LALIVE
[Page 1]
Christian DOUTREMEPUICH
and
Antoine DOUTREMEPUICH
v.
REPUBLIC OF MAURITIUS
Respondent's Opening Statement
The Hague, 12 June 2019
[Page 2]
[Page 3]
The objection relating to the MFN clause is about the existence
of the alleged consent, whereas the investment issue is about
the scope of the alleged consent.
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514 JURISDICTION, COMPETENCE AND PROCEDURE, 1951-1954
prestige of this jurisdiction—since nothing undermines confidence in the
process of international adjudication so quickly and completely as the
feeling that international tribunals may assume jurisdiction in cases not
really covered by the intended scope of the consents given by the parties.
It is sometimes urged that because international jurisdiction is limited by
the necessity for consent, and this limitation is a severe one, there is every
justification for giving the maximum scope to any given consent that it can
be made to bear a sort of principle of caveant proferentes. States, it may be
said, enjoy the benefit of the fact that their subjection to international juris-
diction is limited by their own consent: therefore the onus is on them to
make sure that their consents do not cover more than they are intended to
cover and are so framed that their limits are unmistakable. This is awhat is required, if injustice is not to be done to the one party or the other,
is neither restricted nor liberal interpretations of jurisdictional clauses, but
strict proof of consent.consent was given, and whether it covers the dispute. This is putting it less
high than it can be put: strictly, jurisdiction ought only to be assumed if it
is quite clear that the parties have agreed to its exercise in relation to the
dispute before the tribunal that is to say that they have expressed them-
selves in such terms, or performed such acts, or have otherwise so conducted
themselves, that (whatever they may subsequently have professed or may
now contend) the view that they did not consent cannot, in law, be recon-
ciled with the term used, or the acts performed, or the behaviour mani-
fested. It is only too easy in this matter for international tribunals to pay
lip-service to the principle of consent and to profess only to assume juris-
diction by the consent, express or implied, of the parties, while adopting
an interpretation of what is involved by consent, and more particularly of
what matters are covered by a particular consent, such that, in practice, a
jurisdiction is assumed going well beyond what was intended to be con-
ferred or which was not intended to be conferred at all. To sum up-
what is required, if injustice is not to be done to the one party or the other,
is neither restricted nor liberal interpretations of jurisdictional clauses, but
strict proof of consent.(b) Consent by inference. Apart from those cases where there is genuine
ambiguity of terminology, or where some inherent indeterminacy is in-
volved (e.g. by reason of difficulties of classification in relation to the
Fitzmaurice, RLA-8, p. 514
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QUESTIONS OF MUTUAL ASSISTANCE (JUDGMENT) 204
respondent State has, through its conduct before the Court or in relation
to the applicant party, acted in such a way as to have consented to the
jurisdiction of the Court (Rights of Minorities in Upper Silesia (Minority
Schools), Judgment No. 12, 1928, P.C.I.J., Series A, No. 15, p. 24).62. The consent allowing for the Court to assume jurisdiction must be
certain. That is so, no more and no less, for jurisdiction based on forum
prorogatum. As the Court has recently explained, whatever the basis of
consent, the attitude of the respondent State must "be capable of being
regarded as 'an unequivocal indication' of the desire of that State to
accept the Court's jurisdiction in a 'voluntary and indisputable' manner"
(Armed Activities on the Territory of the Congo (New Application: 2002)
(Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admis-
sibility, Judgment, I.C.J. Reports 2006, p. 18; see also Corfu Channel62. The consent allowing for the Court to assume jurisdiction must be
certain. That is so, no more and no less, for jurisdiction based on forum
prorogatum. As the Court has recently explained, whatever the basis of
consent, the attitude of the respondent State must "be capable of being
regarded as 'an unequivocal indication' of the desire of that State to
accept the Court's jurisdiction in a 'voluntary and indisputable' manner”of the Court to entertain a case upon a consent thereto yet to be given or
manifested by another State to file an application setting out its claims
and inviting the latter to consent to the Court dealing with them, without
prejudice to the rules governing the sound administration of justice.
Before this revision, the Court treated this type of application in the same
way as any other application submitted to it: the Registry would issue the
usual notifications and the "case" was entered in the General List of the
Court. It could only be removed from the List if the respondent State
explicitly rejected the Court's jurisdiction to entertain it. The Court was
therefore obliged to enter in its General List "cases" for which it plainly
did not have jurisdiction and in which, therefore, no further action could
be taken; it was consequently obliged to issue orders so as to remove
them from its List (see Treatment in Hungary of Aircraft and Crew of
United States of America (United States of America v. Hungary), Order
of 12 July 1954, I.C.J. Reports 1954, p. 99; Treatment in Hungary of
Aircraft and Crew of United States of America (United States of
Case Concerning Mutual
Assistance in Criminal Matters
(ICJ), RLA-3, p. 204
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106. It may be correct to assert, as the Respondent does,54 that due to particular historical
circumstances the Bolivarian Republic of Venezuela, like some other Latin American countries,111. The statement made in the previous paragraph is definitive. Even in the case of a dispute
between private citizens, the rule is that they must settle their disputes in court. The exception is110. It is also an unquestionable fact that the basis for arbitration is consent.55 There cannot
be an arbitration, national or international, ad hoc or institutional, before ICSID or any other
entity that administers arbitration proceedings, if the parties do not agree to arbitrate.111. The statement made in the previous paragraph is definitive. Even in the case of a dispute
between private citizens, the rule is that they must settle their disputes in court. The exception is
that, only if they agree, they may resolve their dispute through arbitration. If this is true in the
ambit of private law, it is even more so when a State is involved, because when a State submits
to arbitration proceedings, it is waiving the possibility of resorting to its own courts.
31 32
Brandes v. Venezuela
(ICSID), RLA-10, pp. 31-32
55 See Report of the Executive Directors on the Convention on the Settlement of Investment Disputes between ↩
States and Nationals of Other States, 18 March, 1965, ("Consent of the parties is the cornerstone of the
jurisdiction of the Centre. Consent to jurisdiction must be in writing and once given cannot be withdrawn
unilaterally (Article 25(1)).").
56 Société Ouest Africaine des Bétons Industriels v. Republic of Senegal (ICSID Case No. ARB/82/1), Award, ↩
dated 25 February, 1988, ¶ 4.09.
57 See Letter from Brandes to the Tribunal dated 10 January, 2011 at pp. 4-5; Brandes' presentation at the ↩
Hearing on 15-16 November, 2010 at pp. 43 and 124.
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between private citizens, the rule is that they must settle their disputes in court. The exception is
that, only if they agree, they may resolve their dispute through arbitration. If this is true in the
ambit of private law, it is even more so when a State is involved, because when a State submits
to arbitration proceedings, it is waiving the possibility of resorting to its own courts.112. As expressed in a well-known award:
"Article 25 of the ICSID Convention is by no means an exception to the law of the land. It
113. Even if there is no requirement that consent to ICSID arbitration should have any
characteristic other than to be expressed in writing in accordance with Article 25 of the
Convention, it is self-evident that such consent should be expressed in a manner that leaves no
doubts.from the conclusions arrived at by those tribunals with respect to the specific matter at issue
here.
