Tankha Memorandum Claimant 22A

2ND NLIU – JUSTICE RK TANKHA MEMORIAL INTERNATIONAL MOOT COURT COMPETITION,
2017
TEAM CODE: 22A
2ND NLIU – JUSTICE RK TANKHA MEMORIAL INTERNATIONAL MOOT COURT

COMPETITION, 2017
BEFORE THE ld. ARBITRAL TRIBUNAL AT THE HAGUE
UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION, 2012
CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS,
1959
IN THE MATTER OF
M/S BUSINESS SOLVABLES…………………………………………………………CLAIMANT
V.
REPUBLIC OF BATH-LA & ANR. …………………………………………….....RESPONDENTS
MEMORANDUM ON BEHALF OF THE CLAIMANT

TABLE OF CONTENTS | 2ND NLIU- JUSTICE RK TANKHA MEMORIAL INTERNATIONAL MOOT COURT
COMPETITION, 2017
TABLE OF CONTENTS
TABLE OF CONTENTS ..................................................................................................... i
LIST OF ABBREVIATIONS ............................................................................................ iii
INDEX OF AUTHORITIES .............................................................................................. vi
CASES AND ARBITRAL DECISIONS…………………………………………………………......vi
JOURNALS & ARTICLES ..................................................................................................... viii
BOOKS............................................................................................................................... ix
TREATISES & CONVENTIONS ................................................................................................. x
REGULATIONS ..................................................................................................................... x
OTHER AUTHORITIES ........................................................................................................... x
STATEMENT OF JURISDICTION ................................................................................ xii
STATEMENT OF FACTS .............................................................................................. xiii
STATEMENT OF ISSUES .............................................................................................. xvi
SUMMARY OF ARGUMENTS ..................................................................................... xvii
ARGUMENTS ADVANCED ............................................................................................. 1
ISSUE I: WHETHER THE ARBITRAL TRIBUNAL HAS JURISDICTION IN THE PRESENT MATTER. 1
[A.] Arbitration was agreed to be the sole dispute resolution mechanism. ....................... 1
[B.] The Arbitration agreement is not superseded. .......................................................... 2
[1.] The Claimant has not submitted to the jurisdiction of the High Court. .................. 2
[2.] Interim measures granted by the court do not amount to the Supersession of the
arbitration clause. ....................................................................................................... 3
[C.] The Autonomy of the Ad-Hoc Tribunal is compromised. ........................................ 3
[1.] Undermining Kompetenz-Kompetenz u/a 16, UNCITRAL Model Law. ............... 3
[2.] Twenty week stay has compromised on the tribunal’s autonomy. ......................... 4
ISSUE II: WHETHER THERE EXISTS A VALID CONTRACT FOR LICENSE NO. 1983/11/21 AND
WHETHER RESPONDENT NO.2 CAN BE HELD LIABLE FOR ITS MISUSE. .................................. 4
[A.] There exists a valid contract for the License No. 1983/11/21. .................................. 4
[1.] Respondent No. 2 was provided adequate notice of existence of terms. ................ 5
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MEMORANDUM ON BEHALF OF CLAIMANT
TABLE OF CONTENTS | 2ND NLIU- JUSTICE RK TANKHA MEMORIAL INTERNATIONAL MOOT COURT
COMPETITION, 2017
[a.] The user had an opportunity to read the terms. ...................................................... 5

[b.] Failure to read the terms of the contract is not a valid ground for exclusion of
liability. ...................................................................................................................... 5
[B.] Respondent No. 2 is liable for misuse of License No. 1983/11/21. .......................... 6
[1.] Respondent No. 2 is the Commercial Agent of the Claimant. ............................... 7
[2.] Respondent No. 2 acted beyond the scope of his authority. ................................... 7
[3.] Respondent No. 2 is liable for recklessness which led to losses by contravening
acts of third parties. .................................................................................................... 7
[4.] Respondent No. 2 is liable to pay damages for lost profits. ................................... 8
ISSUE III: WHETHER BATH-LA MUST MAKE GOOD THE INVESTMENT MADE BY CLAIMANT. . 8
[A.] Respondent No. 1 failed to accord fair and equitable treatment. .............................. 8
[B.] Respondent No. 1 failed to provide Full Protection and Security. ............................ 9
ISSUE IV: WHETHER COMPENSATION IS PAYABLE TO THE CLAIMANT. .............................. 10
[A.] The act of Republic of Bath-La amounts to Expropriation. .................................... 10

[1.] The amount paid as an interim measure is an Investment. ................................... 10
[2.] Action of the Republic of Bath-La amounts to Direct Expropriation. .................. 11
[3.] Actions of the State amount to Indirect Expropriation. ....................................... 12
[B.] Compensation is due for the expropriatory activity of the Respondent. .................. 14
PRAYER FOR RELIEF ................................................................................................... 15
ii
LIST OF ABBREVIATIONS | 2ND NLIU- JUSTICE RK TANKHA MEMORIAL INTERNATIONAL MOOT
COURT COMPETITION, 2017
LIST OF ABBREVIATIONS
AC Appeals Cases
ARB Arbitration
Art. Article
BIT Bilateral Investment Treaty
BLR Business Law Review
BUS. LAW. Business Law
C.D.ILL Central District of Illinois
CEH Certified Ethical Hacker
Com. Commercial
CTR Claims Tribunal Reports
D.C District of Columbia
ECR European Court Reports
Ed. Edition
ERP Enterprise Resource Planning
Et seq And the following
EULA End User License Agreement
FILJ Foreign Investment Law Journal
HARV. LAW. REV Harvard Law Review
I.B.L.J. International Business Law Journal
I.E.H.C High Court of Ireland Decisions
I.L.M. International Legal Materials
ICC International Chambers of Commerce
ICSID International Centre for Settlement of Investment Disputes
iii
IISD International Institute for Sustainable Development
ILR International Law Review
Int’l International
LLC Limited Liability Company
ND North Dakota
OECD Organization for Economic Co-operation and
Development
Op. cit. in the work cited
PCA Permanent Court of Arbitration
Rep. Reported
Rev. Review
RoI Return of Investment
S.D.N.Y. Southern District of New York
SCC Supreme Court Canada
SCR Supreme Court Reports
SSA Sovereign Support Agreement
Supp. Supplementary
U.N Rep. Int’l Arb United Nations Reporter on International Arbitration
u/a Under Article
UK United Kingdom
UKSC United Kingdom Supreme Court
UKTS United Kingdom Treaty Series
UNCITRAL United Nations Commission on International Trade Law.
UNCTAD United Nations Conference on Trade and Development
iv
US United States
USCTR Iran – US Claim Tribunal Reports
Vol. Volume
Y.B Year Book
v
INDEX OF AUTHORITIES | 2ND NLIU- JUSTICE RK TANKHA MEMORIAL INTERNATIONAL MOOT
INDEX OF AUTHORITIES
CASES AND ARBITRAL DECISIONS

