MOOT TEAMS IN COOPERATION WITH ENGLISH CLUB

HCMULAW MOOT COURT 2011

MOOT PROBLEM

** HCMULAW MOOT COURT 2011 is a separate program from HCMULAWs recruitment for the annual LAWASIA International Moot Competitions.

MOOT PROBLEM

HO CHI MINH CITY ARBITRATION CENTER

ANDERSON INFRASTRUCTURE GROUP v. MONROVA CORPORATION

1. Republic of Zamba is a young third world country with a long history of independence struggle. Being a colony of the United Kingdom for more than three centuries, Zamba successfully regained its independence after a fierce war of independence in 1970. After the independence, Zamba had implemented a centralized command economy for nearly thirty years resulting in the slow development of the economy and poverty throughout the country. 2. In 2002, after being elected as the new President of Republic of Zamba, Doctor Shaun McCarthy, an American-educated lawyer, decided to convert the economy into a free market economy. However, as the National Assembly of Zamba was still dominated by left-wing factions who viewed Dr McCarthy's policy to be overly capitalist, the first Investment Act (See Appendix 3) of Zamba was passed, serving as a compromise between the centralized command economy and the free market economy. Analysts regarded the Zamban economy as a "market economy with the participation of the State as the main actor". 3. To boost the economy of the country, in 2003, the Government of Zamba decided to establish a State-owned conglomerate called Monrova Corporation (Monrova) to be at the "cutting edge of the economy". (See Appendix 2 for the Charter of Monrova) Monrova Corporation is considered as the main investment vehicle of the Government of Zamba in all joint ventures with foreign investors. 4. In 2004, President McCarthy proposed a new plan to develop the infrastructure in Zamba. As a result, Zamba attracted many infrastructure developers from around the world investing into the country. One of the developers was Anderson Infrastructure Group (Anderson), a well-known company originated from the Federal Republic of Tusland, an industrialized country that has entered into a Bilateral Investment Treaty (BIT) with Zamba since 2002 (See Appendix 5 for the BIT). In May 2004, the project relating to the first highway of the country was awarded to Anderson. 5. As a result of the successful bid, Anderson entered into a joint venture agreement with Monrova to form a joint venture called Unicorns JV (the JV) in which Anderson's interest in the JV is 49% of the total capital. The main mission of the JV is stated as follows: to implement, develop and operate the Speedy Highway Project. (See

Appendix 4 for the Charter of the JV and Appendix 1 for the Joint Venture Agreement between Monrova and Anderson) In September 2004, the JV was established and the first stage of construction of the Speedy Highway Project commenced. 6. In 2007, the Speedy Highway Project was completed. Upon completion of the project, the representatives of Anderson and Monrova in the JV agreed to pass a resolution in which it set the "travel fares through the Highway for the next 10 years" at 150 Zamban Dollar (approximately USD2). In the context of the countrys economy, the fares were regarded by analysts as slightly high. However, given the efforts invested into the project by Anderson and the speed of the construction, it would be considered a reasonable amount. As of 2007, the GDP per capitaof Zamba was USD1,000. The Highway soon proved to be an important highway in the country connecting the North and the South. 7. In late 2007, the Financial Crisis broke out and caused a big downturn in the economy of Zamba. Foreign investment into Zamba dropped rapidly and dramatically as investors decided to hedge their capital. The financial crisis caused an increasing unemployment rate throughout the country and World Bank estimated that the GDP of the country has dropped by 15%. Protests and outcries could be heard throughout the country in particular from the opposing factions demanding the Government to reduce the taxes and fees in order to support the people of Zamba. 8. Facing the situation, in January 2008, President McCarthy issued Decree 16-2008 on management of State-owned enterprises in which it stated: "Article 1 The State-owned enterprises which are assigned to be the local party in joint ventures must try its best to implement any directions from the Government of Zamba, in relation to the operation of the joint ventures." 9. In September 2008, President McCarthy directed Minister Alan Shorey of the Ministry of Planning and Investment (the MPI) to send a letter to the management of Monrova to "direct the representatives representing Monrova's interest in the Unicorns JV to vote to effectively lower the travel fares in relation to the Speedy Highway Project from 150 Zamban dollar to 75 Zamban Dollar." 10. In November 2008, to the surprise of Anderson, representatives representing Monrova's interest in the JV exercised their voting right to pass a resolution which effectively lowered the travel fares in relation to the Highway. It is reported that when lowering the travel fares, the net income of Unicorns JV would decrease by 40%, which would cause the dividend for each investor to the JV to fall for 20%. 11. After many negotiations and discussions without any mutual consent, Anderson decided to file a motion to the Ho Chi Minh City Arbitration Center (HCMIAC) for resolution in accordance with Article 65 of the Joint Venture Agreement between Monrova and

