 2 countries are meeting their