OUTLINE OF ARGUMENTS CLAIMANT OPENING STATEMENT I. II. III. IV. V.

. BIT promote and protect investments of the state parties Refusal Cronos and Ruritania - entered into a BIT Refused to afford protection, actively participated in violation Hold accountable, proper compensation for harm caused

Structure of Presentation I. II. Me: 18 minutes 1st and 2nd issue on jurisdiction and admissibility, and 5th issue on the sales by CAMs subsidiaries 2 minutes for rebuttal Co-agent: 20 minutes 3rd issue on expropriation, fair and equitable treatment 4th issue on full protection and security, moral damages

ISSUE 1 I. II. III. Jurisdiction over claims + admissibility Submissions signposting a. Protected investment as defined in the BIT b. No abuse of process that would bar admissibility Jurisdiction a. Respondents argument cannot be further from truth b. Article 1, Section 1 of BIT - clear definition of Investment and enumeration of covered interests c. Interpretation according to plain meaning Article 31 of VCLT, Eureko vs. Poland d. CAMs interests enumeration; covered by BIT; within Ruritania, Cronoan nationality e. These are Investments; to rule otherwise would be to impose contractual obligations beyond contemplation of parties who consented to Contract as worded and signed Admissibility a. No impediments to cognizance = fully admissible b. No denial of benefits clause c. Tokios Tokeles vs. Ukraine absence of such clause precludes barring of enjoyment of benefits d. Ruling otherwise creation of new rule patently unjust e. Transfer fully in good faith f. Validity of nationality planning timing of restructuring g. Aguas del Tunari vs. Bolivia prior to dispute, new nationality honored h. Our case transfer made prior to imposition of new regulations; transfer not made merely to enjoy BIT protection - Mavrommatis i. Even if dispute was anticipated pure speculation, not a dispute j. Cannot be punished for foresight/business judgment SUMMATION

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ISSUE 2 I. II. Jurisdiction and admissibility SPA-related claims Submissions signposting a. Article 6, Section 2 of BIT - Violations of SPA = violations of the BIT b. Legally distinct BIT-based claim - Admissible and be given due course Jurisdiction a. Determination of two things: i. Contractual breach = treaty breach? ii. Attributability b. Article 6, Section 2 of BIT fulfillment of obligations with Investors i. Umbrella clauses protect undertakings between State and foreign investors elevates to level of treaty violations ii. Present arbitral practice wide interpretation - Eureko v. Poland, and Noble Ventures v. Romania, SGS vs Paraguay iii. OECD dominant view of commentators Dolzer, Stevens, Gaillard and Schreuer iv. Inclusion of umbrella clause = guarantee by CAM to protect contracts v. Violations of contracts by Ruritania = action under BIT = jurisdiction c. Acts of SPF = acts of Ruritania = liability for SPA breach i. ASR = State cannot escape liability separate personality ii. Maffezini vs. Spain formal test (Art. 4) and functional test (Art. 5) iii. SPF state actor under both tests 1. SPA state establishment, created by law (formal) 2. Procedural Order No. 2 contributions, dissolution public functions endowed with status of state actor (functional) iv. Alternatively, Art. 8 applies 1. Procedural Order No. 2 appointment of Board and Governor-General 2. Schreuer indirect control identity of controlling interest Admissible notwithstanding forum selection clause a. Respondents argument we heartily disagree b. Gaillard and Lanco vs. Argentina Tribunals acting on BIT-based claims have jurisdiction even with forum selection clause c. SGS vs. Paraguay no express waiver cannot override jurisdiction of Tribunal organized under the treaty to hear treaty-based claims d. Treaty claim legally distinct from contract claim e. Tribunal named in BIT is entirely competent to hear claim SUMMATION

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IV.

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ISSUE 5 I. II. III. Sale of essential items recoverable item of damages under BIT Submission essential items partake of all the colors of investments in IIL Heart of the matter: General Unity of Investment Operations a. Investment not defined by ownership of specific assets single economic aim between and among related transactions b. 1974 Holiday Inns vs. Morocco; CSOB vs. Slovakia; PSEG v. Turkey; Joy Mining v. Egypt; and Franz Sedelmayer v Russian Federation c. Transactions like sales BIT protection integral part of an overall operation that qualifies as an investment elevates status above ordinary commercial transactions i. Subsidiaries fulfill this requirement necessary/essential to operations ii. Transactions between CAM, subsidiaries, FBI unity of investment operations = protected investment Even upstream earnings covered: Cargill vs. Mexico exports supply greater overall investment mirrors our situation Fall under definition under BIT returns? - maybe Partake of all indicia/colors of investments in IIL a. Dolzer, Schreuer, risk, commitment, duration, object of regular profit, participation i. Salini line of cases Saipem vs Bangladesh treated as elements ii. MCI Power Group v. Ecuador indicia or examples, and not elements; and RSM v. Grenada b. All traits these are in-built Procedural Order No. 1 subsidiaries are owned by CAM and supplied CAMs investment in FBI c. Not mere one-off commercial transactions Sum up: qualifies under BIT, general unity, all traits of investments End presentation thank you for your time.

IV. V. VI.

VII. VIII.