Anderson (See Appendix 1). HCMIAC, after reviewing the documents, accepted to hear the case. In July 2010, Monrova officially sent a letter to HCMIAC to accept its jurisdiction. In August 2010, HCMIAC issued a letter informing the parties that the first hearing will be held in December 2011 and the Arbitration is authorised to deal with two questions: i. Whether Monrovas voting in Unicorns JV to decrease the travel fares in relation to Speedy Highway Project is justifiable under relevant rules; and ii. In case the HCMIAC finds Monrovas voting in Unicorns JV to decrease the travel fares is unjustifiable, what are the available remedies? It should be noted that Republic of Zamba adopts the principles of common law in relation to contract and the rules of the HCMIAC adopts the latest UNCITRAL Arbitration Rules 2010 with modifications. The HCMIAC is not requested to decide on the monetary amount of compensation or any other remedy that may be determined.

APPENDIX 1

JOINT VENTURE AGREEMENT BETWEEN MONROVA CORPORATION AND ANDERSON INFRASTRUCTURE GROUP TO ESTABLISH UNICORNS JOINT VENTURE COMPANY ....

ARTICLE 32 VOTING Monrova agrees that, in relation to the operation of the Unicorns JV, it will not vote in favour of a resolution which may: i. ii. adversely affect the normal business of the Unicorns JV; or adversely affect the economic benefits of Anderson in the Unicorns JV. .... ARTICLE 64 GOVERNING LAW The governing law of the Joint Venture Agreement is the law of Republic of Zamba.

ARTICLE 65 ARBITRATION CLAUSE 65.1 Any dispute arising out of or in connection with this Joint Venture Agreement, including any question regarding its existence, validity or termination, shall be settled through consultations between the Parties. In the event that settlement cannot be reached through such consultations, the dispute shall be referred to and finally resolved by arbitration in Vietnam in accordance with the 2010 UNCITRAL Arbitration Rules. 65.2 The arbitration shall be final and binding and the arbitration fees shall be borne by the losing party or otherwise as awarded by the arbitrator. 65.3 The language of the arbitration shall be English.

APPENDIX 2

CHARTER OF MONROVA CORPORATION ....

ARTICLE 1 PURPOSE AND MISSION The main purpose and mission of the Company is to boost the economy of the Republic of Zamba, serves as an investment vehicle of the Republic, as represented by the Government, and shall do its best for the sake of the Republic and will at all times obey the directions from its Owner, the Government of Zamba.

APPENDIX 3

2003 INVESTMENT ACT OF THE REPUBLIC OF ZAMBA ....

ARTICLE 5 FOREIGN INVESTMENT Every foreign investment into the Republic of Zamba will be required to be conducted structured as a joint venture between the foreign investor and a Zamban company which is assigned by the Ministry of Planning and Investment. The percentage of foreign ownership in joint ventures may not exceed 49% of the total charter capital of the company.

ARTICLE 6 STATE OWNED ENTERPRISES State-owned enterprises are business organisations which are established and fully owned by the Government of Zamba. State-owned enterprises operate to accomplish the economic goals set by the Government of Zamba and, to the best of its ability, at all times, for the benefit of the people of Zamba.

APPENDIX 4

CHARTER OF UNICORNS JOINT VENTURE COMPANY ....

ARTICLE 1 PURPOSE AND MISSION The Joint Venture is established in order to implement, develop and operate the Speedy Highway Project to the best economic efficiency and for the benefit of the people of Zamba. ....

ARTICLE 14 VOTING Every resolution of the Joint Venture shall be decided by way of voting. A resolution shall be deemed to be passed if it was approved by voters who represent at least 51% of the total charter capital of the Joint Venture.