 American Manufacturing & Trading, Inc. (AMT) (US) v. Republic of Zaire, ICSID case
No. ARB/93/1, 21 February, 1997................................................................................ 10
 Amit Israeli v. Dott. Gallina S.r.l. Dario Gallina, S.r.l. and David Gallina 632 F. Supp.
2d 866............................................................................................................................ 6
 Amoco International Finance Corp v Government of the Islamic Republic of Iran et al
(1987) 15 Iran U.S. C.T.R. 189 ...............................................................................11, 14
 Azurix Corp v. The Argentine Republic, ICSID Case No. ARB/01/12, Award, 146, ¶
408 (July 14, 2006) ...................................................................................................... 13
 Beta Computers v. Adobe Systems Ltd. 1996 SLT 604 .................................................. 6
 BG Group Plc. V. Argentina, UNCITRAL, Final Award, 101, ¶ 326 (Dec. 24, 2007) .. 13
 Biwater Gauff (Tanzania) Ltd. v. Tanzania, ICSID Case No ARB/05/22, 24 July 2008 10
 British Sugar v. Nei Power Projects Limited (1997) 87 BLR 42 ..................................... 8
 Burlington Northern Railroad Co. v. Canadian National Railway Co., Supreme Court,
Canada, 1 SCR 5 (1997)................................................................................................. 1
 Case of the Norwegian Claims Against the United States (1922), 1 U.N. Rep. Int'l Arb.
Awards 307 (1922) ...................................................................................................... 14
 CME (Netherlands) v. Czech Republic, Partial Award, (13 September, 2001) ................ 9
 Compañía De Aguas Del Aconquija S.A. and Vivendi Universal S.A. v. Argentine
Republic, Award, ICSID Case No. ARB/97/3, p.223, ¶ 7.5.5 (Aug. 20, 2007) .............. 14
 Compuserve Inc. v. Patterson, 89 F.3d 1257 (6th Cir. 1996)............................................ 6
 DeJohn v T.V. Corp. International., 245 F. Supp. 2d 913 (C.D. Ill. 2003) ...................... 5
 Feldman v. Google Inc., 513 F.2nd 3 (2007) .................................................................. 5
 Forrest v. Verizon Communications, Inc., 805 A.2d 1007, 1010 – 1011. (D.C. 2002). 5, 6
 French Contractor v. Yugoslavian subcontractor, 108 J.D.I. 914, 917 (1981) ................. 1
 GreCon Dimter Inc. v. J. R. Normand Inc., Supreme Court, Canada, 22 July 2005,
[2005] SCC 46 (CanLII) ................................................................................................ 1
 Groff v. American Online Inc., No. PC 97-0331, 1998 WL 307001 (R.I. Super. Ct. May
27, 1998) ....................................................................................................................... 5
vi
 Khalid Bin Alwaleed Found. v. E.F. Hutton Inc., No. 88 C 5074, 1990 WL 17143 (N.D.
I11. Feb. 1, 1990) ........................................................................................................... 2
 L.F.H Neer and Pauline Neer (U.S.A) v. United Mexican States, 4 Report of
International Arbitral Awards......................................................................................... 9
 Lebowitz v.Dow Jones & Co. Inc., 847 F. Supp. 2d 599 (S.D.N.Y. 2012) ...................... 5
 London Joint Stock Bank v. Macmillan, [1918] AC 777 ................................................ 8
 London Joint Stock Bank v. Macmillan, [1918] AC 794 ................................................ 8
 Marble Ceramic Center Inc. v. Ceramica Nuovo D’Agostino, 144 F.3d 1384, 1389 n.9
(1998) ............................................................................................................................ 6
 Marvin Feldman v United Mexican States (Award), ICSID Case No. ARB(AF)/99/1, 16
December 2002 ............................................................................................................ 11
 Mayo County Council v. Joe Reilly Plant Hire Ltd.(2015) I.E.H.C. 544 ......................... 4
 Metaclad Corporation v. The United Mexican States, 16 ICSID Rev. FILJ 28, ¶ 103
(2001) .......................................................................................................................... 11
 Metalclad Corporation v. The United Mexican States, 16 ICSID Rev. FILJ 28, ¶ 103
(2001) .......................................................................................................................... 12
 Michael & Ors. v. Chief Constable of South Wales Police & Anr. [2015] UKSC 2 ¶ 179.
...................................................................................................................................... 7
 Middle East Shipping and Handling Co SA v Arab Republic of Egypt, ICSID Case No.
ARB/99/6, 12 April 2002 ............................................................................................. 12
 Moore v. Microsoft Corporation. 293 A.D.2d 587 (2002)............................................... 5
 Mr. Patrick Mitchell v. The Democratic Republic of Congo, ICSID Case No. ARB/99/7,
Decision on the Application for Annulment of the Award ............................................ 13
 Mr. Patrick Mitchell v. The Democratic Republic of Congo, ICSID Case No. ARB/99/7,
Decision on the Application for Annulment of the Award, p. 20-21, ¶ 52 (1 Nov. 2006)
.................................................................................................................................... 12
 National Grid Plc. v. Argentina, UNCITRAL, Award, 62, ¶ 157 (Nov. 3, 2008) .......... 13
 Phelps Dodge Corp. and Overseas Private Investment Corp. and Iran, 10 Iran U.S.
C.T.R. 121, p. 130, (Mar. 19, 1986) ............................................................................. 14
 Pope & Talbot v Canada, UNCITRAL Arbitration, Award on Merits of Phase 2, 31 May
2002............................................................................................................................... 9
 S.D. Myers Inc. v. Government of Canada, Partial Award, (13 November 2000).......... 13
vii
 S.D. Myers, Inc. v. Government of Canada, 40 I.L.M. 1408. p. 1440, ¶ 280 (Nov. 2006)
.................................................................................................................................... 11
 S.D. Myers, Inc. v. Government of Canada, 40 I.L.M. 1408. p. 1440, ¶ 283 (Nov. 2006)
.................................................................................................................................... 13
 SAAMCO v. York Montague Ltd., [1997] AC 191 ........................................................ 8
 Sempra Energy International v. Argentine Republic, ICSID Case No. ARB/02/16, p. 84,
¶ 285 (Sept. 28, 2007) .................................................................................................. 13
 Siemens A.G v. The Argentine Republic, Award, ICSID Case No. ARB/02/8, p. 62, ¶
215, (Feb. 6, 2007) ....................................................................................................... 14
 Southwest Airlines Co. v. BoardFirst, LLC WL 4823761............................................... 5
 Specht v. Netscape Communications Corp., 150 F. Supp. 2d 585, 596 (S.D.N.Y. 2001) . 6
 Technicas Medioambientales Tecmed S.A. v. United Mexican States, ICSID Case No.
ARB (AF)/00/2, 29 May 2003...................................................................................... 12
 Tecnicas Medioambientales Tecmed S.A. v. United Mexican States, ICSID Case No.
ARB (AF)/00/2 ............................................................................................................ 11
 Two Israeli Companies v. Government of the African state, I Y.B. COM. ARB. 133 (1976)
...................................................................................................................................... 1
 Uzinexportimport Romanian Co. v. Attock Cement Co., CA Paris, July 7, 1994 ............ 2
 Williams v. Walker-Thomas Furniture Co., 198 A.2d 914, 916 (D.C. App. 1964) .......... 6
JOURNALS & ARTICLES

 Catherine Yannaca–Small, Definition of Investor and Investment in International
Investment Agreements, International Investment Law: Understanding Concepts and
Tracking Innovations, OECD (2008) ............................................................................ 11
 Christina L. Kunz, Maureen F. Duca, Heather Thayer & Jennifer Debrow, Click-Through
Agreement: Strategies for Avoiding Disputes on Validity of Assent, 57 BUS. LAW. 402
(2002) ............................................................................................................................ 5
 Fabricio Fortese and Lotta Hemmi, Procedural Fairness and Efficiency in International
Arbitration, GRONINGEN JOURNAL OF INTERNATIONAL LAW, Vol. 3(1), 116.................... 4
 Goldman, The Complementary Roles of Judges and Arbitrators in Ensuring that
International Commercial Arbitration is Effective in 60 Years of ICC Arbitration – A
Look at the Future, (ICC, 1984) ..................................................................................... 3
viii
 Leon E Trakman, “The Boundaries of Contract Law in Cyberspace”, I.B.L.J. 159 (2009)
....................................................................................................................................... 5
 M.J. Valasek & Patrick Dumberry, Developments in the Legal Standing of Shareholders
and Holding Corporations in Investor-State Disputes, 26 FILJ. 34, 70 (2011) .............. 10
 Organization for Economic Corporation and Development, ‘”Indirect Expropriation”
and the “Right to Regulate” in International Investment Law’, OECD Working Papers
on International Investment, 2004/03 (September 2004) ............................................... 12
 Organization for Economic Corporation and Development, “Fair and Equitable
Treatment standard in International Investment Law”, OECD Working Papers on
International Investment, 2004/03 (September 2004) ...................................................... 9
 Paul D. Friedland, The Swiss Supreme Court Sets Aside an ICC Award, 13 J. Int'l Arb.
111–116 (1996) .............................................................................................................. 2
 Rafal Morek, Interim Measures in International Commercial Arbitration, 92................. 3
 Suzy H. Nikièma, Compensation for Expropriation, IISD (March, 2013) ..................... 14
 Todd Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96 HARV. L. REV.
1185 (1982) .................................................................................................................... 6
BOOKS
 4 CALAMARI & PERILLO, THE LAW OF CONTRACTS......................................................... 6
 ALAN REDFERN, ET AL., LAW AND PRACTICE OF INTERNATIONAL COMMERCIAL
ARBITRATION ................................................................................................................. 4
 ALAN REDFERN, ET AL., LAW AND PRACTICE OF INTERNATIONAL COMMERCIAL
ARBITRATION, (4th Ed. 2004) ..................................................................................... 1, 2
 CAMPBELL MCLACHLAN QC ET AL., INTERNATIONAL INVESTMENT ARBITRATION, 247,
(Loukas Mistelis ed., 2006). ......................................................................................... 10
 EMMANUEL GAILLARD AND JOHN SAVAGE, FOUCHARD, GAILLARD, GOLDMAN, ON
INTERNATIONAL COMMERCIAL ARBITRATION (1999)....................................................... 4
 JEAN-FRANÇOIS POUDRET AND SÉBASTIEN BESSON, COMPARATIVE LAW OF INDIAN
ARBITRATION ............................................................................................................. 3, 4
 PHILLIPPE FOUCHARD, REV. ARB. 1999 ........................................................................... 4
 PIERRE MAYER AND VINCENT HEUZE, PRIVATE INTERNATIONAL LAW ............................. 4
 RENE DAVID, ARBITRATION IN INTERNATIONAL TRADE, (1985)....................................... 1
ix
TREATISES & CONVENTIONS

 Agreement between the Government of United Kingdom of Great Britain and Northern
Ireland and the Government of Malaysia, Oct. 21, 1988, UKTS No. 16 (1989)…8, 9, 10,
11, 14
 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 330 UNTS
38, (1959)....................................................................................................................... 1
 UNCITRAL Model Law on International Commercial Arbitration, 24 ILM 1302 (1985).
....................................................................................................................................... 2
REGULATIONS
 Schedule to the Commercial Agents (Council Directive) Regulations 1993 (UK) ............ 7
OTHER AUTHORITIES
 CAMBRIDGE DICTIONARY, 1st ed., http://dictionary.cambridge.org/us/dictionary/english/
..................................................................................................................................... 11
 Floyd R. Mechem, The Nature and Extent of an Agent’s Authority, JSTOR,
www.jstor.org/stable/1272350 ........................................................................................ 7
 Richard G. Kunkel, Recent Developments in Shrink-wrap, Click-wrap and Browse-wrap
Licenses in the United States, 9(3) Murdoch Univ. Electronic L.J.
(Sept.2002), http://www.murdoch.edu.au/elaw/issues/v9n3/kunkel93.html ..................... 6
 UNCITRAL, 2012 Digest of Case Law on the Model Law on International Commercial
Arbitration, UNCITRAL, (2012), 37, http://www.uncitral.org/pdf/english/clout/MAL-
digest-2012-e.pdf ........................................................................................................... 1
 United Nations Conference on Trade and Development, Expropriation – UNCTAD
Series on Issues in International Investment Agreements II, (UNCTAD/DIAE/IA/2011/7)
(Nov. 29, 2011) ................................................................................................. 11, 13, 14
 United Nations Conference on Trade and Development, Expropriation – UNCTAD
Series on Issues in International Investment Agreements II, (UNCTAD/DIAE/IA/2011/7)
(Nov. 29, 2011), http://unctad.org/en/Pages/DIAE/DIAE%20Publications%20-
%20Bibliographic%20Index/UNCTAD-Series-on-Issues-in-International-Investment-
Agreements-(Second-series).aspx/%20UNCTAD/DIAE/IA/2011/7.............................. 13
x
 United Nations Conference on Trade and Development, Taking of Property,