32
Brandes v. Venezuela (ICSID),
RLA-10, p. 32
57 Société Ouest Africaine des Bétons Industriels v. Republic of Senegal (ICSID Case No. ARB/82/1), Award ↩
dated 25 February, 1988, ¶ 4.09.
58 See Letter from Brandes to the Tribunal dated 10 January, 2011 at pp. 4-5; Brandes' presentation at the ↩
Hearing on 15-16 November, 2010 at pp. 43 and 124.
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Menzies Middle East and Africa S.A. et Aviation Handling Services International Ltd. c.
République du Sénégal
(Affaire CIRDI ARB/15/21)
SentenceMenzies Middle East and Africa S.A. et Aviation Handling Services International Ltd. c.
République du Sénégal
(Affaire CIRDI ARB/15/21)
Sentenceet non pas la règle. Ainsi, le Tribunal arbitral adhère aux conclusions des tribunaux arbitraux
130. Premièrement, le Tribunal arbitral constate que le consentement du Sénégal qu'allèguent les
Demanderesses, n'est pas exprès, clair et non-équivoque. Or, selon le droit international en
général, et selon l'arbitrage d'investissement en particulier, un Etat souverain ne peut pas
être assujetti à une juridiction internationale sans son consentement clairement exprimé et
non-équivoque. Cette exigence découle du respect de la souveraineté des Etats et du principe
qu'en matière de droit international, le consentement des Etats à l'arbitrage est l'exception,
et non pas la règle. Ainsi, le Tribunal arbitral adhère aux conclusions des tribunaux arbitraux
suivants :paragraphes qui suivent.
130. Premièrement, le Tribunal arbitral constate que le consentement du Sénégal qu'allèguent les
Demanderesses, n'est pas exprès, clair et non-équivoque. Or, selon le droit international en
général, et selon l'arbitrage d'investissement en particulier, un Etat souverain ne peut pas
être assujetti à une juridiction internationale sans son consentement clairement exprimé et
non-équivoque. Cette exigence découle du respect de la souveraineté des Etats et du principe
qu'en matière de droit international, le consentement des Etats à l'arbitrage est l'exception,complètement muet sur l'arbitrage international ou même la résolution des différends. Cette
disposition, en raison de sa généralité et de son libellé, ne peut pas être considérée comme
un consentement actuel, exprès et non-équivoque à l'arbitrage:Article II
Traitement de la nation la plus favorisée1. En ce qui concerne toutes les mesures couvertes par le présent accord, chaque Membre
accordera immédiatement et sans condition aux services et fournisseurs de services de tout
Menzies v. Senegal (ICSID),
RLA-2, pp. 40-41
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of the contracting parties as expressed in the text. To go beyond those bounds would be to act
ultra vires.173. The Vienna Convention itself unequivocally emphasizes the foundational role of State
consent in the law of treaties. The Convention employs the word "consent" no fewer than 62175. This basic rule was often recalled by the International Court of Justice, as in particular in
the Ambatielos case319 as well as in the Monetary Gold case.320 Against this background, it is not
possible to presume that consent has been given by a state. Rather, the existence of consent must
be established. This may be accomplished either through an express declaration of consent to an
international tribunal's jurisdiction or on the basis of acts "conclusively establishing" such
consent.321 What is not permissible is to presume a state's consent by reason of the state's failure
to proactively disavow the tribunal's jurisdiction. Non-consent is the default rule; consent is the
exception. Establishing consent therefore requires affirmative evidence. But the impossibility of
basing a state's consent on a mere presumption should not be taken as a "strict" or "restrictive"
approach in terms of interpretation of dispute resolution clauses. It is simply the result of respect
for the rule according to which state consent is the incontrovertible requisite for any kind of
international settlement procedure. This was already established by the Permanent Court of
International Justice in the famous Lotus case of 1927322 and further recalled by the ICJ in the
case of the Aerial Incident of July 27, 1955323 as well as in the East Timor case of 1995.324 What
is true of the very existence of consent to have recourse to a specific international dispute
resolution mechanism is also true as far as the scope of this consent is concerned.325
Daimler v. Argentina
(ICSID), RLA-1,
pp. 69-70
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CONVENTION
ENTRE LE GOUVERNEMENT DE LA RÉPUBLIQUE FRANÇAISE ET LE
GOUVERNEMENT DE L'ILE MAURICE SUR LA PROTECTION DES
INVESTISSEMENTS, SIGNÉE A PORT-LOUIS LE 22 MARS 1973Article 9.
Les accords relatifs aux investissements à effectuer sur le
territoire d'un des Etats contractants, par les ressortissants,
sociétés ou autres personnes morales de l'autre Etat contractant,
comporteront obligatoirement une clause prévoyant que les
différends relatifs à ces investissements devront être soumis,
au cas où un accord amiable ne pourrait intervenir à bref délai,
au Centre international pour le règlement des différends relatifs
aux investissements, en vue de leur règlement par arbitrage
conformément à la Convention sur le règlement des différends
relatifs aux investissements entre Etats et ressortissants d'autres
Etats.empêché ou s'il est ressortissant d'un des deux Etats, les nomi
nations seront faites par le membre le plus ancien de la Cour
qui n'est ressortissant d'aucun des deux Etats.A moins que les Etats contractants n'en décident autrement, le
tribunal fixe lui-même sa procédure.Les décisions du tribunal sont obligatoires pour les Etats
contractants.
France-Mauritius BIT, C-2,
Art. 9
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ARON BROCHES
If the host State refuses to give consent to the jurisdiction of the Centre after having
been asked to do so by a national of its treaty partner, the latter State could
carry out its obligation under the treaty and, if that StateA number of investment protection treaties go a step farther and do require the
host State to give consent to ICSID arbitration (in many cases also conciliation) at
the request of the investor. The typical provision found in the Netherlands treaties
reads as follows:The Contracting Party in the territory of which a national of the other Contracting Party makes or
intends to make an investment shall assent to any demand on the part of such national to submit, for
conciliation or arbitration, to the International Centre for the Settlement of Investment Disputes
established by the Convention of Washington of the 18th March, 1965, any dispute that may arise in
connection with that investment'.14 15If the host State refuses to give consent to the jurisdiction of the Centre after having
been asked to do so by a national of its treaty partner, the latter State could
demand that the former carry out its obligation under the treaty and, if that State
persists in its refusal, have recourse to such remedies as may be available under the
treaty or other rules of international law binding on the parties, including
arbitration which is provided for in most investment protection treaties. The
above-quoted provision would not, however, by itself, enable the investor to
institute proceedings before the Centre. A request to that effect would presumably
be rejected by the Secretary-General of the Centre since the absence of the host
State's consent, a crucial requirement of the Centre's juridiction, would be clear
on the face of the request16.
