About the FDI Moot Cases

Each year's FDI Moot Case Committee is selected the preceding year and begins its work in June. Liaising with the FDI Moot's Advsiory Board, in particular Mr Martini and Mr Stanek, and its Directors, the Committee develops a factual and procedural context and the issues to be argued in the competition. It submits a concept and then first draft to review boards of academics and practitioners. The revised draft is then approved, proof-read and formatted by the end of the year, and then published.

The Case 2021

The 2021 FDI Moot case deals with an aviation sector investment (acquired in a privatization program), which falters due to circumstances that the investor attributes to the economically distressed host State. The ensuing arbitration pursuant to a “new-generation” investment agreement and under the ICSID Arbitration (Additional Facility) Rules raises questions of the investor’s standing (due to the stake of its home State), of amicus brief admissibility, of the use of an MFN provision, of the nature of FET claims (denial of justice, creeping violations), and of appropriate standards of compensation.

2021 Case Committee

Elina Arocena Basso

Vishakha Choudhary

Mitchell Dorbyk

Aglaya Melnik

Meagan Vestby

... involves a coal power generation plant that is to be phased out well before it designed operational life. The phase-out is mandated by an instrument issued by the REIO of which Respondent is a Member State. The Claimant is a financial institution which bases its claim on its acquisition of the original financing agreement and related rights through assignment. One of the arbitrators is challenged, inter alia, based on views he has previously taken on environmental disputes..

2020 Case Committee

Tim Rauschning

Nikita Kondrashov

Lucas Diniz

Dimitriy Mednikov

... involves the Respondent State blocking social media platforms for their alleged part in fomenting civil unrest. The three Claimants allege expropriation and violation of fair and equitable treatment, while the Respondent objects to the ICSID tribunal’s jurisdiction on the basis of its denunciation of the ICSID Convention and the plurality of Claimants. The Respondent also seeks to enjoin the Claimants’ international media campaign against it while the proceedings are in progress.

...considers how a new government has suspended the extraction of a rare earth, for which a foreign investor held the sole mining concession. The suspension was based on a study showing increased health risk in the nearby population. The suspension, confiscation of rare earths already prepared for export and customers’ contract terminations led the investor to shut down its operations, only then to discover government plans to license extraction by another investor.

....considers how Mercuria, a State faced with a “greyscale” epidemic, has treated a foreign investor, patent-holder of the active ingredient in an effective greyscale treatment, by first breaching a supply agreement, which was the basis for the investor’s production facility investments in Mercuria, and failing to enforce the consequent arbitration award and by then granting a compulsory license to a state-owned manufacturer.

The 2016 case arises out of a (contested) territorial change and consequent sanctions (“restrictive measures” or “counter measures”) against an investor (in the weapons production sector). The investor’s links to this territory may result in a change of nationality and the applicable BIT (and its investment definition and MFN clause). The situation is compounded by allegations of corruption by the investor with potential relevance to the clean hands principle.

Designed by Tirth Bhatt, Dominika Jedrzejczyk, and Patrycja Treder

The 2015 case considers whether a State's adjustment of a renewables feed-in-tariff violated its treaty obligations to the investor (legitimate expectations) or was justified as necessary to meet its economic and renewable energy objectives and to adhere to its EU obligations and if a breach occurred, the State can be ordered to rescind the adjustment, or if not what, the appropriate basis quantifying compensation is in lighht of competing expert reports.

The 2014 case involved the effect of a State-State arbitral intepretation of "investment" on the jurisdiction of an investor-State tribunal's jurisdiction; impact of the forum selection clause contained in the sovereign bonds at issue as an investment; whether Respondent’s debt restructuring measures amount to a breach of the fair and equitable treatment standard; and whether Respondent’s debt restructuring was a measure necessary to safeguard its essential security interests.

The 2013 FDI moot problem deals with two entities the respondent and the country of origin of the origin of the claimant the State of Cronos have entered into the Treaty for the Mutual Promotion and Protection of Foreign Investment. FBI is Ruritanias biggest brewery and it was grounded by Fund which is a separate legal entity it also independently sold the shares of FBI to conficta group. the new government of Ruritania is against marketing and labeling of alcohol. The change in government led to FBI’s shares being transferred from Conficta group to the claimant soon many allegations and studies about FBI’s drinks being unhealthy were released and a criminal investigation was also initiated. The main contentions of the problem is that the tribunal lacks jurisdiction as the claimant cannot be determined as an investor as it does not meet all the requirements of Treaty for the Mutual Promotion and Protection of Foreign Investment also whether that the actions carried out by Fund can be attributed to the respondent or not

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The 2012 Case involves annulment proceedings raising issues as to the nature of such proceedings, excess of powers (applicable law, the definition of investment), composition of the underlying tribunal (independence and impartiality of an arbitrator "re-examined" on the basis of her published writings), and the violation of a fundamental rule of procedure (admission of an expert report without opportunity to cross-examine the expert).

Designed by Prof. Tony Cole (Brunel Law School)

The FDI Moot 2011 case involves ICC proceedings under a BIT, a claim of expropriation, a counter-claim and an amicus brief in connection with a host State's response to an investor's offshore oil exploration leading to an uncontrolled spill, extensive environmental damage, and economic losses.

Designed under the supervision of Ms. Sophie Nappert

The 2010 case involved an SOE's controversial exercise of a JV agreement provision to buyout a foreign partner in a telecommunications joint venture, assertion of national security interests and issues of competing fora and treaty claims and contract claims.

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The 2009 FDI moot court problem deals with the claimant MedBerg co. whose 100 percent shares are owned by MedX and MedScience and Dr . Frankensid, each own 50 percent shares of MedX. Bergonian IP Office issued a compulsory license in relation to a patent with technology to treat obesity which was terminated by the Claimant due to export related disagreements the Claimant has not accepted any of the royalties from the Bergonian IP office and its numerous complaints had not been resolved. The main questions were whether the tribunal had jurisdiction as Claimant does not have ICSID contracting state whether s Claimant's exploitation of its intellectual property in Bergonia a protected investment under applicable international law? Whether the compulsory license amount to expropriation or discrimination or otherwise violate general international law or applicable treaties.

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The 2008 FDI Moot case deals with a leading telecommunication company Vanguard. It then established a joint venture company, VanCal, incorporated and with its headquarters in the capital of Calpurnia. Claimant VanGuard initially owned a 50% equity interest in VanCal. The equity interest held by Claimant varied subsequently, rising at one point to 86%, but then declining as the result of a number of share sales. At the end of 2004, Claimant held 30% directly; an additional 1% registered in the name of Francesca Pescara was held in trust for the Claimants. After the change in the leadership of Calpurnia, the Claimant were deprived of the use of their 31% interest and also were met with a lot of hostility with its two representatives having their homes searched by the police. The Claimant argued that that Respondent discriminated against Claimant, intervened illegally in its investment, failed to provide full protection and security, and obstructed the transfer of returns from Claimant's investment. The Respondent was of the view that an ICSID arbitral tribunal lacks jurisdiction and that VanCal was not government controlled hence, The State Fund for Commerce and Development in Calpurnia( SFCDC) did not exercise its rights as shareholder or depositary as a means to implement government policy