(UNCTAD/ITE/IIT/15) (2000), http://unctad.org/en/docs/psiteiitd15.en.pdf. ................ 11
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STATEMENT OF JURISDICTION | 2ND NLIU- JUSTICE RK TANKHA MEMORIAL INTERNATIONAL
MOOT COURT COMPETITION, 2017
STATEMENT OF JURISDICTION
In the instant matter, the CLAIMANT has invoked the jurisdiction of the ld. Arbitral Tribunal
based on the contract between the parties, which was agreed to be governed by the
UNCITRAL Model Law on International Commercial Arbitration and the New York
Convention.
xii
STATEMENT OF FACTS | 2ND NLIU- JUSTICE RK TANKHA MEMORIAL INTERNATIONAL MOOT COURT
COMPETITION, 2017
STATEMENT OF FACTS
I – THE BACKGROUND
Nak Sha and Tra San were citizens of the Commonwealth of Bath-La. In 2015, after a
successful career as attorneys, they entered into a partnership and named it M/s NakSha &
TraSan. The same was registered in January 24, 2015. Due to Nak Sha’s achievements in
writing applications, the firm decided to self-built applications for running the incoming
supply chain and product sourcing. For carrying out the sale of the products sourced, the firm
bought a sophisticated server and deployed their applications on SumerNotes, which was of
an inferior quality to Kubernetes regarding “Service Discovery and Load Balancing”. By
2016, the firm was a prominent Export-Import firms in the area of technology imports and
exports in the Republic of Bath-La.
II- THE CONSIGNMENT

M/s Business Solvables was a Multi-National Company, headquartered in North Korea. On
March 12, 2105, a consignment containing packaged software of TRally landed on the Link
port of Bath-La. This software was meant for Enterprise Resource Planning (ERP) and served
as a front end and back end accounting software. The contract for same was entered into at
the Bath-La Liaison office of M/s Business Solvables. Upon landing, the seal of the container
was opened by the Custom’s officials of Bath-La. Mr. Nak Sha curiously opened one of the
boxes, which was printed in Mandarin, the only words in English being “License Number-
1983/11/21, Beware: Shrink Wrap, Click Wrap, Browse Wrap- Product of North Korea, All
Rights Protected under Applicable Laws”. He ran the CD on his handheld Linux notebook,
which neither had an antivirus nor a licensed operating system, without paying any regard to
the manual and other papers inside the box. He incessantly kept clicking “OK” till the End
User License Agreement (EULA) page appeared and asked for an internet connection. After
connecting to the internet, he again kept clicking “OK” at a rapid pace till he ultimately
reached the ERP front face of the software and was pleased to operate it. The entire process
took 13 odd minutes.
III- INVESTMENT MADE

The import of TRally was the first import of the software into the country. It was based on an
agreement under which M/s Business Solvables agreed to invest the equivalent of USD One
Billion each year for twenty five years in R & D, to customize the software as per the
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COMPETITION, 2017
requirements of Businesses of Bath-La, while also making an upfront investment of USD

Five Billion. This was a surprising investment as the net worth of M/s Business Solvables till
2014 was only USD Fifteen Billion, and their working capital was USD Seven Billion, with a
debt-equity ratio of 3:1. The day this contract was entered into the stock prices of M/s
Business Solvables dipped by 5-18% world over.
IV – ARRIVAL OF THE CONSIGNMENT

In the meanwhile, an alert was sounded by the Customs official that the consignment
contained some boxes which were pirated and non-original version. Upon hearing this Mr.
Nak Sha immediately decided to send the consignment back to the vendor, M/s Business
Solvables. Pirated copies of TRally were available everywhere and were easily downloadable
from a server showing the characteristics of use of SumerNotes. All the pirated copies
showed the same license number as was printed on the box opened by Nak Sha, i.e. License
Number – 1983/11/21. The downloads were possible only via the use of DarkNet from the
Tor browser and the location of the server was not traceable.
V - ARBITRATION CLAUSE
The contract that was entered into at the Bath-La Liaison office posited Ad-hoc Arbitration
before an international tribunal as the sole dispute resolution mechanism. In furtherance of
this, the UNCITRAL was accepted as the applicable putative law. The seat of the Tribunal
was contemplated at The Hague and both parties agreed to resort to the New York convention
for all purposes, other than the ones specifically mentioned in the agreement. Bath-La also
entered into a tri-partite sovereign support agreement with M/s Business Solvables and the
firm. The Investment protection clauses were as per the Malaysia – United Kingdom BIT
(1981) as it stood on date. Both these agreements had a limitation clause, which required
invocation of dispute resolution mechanisms within 180 days of dispute, and no case later
than 189 days.
VI- INVOKING ARBITRATION

On or about 23rd February, 2016, Mr Nak Sha and Mr. Tra San received a notice from the
Pyongyang office of Kahn, Bachh & Puch, a renowned law firm, headquartered at New York
invoking Arbitration and nominating Ms Adma Riya as their Arbitrator. The notice stated that
the usage of one of the software packets subscribed in name of Mr. Sha & Nak has resulted
into piracy due to a hacking activity in Turkmenistan. Thousands of pirated copies have been
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COMPETITION, 2017
made out of the said the said license number. It was also claimed that no amount was paid by
Nak Sha towards the said license number. Immediate damages under the Bath-La laws of
license fee for at least ten thousand copies were also asked to be paid as an interim measure.
Moreover, a notice was sent to the Attorney General, claiming that the loss suffered by M/s
Business Solvables, was due to lack of enforcement of IPR laws in Bath-La. It further
claimed that its business goodwill as well as the software patent stood obliterated due to
widespread piracy of its software, originating from Bath-La. Return of Investment was
demanded by M/s Business Solvables on September 21, 2015 which was rejected by Bath-La
on January 10, 2016. In response, M/s NakSha & TraSan nominated Ms. San Cheti as their
nominated Arbitrator. The two arbitrators decided on Ms Al Uma to be their third arbitrator
when they met during the last week of February.
VI – APPROACHING THE LINK HIGH COURT