Broches, CL-37, p. 65
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110 JUDGMENT OF 22 VII 52 (ANGLO-IRANIAN OIL CO.)
the United Kingdom in conjunction with the Treaty of 1934
between Iran and Denmark. There could be no dispute between Iran
and the United Kingdom upon the Iranian-Danish Treaty alone.
The United Kingdom also put forward, in a quite different
form, an argument concerning the most-favoured-nation clause.
If Denmark, it is argued, can bring before the Court questions as
to the application of her 1934 Treaty with Iran, and if the United
Kingdom cannot bring before the Court questions as to the applica-
tion of the same Treaty to the benefit of which she is entitled undernot be in the position of the most-favoured nation. The Court needs
only observe that the most-favoured-nation clause in the Treaties
of 1857 and 1903 between Iran and the United Kingdom has no
relation whatever to jurisdictional matters between the two
Governments. If Denmark is entitled under Article 36, paragraph 2,
of the Statute, to bring before the Court any dispute as to the
application of its Treaty with Iran, it is because that Treaty is
subsequent to the ratification of the Iranian Declaration. This can
not give rise to any question relating to most-favoured-nation
treatment.to invoke its own treaty of 1857 or 1903 with Iran, it cannot
rely upon the Iranian-Danish Treaty, irrespective of whether the
facts of the dispute are directly or indirectly related to the latter
treaty.The Court must, therefore, find in regard to the Iranian-Danish
Treaty of 1934, that the United Kingdom is not entitled, for the
purpose of bringing its present dispute with Iran under the terms
of the Iranian Declaration, to invoke its Treaties of 1857 and 1903
with Iran, since those Treaties were concluded before the ratification
of the Declaration; that the most-favoured-nation clause contained
in those Treaties cannot thus be brought into operation; and that,
consequently, no treaty concluded by Iran with any third party
can be relied upon by the United Kingdom in the present case.
Anglo-Iranian Co. Case (ICJ),
RLA-7, p. 110
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109 JUDGMENT OF 22 VII 52 (ANGLO-IRANIAN OIL CO.)
Company constitutes a breach of the principles and practice of
international law which by her treaty with Denmark IranThe Court cannot accept this contention. It is obvious that the
term traités ou conventions used in the Iranian Declaration refers
to treaties or conventions which the Party bringing the dispute
before the Court has the right to invoke against Iran, and does not
mean any of those which Iran may have concluded with any State.
But in order that the United Kingdom may enjoy the benefit of
any treaty concluded by Iran with a third party by virtue of a
most-favoured-nation clause contained in a treaty concluded by
the United Kingdom with Iran, the United Kingdom must be in a
position to invoke the latter treaty. The treaty containing the most-
favoured-nation clause is the basic treaty upon which the United
Kingdom must rely. It is this treaty which establishes the juridical
link between the United Kingdom and a third-party treaty and
confers upon that State the rights enjoyed by the third party. A
third-party treaty, independent of and isolated from the basic
treaty, cannot produce any legal effect as between the United King-
dom and Iran: it is res inter alios acta.only in 1934 between Iran and Denmark, but the application
of the Treaty of 1857 or the Convention of 1903 between Iran and20
Anglo-Iranian Co. Case (ICJ),
RLA-7, p. 109
[Page 18]
103. In the present case, it is clear that the Contracting Parties' consent to arbitrate expressed in
Article 8 of the Treaty is limited. The Contracting Parties explicitly agreed in this provision
that they would consent to arbitrate disputes arising out of a certain and limited number of
articles of the Treaty. The Tribunal is therefore of the view that, under the Treaty, the
Contracting Parties have not provided their consent to arbitrate disputes arising out of any104. The arbitral jurisprudence cited above confirms that where there is no consent to arbitrate
certain disputes under the basic Treaty, an MFN clause cannot be relied upon to create that
consent unless the Contracting Parties clearly and explicitly agreed thereto.include a third sub-paragraph in Article 3 which reads as follows:
3(3) For avoidance of doubt, it is confirmed that the treatment provided for
in paragraphs (1) and (2) above shall apply to the provisions of Articles
1 to 11 of this Agreement.106. In the present Treaty, such a paragraph was not included. A review of treaties concluded by
the UK shows that, where the scope of the dispute settlement provision is limited, there is
26
A11Y v. Czech Republic, RLA-
38, p. 26
43 Plama Consortium Limited v. Republic of Bulgaria, ICSID Case No. ARB/03/24, Decision on Jurisdiction, ↩
8 February 2005, CL-37, para. 212.
[Page 19]
thereby rendering it inapplicable to Article 8 as is the view preferred in the attached dissenting
opinion.103. Article 3(3) of the Barbados-Venezuela BIT is almost identical to the United Kingdom Model BIT
(2008), the only difference being that in the UK Model Treaty Article 3(3) starts with the wordsthat it does not seek to import consent to arbitration in the present case from ano
concluded by Venezuela with a third State.84106. The question which has to be answered is whether Venezuela has given its consent to inte
arbitration for disputes with Barbadian investors in the BIT at hand.105. It is now for the Tribunal to determine how Article 3(2) impacts the provisions of Article 8 on
settlement of disputes between an investor and a State. The Tribunal agrees with the Respondent
that the MFN clause cannot serve the purpose of importing consent to arbitration when none exists
under the BIT between Barbados and Venezuela.83 It also appears that the Claimant is arguing
that it does not seek to import consent to arbitration in the present case from another BIT
concluded by Venezuela with a third State.84dispute settlement provisions only through the operation of Article 3(2) of the Treaty.
"Investment" as such has no procedural rights, therefore Article 3(1) is without relevance for the
purpose of the Tribunal's inquiry into its jurisdiction.105. It is now for the Tribunal to determine how Article 3(2) impacts the provisions of Article 8 on
settlement of disputes between an investor and a State. The Tribunal agrees with the Respondent
that the MFN clause cannot serve the purpose of importing consent to arbitration when none exists
under the BIT between Barbados and Venezuela.83 It also appears that the Claimant is arguingprovisions of this Article", makes such submission of disputes to international arbitratio
to the conditions specified in paragraphs (1) and (2) of Article 8. These conditions deter
arbitration forum to which a dispute can be submitted, either ICSID, the ICSID Additiona
or arbitration under the UNCITRAL Rules. Yet, the fact remains that Article 8(4) expr
Contracting Parties" overall "unconditional consent" to international arbitration. Vene:
given in Article 8 one consent to international arbitration, not three different consent
ICSID arbitration, one to ICSID Additional Facility arbitration and one to ad hoc arbitrati
UNCITRAL Rules). That consent covers three different arbitral fora (ICSID, Additional
UNCITRAL) under the conditions specified in Article 8.
