TEAM COLLIARD

INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT

DISPUTES

IN THE ARBITRATION PROCEEDING BETWEEN

FriendsLook plc
SpeakUp Media Inc.
and Whistler Inc.

(Claimant)

v.

Republic of Tyrea

(Respondent)

ICSID Case No. ARB/18/155

SKELETON BRIEF FOR RESPONDENT

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1. THE TRIBUNAL SHOULD GRANT THE PROVISIONAL MEASURES REQUESTED BY THE

RESPONDENT.

1.1. The tribunal has the prima-facie jurisdiction to hear the case
1.1.1. Respondent has the right to approach the Tribunal1.
1.1.2. Requests for provisional measures are considered by Tribunals without
prejudice to parties’ outstanding objections to the Tribunal’s competence and
jurisdiction to hear the claims in the issue2.

1.2. The standard for prima facie establishment of case is met

1.2.1. The Tribunal need not go beyond whether a reasonable case has been made3.

1.3. The present request fort the provisional measure is urgent

1.3.1. Claimants’ actions are prejudicial to the rights of the Respondent4.

1.4. The grant of the provisional measures is necessary

1.4.1. The Acts of the Claimant pose a threat to National Security5.
1.4.2. The Acts of the Claimant are prejudicial to the investment of the Respondent
1.4.3. The same is required to maintain the procedural integrity of the proceedings6.

1.5. The Tribunal is requested to grant the provisional measures on the interest of
proportionality
1.5.1. If the Acts of the Claimant were to continue it would further aggravate the
dispute.
1.5.2. The Respondents have the right to maintenance of the status quo7, which does
not interfere with the rights of the Claimant.

1
Art 46, ICSID Arbitration (Additional Facility) Rules
2
SGS Société Générale de Surveillance S.A. v. Islamic Republic of Pakistan, ICSID Case No. ARB/01/13,
Procedural Order No. 2, 16 October 2002, p. 298
3
Victor Pey Casado, President Allende Fondation c. Republique du Chili, ICSID Case No. ARB/98/2, Decision
on Provisional Measures, 25 September 2001
4
Tokios Tokeles v. Ukraine, ICSID Case No. ARB/02/18, Order No. 3, 18 January 2005, para. 8
5
Statement of uncontested facts, ¶ 13 see also Clarification 14, Procedural Order No. 2
6
Biwater Gauf (Tanzania) Ltd v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Procedural Order
No. 3, 29 September 2006, ¶146, ¶163.
7
Plama Consortium Limited v. Republic of Bulgaria, ICSID Case No. ARB/03/24, Order, 6 September 2005; ¶2.

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2. THE OFFER TO ARBITRATE UNDER THE ICSID CONVENTION NO LONGER STANDS

2.1. ICSID arbitration is only available if the conditions for access to ICSID
arbitration in both investment treaty and ICSID Convention have been
satisfied8.

2.2. Consent to the jurisdiction of ICSID is preserved if it was given prior to the
notice of denunciation being received in accordance with Article 72.9
2.2.1. Respondents in the present dispute denounced the ICSID Convention prior to
invocation of the standing offer to arbitrate by the Claimants.
2.2.2. Thus, the six-month period of survival of rights and obligations of the
denouncing state post denunciation as envisioned by Article 72 of the ICSID
Convention will not apply.
2.2.3. Arguendo, even if the Tribunal were to exercise jurisdiction over the present
dispute, it would open the Respondent to unlimited number of claims which may
arise post denunciation of the ICSID10.

3. THE TRIBUNAL DOES NOT HAVE JURISDICTION OVER THE MULTI-PARTY ARBITRATION
CLAIM BROUGHT AGAINST THE RESPONDENTS

3.1. No express provision for multi-party proceedings exists in any of the relevant
legal instruments
3.1.1. Neither the relevant BITs11, nor ICSID Convention and Rules nor the
UNCITRAL Arbitration Rules contain provisions allowing multi-party
arbitration proceedings as a means of resolving an investment dispute between a
plurality of investors and a host State.
3.1.2. Such silence in the relevant legal instruments on the admissibility and
jurisdiction of the said claim cannot be interpreted in favour of existence of
jurisdiction12.