In the second week of February, M/s NakSha & TraSan through their lawyers instituted a suit
in the Link High Court, Bath-La. The prayers asked by them were to declare that no contract
exists for License Number –1983/11/21 between the parties and to pass an anti-suit injunction
or relief of similar nature, against Bath-La not to file any proceeding against the plaintiffs due
to absence of any contractual relation. Due to heavy pendency, the suit came up for hearing
on November 8, 2016 wherein Bath-La was removed as a party to the suit and the Court
ordered M/s NakSha & TraSan to pay the amount claimed in cash immediately as an interim
measure. The requisite amount was delivered to the Link office of M/s Business Solvables.
However on the night of November 8, 2016 demonetization was announced and all currency
given to M/s Business Solvables ceasing to be legal tender. On the next day of hearing, M/s
Business Solvables filed an application to raise a counter-claim. The High Court however
rejected the claims made and decided to proceed with the merits of the case. M/s Business
Solvables appealed to the Supreme Court of Bath-La claiming that under Kompetenz
Kompetenz, the Ad Hoc Tribunal is competent to rule on its jurisdiction and the proceedings
before the High Court must thus be stayed. Supreme Court granted a stay for twenty weeks,
for the Ad Hoc Tribunal to rule on its jurisdiction.
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STATEMENT OF ISSUES | 2ND NLIU- JUSTICE RK TANKHA MEMORIAL INTERNATIONAL MOOT COURT
COMPETITION, 2017
STATEMENT OF ISSUES
ISSUE I:
WHETHER THE ARBITRAL TRIBUNAL HAS JURISDICTION IN THE PRESENT MATTER.
ISSUE II:
WHETHER THERE EXISTS A VALID CONTRACT FOR LICENSE NO. 1983/11/21 AND
WHETHER RESPONDENT NO.2 CAN BE HELD LIABLE FOR ITS MISUSE.
ISSUE III:
WHETHER BATH-LA MUST MAKE GOOD THE INVESTMENT MADE BY CLAIMANT
ISSUE IV:
WHETHER COMPENSATION IS PAYABLE TO THE CLAIMANT.
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SUMMARY OF ARGUMENTS | 2ND NLIU- JUSTICE RK TANKHA MEMORIAL INTERNATIONAL MOOT
SUMMARY OF ARGUMENTS
ISSUE I:
WHETHER THE ARBITRAL TRIBUNAL HAS JURISDICTION IN THE PRESENT MATTER.
It is submitted by M/s Business Solvables (hereinafter referred to as “CLAIMANT”) that the
arbitral tribunal constituted has jurisdiction in the said matter since arbitration was decided as
the sole dispute resolution mechanism between the two parties. Since the arbitration
agreement is operative, the court seized with the matter is obligated to refer the matter to the
tribunal according to Art. II (3) of the New York Convention. Additionally, Art. 8(2) of the
UNCITRAL Model Law permits the tribunal to commence or continue proceedings even if
the matter is lis pendens in the court. Moreover, the CLAIMANT has not submitted to the
jurisdiction of the Link High Court since it questioned the jurisdiction of the court to hear the
said matter in the Link High Court as well as the Bath-La Supreme Court. An interim
measure granted by the court does not amount to the arbitration agreement being superseded
since courts are empowered to grant provisionary measures for the protection of parties.
Further, M/s. NakSha & TraSan (hereinafter referred to as “RESPONDENT NO. 2”)
undermined the principle of Kompetenz-Kompetenz by continuing the suit in court and the 20
week time period imposed by the Bath-La Supreme Court compromises on the autonomy of
the parties since the tribunal is empowered to rule on its jurisdiction the way they please and
hold a priority when during lis pendens of court proceedings regarding the same subject
matter.
ISSUE II:
WHETHER THERE EXISTS A VALID CONTRACT FOR LICENSE NO. 1983/11/21 AND WHETHER
RESPONDENT NO. 2 CAN BE HELD LIABLE FOR ITS MISUSE.
It is submitted that there exists a valid contract for the License No, 1983/11/21. The
governing law of the contract can be the State to which the Contract is most closely
connected or where the contract was executed, herein being is the law of Bath-La since the
contract was executed there and one of the parties belongs to Bath La. Shrink-wrap,
Clickwrap and Browsewrap contracts not being significantly different from normal contracts
and therefore do not warrant differential treatment. Due notice and opportunity to read
contractual terms was provided to RESPONDENT No. 2. Hence, failure to read the terms of the
xvii
packaging on the box and the EULA, prior to operating TRally does not disentitle the
CLAIMANT from enforcing the contract against RESPONDENT No. 2.
It is further submitted that, RESPONDENT No. 2 is a Commercial Agent of the CLAIMANT and
acted beyond the scope of his authority and was not required to open the packaging of
License No. 1983/11/21. Additionally, acting as an agent of CLAIMANT, RESPONDENT No. 2
was required to exercise reasonable skill in performing his duties and in failing to do so, he is
liable to make good the damages suffered by the CLAIMANT. Additionally, it is further
submitted that having failed to use a licensed operating system along with an antivirus,
RESPONDENT No. 2 having acted recklessly is liable for the acts of third parties. Lastly, it is
submitted that RESPONDENT No. 2 is liable to make good lost profits suffered by CLAIMANT
due to the breach of contract by RESPONDENT No. 2.
ISSUE III:
WHETHER BATH-LA MUST MAKE GOOD THE INVESTMENT MADE BY CLAIMANT.
It is submitted by the CLAIMANT that the actions of the Republic of Bath-La (hereinafter
referred to as “RESPONDENT NO.1”) violate the Sovereign Support Agreement (SSA) which
are based on the investment protection clauses of the Bilateral Investment Treaty (BIT). The
Government of Bath-La violated the requirement of fair and equitable treatment by failing to
accord minimal protection to the CLAIMANT. Moreover, the insufficiency of governmental
action which was portrayed through the deficient enactment of the IPR laws in the state lead
to the obliteration of the software patent belonging to the CLAIMANT. Further, RESPONDENT
NO. 1 failed to accord full protection and security to the CLAIMANT by not being able to
ensure the legal security of investments by proper enforcement of legislations and thereby
failing to comply with their duty of exercising due diligence.
ISSUE IV:
WHETHER COMPENSATION IS PAYABLE TO CLAIMANT.
It is submitted by the CLAIMANT that the actions of RESPONDENT NO. 1 amounted to
expropriation, the same being unlawful. Firstly, amount provided by way of an interim
measure amounted to an investment which was directly expropriated by the imposition of
demonetization by the RESPONDENT NO. 1 as the same deprived the CLAIMANT of all the
economic benefit and ownership over the interim measure. Secondly, the measure also
amounted to indirect expropriation as they were so severe in light of their impact so as to
xviii
cause substantial deprivation. The amount paid by way of interim measure was rendered
useless as the demonetization disabled the CLAIMANT to use it for any other transaction.
Additionally, they also suffered from the loss of control over the investment as they could not
enjoy, use or dispose it at their will. Further, demonetization resulted in the complete
depreciation of the economic value of the investment as the currency ceased to be legal
tender, disabling its use for any operation. Thirdly, the expropriation was unlawful as it was
not followed by any compensation. Prompt, adequate and effective compensation is a
requisite for the expropriation to be lawful, which was not provided in the present case.
Finally, compensation is due to be paid to the CLAIMANT for such an act of RESPONDENT NO.
1 as the expropriation was unlawful, depriving the CLAIMANT of all he benefits that arose out
of the investment.
xix
ARGUMENTS ADVANCED | 2ND NLIU- JUSTICE RK TANKHA MEMORIAL INTERNATIONAL MOOT
ARGUMENTS ADVANCED
ISSUE I: WHETHER THE ARBITRAL TRIBUNAL HAS JURISDICTION IN THE PRESENT MATTER.
It is contended that the Hon’ble Tribunal has jurisdiction because [A.] arbitration was agreed
to be the sole dispute resolution mechanism and [B.] the arbitration clause is not superseded.
Further, [C.] the Tribunal’s autonomy has been compromised.
[A.] ARBITRATION WAS AGREED TO BE THE SOLE DISPUTE RESOLUTION MECHANISM.
An Arbitration Agreement is a contract in which the parties are obliged to submit disputes
covered by it to arbitrators and not courts.1 The New York Convention2, to which the parties
have agreed to be bound by3 and Art. 8(1) of the UNCITRAL Model law provides that the
courts of the contracting state, on being seized of a dispute to which an arbitration agreement
covered by the Convention applies, shall refer the parties on the application of either of them
to the decision of the arbitrators unless it finds that the said agreement is null and void,
inoperative or incapable of being performed. 4 This proposition of the model law has been
held to be mandatory. 5
The obligation to refer the dispute to arbitration results from an application of the principle of
pacta sunt servanda6 which includes that if a party wishes to pursue a claim it must honour
the agreement made under arbitration, since this is the only legal course of action open to it. 7
The UNCITRAL Model Law states that in matters governed by that law, no court shall
intervene except where so provided by this law. 8 It has been held that the intention of parties
who have agreed to resort to arbitration ought to be fully given to. 9 Presently, the parties had
1
RENE DAVID, ARBITRATION IN INTERNATIONAL TRADE, ¶ 232 (1985).
2
Art. II (3), Convention on the Recognition and Enforcement of Foreign Arbitral Awards,
330 UNTS 38, (1959), [“New York Convention”].
3
¶ 7, Factual Matrix.
4
Art II (3) New York Convention, 1959.
5
UNCITRAL, 2012 Digest of Case Law on the Model Law on International Commercial
Arbitration, UNCITRAL, (2012), 37, http://www.uncitral.org/pdf/english/clout/MAL-digest-
2012-e.pdf.
6
French Contractor v. Yugoslavian subcontractor, 108 J.D.I. 914, 917 (1981); Two Israeli
Companies v. Government of the African state, I Y.B. COM. ARB. 133 (1976).
7
ALAN REDFERN, ET AL., LAW AND PRACTICE OF INTERNATIONAL COMMERCIAL
ARBITRATION, (4th Ed. 2004) ¶ 1-12.
8
Art. 5, UNCITRAL Model Law on International Commercial Arbitration, 24 ILM 1302
(1985), [“UNCITRAL Model Law”].
9
Burlington Northern Railroad Co. v. Canadian National Railway Co., Supreme Court,
Canada, 1 SCR 5 (1997).
MEMORANDUM ON BEHALF OF CLAIMANT 1

agreed that arbitration would be the sole method of dispute resolution10 and they must be held
to this agreement by the courts of law. 11
It is contended that the agreement is operative as the time limit for initiating the arbitration
starts running as soon as it become obvious to the parties, from an objective point of view,
that no amicable settlement can be reached.12 Presently, the Arbitration Agreements
stipulated a limitation clause, requiring invocation of the dispute resolution mechanisms
within 180-189 days of dispute.13 The CLAIMANT had demanded for a RoI as per the SSA, and
the same was rejected by Bath La on 10.1.2016. The dispute arose on this day, after which a
notice was sent to the RESPONDENT NO. 2 on 23.02.2016, which is within the time period of
the limitation. Hence, the Link High Court does not have jurisdiction to hear the matter and
must refer the matter to the already constituted arbitral tribunal.
[B.] THE ARBITRATION AGREEMENT IS NOT SUPERSEDED.
It is contended that the Arbitration Agreement is not superseded since [1.] the CLAIMANT has
not submitted to the jurisdiction of the Link High Court and [2.] interim measures were
granted for the protection of the CLAIMANT.
[1.] THE CLAIMANT HAS NOT SUBMITTED TO THE JURISDICTION OF THE HIGH COURT.
It is contended that a party submits to the jurisdiction of a court, or rather waives his right
from having proceedings in the arbitral tribunal when it starts substantive proceedings in a
court or seeks some kind of substantive relief from said court. 14A party does not waive its
right to go to the tribunal when it questions the jurisdiction of the court. 15
Presently, the CLAIMANT had raised a counter claim as a defendant in front of the Link High
Court but in this counter claim too, the primary remedy sought was to revert the dispute to the
ad-hoc tribunal and for the High Court to refuse to assume jurisdiction. 16 Further, even in the
Supreme Court, their primary prayer was to revert back to arbitration. Hence, they did not
10
11
ARBITRATION, (4th Ed. 2004) ¶ 1-39.
12
Paul D. Friedland, The Swiss Supreme Court Sets Aside an ICC Award, 13 J. Int'l Arb.
111–116 (1996).
13
14
Uzinexportimport Romanian Co. v. Attock Cement Co., CA Paris, July 7, 1994, op. cit.,
107, excerpted from Fouchard/Gaillard/Goldman, op. cit. 442, ¶ 736.
15
Khalid Bin Alwaleed Found. v. E.F. Hutton Inc., No. 88 C 5074, 1990 WL 17143 (N.D.
I11. Feb. 1, 1990) excerpted from Fouchard/Gaillard/Goldman, op. cit. 442, ¶ 736.
16
¶17(a), Factual Matrix.