Venezuela US v. Venezuela
(PCA), RLA-22, pp. 35-36
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of Iran's Declaration of consent to ICJ jurisdiction, while the two UK treaties (the "basic
treaties") did not.350202. In explaining why it lacked jurisdiction to hear the UK's MFN-based claims, the Court
designated forum. According to this logic, the Claimant may not yet have standing to raise any
MFN arguments at all before the Tribunal. This raises a significant impediment to the Claimant's
attempts to bypass the 18-month proviso. However, this impediment might be surmounted by the204. In the present matter, of course, Argentina's consent to international arbitration is
contained within the same instrument as the MFN guarantees giving rise to some of the
Claimant's jurisdictional arguments. But the physical location (external instrument versus within
the same treaty) of a State's consent to a particular type of dispute resolution does not eviscerate
the requirement, stressed by the ICJ, that the State must have consented to the particular type of
dispute settlement in question before the claimant may raise any MFN claims before the
designated forum. According to this logic, the Claimant may not yet have standing to raise any
MFN arguments at all before the Tribunal. This raises a significant impediment to the Claimant's
attempts to bypass the 18-month proviso. However, this impediment might be surmounted by thebound condition precedent to arbitration. This difference in form does not, however, give the present
Tribunal license to disregard the temporal constraint laid down by the Contracting State Parties to the
German-Argentine BIT. The principle illustrated by the Anglo-Iranian Oil case remains apposite. Namely,
a tribunal must have jurisdiction under the basic treaty in order for a claimant to invoke the MFN clause of
that treaty and thereby reach the more favorable provisions of a comparator treaty.article deal with particular substantive protections, while paragraph (4) sets out a special MFN
82 83
Daimler v. Argentina (ICSID),
RLA-1, pp. 82-83
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an MFN clause containing this phrase could be applied to international
arbitration proceedings without discounting the explicit territorial limitation
upon the scope of the clause.419396. Through its interpretation of the ordinary meaning of the text of Article 4(5) of the BIT, the
Tribunal thus concludes that the MFN clause does not apply prima facie to the dispute
settlement mechanism.397. This conclusion is comforted by an interpretation of the object and purpose of Article 4(5) of
the BIT. The object and purpose of the BIT's MFN clause is to grant protected investors the398. As the question here is one of jurisdiction, it must be stated quite firmly that the Tribunal has to
determine its jurisdiction under the conditions of the BIT by application of the rule of
compétence-compétence, but that this does not authorise the Tribunal to use the MFN clause to
create a jurisdiction that it does not possess to begin with. In other words, consent has to be
exchanged first, under the conditions stated in the BIT, before the Tribunal can even discuss the
scope of the MFN clause.create a jurisdiction that it does not possess to begin with. In other words, consent has to be
exchanged first, under the conditions stated in the BIT, before the Tribunal can even discuss the
scope of the MFN clause.399. This analysis reinforces the Tribunal' view that the MFN clause in Article 4(5) of the BIT does
not apply to the dispute settlement mechanism.400. However, the Tribunal notes that, contrary to many other BIT's, the MFN clause here is included
in the same article as the dispute settlement provision, which also includes both substantive
protections (against a violation of the standard of FPS - Full Protection and Security - and
ST-AD v. Bulgaria (PCA),
RLA-23, p. 99
[Page 22]
The MFN Clause in Investment Arbitration 107
The claimant, by relying upon an MFN clause in respect of a jurisdictional
matter, is in essence asking the tribunal to declare that it is entitled to the more
favourable 'treatment' represented by the terms of a third treaty dealing with
the jurisdiction of the tribunal that is to be constituted in the event of a dispute
arising under that third treaty. A declaration is a remedy for a secondarybefore the standing offer is even invoked by the putative claimant. The MFN
clause does not automatically incorporate the terms of a third treaty into the
basic treaty. It secures the treatment afforded by the host state to investors with
the requisite nationality under a third treaty for the benefit of investors with the
requisite nationality under the basic treaty. The more favourable treatment
must be identified and then compared with the treatment afforded to the
particular claimant. The claimant must assert a right to more favourable
treatment by claiming through the MFN clause in the basic treaty. It can only
do so by instituting arbitration proceedings and thus by accepting the terms of
the standing offer of arbitration in the basic treaty. At that point an arbitration
agreement between the claimant and the host state comes into existence.
And the existence of that arbitration agreement is critical to the viability of
the arbitration regime envisaged by the investment treaty. For instance, itagreement between the claimant and the host state comes into existence.
And the existence of that arbitration agreement is critical to the viability of
the arbitration regime envisaged by the investment treaty. For instance, it
is essential to the application of the New York Convention on the Recognition
Douglas, RLA-17,
p. 107
[Page 23]
[Page 24]
Article 9
Disputes between an Investor and a Con-
tracting Party1. Any dispute arising directly from an in-
vestment between one Contracting Party and
an investor of the other Contracting Party
should be settled amicably between the two
parties to the dispute.
2. If the dispute has not been settled within
three months from the date on which it was
raised in writing, the dispute may, at the
choice of the investor, be submitted:
(a) to the competent courts of the Con-
tracting Party in whose territory the in-
vestment is made; or
(b) to arbitration by the International
Centre for Settlement of Investment Dis-
putes (ICSID), established pursuant to
the Convention on the Settlement of In-
vestment Disputes between States and
Nationals of other States, opened for sig-
nature at Washington on 18 March 1965
(hereinafter referred to as the "Centre"),
if the Centre is available; or(c) to any ad hoc arbitration tribunal
which unless otherwise agreed on by the
parties to the dispute, is to be established
under the Arbitration Rules of the United
Nations Commission on International
Trade Law (UNCITRAL).
3. An investor who has submitted the dis-
pute to a national court may nevertheless
have recourse to one of the arbitral tribunals
mentioned in paragraphs 2(b) or 2(c) of this
Article if, before a judgment has been deliv-
ered on the subject matter by a national court,
the investor declares not to pursue the case
any longer through national proceedings andwithdraws the case.
4. Any arbitration under this Article shall,
at the request of either party to the dispute,
be held in a state that is a party to the Con-
vention on the Recognition and Enforcement
of Foreign Arbitral Awards (New York Con-
vention), opened for signature at New York
on 10 June 1958. Claims submitted to arbi-
tration under this Article shall be considered
to arise out of a commercial relationship or
transaction for purposes of Article 1 of the
New York Convention.5. Each Contracting Party hereby gives its
unconditional consent to the submission of a
dispute between it and an investor of the
other Contracting Party to arbitration in ac-
cordance with this Article.
6. Neither of the Contracting Parties, which
is a party to a dispute, can raise an objection,
at any phase of the arbitration procedure or
of the execution of an arbitral award, on ac-
count of the fact that the investor, which is
the other party to the dispute, has received an
indemnification covering a part or the whole
of its losses by virtue of an insurance.
7. The award shall be final and binding on
the parties to the dispute and shall be exe-
cuted in accordance with national law of the
Contracting Party in whose territory the
award is relied upon, by the competent au-
thorities of the Contracting Party by the date
indicated in the award.
