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Claimant - Coggle Diagram

- - - - Article 31(1) of the VCLT states that the ordinary meaning of the word "legal disputes" means it applies to all disputes
        
        Because the intention to exclude such disputes must be stated explicitly
        
        Because Article 28 of the VCLT does not explicitly address disputes, instead it refers to acts and events. As these terms do not mean the something, it is unclear why Article 28 of the VCLT precludes such disputes
      - The declaration is not applicable
        
        Evidence made after the commencement of the proceeding may only be used if it confirms a prior intention, not an amandment
        
        If so, governments may always change their bIT to evade jurisdiction
        
        It is an amandment as the declaration did not point to any pre-arbitraiton evidence.
        
        WIthout such reference, the party cannot prove that it merely confirms an interpertion, but instead introduces a brand new one
  - - - If the disagreement does not refer to the actual events, that it would be a hypothetical disputes
        
        A dispute cannot be hypothetical because that would mean the parties do not have a clearly identified issue that is communicated between them.
      - Presently, the concrete claim only occur after the DoD order, this was the event that actually affected Claimant's right which was the basis for the claim
        
        Prior to this order, Claimant was still operating 40% of its investment, thus it could not have claimed that it had lost its investment
    - - Alternatively, the dispute differs from the previous dispute due to different cause of action
        
        Cause of action is the approriate test because differentiates facts that are core to the dispute and background details from the same subject matter
        
        1) the cause of action specifically identifies the legal fact and grounds that led to dispute
        2) while the subject matter test would encompass the entirety of the facts and events of the topic
  - - - Because the final chain that causes the entirety of the alleged breach to be visible since the first action
      - The tribunal should assess all of the acts as although process began before the BIT, it continues and was eventually completed after the oblgation existed
        
        Without doing so, the Tribunal would ignore the full process that began before the obligation existed, but was continued and completed by Respondent after such obligation came into force
- - - - This is because if the execution is conducted and it has been proven that the assets can satisfy the order, the non-compliance would not exist as the cost was recovered
      - Why not pay anyways? --> Reiterate previous point?
  - - - Without a funding agreement, it would be unclear what the purpose of the funds were and what the funders stands to gain from it
      - The capital calls does not indicate that there was a funding agreement
        
        If a company utilizes funds from its shareholders, the purpose of the funds given was to meet a pre-exisitng obligaiton in the bylaws, and not specifically for the proceeding
        
        Doing otherwise would create an unlikely situation where any funds going in to Claimant could constitute as third-party funding though they do not adress the proceeding
        
        This greatly departs from the already broad definition of TPF
    - - Alternatively, There's not potential remuneration, donation, or grant
        
        why
        
        Remuneration
        
        Ga ada
        
        There's no direct remuneration based on the proceeding
        
        Dividends does not qualify
        
        It was not based on the funding but based on the initial investment
        
        Not directly from the proceeding bcs harus masuk ke Claimant dlu
        
        Donation / Grant
        
        why ga ada?
        
        Ga ada social or moral reasons; to pursue, instead it was merely a shareholder's obligation to fulfill its duties. Ga receive any moral advocacy purposes
- - - - Without such ability, the party would lose its control to operate its business as there is nothing profitable to control
      - The fact that the sattelites operate in other countries does not matter
        
        An investment is assessed according principe terrtiroiality. This means that an investment is protected in the territory it was made
        
        It does not matter whether it operates in other countries as the central point is the treatment and protection of the investment within the contracting party's territory
        
        Assessing the global operation of a company would remove the BIT's purpose that a contracting party must protect such investment within their state
  - - - If the measure is "called temporary" but practically impossible to fulfill it becomes permanent due to the impossibility to lift the measure
        
        Moreover if the investment becomes futile after the measure, it is essentially impossible to fulfill without completely destroying the investment. Thus the pre-condition does not make sense
  - - - There's no clear causal link that the alleged adverse effect was from the investor
        
        Without such causal link, State's may freely allege any hypothetical adverse effect the investment has on the state
    - - They are in like circumstances bcs they were utilizing the same resources
        
        While they operate in different sectors, utilizing similar resources would put them in similar situations as the base of their operations
        
        No justification because the state did not conduct an examination on all relevant parties to locate the spefic issue justifying the different treatment
        
        Without conducting a thorough assessment, the justification presented would be unreasonable as the issue may be present in other parties --> Valinor ada juga
    - - NeccesityThere were less burdensome alternatives
        
        This is done by consulting with expert's ensure that the solution taken is the least destructive one
        
        While there is a margin of deference, the measure must take caution to not arbitrarily destroy an investment despite the existence of less draconic measures
- - - - 1) This rule does is not the source to draw adverse inference as it a general assesment of whether non-compliance can be excused
      - 2) Even if reuired, it has been incorporated in Rule 3(1) of the ICsid arbitration rules regarding duty to conduct proceeding in good faith
        
        This good faith includes complying with document production in Rule 34(3)
  - - - 1) Posession, This document is posession of Respondent 2) This document is relevant as it address communications regarding 3) it is material to prove whether the decision to investigate and reposition was discriminatory?
        
        It is proportional as the document is material. The document is material to potentially overturn the discrimnatory nature of the DoD Decision
      - The document is admissable bcs Claimant was not the one who illegally obtain it
        
        By not being actively involved in the document's posession, Claimant have not broken of good faith