submit to the jurisdiction of the High Court, but at each stage requested to solve the dispute
through the Tribunal.
[2.] INTERIM MEASURES GRANTED BY THE COURT DO NOT AMOUNT TO THE SUPERSESSION
OF THE ARBITRATION CLAUSE.
The Model Law states that a party’s request to a state court for interim measures does not
affect the arbitral tribunal’s jurisdiction. 17 A party can request before or during arbitral
proceedings from a court, an interim measure of protection. 18 The nature of an interim
measure is temporary and can be changed depending upon the final award. Interim measures
are designed to preserve the factual situation during the course of the arbitration and to
safeguard the rights of parties. 19 Hence it is submitted that in the present case, the filing and
acceptance of a mere interim measure by the CLAIMANT does not supersede the arbitration
agreement.
[C.] THE AUTONOMY OF THE AD-HOC TRIBUNAL IS COMPROMISED.
The autonomy of the Tribunal has been compromised since [1.] the principle of Kompetenz-
Kompetenz under Art. 16, UNCITRAL Model Law has been undermined and [2.] a twenty
week stay was granted by the Supreme Court of Bath La.
[1.] UNDERMINING KOMPETENZ-KOMPETENZ U/A 16, UNCITRAL MODEL LAW.
The Model Law recognises the principle known as Kompetenz-Kompetenz which identifies
the competence of the tribunal to rule on its own jurisdiction. 20 It is the cornerstone of
arbitration principles around the world supported by various international conventions 21 in
which arbitrators must have the first opportunity to hear challenges related to jurisdiction,
subject to subsequent review by courts.22Actions or challenge procedures outside the tribunal
aimed at establishing the lack of jurisdiction of the tribunal have no automatic impact on the
arbitration; the arbitrators are empowered at their discretion to continue the arbitral
proceedings.23 When the existence of an arbitration clause is not in dispute, the courts will be
17
Art. 9, UNCITRAL Model Law, 1985.
18
Rafal Morek, Interim Measures in International Commercial Arbitration, 92, ¶ 3.4.
19
JEAN-FRANÇOIS POUDRET AND SÉBASTIEN BESSON, COMPARATIVE LAW OF INTERNATIONAL
ARBITRATION , 519, ¶ 604.
20
Art.16, UNCITRAL Model Law, 1985.
21
Goldman, The Complementary Roles of Judges and Arbitrators in Ensuring that
International Commercial Arbitration is Effective in 60 Years of ICC Arbitration – A Look at
the Future, (ICC, 1984), 255, 263.
22
EMMANUEL GAILLARD AND JOHN SAVAGE, FOUCHARD, GAILLARD, GOLDMAN, ON
INTERNATIONAL COMMERCIAL ARBITRATION (1999), 401, ¶ 660.
23
PIERRE MAYER AND VINCENT HEUZE, PRIVATE INTERNATIONAL LAW, 348, ¶ 18.

very slow to interfere with the arbitrator’s ruling on his own jurisdiction and hence the
integrity of the arbitral process must be respected. 24 Presently, the arbitration clause itself is
not in contention, and the ad-hoc tribunal has been constituted in order with the UNCITRAL
Model Law. This international principle has been ignored by the RESPONDENT NO.2 in
continuing a suit in the national courts rather than referring the proceedings to the already
constituted arbitral tribunal.
[2.] TWENTY WEEK STAY HAS COMPROMISED ON THE TRIBUNAL’S AUTONOMY.
It is contended that arbitrations are meant to be flexible and efficient. 25 An ad-hoc tribunal
gives complete autonomy to the parties to decide how it wants to function. Further, an arbitral
tribunal, when having to decide on its own jurisdiction, generally defers the ruling until the
award on the merits, i.e. until the end of the arbitral proceedings. 26 When faced with a
challenge to its jurisdiction, a tribunal may decide, if the facts are closely connected with the
issue of jurisdiction, to join the two issues. 27
Article 8(2), shows that the tribunal maintains its autonomy and can commence and continue
arbitral proceedings, as well as pass an award while the issue is pending before court. 28 The
negative effect of Kompetenz-Kompetenz states that not only must there lie a priority with the
arbitral tribunal in case of lis pendens with court proceedings concerning the same subject
matter, but also the exclusion of direct action aimed at the jurisdiction of the arbitral
tribunal. 29 Presently, directing a time limit for the tribunal to rule on its jurisdiction violates
this very negative effect of Kompetenz-Kompetenz.
ISSUE II: WHETHER THERE EXISTS A VALID CONTRACT FOR LICENSE NO. 1983/11/21 AND
WHETHER RESPONDENT NO.2 CAN BE HELD LIABLE FOR ITS MISUSE.
It is contended that [A.] there exists a valid contract for the License No. 1983/11/21 [B.]
RESPONDENT NO. 2 is liable for the misuse of the aforementioned license number.
[A.] THERE EXISTS A VALID CONTRACT FOR THE LICENSE NO. 1983/11/21.
24
Mayo County Council v. Joe Reilly Plant Hire Ltd. (2015) I.E.H.C. 544, ¶ 13.
25
Fabricio Fortese and Lotta Hemmi, Procedural Fairness and Efficiency in International
Arbitration, GRONINGEN JOURNAL OF INTERNATIONAL LAW, Vol. 3(1), 116.
26
JEAN-FRANÇOIS POUDRET AND SÉBASTIEN BESSON, COMPARATIVE LAW OF INDIAN
ARBITRATION , 386, ¶ 457.
27
ARBITRATION, ¶ 5-49.
28
Art. 8(2), UNCITRAL Model Law, 1985.
29
PHILLIPPE FOUCHARD, REV. ARB. 1999, ¶ 269-270.

Shrink-wrap, click-wrap and browse-wrap contracts being insufficiently different from

normal contracts do not warrant differential treatment.30 Therefore, the contract for License
No. 1983/11/21 shall be considered valid if: [1.] The user is provided adequate notice of
existence of proposed terms and31 [2.] has an opportunity to read the terms. 32 Further, the
user is aware that his actions amount to assent to the terms 33 he undertakes the said actions.
[1.] RESPONDENT NO. 2 WAS PROVIDED ADEQUATE NOTICE OF EXISTENCE OF TERMS.
It is contended that adequate notice of existence of contractual terms were provided to
RESPONDENT NO. 2. Presently, the package that was opened by RESPONDENT NO. 2 contained
the following terms, “License Number- 1983/11/21, Beware: Shrink Wrap, Click Wrap,
Browse Wrap - Product of North Korea, All Rights Protected under Applicable Laws.” Thus,
as long as the non-drafting party is aware that a contract is governing the said transaction, the
criterion of reasonable notice is fulfilled. 34
[a.] THE USER HAD AN OPPORTUNITY TO READ THE TERMS.
The terms of use of the software i.e. the EULA clearly appeared on the screen o f
RESPONDENT NO. 2, subsequent to which he continued to click “OK” in haste. Thus, wherein
the terms of use were displayed prominently on the screen prior to installation, 35 it is
submitted that adequate notice was provided to RESPONDENT NO. 2. Additionally, the
packaging of TRally contained the user manual along with the CD. Hence, it is submitted that
as long as the user is aware of the existence of certain terms, 36 his ignorance cannot negate
37
the provision of notice even if all the terms are not visible.
[b.] FAILURE TO READ THE TERMS OF THE CONTRACT IS NOT A VALID GROUND FOR EXCLUSION
OF LIABILITY.
The failure to read a contract is not a ‘get out of jail free card’38 and one who refrains from
reading a contract and in conscious ignorance of its terms voluntarily assents thereto will not
30
Leon E Trakman, “The Boundaries of Contract Law in Cyberspace”, I.B.L.J. 159 (2009).
31
Lebowitz v.Dow Jones & Co. Inc., 847 F. Supp. 2d 599 (S.D.N.Y. 2012) ¶ 15.
32
Groff v. American Online Inc., No. PC 97-0331, 1998 WL 307001 (R.I. Super. Ct. May 27,
1998).
33
Christina L. Kunz, Maureen F. Duca, Heather Thayer & Jennifer Debrow, Click-Through
Agreement: Strategies for Avoiding Disputes on Validity of Assent, 57 BUS. LAW. 402
(2002).
34
Southwest Airlines Co. v. Board First, LLC WL 4823761, 5.
35
Moore v. Microsoft Corporation. 293 A.D.2d 587 (2002).
36
Forrest v. Verizon Communications, Inc., 805 A.2d 1007, 1010 – 1011. (D.C. 2002) ¶ II B.
37
Feldman v. Google Inc., 513 F. 2nd 3 (2007) ¶ 14.
38
DeJohn v T.V. Corp. International., 245 F. Supp. 2d 913 (C.D. Ill. 2003).