8
Fábrica De Vidrios Los Andes, C.A. & Owens-Illinois De Venezuela, C.A v. Bolivarian Republic of Venezuela;
ICSID Case No. ARB/12/21 (Award dt. November 13, 2017), ¶ 261
9
Id. ¶ 271
10
Id. ¶ 289
11
Tyrea-Novanda BIT and Tyrea-Kitoa BIT
12
Ambiente Ufficio S.P.A. and Others, ICSID Case No. ARB/08/9 (Decision on Jurisdiction and Admissibility,
Dissenting Opinion of Santiago Torres Bernárdez)

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3.2. The Respondent did not expressly consent to a multi-party arbitration

proceeding
3.2.1. The Respondent gave its consent as a host-state only to bi-lateral arbitration.13
3.2.2. The Respondent cannot be deemed to have submitted itself to multi-party
arbitration treatment unless it gave an additional consent to that particular type of
procedure, consent which is missing in the present case14.

4. BLOCKING OF THE CLAIMANT’S PLATFORMS IS NOT IN VIOLATION OF ARTICLES 3(1)

AND 6 OF THE BITS

4.1. Respondent did not violate Article 3(1) of the BITs by blocking the Claimants’
platforms
4.1.1. Measures taken by the Respondent are not in violation of fair and equitable
treatment
A. Article 3(1) of the BITs envision an autonomous FET Standard.
Even though the bar is higher is such a case, it is contended that the
Respondents did not act unfairly in applying the ban.
B. Respondent has not violated the legitimate expectations of the
Claimants. Investors have to assume a risk that the country might
experience strikes, lock-outs, disturbances, changes of economic and
political system and even revolution. That any of these risks
materialised does not necessarily mean that property rights affected by
such events can be deemed to have been taken15.
C. Respondent has not failed to follow the due process of law. The
Respondent gave adequate notice of reduction of the time period within
which the algorithm had to be formulated.
D. Respondent measures were neither unreasonable nor
discriminatory in nature. The Respondent took such measures as
were required to protect the interests of the public. States are not liable
to pay compensation to a foreign investor when, in the normal exercise
of their regulatory powers, they adopt in a non-discriminatory manner

13
Article 9 of the BITs
14
Supra note 2
15
Starrett Housing Corp. v Iran

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bona fide regulations that are aimed at the general welfare16. Moreover,
the measures did not single out the Claimants’ platforms and cannot
said to be discriminatory in nature.

4.2. Respondents have not expropriated Claimants’ investments

4.2.1. Measures taken by the Respondent are in public interest. A deprivation can
be justified if it results from the exercise of regulatory actions aimed at the
maintenance of public order which was necessary as under the present dispute17.
4.2.2. Arguendo, even if said expropriation did take place, Respondents are not
liable for compensation. A State is not liable to pay compensation to a
dispossessed alien investor when it adopts general regulations that are
‘commonly accepted as within the police power of States’18. Respondent thus
escapes this liability because of the lawful exercise of its regulatory powers.

5. THE COST BASED APPROACH [CBA] IS TO BE USED FOR QUANTIFICATION OF DAMAGES.

5.1. Cost based analysis is the best approach to quantify damages.

5.1.1. CBA is not speculative19.
5.1.2. CBA is best for investments recently made20.
5.1.3. Restitutio in integrum is achieved when damages are based on the amount of
investments actually undertaken21.

5.2. Compensation requested is speculative in nature.

5.2.1. Lucrum Cessans are not a part of the value of a company22.
5.2.2. There must be proof that profits anticipated are probable and not merely
possible23.

16
Saluka Investments B.V. v. Czech Republic, UNCITRAL, Partial Award (Mar. 17, 2006); ¶255
17
Saluka v. Czech Republic
18
Saluka v. Czech Republic, ¶262
19
Irmgard Marboe, chapter 4, Para 4.135.
20
Wena Hotels Ltd v Egypt, Award of 8 December 2000 (2002) 41 ILM 896, para. 123.
21
Metalclad v Mexico, 30 August 2000 para. 122.
22
Amoco International Finance v Iran, 15 Iran–US CTR (1987) 189, para. 203.
23
Revolution in the International Rule of Law. Essays in Honour of Don Wallace, Jr (Huntington, New York:
Juris, 2014) 497, 499–500.

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5.2.3. Alternatively, the calculation of lucrum cessans by discounted cash flow

method would lead to double counting24.

24
Himpurna California Energy Ltd v PLN, Final Award of 4 May 1999 (2000) 25 YCA 13, para. 240.