This brings me to our next argumentproposition, Captain Dahlberg's operations and bark Hans do not constitute an investment

Respondent

II. The Tribunal lacks jurisdiction ratione personae and ratione materiae

1. Claimant is not a protected investor, since the ACT does not apply to a Russian national that made no investment.

2. Claimant made no investment protected under the Atlantic Charter Treaty

3. Claimant may not rely on the 1832 Treaty MFN clause to invoke the ACT dispute settlement provisions.

RESPONDENT

Mister / Madam President (Arbitrator), Members of the Tribunal, my name is K.P. during next 9 minutes I will demonstrate that this Tribunal has no jurisdiction to hear the dispute between Captain Dahlberg and the US. The core[a sentence on the of the problem is that Captain Dahlberg, who was bound to Mobile Bay and sailed to the territorial waters of the US on the bark Hans, decided to arbitrate dispute in an arbitral proceeding.

pertinent facts/the issue in layman terms]

To support this II will provide rely on two propositions to prove that Captain Dahlberg cannot rely on the Atlantic Charter Treaty, because

1) Claimant is not a protected investor,

2) He made no investments in the US.

First, Captain Dahlbergisnot an investor since the ACT does not apply to a Russian national that made no investment.

Members of the Tribunal, we do agree that article 1 of the ACT defines an investor broadlyas [any natural person]. However, under Art.31 (1) VCLT requires to interpret a Treaty in accordance with the ordinary meaning to be given to the terms of the treaty in interpreting these words we must look in at their context and in light of the object and purpose. According to Oil Platform case textual contention of the treaty should be interpreted throw the light of the intention of the Parties on the date of conclusion. If I may refer this Tribunal to the Preamble of ACTThe context of the treaty can be found in Part III of the ACT, which repeatedly provides that protection under ACT is linked with the process of commitment of investments. (art.10 (1), art 11(1) etc.)involves provides such purposes as economic prosperity and advancement. Hence, object and purpose are reflected in preamble, which refer to Eeconomic prosperity and advancement, which require attraction of investment. Thus, even if the definition of investor do does not refer directly toprovide expressly that a natural person must own an investmentinvestment,s, it does not mean that this Treaty invokes guarantees protection for every natural national or company of the Contracting parties., [in fact, it was just an ordinary provision in the US BITs (see US-Panama BIT, US-Estonia) before the 2004 Model BIT.][SU1] Economic prosperity and advancement require attraction of investment. Moreover, as Tribunal in the La Bretagne Arbitration hold - treaty rights must not be exercised in an abusive manner, what can happen, ifTherefore, if Tribunal decides to extend protection under ACT to the person who made no investment, it will contradict the object and contention of the ACT..

This brings me to our next argumentproposition, Captain Dahlberg's operations and bark Hans do not constitute an investment

Article 1 of the ACT defines investment as every kind of asset including business enterprise and movable property. However, ACT then goes on to limit this notion to “assets” which “are invested”. This reference to the need for the assets to be invested cross-refers to the ordinary meaning of the word investment. (thus, in Romak case (para 77) investment was determined as commitment of funds or other assets). In case of broad definition of term “investment” determination of true intention of the Parties can be identified though “objective” case-law definition. (Alps Finance case, paras 239-240). These common characteristics necessary for qualification as “investment” include: a) contribution of capital, b) significant duration, c) assumption of risk. (reference)

[you need to add some of the arguments from Romak/Alps Finance to the effect that the criteria of investment are imported in such case.

Now, there are two consequences flowing from this, both critical for the Claimantsince

1) Mr. Dahlberg’s isolated commercial transactions operations are not protected under the ACT,

Date: 2016-01-14; view: 705