Clarification Requests 20181

Teams may submit requests for clarification of the case, e.g. of factual ambiguities, if the States have ratified a particular convention, etc. The case committee will be reluctant to respond to requests that ask for a legal conclusion. There are two (2) rounds of clarifications, Round 1 in June and Round 2 in August (please observe the deadlines on the schedule). In each round, each team may submit up to five (5) requests. Each request may contain one (1) question only. Please review below the requests submitted by all teams to avoid duplicate questions (and conserve your team's five requests).

Round 1

Req. No: 509 Dispute Resolution Clause
What does the dispute resolution clause of the KEA say, if there is one?

Req. No: 500 Respondent's Answer to request for arbitration
In paragraph 24, page 17 the Problem, Respondent invoked its counterclaim based on Art. 5(1)(iii) of the SCC Rules. However, there is no para 1(iii) in Art. 5 according to the SCC Rules 2017 (provided in PO1)

Req. No: 501 Data inspection
What were the details in inspection report on Claimant's environment-related obligations ?

Req. No: 503 Claimant's lawsuit before Kronos's federal court
In relation to issue 2, before Claimant withdrew the application to Kronos's deferal court, have they fullfiled all requirements to commence the court proceedings

Req. No: 497 Ministry of Environment
In the Article 2.2.2 in Concession Agreement, why was the Ministry of Environment included when during the time the Concession Agreement was entered into, it has not been established yet?

Req. No: 498 Answer to Request for Arbitration
In the Answer to Request for Arbitration, should it be SCC Rules Article 9, instead of Article 7?

Req. No: 499 Article 5 of CA
What is the actual provision under Article 5 of the Concession Agreement regarding Termination and Penalties?

Req. No: 521 Claimant's taxes
Does Claimant pay taxes in Ticadia?

Req. No: 522 Environmental damages
Did Respondent directly require Claimant to compensate environmental damages before the institution of the proceedings?

Req. No: 523 The federal court ruling
Was any interim ruling rendered by the federal court with respect to the Claimant’s request to suspend the effects of the Decree?

Req. No: 525 Prayer in the motion
What was the prayer for relief in the motion filed by Claimant to Respondent’s national court about?

Req. No: 542 Business judgement
How the group of Kronian nationals obtained the business judgement of Fenoscadia?

Req. No: 502 Irrevocable termination
Line No. 1438, Article 3 of the Decree mentions “irrevocable termination”. Is the same limited only to the termination of the licenses granted for exploitation or does it extend to the decree as well?

Req. No: 505 Kronian Constitution
Line No. 968, refers to the mandatory public hearing in cases which affect the national industry. What is the scope of Public Hearing, is it the rearing in house of the Parliament or an discussion with the general public at large?

Req. No: 506 Contradictions in description of lawsuit
Line 1016, para 25 refers to the original application to Kronos Federal Court whereas the statement on Line 1024, para 26 refers to withdrawal of the appeal from Kronos Circuit Court. Are these proceedings described interchangeably at these instances or is the withdrawal of appeal on Line 1024 referring to an appeal of the decision given on Original Application in Federal Court?

Req. No: 507 Business interests of the Claimant
Does the claimant, even if not directly through the entity set up in Ticadia, operate business anywhere else apart from Kronos?

Req. No: 508 Nationality of CEO
Is the CEO of the Claimant a national or a citizen of Ticadia or merely a resident of the same?

Req. No: 534 Claimant's investment
In par. 17 Request of Arbitration it is stated that Claimant had to shut down its facilities. Does the facilities are limited only for extraction of lindoro or is there any possibility that it could be used for another business activity?

Req. No: 535 Kronian shareholders
In par. 6 Statement of Uncontested Facts, does the 35% of shares acquired by Kronian nationals entails voting rights similar to the 65% shares acquired by the private equity fund?

Req. No: 536 Negotiation
What was the purpose of the negotiation after Claimant tried to file the suspension of the effects of the decree?

Req. No: 538 Kronos Federal Court = Kronos Circuit Court?
Is the “Kronos Federal Court” the same court as the “Kronos Circuit Court”? (para. 1016, para. 1024)

Req. No: 539 OECD Standards
Which health standards are to be set on an underdeveloped country; or is there any country, that is comparable developed?

Req. No: 540 Confiscation in 2017
Did the confiscation took place at 14 September 2017 as mentioned in Claimant’s request in para. 200?

Req. No: 541 Correct Disposal
Are there different options to dispose the waste of lindoro correctly?

Req. No: 595 Jurisdiction of federal court
Do Kronos federal court has jurisdiction to hear treaty based claims?

Req. No: 587 Use of premises constructed by the Fenoscadia Ltd.
Will the premises, originally constructed by Fenoscadia Ltd. for the extraction of Lindoro at the 'Site', being used by the Joint Venture allegedly going to be set-up by the Government of Kronos and Republic of Ibi?

Req. No: 592 Oral-Rounds Assistance
Are the teams allowed to prepare a compendium of Authorities (Case-Laws, Related Statutes etc.) for the oral-rounds (Regional/Global) of the competition?