be relieved from bad bargain. 39 Further, one who enters into a contract has the duty to read
40
contractual terms and is bound to even those terms that he fails to read.41 Presently, Mr.
Nak Sha knowing that by opening the package and operating the software he will enter into a
contract, the terms of the shrink-wrap, click-wrap and browse-wrap licenses will be binding
and enforceable against RESPONDENT No. 2 as the terms of use are placed conspicuously and
the assent for which is provided explicitly. 42 Thus, Mr. NakSha, a well experienced tech
lawyer having knowledge that he is entering into a contract cannot expect not to be bound by
terms which are in a ‘foreign language’43 simply because they could not comprehend it. 44
The terms of EULA appeared on the screen of RESPONDENT No. 2 subsequent to which he
continued to repeatedly click “OK.” Wherein the terms of use were displayed prominently on
the screen prior to installation45 and that the user had to assent to the agreement by clicking
on a button,46 the terms of the EULA are enforceable against the user.47 Further, Mr. Nak Sha
post connecting to the Internet, repeatedly clicked “OK” until he reached the ERP page and
operated the software. Irrespective of RESPONDENT NO. 2 having sent the consignment back,
it will be bound to the terms of License No. 1983/11/21 since the Shrink-Wrap packaging
was opened, 48 the terms of the EULA were assented to and the product was used. 49 Thus, it is
submitted that where the terms of the software license are made known50 and the assent for
the same is obtained prior to the downloading of the software the user is bound to the terms
of such a contract.51
[B.] RESPONDENT NO. 2 IS LIABLE FOR MISUSE OF LICENSE NO. 1983/11/21.
RESPONDENT No. 2 is liable to the CLAIMANT for losses accrued due to the misuse of the
aforementioned License as [1.] RESPONDENT No. 2 gained possession of the packages as a
39
Williams v. Walker-Thomas Furniture Co., 198 A.2d 914, 916 (D.C. App. 1964).
40
4 CALAMARI & PERILLO, THE LAW OF CONTRACTS 203 ¶ 9.41, 376 (1998).
41
Todd Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96 HARV. L. REV.
1185 (1982).
42
Specht v. Netscape Communications Corp., 150 F. Supp. 2d 585, 596 (S.D.N.Y. 2001) .
43
Amit Israeli v. Dott. Gallina S.r.l. Dario Gallina and David Gallina 632 F. Supp. 2d 866.
44
Marble Ceramic Center Inc. v. Ceramica D’Agostino, 144 F.3d 1384, 1389 n.9 (1998).
45
46
Compuserve Inc. v. Patterson, 89 F.3d 1257 (6th Cir. 1996).
47
Compuserve Inc. v. Patterson, 89 F.3d 1257 (6th Cir. 1996).
48
Beta Computers v. Adobe Systems Ltd. 1996 SLT 604.
49
Richard G. Kunkel, Recent Developments in Shrink-wrap, Click-wrap and Browse-wrap
Licenses in the United States, 9(3) Murdoch Univ. Electronic L.J.
(Sept.2002), http://www.murdoch.edu.au/elaw/issues/v9n3/kunkel93.html.
50
Amit Israeli v. Dott. Gallina S.r.l. Dario, S.r.l. and David Gallina 632 F. Supp. 2d 866.
51

commercial agent of the CLAIMANT and [2.] did not have the authority to use such goods. [3.]
RESPONDENT No. 2 having special knowledge of software and being a CEH Hacker, has acted
recklessly leading to losses to the CLAIMANT and [4.] is liable to make good both loss of
profits along with damages for the loss of goodwill.
[1.] RESPONDENT NO. 2 IS THE COMMERCIAL AGENT OF THE CLAIMANT.
According to the Commercial Agents’ Directive of 1993, one shall be considered the
commercial agent of another when, the principal is the manufacturer of the said goods, the
goods are specifically identified with the principal in the market and when the goods are not
normally available in the market in question other than by the means of the agent. 52 Presently,
the Bath – La Chambers of Commerce felicitated RESPONDENT NO. 2 for making the
CLAIMANT manufactured TRally, 53 which was one of the highest selling ERP software in the
world with a market share of about 73%, 54 available to the business community of Bath-La.55
Therefore it is submitted that, having received the packages of software, RESPONDENT NO. 2
was acting in the capacity of a commercial agent of the CLAIMANT.
[2.] RESPONDENT NO. 2 ACTED BEYOND THE SCOPE OF HIS AUTHORITY.
An agent is required to act within the scope of the authority vested upon him subsequent to
the contract.56 Presently, RESPONDENT NO. 2 being an Export-Import firm, was acting in the
capacity of an agent wherein they would sell TRally when imported. Thus, having received
the consignment, Mr. Nak Sha was merely authorized to receive the said packages in the
normal course of business prior to selling it to other consumers. Thus, it is submitted that
having opened the packaging and operating TRally, he not only acted beyond the scope of his
authority and is liable for the same but also failed to exercise reasonable skill he possessed as
a tech lawyer and certified ethical hacker.57
[3.] RESPONDENT NO. 2 IS LIABLE FOR RECKLESSNESS WHICH LED TO LOSSES BY
CONTRAVENING ACTS OF THIRD PARTIES.
An intervening voluntary act of a third party, to cause damage is perpetrated when the
contractual duty of a party is to take care that such an act does not happen, then the party
52
Schedule to the Commercial Agents (Council Directive) Regulations 1993 (UK).
53
54
55
56
Floyd R. Mechem, The Nature and Extent of an Agent’s Authority, JSTOR,
www.jstor.org/stable/1272350.
57
Michael & Ors. v. Chief Constable of South Wales Police & Anr. [2015] UKSC 2 ¶ 179.

shall be liable since it’s his contractual duty does not happen. 58 The mere fact that crime was
necessary to bring about the loss does not prevent it being the natural consequence of
carelessness. 59 Presently, Mr, Nak Sha did not read the user manual provided along with the
packaging of TRally. Being a certified hacker himself, knowing the prevalence of piracy,
failed to use a computer that has a certified ethical operating system, and valid antivirus
software.60 Thus, it is submitted that neglecting to take the most basic steps to mitigate the
61
risk of a known harm, is well below the minimum duty of care expected making
RESPONDENT NO. 2 liable for the loss caused.
[4.] RESPONDENT NO. 2 IS LIABLE TO PAY DAMAGES FOR LOST PROFITS.
A reasonable businessman would expect loss of profits to flow naturally from a breach in the
usual course of events.62 In the present matter, wherein both parties were aware that TRally
has a market share of about 70%, post the breach, copies of TRally could be downloaded
from the DarkNet which led to a dip in revenues by 90% by the end of March, 2015. 63 It is
therefore submitted before this Hon’ble Tribunal that due to the negligent and unauthorized
acts of RESPONDENT NO. 2, copies of TRally are freely available on the internet, thereby
entitling CLAIMANT to recover damages for lost profits i.e. the number of copies pirated
multiplied by the unit price of each copy from RESPONDENT NO.2.
ISSUE III: WHETHER BATH-LA MUST MAKE GOOD THE INVESTMENT MADE BY CLAIMANT.
It is contended that the actions of Bath-La violate the SSA based on the BIT.64 This is
because the Republic of Bath-La impaired the use and enjoyment of investment [A.] by
failing to accord fair and equitable treatment and [B.] full protection and security to the
investment made by the CLAIMANT.
[A.] RESPONDENT NO. 1 FAILED TO ACCORD FAIR AND EQUITABLE TREATMENT.
RESPONDENT NO. 1 failed to accord fair and equitable treatment to the CLAIMANT according to
the investment protection clauses as mentioned in Malaysia – UK BIT.65 Fair and equitable
treatment amounts to offering nothing more than minimal protection and positive incentive to
58
London Joint Stock Bank v. Macmillan, [1918] AC 777.
59
London Joint Stock Bank v. Macmillan, [1918] AC 794.
60
¶ 9; Factual Matrix.
61
SAAMCO v. York Montague Ltd., [1997] AC 191.
62
British Sugar v. Nei Power Projects Limited (1997) 87 BLR 42 at 48 – 51.
63
64
Agreement between the Government of United Kingdom of Great Britain and Northern
Ireland and the government of Malaysia, Oct. 21, 1988, UKTS No. 16 (1989).
65
Ireland and the government of Malaysia art. 2(2), Oct. 21, 1988, UKTS No. 16 (1989).