Finland-Mauritius BIT,
C-3, Art. 9
[Page 25]
[Page 26]
31. In considering further the Indian contentions described in para-
graph 29, supra, a convenient point of departure will be the question
mentioned in sub-paragraph (e) of paragraph 30 because, in the pro-
ceedings before the Court, this question assumed almost more promi-
nence in the Indian arguments than any other. Furthermore, it involves
a point of principle of great general importance for the jurisdictional
aspects of this or of any case. This contention is to the effect that
since India, in suspending overflights in February 1971, was not invoking
any right that might be afforded by the Treaties, but was acting outside
them on the basis of a general principle of international law, "therefore"
the Council, whose jurisdiction was derived from the Treaties, and which
was entitled to deal only with matters arising under them, must be in-32. To put the matter in another way, these contentions are essentially
in the nature of replies to the charge that India is in breach of the Treaties:
the Treaties were at the material times suspended or not operative, or
replaced, hence they cannot have been infringed. India has not of course
claimed that, in consequence, such a matter can never be tested by any
form of judicial recourse. This contention, if it were put forward, would
be equivalent to saying that questions that prima facie may involve a
given treaty, and if so would be within the scope of its jurisdictional clause,
could be removed therefrom at a stroke by a unilateral declaration that
the treaty was no longer operative. The acceptance of such a proposition
would be tantamount to opening the way to a wholesale nullification of
the practical value of jurisdictional clauses by allowing a party first topurport to terminate, or suspend the operation of a treaty, and then to
declare that the treaty being now terminated or suspended, its jurisdic-
tional clauses were in consequence void, and could not be invoked for
the purpose of contesting the validity of the termination or suspension,
—whereas of course it may be precisely one of the objects of such a clause
to enable that matter to be adjudicated upon. Such a result, destructive
of the whole object of adjudicability, would be unacceptable.tional clauses were in consequence void, and could not be invoked for
the purpose of contesting the validity of the termination or suspension,
—whereas of course it may be precisely one of the objects of such a clause
Appeal relating to the
Jurisdiction of the ICAO
Council (India v. Pakistan),
RLA-25, p. 64
[Page 27]
211. The decision in Ceskoslovenska Obdchodni Banka, A.S. v. The Slovak Republic16 is not
relevant. The case concerned a clause in a specific contract ("Consolidation212. In the Tribunal's view, the lack of precedent is not surprising. When concluding a
multilateral or bilateral investment treaty with specific dispute resolution provisions,
states cannot be expected to leave those provisions to future (partial) replacement by
different dispute resolution provisions through the operation of an MFN provision,68
unless the States have explicitly agreed thereto (as in the case of BITs based on the UK
Model BIT). This matter can also be viewed as forming part of the nowadays
generally accepted principle of the separability (autonomy) of the arbitration clause.
Dispute resolution provisions constitute an agreement on their own, usually with
interrelated provisions.unless the States have explicitly agreed thereto (as in the case of BITs based on the UK
Model BIT). This matter can also be viewed as forming part of the nowadays
generally accepted principle of the separability (autonomy) of the arbitration clause.
Dispute resolution provisions constitute an agreement on their own, usually with
interrelated provisions.
Plama v. Bulgaria,
RLA-26, pp. 67-68
16 ICSID Case No. ARB/97/4, Decision on Jurisdiction of 24 May 1999, reprinted in 14 ICSID Rev.-F.I.L.J. 250 ↩
(1999).
[Page 28]
decision. Actually, the Siemens decision illustrates the danger caused by the manner in
which the Maffezini decision has approached the question: the principle is retained in
the form of a "string citation" of principle and the exceptions are relegated to a brief
examination, prone to falling soon into oblivion (Decision, at paragraphs 105, 109 and
120).227. For the foregoing reasons, the Tribunal concludes that the MFN provision of the
Bulgaria-Cyprus BIT cannot be interpreted as providing consent to submit a dispute
under the Bulgaria-Cyprus BIT to ICSID arbitration and that the Claimant cannot rely
on dispute settlement provisions in other BITs to which Bulgaria is a Contracting Party
in the present case.Respondent affirms that it would not have approved the purchase of Nova Plama by
PCL. Under Bulgarian law, and, in particular, Article 5(1) of the Bulgarian
Privatization Act, the obtaining of Bulgaria's consent to the investment by such
misrepresentation vitiates Bulgaria's consent so that there is no valid investment under
the ECT and consequently no ICSID jurisdiction under that treaty.229. As the Arbitral Tribunal has already stated, in paragraphs 126-130 of this Decision, the
Respondent's allegation of misrepresentation by the Claimant does not deprive the
Tribunal of jurisdiction in this case. Nevertheless, these assertions by the Respondent
are serious charges which, the Tribunal will have to examine on the merits.230. In its Reply, the Respondent reserved the right, should the Tribunal sustain its
jurisdiction, to raise an objection relating to whether the Claimant's investment was
made in accordance with law, given the alleged misrepresentation. The Tribunal,
consequently, joins the issue of misrepresentation to the consideration of the merits of
the case.
Plama v. Bulgaria,
RLA-26, p. 72
[Page 29]
effect of the "public policy considerations" is that they take away much of the breadth
of the preceding observations made by the tribunal in Maffezini.222. In Maffezini the tribunal pointed out:
It is clear, in any event, that a distinction has to be made between
the legitimate extension of rights and benefits by means of the
operation of the clause, on the one hand, and disruptive treaty-
shopping that would play havoc with the policy objectives of
underlying specific treaty provisions, on the other hand. (Id.)223. The present Tribunal agrees with that observation, albeit that the principle with
multiple exceptions as stated by the tribunal in the Maffezini case should instead be a
different principle with one, single exception: an MFN provision in a basic treaty does
not incorporate by reference dispute settlement provisions in whole or in part set forth
in another treaty, unless the MFN provision in the basic treaty leaves no doubt that the
Contracting Parties intended to incorporate them.present.
225. Whilst the Tribunal has not relied on it since the parties have not been in a position to
include it in their pleadings, the Tribunal notes that the foregoing considerations are in
line with the recent award in Salini v. Jordan22.226. In light of the foregoing review, the Tribunal need not examine the decisions in
Técnicas Medioambientales Tecmed v. United Mexican States23 and Siemens AG v.
The Argentine Republic24 as both decisions are partially based on the Maffezini
Plama v. Bulgaria,
RLA-26, p. 71
22 See footnote 7, supra. ↩
23 ICSID Case No. ARB(AF)/00/2, Award of 29 May 2003, reprinted in Spanish in 19 ICSID Rev.-F.I.L.J. 158 ↩
(2004).
