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 CLAIMANT

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1. THE TRIBUNAL SHOULD NOT GRANT THE PROVISIONAL MEASURES REQUESTED BY THE
RESPONDENT

1.1. The request is violative of Freedom of Expression guaranteed by ICCPR. Tyrea

ratified ICCPR immediately before the Claimants made their investments in the
Respondent State1.
1.2. No irreparable harm is caused since the Respondent can be compensated in
monetary terms2.
1.3. The request for grant of provisional measures for specific performance is
deemed legally impossible since the Respondent has put an end to the contract 3.

2. THE RESPONDENT’S DENUNCIATION OF THE ICSID CONVENTION HAS NO EFFECT ON ITS

CONSENT TO ARBITRATION UNDER ARTICLE 9 OF THE BIT

2.1. Investments made prior to the effective date of denunciation survive denunciation4.
2.2. Claimants can anytime perfect consent to ICSID Jurisdiction after making an
investment, subject to investment being made when the host state was a party to the
ICSID Convention5.
2.3. State consent to ICSID expressed in a treaty remains undisturbed by the notice of the
denunciation for the duration of the six months’ notice period set out in Article 716.
2.4. The denunciation of the ICSID Convention by a Contracting State having the effect
of revoking the consent to ICSID arbitration given by that Contracting State in a BIT,
would be contrary to the principle of pacta sunt servanda.7
2.5. Operation of jurisdictional estoppel negates the invocation of denunciation8.

1
Clarification No. 10, Procedural Order No. 2.
2
Occidental Petroleum Corporation and Occidental Exploration and Production Company v. The Republic of
Ecuador, ICSID Case No. ARB/06/11, Decision on Provisional Measures, 17 August 2007 ¶¶ 59, 98.
3
Ibid, ¶ 39.
4
Murphy Exploration and Production Company International v. Republic of Ecuador, ICSID Case no.
ARB/08/4, Award of December 2010
5
James Otis Rodner; Jaime Martínez Estévez : Journal of International Arbitration
6
M.D. Nolan & F. Sourgens, A Preliminary Comment – The Interplay between State Consent to ICSID
Arbitration and the Denunciation of ICSID Convention: The (Possible) Venezuela Case Study see also Blue
Bank International & Trust (Barbados) Ltd. v. Bolivarian Republic of Venezuela; ICSID Case No. ARB/12/20
(Award) ¶ 119.
7
Supra note 4
8
Schreuer, at p. 222.

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3. THE TRIBUNAL HAS JURISDICTION OVER THE MULTI-PARTY CLAIM BROUGHT AGAINST
THE RESPONDENTS

3.1. The Tribunal has the jurisdiction to hear the Claimants’ case jointly in multi-
party
3.1.1. The host state gave its consent to arbitration in the BITs
A. Respondent isn’t required to give additional consent in respect of a multi-
party arbitration9.
B. Respondent made a standing offer to arbitrate investment ‘disputes’ with
‘investors’ from Novanda and Kitoa in the BITs, where the plurality
envisions multiple claims.
3.1.2. Multi-party arbitration has become a common and generally accepted practice
A. No objections to multi-party claims before ICSID and UNCITRAL where
the claims arise from the same dispute and involve the same set of facts10.
B. Travaux Preparatories of the ICSID Convention confirm that the drafters of
the Convention envisioned such a possibility11.
3.1.3. Since the Tribunal has the jurisdiction to hear claims individually, it cannot
lose its jurisdiction over claims jointly brought before it by the Claimants.

3.2. Arguendo, the Tribunal does not have the jurisdiction to hear the claims jointly
3.2.1. Pursuing each claimant’s claim individually might lead to conflicting awards
which will pose much difficulty in enforcement of the Awards
3.2.2. Tyrean Civil Procedure Code envisages collective claims12, and a refusal to
grant such a remedy to the Claimants would be a violation of the National
Treatment Principle.