APPENDIX 5
AGREEMENT BETWEEN THE GOVERNMENT OF THE REPUBLIC OF ZAMBA AND THE GOVERNMENT OF THE FEDERAL REPUBLIC OF TUSLAND FOR THE PROMOTION AND PROTECTION OF INVESTMENTS

The Government of the Republic of Zamba and the Government of the Federal Republic of Tusland; Desiring to create favourable conditions for greater investment by nationals and companies of one State in the territory of the other State; Recognising that the encouragement and reciprocal protection under international agreement of such investments will be conducive to the stimulation of individual business initiative and will increase prosperity in both States; Have agreed as follows: ARTICLE 1 Definitions For the purposes of this Agreement: (a) investment means every kind of asset and in particular, though not

exclusively, includes: (i) movable and immovable property and any other property rights such as mortgages, liens or pledges; (ii) shares in and stock and debentures of a company and any other form

or participation in a company; (iii) claims to money or to any performance under contract having a

financial value; (iv) how; (v) business concessions conferred by law or under contract, including intellectual property rights, goodwill, technical processes and know-

concessions to search for, cultivate extract or exploit natural resources. A change in the form in which assets are invested does not affect their character

as investments and the term investment includes all investments, whether made before or after the date of entry into force of this Agreement; (b) returns means the amounts yielded by an investment and in particular, nationals means : (i) in respect of the Tusland: physical persons deriving their status as

though not exclusively, includes profit, interest, capital gains, dividends, royalties and fees; (c)

Tuslander nationals from the law in force in the Tusland; (ii) in respect of Zamba: any person who is a citizen of Zamba in

accordance with Zamban law : (d) companies means : (i) in respect of the Tusland: corporations, firms and associations

incorporated or constituted under the law in force in any part of the Tusland or in any territory to which this Agreement is extended in accordance with the provisions of Article 12; (ii) in respect of Zamba : any juridical persons, including companies,

corporations, firms and associations incorporated or constituted in accordance with Zamban law and having their seat in Zamba; (e) territory means : (i) in respect of the Tusland : all territory including the territorial sea or

islands where Tusland has sovereign rights or jurisdiction in accordance with international law; (ii) in respect of Zamba : all territory including the territorial sea or islands

where Zamba has sovereign rights or jurisdiction in accordance with international law.

ARTICLE 2 Promotion and Protection of Investment

(1)

Each Contracting Party shall encourage and create favourable conditions

for nationals or companies of the other Contracting Party to invest capital in its territory, and subject to its rights to exercise powers conferred by its laws, shall admit such capital.

(2)

Investments of nationals or companies of each Contracting Party shall at all

times be accorded fair and equitable treatment and shall enjoy full protection and

security in the territory of the other Contracting Party. Neither Contracting Party shall in any way impair by unreasonable or discriminatory measures the management, maintenance, use, enjoyment or disposal of investments in its territory of nationals or companies of the other Contracting Party. Each Contracting Party shall observe any obligation it may have entered into with regard to investments of nationals or companies of the other Contracting Party.

ARTICLE 3 National Treatment and Most-favoured-nation Provisions

(1)

Neither Contracting Party shall in its territory subject investments or returns

of nationals or companies of the other Contracting Party to treatment less favourable than that which it accords to its own nationals or companies or to nationals or companies of any third State. (2) Neither Contracting Party shall in its territory subject nationals or companies

of the other Contracting Party, as regards their management, maintenance, use, enjoyment or disposal of their investments, to treatment less favourable than that which it accords to its own nationals or companies or to nationals or companies of any third State.

ARTICLE 4 Compensations for Losses

Nationals or companies of one Contracting Party whose investments in the territory of the other Contracting Party suffer losses owing to war or other armed conflict, revolution, a state of national emergency, revolt, insurrection or riot in the territory of the latter Contracting Party shall be accorded by the latter Contracting Party treatment, as regards restitution, indemnification, compensation or other settlement, no less favourable than that which the latter Contracting Party accords to its own nationals or companies or to nationals or companies of any third State. Resulting payments shall be freely transferable.

