You must answer each of the three parts:
(A)The term ‘fair and equitable treatment’ is a flexible and, therefore, imprecise term which is found in many bilateral investment treaties (BITs).Notwithstanding the imprecision of the ‘fair and equitable’ term in BITs, it is thought that the term includes breach of the ‘denial of justice’ standard.
But, even if ‘denial of justice’ is not within the concept of ‘fair and equitable’ treatment found in BITs, ‘denial of justice’ is a principle of customary international law and, therefore, applicable in claims brought by investors.
Discuss the respective meanings of ‘fair and equitable’ treatment, and ‘denial of justice’ separately and in conjunction with each other, and explore the process by which an investor can claim for breach of ‘denial of justice’ under a BIT or, in the alternative, in customary international law.
Please support your response by reference to appropriate published sources.
(B)Mekhen Wardl SA (MWS – a company incorporated in the Democratic Republic of Laasahn (DRL), bought land in the Kingdom of Alamy-Rapho (KAR) and built a factory on the land which produced goods which were bought by citizens of the KAR and which were also exported by MWS from the KAR.
About four years after the factory commenced production, the government of the KAR took control of the factory pursuant to a statute passed by the Lower and Upper Houses of the KAR legislature.No compensation was offered.
The bilateral investment treaty (BIT) between DRL and the KAR includes a choice of dispute resolution processes including either (i) International Chamber of Commerce (ICC) arbitration or (ii) the International Centre for Settlement of Investment Disputes (ICSID) arbitration.There is a provision in the BIT that local remedies must be exhausted.And the BIT also provides that the States parties will adhere to the ‘international minimum standard’ of treatment of alien investors.
MWS commenced an Action in the High Court of the KAR, but was denied access to a critical Defence document which had been filed with the High Court by the Government of the KAR.MWS alleged that, as a consequence of not having access to that document, MWS was not able to respond to its content and that, as a consequence, the judgment of the High Court was in favour of the Government of the KAR.
MWS lodged an appeal with the Court of Appeal of KAR, but the appeals committee of the Court of Appeal refused to allow the case to go forward for appeal on the basis that MWS was out of time.MWS appealed to the Supreme Court of KAR on the basis that the Court of Appeal was wrong to hold that the appeal was out of time, but the appeals committee of the Supreme Court reasoned that no such appeal could be brought where the Court of Appeal had not reached judgment on the merits of the appeal.
MWS now wishes to bring a claim to an ICSID tribunal, and is hoping to prove that MWS has (i) had its investment expropriated unlawfully, and (ii) that MWS has been denied justice by the KAR courts in breach of the ‘international minimum standard’ and in breach of customary international law.Please advise MWS.
(C)Please analyse, compare and contrast the relationship between the issues raised in Part A and the issues raised in Part B: identifying the similarities and discrepancies between the issues in Part A and the issues in Part B, and commenting on why you think that there are those similarities and discrepancies between Part A and Part B.For example, does the Part A question raise exactly the same or different issues as the Part B question; or is Part A broader or narrower than Part B in its issues – if so in what way or ways?
(This comparison is to be made primarily on the basis of the content of the Question in Parts A and B, and not merely on the basis of the content of your essay.)