24 See footnote 11, supra. ↩
[Page 30]
[Page 31]
Report of the International Law Commission on its thirtieth session 27
clause. The extent of the favours to which the beneficiary
of that clause may lay claim will be determined by the
actual favours extended by the granting State to the third
State.Commentary to articles 9 and 10
Scope of the most-favoured-nation clause regarding its
subject-matterArticle 9. Scope of rights under
a most-favoured-nation clause1. Under a most-favoured-nation clause the beneficiary
State acquires, for itself or for the benefit of persons or
things in a determined relationship with it, only those rights
which fall within the limits of the subject-matter of the
clause.2. The beneficiary State acquires the rights under
paragraph 1 only in respect of persons or things which are
specified in the clause or implied from its subject-matter.only if the granting State extends to a third State treatment
within the limits of the subject-matter of the clause.2. The beneficiary State acquires rights under para-
graph 1 in respect of persons or things in a determined
relationship with it only if they:(a) belong to the same category of persons or things
as those in a determined relationship with a third State
which benefit from the treatment extended to them by the
granting State and(b) have the same relationship with the beneficiary
State as the persons and things referred to in subparagraph
(a) have with that third State.The Commission [of Arbitration] does not deem it necessary to
express a view on the general question as to whether the most-
favoured-nation clause can never have the effect of assuring to
its beneficiaries treatment in accordance with the general rules of
international law, because in the present case the effect of the
clause is expressly limited to "any privilege, favour or immunity
which either Contracting Party has actually granted or may
hereafter grant to the subjects or citizens of any other State",
ILC Draft Articles
on MFN, RLA-27,
p. 27
114 See articles 11, 12 and 13 below, and the commentary thereto. ↩
115 McNair, op. cit., p. 287. ↩
116 Anglo-Iranian Oil Co. case (Preliminary objection), Judgment ↩
of 22 July 1952, I.C.J. Reports 1952, p. 110. For the facts and
other aspects of the case, see Yearbook... 1970, vol. II, pp. 202
and 205, doc. A/CN.4/228 and Add.1, paras. 10-30.
117 The Ambatielos case (merits: obligation to arbitrate), Judg- ↩
ment of 19 May 1953, I.C.J. Reports 1953, p. 10.
[Page 32]
30 Yearbook of the International Law Commission, 1978, vol. II, Part Two
Hungary of an attitude contrary to the interests of the Kingdom
by collaborating in the German attack against Yugoslavia. This
case surely does not fit in with the provisions of the 1829 Treaty.
From the preceding it follows that the shipowners are wrong in
their opinion that the Court should not apply the Decree as being
contrary to international provisions.132(9) According to one source, "some authority exists"
for the view that rights and privileges obtained in the(12) The essence of the rule is that the beneficiary of a
most-favoured-nation clause cannot claim from the
granting State advantages of a kind other than that
stipulated in the clause. For instance, if the most-favoured-
nation clause promises most-favoured-nation treatment
solely for fish, such treatment cannot be claimed under the
same clause for meat.134 The granting State cannot evade135(11) The effect of the most-favoured-nation process is,
by means of the provisions of one treaty, to attract those
of another. Unless this process is strictly confined to cases
where there is a substantial identity between the subject-
matter of the two sets of clauses concerned, the result in a
number of cases may be to impose upon the granting State
obligations it never contemplated.133 Thus the rule follows
clearly from the general principles of treaty interpretation.
States cannot be regarded as being bound beyond the
obligations they have undertaken.obligations it never contemplated.133 Thus the rule follows
clearly from the general principles of treaty interpretation.
States cannot be regarded as being bound beyond the
obligations they have undertaken.report (Yearbook... 1969, vol. II, p. 178, doc. A/CN.4/213,
annex I), and articles I, II and XIII of the General Agreement on
Tariffs and Trade (GATT, Basic Instruments and Selected Docu-
ments, vol. IV, op. cit., pp. 2-5 and 21-23). Notable efforts are
being made to facilitate the identification and comparison of
products by setting up uniform standards for the purpose; these
efforts include the Brussels Convention of 15 December 1950
establishing a Customs Co-operation Council (United Nations,
Treaty Series, vol. 157, p. 129) and the Convention on the Nomen-
clature for the Classification of Goods in Customs Tariffs of
15 December 1950 (ibid., vol. 347, p. 127).
ILC Draft Articles
on MFN, RLA-27,
p. 30
132 Judgment of 6 March 1959 by the Supreme Court of the ↩
Netherlands (Nederlandse Jurisprudentie 1962, No. 2, pp. 18 and
19).
133 McNair, op. cit., p. 302. ↩
135 See Yearbook... 1970, vol. II, p. 210, doc. A/CN.4/228 ↩
and Add.1, para. 68.
136 Ibid., p. 211, doc. A/CN.4/228 and Add.1, para. 72. ↩
135 See article 29 below, and commentary thereto. ↩
136 Vignes, loc. cit., p. 282. ↩
137 With very rare exceptions, there is no clause in modern ↩
times that would not be restricted to a certain sphere of relations,
e.g. commerce, establishment and shipping. See article 4 above,
paras. (14) and (15) of the commentary.
[Page 33]
CONVENTION
ENTRE LE GOUVERNEMENT DE LA RÉPUBLIQUE FRANÇAISE ET LE
GOUVERNEMENT DE L'ILE MAURICE SUR LA PROTECTION DES
INVESTISSEMENTS, SIGNÉE A PORT-LOUIS LE 22 MARS 1973Article 8.
Pour les matières régies par la présente Convention, les
investissements des ressortissants, sociétés ou autres personnes
morales de l'un des Etats contractants bénéficient de toutes les
dispositions plus favorables que celles du présent Accord qui
pourraient résulter de la législation actuelle ou future de l'autre
Etat contractant.Pour les matières régies par la présente Convention autres
que celles visées à l'article 7, les investissements des ressortis-
sants, sociétés ou autres personnes morales de l'un des Etats
contractants bénéficient également de toutes les dispositions
plus favorables que celles du présent Accord qui pourraient
résulter d'obligations internationales déjà souscrites ou qui
viendraient à être souscrites par cet autre Etat avec le premier
Etat contractant ou avec des Etats tiers.morales de l'un des Etats contractants bénéficient de toutes les
dispositions plus favorables que celles du présent Accord qui
pourraient résulter de la législation actuelle ou future de l'autre
Etat contractant.Pour les matières régies par la présente Convention autres
que celles visées à l'article 7, les investissements des ressortis-
sants, sociétés ou autres personnes morales de l'un des Etats
France-Mauritius BIT,
C-2, Art. 8
[Page 34]
-3-
EXPOSÉ DES MOTIFS
MESDAMES, MESSIEURS,
À Maurice, les investisseurs français bénéficient de l'accord de
protection des investissements (API) signé le 22 mars 1973 et entré en
vigueur le 1er avril 1974. Cependant, cet API présente des faiblesses,
notamment en ce qui concerne l'indemnisation de l'investisseur en cas
d'expropriation. Il ne contient ni clause d'exception culturelle ni exception
à la liberté de transfert de capitaux en cas de difficultés de balance des
paiements. Le champ du règlement des différends investisseur-État est
limité puisque l'accord présuppose l'existence d'une clause
compromissoire dans le contrat d'investissement. Or, conformément à
l'évolution du droit international des investissements, la pratique
conventionnelle française a évolué afin de permettre aux investisseurs
connaissant un préjudice du fait des agissements de l'État d'accueil de leur
investissement de recourir à l'arbitrage international sur la base du
consentement exprimé par l'État dans l'API. C'est donc essentiellement
pour mettre cet accord en conformité avec l'évolution de la pratique
conventionnelle qu'une renégociation a été engagée avec le gouvernement
de Maurice en 2005.Le préambule souligne la volonté des Parties de renforcer la
coopération économique et d'encourager les investissements réciproques.