the investors.66 In order to violate this standard, it is sufficient for the State to display a
relatively lower degree of inappropriateness.67 The purpose of the clause is to accord
treatment which is in agreement with the international minimum standard.68 The treatment of
foreign investors must not fall below these standards, even when similar standards are used
for its own nationals. 69 International standards are said to be breached when the order/act
amounts to an outrage and wilful neglect of duty or when there is “insufficiency of
governmental action caused due to deficient execution of law.” 70
Presently, there was deficiency in the execution of IPR laws in the Republic of Bath-La. 71
Strong IPR laws promise and provide for an incentive to the investors. Non-enforcement of
such law amounts to insufficiency of governmental actions and violates the international
minimum standard. In case of proper execution of these laws, piracy would not have taken
place and consequentially software patent of the CLAIMANTS would not have been obliterated.
[B.] RESPONDENT NO. 1 FAILED TO PROVIDE FULL PROTECTION AND SECURITY.
Republic of Bath-La failed to provide full protection and security to the CLAIMANT.72 This
principle is concerned with the let-down of the State to protect the investor’s property from
actual damage by not exercising proper due diligence 73 and has been held to imply a duty
which requires contracting parties to take precautionary measures to protect the investment. 74
The host state must show that it has taken all measures of protection to protect the
66
Saluka Investments BV (The Netherlands) v. The Czech Republic, Partial Award, 292
(PCA, Mar. 17, 2006),
http://www.pcacpa.org/ENGLISH/RPC/SAL-CZ%20Partial%20Award%20170306.pdf.
67
Saluka Investments BV (The Netherlands) v. The Czech Republic, Partial Award, 293
(PCA, Mar. 17, 2006),
http://www.pcacpa.org/ENGLISH/RPC/SAL-CZ%20Partial%20Award%20170306.pdf.
68
Organization for Economic Corporation and Development, “Fair and Equitable Treatment
standard in International Investment Law”, OECD Working Papers on International
Investment, 2004/03 (September 2004), http://dx.doi.org/10.1787/675702255435.
69
CME (Netherlands) v. Czech Republic, Partial Award, 173, ¶ 611 (Sept. 13, 2001),
http://www.italaw.com/sites/default/files/case-documents/ita0178.pdf.
70
L.F.H Neer and Pauline Neer (U.S.A) v. United Mexican States, 4 Report of International
Arbitral Awards, 61, ¶ 4 (1926).
71
72
Agreement between the Govt. of United Kingdom of Great Britain and Northern Ireland
and the government of Malaysia, Art. 2(2), Oct. 21, 1988, UKTS No. 16 (1989).
73
CAMPBELL MCLACHLAN QC ET AL., INTERNATIONAL INVESTMENT ARBITRATION, 247,
(Loukas Mistelis ed., 2006).
74
Pope & Talbot v. Canada, UNCITRAL Arbitration, Award on Merits of Phase 2, 50, ¶ 111
(May. 31, 2002).

investment.75 Additionally, since the term ‘protection’ and ‘security’ are qualified by ‘full’, it
implies a State’s guarantee to protect the investment physically, commercially and legally. 76
Presently, the Republic of Bath-La failed to exercise proper due diligence by not enforcing
the IPR laws appropriately. 77 Due to such non-enforcement, legal protection was not provided
to the investments of the CLAIMANT which lead to widespread piracy of the CLAIMANT’s
software. It is submitted that the Republic of Bath-La has thus failed to accord fair and
equitable treatment along with full protection and security to the investments made by the
CLAIMANT, thus obliging them to make good the investment.
ISSUE IV: WHETHER COMPENSATION IS PAYABLE TO THE CLAIMANT.
Investment Protection Clauses as enshrined in BIT provide foreign investors with an
unprecedented level of substantial protection. 78 It is contended that [A.] The RESPONDENT NO.
1’S act amounts to Expropriation and [B.] compensation is due to be paid for the same.
[A.] THE ACT OF REPUBLIC OF BATH-LA AMOUNTS TO EXPROPRIATION.
It is contended that [1.] the amount paid as an interim measure is an investment. The act of
imposing demonetization, amounts to expropriation, both [2.] direct and [3.] indirect and [4.]
such expropriation is unlawful under the investment protection clauses of the BIT.
[1.] THE AMOUNT PAID AS AN INTERIM MEASURE IS AN INVESTMENT.
International Investment Agreements define investment as “every kind of asset”79 followed
by an illustrative but usually non-exhaustive list of assets, recognizing that investment forms
are constantly evolving. 80 An asset is a thing of value, such as a possession that is owned by a
person, business and organization. 81 Claims to money under a contract having financial value
75
American Manufacturing & Trading, Inc. (AMT) (US) v. Republic of Zaire, ICSID case
No. ARB/93/1, 21 February, 1997, ¶ 6.05.
76
Biwater Gauff Ltd. v. Tanzania, ICSID Case No ARB/05/22, ¶ 729, (July. 24, 2008).
77
78
M.J. Valasek & Patrick Dumberry, Developments in the Legal Standing of Shareholders
and Holding Corporations in Investor-State Disputes, 26 FILJ. 34, 70 (2011).
79
Ireland and the government of Malaysia art. 1(a), Oct. 21, 1988, UKTS No. 16 (1989).
80
Catherine Yannaca–Small, Definition of Investor and Investment in International
Investment Agreements, International Investment Law: Understanding Concepts and Tracking
Innovations, OECD (2008),
http://www.oecd.org/daf/inv/internationalinvestmentagreements/40471468.pdf.
81
“Asset” (2017), CAMBRIDGE DICTIONARY, 1st ed.,
http://dictionary.cambridge.org/us/dictionary/english/asset.

also amount to investment82 such claims can be made as matter of right.83 Presently, the
amount was ordered to be paid by the Link High Court as an interim measure. 84 The interim
measure was a claim put forth, as a matter of right in pursuance of a contract regarding
License No. 1983/11/2185 and holds financial value with respect to the patented software.
[2.] ACTION OF THE REPUBLIC OF BATH-LA AMOUNTS TO DIRECT EXPROPRIATION.
Expropriation is the governmental taking of property for which compensation is required to
be paid. 86 Direct expropriation is the mandatory legal transfer of the title of the property or its
outright physical seizure.87 It is not the physical invasion of property that characterizes
expropriation but the erosion of rights associated with ownership due to state interferences.88
‘A compulsory transfer of property rights’89 and ‘depriving the investor all benefits of
ownership and control’90 are acts which amount to direct expropriation. Forcibly taking away
of property by the Government by legislative actions is also included under the ambit of
direct expropriation.91 It amounts to the transferring of such property rights to another person,
usually to the authority that exercised its de jure or de facto power to do the ‘taking’.92 The
imposition of Demonetization by the Republic of Bath-La takes away the CLAIMANT’S rights
of ownership pertaining to the amount paid to them. Since the amount was paid in the form of
currency, 93 the imposition of Demonetization has compulsorily deprived the investor of
enjoyment of all benefits arising from the compensation. Since the currency has ceased to be
82
Ireland and the government of Malaysia art. 1(a)(iii), Oct. 21, 1988, UKTS No. 16 (1989).
83
“Claim” (2017), CAMBRIDGE DICTIONARY, 1st ed.,
http://dictionary.cambridge.org/us/dictionary/english/claim.
84
85
¶ 14 (a), Factual Matrix.
86
UNCTAD, Expropriation – UNCTAD Series on Issues in International Investment
Agreements II, (UNCTAD/DIAE/IA/2011/7) (Nov. 29, 2011),
http://unctad.org/en/Docs/unctaddiaeia2011d7_en.pdf.
87
Metaclad Corporation v. The United Mexican States, 16 ICSID Rev. FILJ 28, ¶103 (2001).
88
UNCTAD, Taking of Property, (UNCTAD/ITE/IIT/15) (2000),
http://unctad.org/en/docs/psiteiitd15.en.pdf.
89
Amoco International Finance Corp v Government of the Islamic Republic of Iran et al
(1987) 15 Iran U.S. C.T.R. 189, p. 220, (July 14, 1987).
90
Marvin Feldman v United Mexican States (Award), ICSID Case No. ARB(AF)/99/1, 36, ¶
100 (Dec. 16, 2002).
91
Tecnicas Medioambientales Tecmed S.A. v. United Mexican States, ICSID Case No. ARB
(AF)/00/2, 64, ¶ 161 (May 29, 2003).
92
S.D. Myers, Inc. v. Government of Canada, 40 I.L.M. 1408, 1440, ¶ 280 (Nov. 2006).
93

a legal tender,94 the CLAIMANT is unable to use the same for any transaction, thereby
depriving him of ownership and control over the interim measure.
[3.] ACTIONS OF THE STATE AMOUNT TO INDIRECT EXPROPRIATION.
Measures taken by the State, the effect of which is to deprive the investor benefit of his
investment even though he may retain nominal ownership of his rights amount to indirect
expropriation. 95 It includes measures which tantamount to expropriation. 96 The imposition of
demonetization by Republic of Bath-La amounts to indirect expropriation as the intensity of
such act has resulted in [a.] substantial interference and deprivation of investment, [b.]
decreased the economic value of the investment and [c.] also resulted in loss of control as
exercised by the CLAIMANT. Further, this [d.] expropriation was against the legitimate
expectation of the CLAIMANT.
[a.] THE ACT OF RESPONDENT NO. 1 HAS CAUSED SUBSTANTIAL DEGREE OF INTERFERENCE AND
DEPRIVATION TO THE CLAIMANT.
The Doctrine of Sole Effects97 is to be applied to determine expropriation based on

governmental interference.98 This doctrine states that the effect of indirect expropriation
should be severe in order to result in substantial deprivation of property rights and to further
render them useless. 99 If state authorities interfere to a significant degree with the benefit of
the investment, even if it is not necessarily for the obvious benefit of the State 100, indirect
expropriation is said to take place. Presently, the imposition of demonetization has
substantially deprived the CLAIMANT of his property rights. The CLAIMANT is unable to use
the currency for any transaction. This inability to use the currency has resulted in significant
interference and deprivation pertaining to the CLAIMANT’s use of the investment.
[b.] THE ECONOMIC VALUE OF THE INVESTMENT HAS BEEN DECREASED.
94
95
Middle East Shipping and Handling Co SA v Arab Republic of Egypt, ICSID Case No.
ARB/99/6, 26, ¶ 107 (Apr. 12, 2002).
96
Technicas Medioambientales Tecmed S.A. v. United Mexican States, ICSID Case No.
ARB (AF)/00/2, 35, ¶ 96 (May. 29, 2003).
97
OECD, “Indirect Expropriation” and the “Right to Regulate” in International Investment
Law, OECD Working Papers on International Investment, 2004/03 (September 2004),
http://dx.doi.org/10.1787/780155872321.
98
Mr. Patrick Mitchell v. The Democratic Republic of Congo, ICSID Case No. ARB/99/7,
Decision on the Application for Annulment of the Award, 20-21, ¶ 52 (1 Nov. 2006).
99
Technicas Medioambientales Tecmed S.A. v. United Mexican States, ICSID Case No.
ARB (AF)/00/2, 116, ¶ 44 (May. 29, 2003).
100
Metalclad Corporation v. United Mexican States, 16 ICSID Rev. FILJ 28, ¶ 103 (2001).