ARTICLE 5 Expropriation

(1)

Investments of nationals or companies of either Contracting Party shall not be

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nationalised, expropriated or subjected to measures having effect equivalent to nationalisation or expropriation (hereinafter referred to as expropriation) in the territory of the other Contracting Party except for a public purpose related to the internal needs of that Party on a non-discriminatory basis and against prompt, adequate and effective compensation. Such compensation shall amount to the genuine value of the investment expropriated immediately before the expropriation or before the impending expropriation became public knowledge, whichever is the earlier, shall include interest at a normal commercial rate until the date of payment, shall be made without delay, be effectively realizable and be freely transferable. The national or company affected shall have a right, under the law of the Contracting Party making the expropriation, to prompt review, by a judical or other independent authority of that Party, of his or its case and of the valuation of his or its investment in accordance with the principles set out in this paragraph. (2) Where a Contracting Party expropriates the assets of a company which is

incorporated or constituted under the law in force in any part of its own territory, and in which nationals or companies of the other Contracting Party own shares, it shall ensure that the provisions of paragraph (1) of this Article are applied to the extent necessary to guarantee prompt, adequate and effective compensation in respect of their investment to such nationals or companies of the other Contracting Party who are owners of those shares.

ARTICLE 6 Repatriation of Investment and Returns

Each Contracting Party shall in respect of investments guarantee to nationals or companies of the other Contracting Party the unrestricted transfer of their investments and returns. Transfers shall be effected without delay in the convertible currency in which the capital was originally invested or in any other convertible currency agreed by the investor and the Contracting Party concerned. Unless otherwise agreed by the investor transfers shall be made at the rate of exchange applicable on the date of transfer pursuant to the exchange regulations in force.

ARTICLE 7 Exceptions

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The provisions of this Agreement relative to the grant of treatment not less favourable than that accorded to the nationals or companies of either Contracting Party or of any third State shall not be construed so as to oblige one Contracting Party to extend to the nationals or companies of the other the benefit of any treatment, preference or privilege resulting from (a) any existing or future customs union or similar international agreement to

which either of the Contracting Parties is or may become a party, or (b) any international agreement or arrangement relating wholly or mainly to

taxation or any domestic legislation relating wholly or mainly to taxation.

ARTICLE 8 Settlement of Disputes between an Investor and a Host State

(1)

Disputes between a national or company of one Contracting Party and the

other Contracting Party concerning an obligation of the latter under this Agreement in relation to an investment of the former which have not been amicably settled shall, after a period of three months from written notification of a claim, be submitted to international arbitration if either party to the dispute so wishes. (2) Where the dispute is referred to international arbitration, the national or

company and the Contracting Party concerned in the dispute may agree to refer the dispute either to: (a) the International Centre for the Settlement of Investment Disputes

(having regard to the provisions, where applicable, of the Convention on the Settlement of Investment Disputes between States and Nationals of other States, opened for signature at Washington DC on 18 March 1965 in the event that Zamba becomes a Party to this Convention and the Additional Facility for the Administration of Conciliation, Arbitration and Fact-Finding Proceedings); or (b) an international arbitrator or ad hoc arbitral tribunal : (i) (ii) by an agreement between the parties to the dispute; or to be established under the Arbitration Rules of the United

Nations Commission on International Trade Law. (3) If after a period or three months from written notification of the claim there

is no agreement to one of the above alternative procedures, the parties to the dispute shall be bound to submit it to arbitration under the Arbitration Rules of the United Nations

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Commission on International Trade Law as then in force. The parties to the dispute may agree in writing to modify these Rules. (4) The arbitral tribunal constituted under paragraphs (2) and (3) above shall

reach its decisions on the basis of the domestic law of the Contracting Party in whose territory the investment in question is situated (including its rules on the conflict of laws) and the rules of international law (including this Agreement) as may be applicable.