Projet de Loi, R-4, p. 3
[Page 35]
[Page 36]
CONVENTION
ENTRE LE GOUVERNEMENT DE LA RÉPUBLIQUE FRANÇAISE ET LE
GOUVERNEMENT DE L'ILE MAURICE SUR LA PROTECTION DES
INVESTISSEMENTS, SIGNÉE A PORT-LOUIS LE 22 MARS 197333 (476)
produits par le capital investi; le transfert de ce dernier s'effec
tue dans des conditions qui ne sauraient être moins favorables
que celles accordées aux investissements des ressortissants,
sociétés ou autres personnes morales d'un Etat tiers.Article 8.
Pour les matières régies par la présente Convention, les
investissements des ressortissants, sociétés ou autres personnes
morales de l'un des Etats contractants bénéficient de toutes les
dispositions plus favorables que celles du présent Accord qui
pourraient résulter de la législation actuelle ou future de l'autre
Etat contractant.Pour les matières régies par la présente Convention autres
que celles visées à l'article 7, les investissements des ressortis-
sants, sociétés ou autres personnes morales de l'un des Etatsplus favorables que celles du présent Accord qui pourraient
résulter d'obligations internationales déjà souscrites ou qui
viendraient à être souscrites par cet autre Etat avec le premier
Etat contractant ou avec des Etats tiers.Article 8.
Pour les matières régies par la présente Convention, les
investissements des ressortissants, sociétés ou autres personnes
morales de l'un des Etats contractants bénéficient de toutes les
dispositions plus favorables que celles du présent Accord qui
pourraient résulter de la législation actuelle ou future de l'autre
Etat contractant.Pour les matières régies par la présente Convention autres
que celles visées à l'article 7, les investissements des ressortis-
sants, sociétés ou autres personnes morales de l'un des Etats
France-Mauritius BIT, C-2,
Art. 8
[Page 37]
choose between broad doctrines or schools of thought, or to conduct a head-count of
arbitral awards taking various positions and to fall in behind the numerical majority.VI Does the MFN provision apply to dispute settlement?
59. The first question for the Tribunal is whether the MFN provision in BIT Article 3 is in
principle capable of applying to dispute settlement provisions so as to modify BIT
Article 10.60. Article 3 contains provisions extending MFN treatment both to investments (Article
60. Article 3 contains provisions extending MFN treatment both to investments (Article
3(1)), and to investors (Article 3(2)). The obligation is the same in each case.8 The
entitlement is to treatment that is not less favourable than the State accords to its own
nationals or companies or to investments of nationals or companies of any third State.
In the present case it is the entitlement of the investor that is relevant, because it is the
treatment of the investor as a disputing party that is in issue."(a) The following shall more particularly, though not exclusively, be deemed "activity"
within the meaning of article 3, paragraph 2: the management, utilization, use and enjoyment
of an investment. The following shall more particularly, though not exclusively, be deemed
"treatment less favourable" within the meaning of article 3: less favourable measures that
affect the purchase of raw materials and other inputs, energy or fuel, or means of production
or operation of any kind or the marketing of products inside or outside the country. Measures
that are adopted for reasons of internal or external security or public order, public health or
morality shall not be deemed "treatment less favourable" within the meaning of article 3."
Hochtief v. Argentina
(ICSID), RLA-24, p. 16
[Page 38]
[Page 39]
to play in the law of treaties and the jurisprudence of this Court; however, what is required in the
first place for a reservation to a declaration made under Article 36(2) of the Statute is that it
should be interpreted in a manner compatible with the effect sought by the reserving State.100114. In this respect one must recall that this principle does not require that a maximum effect
be given to a text. It only excludes interpretations which would render the text meaningless,
when a meaningful interpretation is possible. Thus, in a number of cases, the International Court
of Justice, when interpreting agreements or treaties, has given a very limited effect to the text it
had to construe. In the Aegean Sea Continental Shelf case, the Court decided that the agreed
communiqué invoked by Greece did not give jurisdiction to the Court. It added that "it is for the
two Governments to consider ... what effect, if any, is to be given to [this text] in their further
efforts to arrive to an amicable settlement of the dispute."101 In three other cases, the Court had
to interpret bilateral treaties providing for "firm and enduring peace and sincere friendship"
between the Contracting States or using comparable formulae. It construed those provisions as
fixing only an "objective in the light of which the other treaty provisions are to be interpreted
and applied."102
30
Cemex v. Venezuela
(ICSID), RLA-52, p. 30
100 Aegean Sea Continental Shelf (Greece v. Turkey), ICJ Reports 1978, p. 44, ¶ 108. ↩
101 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), ↩
Merits, Judgment, ICJ Reports 1986, p. 136, ¶ 273; Oil Platforms (Islamic Republic of Iran v. United States
of America), ICJ Reports 1996 (II), p. 814, ¶ 28; Case concerning certain questions of mutual assistance in
criminal matters, (Djibouti v. France), Judgment of 4 June 2008, ¶¶ 110-11.
[Page 40]
[Page 41]
A. The Claimants have failed to show they have made an investment
B. The Claimants' pre-investment expenditures do not amount to an investment
[Page 42]
[Page 43]
33 (474)
CONVENTION
ENTRE LE GOUVERNEMENT DE LA RÉPUBLIQUE FRANÇAISE ET LE
GOUVERNEMENT DE L'ILE MAURICE SUR LA PROTECTION DES
INVESTISSEMENTS, SIGNÉE A PORT-LOUIS LE 22 MARS 1973
Article 1er.
1. Au sens de la présente Convention, le terme « investissements » comprend toutes les catégories de biens notamment, mais non exclusivement:
2. Sous réserve des dispositions du paragraphe 2 de l'article 4, sont également soumis aux dispositions du présent Accord, à compter de la date de son entrée en vigueur, les investissements que les ressortissants, sociétés ou autres personnes morales de l'un des Etats contractants ont, en conformité de la législation de l'autre Etat contractant, effectués avant cette date sur le territoire de ce dernier.
France-Mauritius
BIT, C-2, Art. 1
[Page 44]
33 (474)
CONVENTION
ENTRE LE GOUVERNEMENT DE LA RÉPUBLIQUE FRANÇAISE ET LE
GOUVERNEMENT DE L'ILE MAURICE SUR LA PROTECTION DES
INVESTISSEMENTS, SIGNÉE A PORT-LOUIS LE 22 MARS 1973
Article 2.