9
Andrea M. Steingruber, Consent in International Arbitration (2012)
10
Flughafen v. Venezuela also Rurelec v. Bolivia
11
Lamm et. Al
12
Clarification No. 8, Procedural Order No. 2

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4. BLOCKING OF THE CLAIMANT’S PLATFORMS IS IN VIOLATION OF ARTICLES 3(1) AND 6

OF THE BITS

4.1. Respondent acted in violation of Article 3(1) of the BITs

4.1.1. Measures taken by the Respondent are in violation of the FET Standard
A. Article 3(1) of the BITs provides for an autonomous FET Standard. In
order to violate the unqualified FET standard, it may be sufficient that States’
conduct displays a relatively lower degree of inappropriateness’, compared
with the international minimum standard13.
B. Respondent has violated the legitimate expectations of the Claimants. Post
the new Media Law liberalising the internet and loosening its control over the
media and press14, the Claimants operated under a ‘reasonable expectation’ of
a certain degree of freedom of operation which has been subsequently curtailed
by the measures undertaken by the Respondent15.
C. The Decree No. 0599/201-D was not applied transparently and failed to
accord due process of law16.
D. Respondent measures were both unreasonable and discriminatory in
nature17.

4.2. Respondents measures are in violation of Article 6 of the BITs

4.2.1. Measures taken by the Respondent are in public interest but

disproportionate18.
4.2.2. Measures are discriminatory in nature. Here, the Respondents blocked only
the Claimants’ platforms and not their own platform19, and gave no reason for
not blocking their own network which is a prima facie act of discrimination20.

13
Saluka v. Czech Republic, UNCITRAL, Partial Award, 17 March 2006 ¶60
14
Statement of Uncontested Facts, ¶3
15
Tecmed v. Mexico, 2003, ¶154
16
Supra note 13 ¶81 see also Supra Note 13
17
El Paso Energy International Company v. Argentine Republic, ICSID Case No. ARB/ 01/15, Award (Oct. 31,
2011) ¶ 241
18
LG&E v. Argentina, ICSID Case No. ARB/02/1, Decision on Liability (Oct. 3, 2006) ¶ 195
19
Statement of Uncontested Facts, ¶22
20
Noble Ventures, Inc. v. Romania, ICSID Case No. ARB/01/11, ¶180

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4.2.3. Arguendo, if the measures are lawful, the Respondent owes just
compensation to the Claimants. If the measures adopted by the Respondent are
held to be lawful, the Respondent by virtue of Article 6(c) of the BITs has still
agreed to pay ‘just compensation’ to the Claimants21.

5. THE METHOD OF QUANTIFICATION OF DAMAGES TO BE USED IS DISCOUNTED CASH

FLOW [DCF] METHOD.

5.1. The DCF method is the best approach towards quantification of damages.
A. DCF method is widely used in investment arbitration for quantifying
damages22.
B. Use of country risk premium is avoided when using weighted average
cost of capital23.
C. Alternatively, DCF method does not lead to a higher amount than other
valuation methods24.
5.2. Compensation requested is not speculative in nature.
A. Business plans to develop in future are compensated25.
B. Mere probability of making profits is enough to award damages26.
5.3. Cost based approach cannot appreciate the intangible assets of claimants27.

21
Saluka Investments v Czech Republic, ICGJ 368 (PCA 2006), ¶255;Tecmed, ¶44
22
Phillips Petroleum Co Iran v Iran, 21 Iran–US CTR (1989) 79, ¶112. also Irmgard Marboe; Chapter 5, ¶5.75.
23
ADC v Hungary, Award of 2 October 2006, ¶ 507.
24
Barcelona Traction Light and Power Company (Belgium v Spain), I.C.J. Reports 1970, p. 3.
25
Factory at Chorzów case, PCIJ 1928 Ser A, No. 17, 46.
26
Irmgard Marboe Chapter 3, ¶ 3.231.
27
M Kantor, Valuation for Arbitration—Compensation Standards, Valuation Methods and Expert Evidence (The
Hague: Kluwer, 2008) 13.