The amount101 was granted to the CLAIMANT in cash to compensate for the obliteration of the
software patent caused due to non-enforcement of IPR laws in Bath-La. Such non-
enforcement amounted to lower degree of protection provided by RESPONDENT NO.1. The
expropriatory measure of the Republic of Bath-La has resulted in the complete decrease in
the economic value of the investment as it cannot easily be disposed of by the CLAIMANT.
[c.] THE CLAIMANT LOST CONTROL OVER THE INVESTMENT.
An investor may lose control over the use and management of investment even if the legal
title is not affected.102 A finding of indirect expropriation requires that the value of the
investor’s business has been virtually annihilated. 103 A valuable investment would be
considered to be useless if the owner cannot use or dispose it.104 Presently, the CLAIMANT lost
control over the investment when demonetization was imposed as it barred him from using
and enjoying the economic benefits of the same. Expropriation occurs when there is
permanent and irreversible economic deprivation. 105 Even if a deprivation is partial or
temporary in nature, provided it amounts to removal of the ability of the owner to make use
of his economic rights, it amounts to expropriation.106 The duration for demonetization is
considered to be temporary and the deprivation partial, it amounts to expropriation. Hence, it
is submitted that the substantial deprivation, loss of control and decrease in economic value
of the investment caused due to the action thus amounts to indirect expropriation.
[d.] EXPROPRIATION WAS AGAINST THE LEGITIMATE EXPECTATION OF THE CLAIMANT.
Stability cannot exist in a situation where the law keeps changing continuously and
endlessly.107 The host state in under an obligation to provide for a “secure investment
environment”. 108 Legitimate expectation is said to be breached due to unforeseen measures
101
102
103
Sempra Energy International v. Argentine Republic, ICSID Case No. ARB/02/16, 84, ¶
285 (Sept. 28, 2007).
104
Mr. Patrick Mitchell v. The Democratic Republic of Congo, ICSID Case No. ARB/99/7,
Decision on the Application for Annulment of the Award, 19, ¶ 52 (1 Nov. 2006).
105
S.D. Myers, Inc. v. Government of Canada, 40 I.L.M. 1408. 1440, ¶ 283 (Nov. 2006).
106
S.D. Myers, Inc. v. Government of Canada, 40 I.L.M. 1408. 1440, ¶ 283 (Nov. 2006).
107
BG Group Plc. v. Argentina, UNCITRAL, Final Award, 101, ¶ 326 (Dec. 24, 2007);
National Grid Plc. v. Argentina, UNCITRAL, Award, 62, ¶ 157 (Nov. 3, 2008).
108
Azurix Corp v. The Argentine Republic, ICSID Case No. ARB/01/12, Award, 146, ¶ 408
(July 14, 2006).

which result in losses to the CLAIMANT.109 Presently, the imposition of demonetization was
against the legitimate expectation of the CLAIMANT.
[4.] THE EXPROPRIATION DONE BY THE REPUBLIC OF BATH-LA WAS UNLAWFUL.
Expropriation is unlawful when there is no compensation provided for the same. 110 The intent
of the government is less important than the effects of measures on the owner and the reality
of their impact.111 No compensation was provided by the Republic of Bath-La after the
imposition of demonetization, making the expropriation unlawful. The Republic of Bath-La
has thus unjustly expropriated the investments of the CLAIMANT.
[B.] COMPENSATION IS DUE FOR THE EXPROPRIATORY ACTIVITY OF THE RESPONDENT.
Expropriation must always be backed by compensation. 112 In wrongful expropriation, the
investor has a right to reparation, 113 which must re-establish the situation as it was. 114 It does
not only include losses, but also lucrum cessans, or lost earnings/ profits. 115 Additionally, the
compensation granted should be prompt, adequate and effective. 116 Hence it is submitted that
reparation ought to be granted by the Republic of Bath-La for the unlawful expropriatory act
conducted by them.
109
110
Siemens A.G v. The Argentine Republic, Award, ICSID Case No. ARB/02/8, 62, ¶ 215,
(Feb. 6, 2007); Compañía De Aguas Del Aconquija S.A. and Vivendi Universal S.A. v.
Argentine Republic, Award, ICSID Case No. ARB/97/3, 223, ¶ 7.5.5 (Aug. 20, 2007).
111
Phelps Dodge Corp. and Overseas Private Investment Corp. and Iran, 10 Iran U.S. C.T.R.
121, 130, (Mar. 19, 1986).
112
Ireland and the government of Malaysia art. 4(1), Oct. 21, 1988, UKTS No. 16.
113
Suzy H. Nikièma, Compensation for Expropriation, IISD (March, 2013),
http://www.iisd.org/pdf/2013/best_practice_compensation_expropriation_en.pdf.
114
(1987) 15 Iran U.S. C.T.R. 189, 300-301, (July 14, 1987).
115
(1987) 15 Iran U.S. C.T.R. 189, 220, (July 14, 1987).
116
Case of the Norwegian Claims Against the United States (1922), 1 U.N. Rep. Int'l Arb.
Awards 307 (1922).

PRAYER FOR RELIEF | 2ND NLIU- JUSTICE RK TANKHA MEMORIAL INTERNATIONAL MOOT COURT
COMPETITION, 2017
PRAYER FOR RELIEF
In light of the facts of the case, issues raised and arguments advanced, Counsel for CLAIMANT
respectfully requests the Tribunal to:
1. Declare that the Hon’ble Arbitral Tribunal has jurisdiction and the direction by Bath
La Supreme Court to decide in twenty weeks takes away the autonomy of the Ad Hoc
Tribunal and is invalid in international law.
2. Declare that there is a valid contract between the parties for License No. –
1983/11/21 and RESPONDENT NO.2 is responsible for the misuse of the said License
Number.
3. Declare that the RESPONDENTS are required to grant damages to the tune of the exact
number of copies pirated, till the date of the judgment multiplied by the unit price for
each licensed copy; and RESPONDENT NO.2 must make good the investment made by
the CLAIMANT.
4. Direct RESPONDENT NO. 1 to pay compensation to the CLAIMANT for the
expropriation of their investment.
5. Declare that costs must be imposed on RESPONDENTS and must be granted in favor of
the CLAIMANT.
All of which is respectfully affirmed and submitted.
Sd/-
Date: _________, 2017 COUNSEL ON BEHALF OF THE CLAIMANT

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2ND NLIU – JUSTICE RK TANKHA MEMORIAL INTERNATIONAL MOOT COURT COMPETITION,

TEAM CODE: 22A

2ND NLIU – JUSTICE RK TANKHA MEMORIAL INTERNATIONAL MOOT COURT

BEFORE THE ld. ARBITRAL TRIBUNAL AT THE HAGUE

UNCITRAL MODEL LAW ON INTERNATIONAL COMMERCIAL ARBITRATION, 2012

CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS,

M/S BUSINESS SOLVABLES…………………………………………………………CLAIMANT

REPUBLIC OF BATH-LA & ANR. …………………………………………….....RESPONDENTS

MEMORANDUM ON BEHALF OF THE CLAIMANT

TABLE OF CONTENTS ..................................................................................................... i

LIST OF ABBREVIATIONS ............................................................................................ iii

INDEX OF AUTHORITIES .............................................................................................. vi

CASES AND ARBITRAL DECISIONS…………………………………………………………......vi

JOURNALS & ARTICLES ..................................................................................................... viii

TREATISES & CONVENTIONS ................................................................................................. x

OTHER AUTHORITIES ........................................................................................................... x

STATEMENT OF JURISDICTION ................................................................................ xii

STATEMENT OF FACTS .............................................................................................. xiii

STATEMENT OF ISSUES .............................................................................................. xvi

SUMMARY OF ARGUMENTS ..................................................................................... xvii

ARGUMENTS ADVANCED ............................................................................................. 1

[a.] The user had an opportunity to read the terms. ...................................................... 5

[A.] The act of Republic of Bath-La amounts to Expropriation. .................................... 10

BIT Bilateral Investment Treaty

BLR Business Law Review

BUS. LAW. Business Law

C.D.ILL Central District of Illinois

CEH Certified Ethical Hacker

CTR Claims Tribunal Reports

D.C District of Columbia

ECR European Court Reports

ERP Enterprise Resource Planning

Et seq And the following

EULA End User License Agreement

FILJ Foreign Investment Law Journal

HARV. LAW. REV Harvard Law Review

I.B.L.J. International Business Law Journal

I.E.H.C High Court of Ireland Decisions

I.L.M. International Legal Materials

ICC International Chambers of Commerce

ICSID International Centre for Settlement of Investment Disputes

IISD International Institute for Sustainable Development

ILR International Law Review

LLC Limited Liability Company

OECD Organization for Economic Co-operation and

Op. cit. in the work cited

PCA Permanent Court of Arbitration

RoI Return of Investment

S.D.N.Y. Southern District of New York

SCC Supreme Court Canada

SCR Supreme Court Reports

SSA Sovereign Support Agreement

U.N Rep. Int’l Arb United Nations Reporter on International Arbitration

u/a Under Article

UKSC United Kingdom Supreme Court

UKTS United Kingdom Treaty Series

UNCITRAL United Nations Commission on International Trade Law.

UNCTAD United Nations Conference on Trade and Development

USCTR Iran – US Claim Tribunal Reports