Les investissements appartenant aux ressortissants, sociétés ou autres personnes morales, de l'un des Etats contractants et situés sur le territoire de l'autre Etat, bénéficient de la part de
Article 3.
Les investissements réalisés sur le territoire d'un des Etats contractants par les ressortissants, sociétés ou autres personnes morales de l'autre Etat ne peuvent faire l'objet d'expropriation que pour cause d'utilité publique.
Article 2.
Les investissements appartenant aux ressortissants, sociétés ou autres personnes morales, de l'un des Etats contractants et situés sur le territoire de l'autre Etat, bénéficient de la part de
France-Mauritius
BIT, C-2, Art. 1
[Page 45]
| Current Account STATEMENT | Page: 1 of 1 | ||||
| INTERNATIONAL DNA SERVICES HOLDING LTD C/O ABAX CORPORATE ADMIN LTD 6TH FLOOR TOWER A 1 CYBERCITY EBENE |
Account Number [Redacted] Currency [Redacted] Statement Date From 01/05/2015 to 29/05/2015 OD Limit 0.00 Despatch Code MA BRN C15127443 |
||||
| TRANS DATE | VALUE DATE | TRANSACTION DETAILS | DEBIT | CREDIT | BALANCE (-) Indicates a debit |
|---|---|---|---|---|---|
| Opening Balance | 0.00 | ||||
| 19/05/2015 | 20/05/2015 | Inward Transfer FT15139VDYST BNK CREATION SOCIETE INTERNATIONAL CHAR GE DE DEVELOPPER L ANALYSE ADN DOUTREMEPUICH CHRISTIAN |
100,000.00 | 100,000.00 | |
| 25/06/2015 | 25/06/2015 | Inward Transfer FT15176N3M34 BNK DOUTREMEPUICH CHRISTIAN |
100,000.00 | 177,533.27 | |
| 28/07/2015 | 29/07/2015 | Inward Transfer FT15209PBS8W BNK CREATION LABORATOIRE DOUTREMEPUICH CHRISTIAN |
100,000.00 | 207,533.27 | |
[illegible]
Bank statements,
C-13, p. 1-3
[Page 46]
Current Account STATEMENT Page: 1 of 1
| INTERNATIONAL DNA SERVICES HOLDING LTD C/O ABAX CORPORATE ADMIN LTD 6TH FLOOR TOWER A 1 CYBERCITY EBENE MAURITIUS |
Account Number [Redacted] Currency EUR Statement Date From 02/05/2016 to 20/05/2016 OD Limit 0.00 Despatch Code MA BRN C15127443 |
| 13/05/2016 | 13/05/2016 | Account Transfer FT16134ZV6B8 BNK DNA SERVICES (MAURITIUS) LTD |
43,611.72 | 223,473.84 | |
| 13/05/2016 | 13/05/2016 | Outward Transfer FTAF04414769 BNK /RFB/ACCOUNT CLOSURE MR DOUTREMEPUICH CHRISTIAN |
223,473.84 | 0.00 | |
| Closing Balance | 0.00 |
C-17(RfA)/Pièce 17, Annex 5,
p. 14
[Page 47]
[Page 48]
CASES 159
contradict the contingent and non-binding character of the three Letters of
61. The Tribunal is consequently unable to accept as a valid denom-ination of “investment”, the unilateral or internal characterization of certain expenditures by the Claimant in preparation for a project of invest-ment. The only reference made by the Claimant to the BIT, in particular, Article II(2), is not to any extended definition of investment but to existing “investment” or investment in esse or in being, which is to be accorded “fair and equitable treatment”. In the case under review, the Tribunal finds that the Claimant has not provided evidence of such an investment in being which qualifies for “full protection and security.” Failing to provide evidence of admission of such an investment, the Claimant's request for initiation of a proceeding to settle an investment dispute is, to say the least, premature. However, in finding the request to be unfounded, the Tribunal
outside the jurisdiction of ICSID and beyond the competence of the Tribunal preclude whatever recourse the Claimant may have at its disposal to pursue its claim arising out of a commercial, financial or other types of dispute. The Tribunal's conclusions are declared to be without prejudice to any rights of action which may be available before other instances, national or international, with the consent of the Parties, if required.
Mihaly v. Sri Lanka,
RLA-36, p. 159
[Page 49]
PRIME MINISTER'S OFFICE
REPUBLIC OF MAURITIUS
1137/190 V9
14 October 2014
Dear Sir,
This Office has consulted different stakeholders, including the Forensic Science Laboratory and the Office of the Solicitor-General on the above proposal submitted by Prof. Doutremepuich in regard to the above project.
Following views received, I am to inform you that we have no objection to the project. You may liaise with Prof. Doutremepuich accordingly.
The Managing Director
Board of Investment
10th Floor, One Cathedral Square Building
16 Jules Koenig Street
Port Louis
Signature
Letter from Prime
Minister's Office to Board
of Investments dated 14
October 2014, C-7
[Page 50]
LABORATOIRE D'HEMATOLOGIE MEDICO-LEGALE
« Certifié ISO 9001 - Accrédité 17025, N°1-1430 (COFRAC) Section Laboratoires - Portée disponible sur www.cofrac.fr»
DOCTEUR CHRISTIAN DOUTREMEPUICH
PROFESSEUR
EXPERT PRES LES TRIBUNAUX
Monsieur le Premier Ministre
Sir Anerood JUGNAUTH
Bureau du Premier Ministre
Cette création de notre laboratoire a subi beaucoup de retard et nous sollicitons votre appui pour faire avancer ce projet.
Nous sommes dans l'attente :
Et surtout d'un soutien de votre gouvernement.
de l'autorisation d'achat d'un terrain à Rose Belle Business Park,
d'un global acceptance auprès du Ministère de la Santé,
d'une modification de la loi DNA Identification ACT.
Et surtout d'un soutien de votre gouvernement.
Nous serions très honorés de vous rencontrer pour vous exposer, avec le BOI et ses collaborateurs, le projet dans ces détails.
Je vous prie de croire, Monsieur le Premier Ministre, à l'expression de ma très haute considération.
Signature
Professeur Christian Doutremepuich
41-43 avenue de la République CS 51636 33073 BORDEAUX Cedex
TEL. 05 57 22 03 03 - FAX 05 57 22 04 04
Letter from Claimants to Prime
Minister dated 21 October 2015
C-17(RfA)/Pièce 17, Annex 8, p.
102 (pdf)
[Page 51]
Way Forward
Identification Act is needed to cater for a private DNA laboratory to carry out DNA sampling and analysis in Mauritius
- The promoter has expressed a keen interest to meet with officials of the Prime Minister's Office for further discussions on potential avenues of collaboration between the laboratory and Mauritius.
E-mail from the BOI to the
Claimants forwarding a brief on
the DNA Project sent to the PM,
10 August 2015, C-37, p. 3 (pdf)