ARTICLE 9 Disputes between the Contracting Parties

(1)

Disputes between the Contracting Parties concerning the interpretation or

application of this Agreement should, if possible, be settled through the diplomatic channel. (2) If a dispute between Contracting Parties cannot thus be settled, it shall upon

the request of either Contracting Party be submitted to an arbitral tribunal. (3) Such an arbitral tribunal shall be constituted for each individual case in

the following way. Within two months of the receipt of the request for arbitration, each Contracting Party shall appoint one member of the tribunal. Those two members shall then select a national of a third State who on approval by the two Contracting Parties shall be appointed Chairman of the tribunal. The Chairman shall be appointed within two months from the date of appointment of the other two members. (4) If within the periods specified in paragraph (3) of this Article the necessary

appointments have not been made, either Contracting Party may, in the absence of any other agreement, invite the President of the International Court of Justice to make any necessary appointments. If the President is a national of either Contracting Party or if he is otherwise prevented from discharging the said function, the Vice-President shall be invited to make the necessary appointments. If the Vice-President is a national of either Contracting Party or if he too is prevented from discharging the said function, the Member of the International Court of Justice next in seniority who is not a national of either Contracting Party shall be invited to make the necessary appointments. (5) The arbitral tribunal shall reach its decision by a majority of votes. Such

decision shall be binding on both Contracting Parties. Each Contracting Party shall bear the cost of its own member of the tribunal and of its representation in the arbitral proceedings; the cost of the Chairman and the remaining costs shall be borne in equal parts

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by the Contracting Parties. The tribunal may, however, in its decision direct that a higher proportion of costs shall be borne by one of the two Contracting Parties, and this award shall be binding on both Contracting Parties. The tribunal shall determine its own procedure.

ARTICLE 10 Subrogation If one Contracting Party or its designated Agency (the first Contracting Contracting Party), the second

(1)

Party) makes a payment under an indemnity given in respect of an investment in the territory of the other Contracting Party, (the second Contracting Party shall recognise (a) the assignment to the first Contracting Party by law or by legal

transaction of all the rights and claims of the party indemnified, and (b) that the first Contracting Party is entitled to exercise such rights and

enforce such claims by virtue of subrogation, to the same extent as the party indemnified. (2) The first Contracting Party shall be entitled in all circumstances to (a) the same treatment in respect of the rights and claims acquired by it by

virtue of the assignment, and (b) any payments received in pursuance of those rights and claims, as the

party indemnified was entitled to receive by virtue of this Agreement in respect of the investment concerned and its related returns. (3) Any payments received in non-convertible currency by the first

Contracting Party in pursuance of the rights and claims acquired shall be freely available to the first Contracting Party for the purpose of meeting any expenditure incurred in the territory of the second Contracting Party.

ARTICLE 11 Application of other Rules

If the provisions of law of either Contracting Party or obligations under international law existing at present or established hereafter between the Contracting Parties in addition to the present Agreement contain rules, whether general or specific, entitling investments by nationals or companies of the other Contracting Party to a treatment more favourable than

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is provided for by the present Agreement, such rules shall to the extent that they are more favourable prevail over the present Agreement.

ARTICLE 12 Other Provisions

Notwithstanding any other provisions in this Agreement, each Contracting Party may: (a) take any measure which it considers necessary for the protection of its

essential security interests; (i) taken in time of war, or armed conflict, or other emergency in that

Contracting Party or in international relations; or (ii) relating to the implementation of national policies or international

agreements respecting the non-proliferation of weapons; (b) take any measure in pursuance of its obligations under the United Nations

Charter for the maintenance of international peace and security; (c) (d) take any measure necessary to protect human, animal or plant life or health; or take any measure necessary for the maintenance of public order. The public

order exceptions may be invoked only where a genuine and sufficiently serious threat is posed to one of the fundamental interests of society.

ARTICLE 13 Entry into Force

This Agreement shall enter into force on the day of signature.

ARTICLE 14 Duration and Termination

This Agreement shall remain in force for a period of fifteen years. Thereafter it shall continue in force until the expiration of twelve months from the date on which either Contracting Party shall have given written notice of termination to the other. Provided that in respect of investments made whilst the Agreement is in force, its provisions shall continue in effect with respect to such investments for a period of twenty years after the date of termination and without prejudice to the application thereafter of the rules of

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general international law.

This agreement was initialled in duplicate at Tusland on 1 July 2002. In witness whereof the undersigned, duly authorised thereto by their respective Governments, have signed this Agreement. Done in duplicate at Tusland this first day of August 2002 in the English language, both texts being equally authoritative.

For the Government of the Republic of Zamba

For the Government of the Federal Republic of Tusland

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