Req. No: 568 Rules of nationality
What are the rules of nationality of legal entity in the BIT’s Contracting parties?

Req. No: 569 Other BIT concluded by Kronos
Is there any BIT concluded by Kronos with any state other than Ticadia that does not contain a fork-in-the-road clause?

Req. No: 570 National proceeding
What was the exact procedure before the Kronos national courts?

Req. No: 571 Human Rights
What international treaties on human rights is Kronos party to?

Req. No: 528 About the Rhea River
Is the Rhea River a transboundary river that would enable the Parties to invoke the Convention on the Protection and Use of Transboundary Watercourses and International Lakes?

Req. No: 529 Seized lindoro
What is the monetary value of the lindoro reserves seized by Respondent?

Req. No: 530 KEA enforcement
What does the KEA state about environmental obligations and the enforcement of its provisions?

Req. No: 531 Legal grounds of Fenoscadia's claim
Which were the legal grounds of Fenoscadia Ltd.´s claim submitted before the Kronos Federal Courts?

Req. No: 532 Environmental Impact Assessment
Have Kronos or Fenoscadia Ltd. performed Environmental Impact Assessment (EIA) before the commencement of the mining operations?

Req. No: 549 Obtaining of license
Does the Claimant has a right to obtain license again? If so, what conditions the company must observe?

Req. No: 552 Loss of profit
Does legislation of States in the Problem have a concept of "loss of profit"?

Req. No: 553 Prohibition of Lindoro
Does the prohibition of exploitation of lindoro have temporary or permanent nature?

Req. No: 594 Clarification on Language
? On Page 7, Para 16, there is a fact says, ‘on 8 September 2016 claimant filed a motion in respondents’ court seeking to suspend the effect of the decree on a provisional base.’ On February 22, 2017, after the respondent government make final statement that the decree would not revoked, the claimant withdrew its motion. ? On other hand, on page 36, Para 25 and 26, uncontested fact the case narrated the same fact in somewhat different way. It says, on September 8 2016 claimant applied to the kronos(respondent) federal court and for similar reason explained above the claimant withdrew its appeal to kronos circuit court. ? Since, both facts are dealing about the same occurrence in different place, we require clarification on ‘whether there is difference between the word “motion” and the term equivalently used “appeal” as explained above. Also whether there is difference between “kronos Federal court” on page 36, Para 25 and the “circuit court” on the same page paragraph 26.

Req. No: 510 BITs between host state and other countries
1. Are there any other BITs which have provided host state's counterparties with more favorable provisions?

Req. No: 513 Nationality of juridical persons in Kronos
What is the stance of law of the host state (Kronos) on the matter of nationality of juridical persons?

Req. No: 520 Provisions of KEA Which are not based on the protocol on water and health
Based on the fact no.16 of the uncontested facts of the case, Kronian Environmental Act (KEA) is not completely based on the obligations and definitions set forth at the protocol on water and health to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes. Thus, What is the provision included in KEA which is not based on the aforementioned protocol?

Req. No: 518 statement of principles mentioned in line 1209
What is the content of the statement of principles mentioned in p43, line 1209 of the record?

Req. No: 519 Incorporation of standards of CSR in Claimant's internal policies
Has Claimant (Fenoscadia Limited) incorporated internationally recognized standards of corporate social responsibility in its practices and internal policies?

Req. No: 515 Private Equity Fund
Is the private equity fund, owning 65% of Claimant's shares, effectively controlled by Ticadian nationals?

Req. No: 492 Claimant Nationality
In relation to issue 1, what is the composition of the private equity fund organized under the laws of Ticadia (Page 32, Para 6)

Req. No: 493 Claimant's lawsuit before Kronos' federal court
In relation to issue 2, at what stage of court proceedings were the Claimant at in its application to the Kronos federal court seeking to suspend the effects of the Decree, immediately before they withdrew the application? (Page 36, Para 25)

Req. No: 494 Claimant's lawsuit and remedies sought
In relation to issue 2, what remedies did the Claimant seek in its application to the Kronos Federal Court? (Page 36, Paras 25 to 26)

Req. No: 495 Scope of pleadings
In relation to issue 3 (expropriation), are parties are restricted to pleading on the basis of a breach of Art 7 of the BIT? (Page 8, Para 22)

Req. No: 496 Republic of Ibi negotiations
In relation to issue 3, when did negotiations with the enterprise from the Republic of Ibi begin? (Page 37, Para 28)

Req. No: 556 Origin of graspel
Is graspel a toxic waste that can only be the result of the extraction of lindoro or can it also result from other metal ores also extracted in the region of the Rhea river?

Req. No: 564 Claim before the Federal court
What were the grounds on which the Claimant argued in order to challenge the decree before the Federal courts?

Req. No: 565 Shareholders’ Control over the Board of Directors
Under which conditions can the shareholders revoke the directors of the Claimant from the Board?

Req. No: 566 Recourse against the vote of KEA
Could the KEA have been challenged before the local courts of Kronos?

Req. No: 567 Biennial Inspections
Did the Ministry for Agriculture, Forestry and Land (that later became the Ministry for Environmental Matters) share the troubling data gathered in the 2011 and 2013 (and 2015) inspections about the contamination of the Rhea River with the Claimant?

Req. No: 572 Municipal law on nationality
Which are the criteria for nationality of legal entities under the municipal law of the Contracting Parties?

Req. No: 573 Graspel
Is it possible to control or eliminate the release of Graspel in the environment?

Req. No: 574 Release of other substances in the environment
In Respondent’s territory, are there other substances toxic to humans and nature in the same index (level of risk) as graspel being realeased by other activities?

Req. No: 575 Microcephaly
Which other factors in Respondent's territory or in the population examined could have caused the appearance of Microcephaly?

Req. No: 576 Respondent's measures
Did Respondent take other measures against the other 4 largest foreign companies (l. 157-158, p. 6) operating in Krono's territory?

Req. No: 486 mining industries
Are there any other mining industries being operated simultaneously with the exploitation of lindoro in Respondent's territory?

Req. No: 488 Claimant's other business
Did Claimant have other business activities within Kronos except for the mining activities relating to lindoro from 1993 to 2017 ?

Req. No: 489 Kronian Constitution
What is the original wording of the Article 59 of the Kronian Constitution?

Req. No: 490 the Rhea River
Regarding the geographical location of the Rhea River, what is the drainage basin of Rhea River?

Req. No: 491 Conflictions in Facts
Why are there time conflictions between the uncontested facts and the 2 pieces of news (exhibits no. 1 & no. 7), e.g. in exhibit No. 1 lindoro was discovered in 1999 while in uncontested facts foreign companies were invited to participate in public auction for the concession of the rights to extract lindoro in Nov. 1998; the value of lindoro was affected by alternative metals since 2006 even before the extraction of lindoro in Kronos took place?

Req. No: 554 Kronian and Ticadian Shareholders’ rights
What are Kronian and Ticadian Shareholders’ rights under Fenoscadia’s statutes and\or any shareholders’ agreement?

Req. No: 558 Standard of liability for environmental damage
What is the standard of liability for environmental damage under Kronian law?

Req. No: 559 Graspel pollution
What evidence is available on graspel pollution being caused by mining?

Req. No: 560 Increase in concentration of the toxic waste
Was the Claimant aware of the sharp increase in concentration of the toxic waste in the Rhea River and, if so, did the Claimant seek to investigate its possible contribution to pollution or adopt any preventive measures?

Req. No: 561 Nationality of a company under the national law of Ticadia
How is nationality of a company (corporate nationality) determined under the national law of Ticadia?

Req. No: 580 Article 1(7) BIT
Why does the term "associated activities" as defined in Article 1, paragraph 7 of the BIT not appear anywhere else in the BIT?

Req. No: 582 Scope of Proceedings
Will the Main Stage of the proceedings address any alleged breaches of the Respondent other than expropriation?

Req. No: 583 Scope of Pleadings
In relation to issue 4 (counterclaim), may the Claimant challenge the jurisdiction of the tribunal tp entertain counterclaims by the host State or must parties keep their arguments strictly to admissibility?

Req. No: 589 Scope of Pleadings
In relation to issue 4 (counterclaim), may the Claimant challenge the jurisdiction of the tribunal tp entertain counterclaims by the host State or must parties keep their arguments strictly to admissibility?

Req. No: 590 Corporate Social Responsability
Has the Claimant adopted any relevant CSR standart (e.g., UN Global Compact)?

Req. No: 591 Statemnt of Uncontested Facts
Is it Uncontested that on 14 September 2017 "tons of lindoro stored in Claimant's facilities were confiscated by Respondent's officials" (Request for Arbitration para 17)?

Req. No: 593 Expropriation
Which of Claimant's assets were expropriated by the Predidential Decree?

Req. No: 544 Ticadian and Kronian Shareholders
Have the Ticadian shareholders delegated their voting rights or any other business judgement powers to the Kronian shareholders? If so, what is the arrangement between the shareholders?

Req. No: 545 Kronian Constitutional Law
Does Kronian constitutional law allow Kronian courts to decide on international law issues?

Req. No: 546 Other Foreign Investment in Kronos
Did the Nationalist Party nationalize or expropriate the investments of the remaining 4 large companies’ investments in Respondent’s territory after it came to power in Kronos [Request for Arbitration, p. 6, para 9]? If so, which sectors were they operating in?

Req. No: 547 Global Mining Publication
Are the rumours in Global Mining Publication [Exhibit 1, p. 46; Exhibit 7, p. 54] considered to be from a credible source of information?

Req. No: 548 Kronos and Ticadia’s Other International Obligations
Are Ticadia or Kronos parties to the World Trade Agreement or any other multilateral trade agreements?

Req. No: 581 covenant on economic, social, and cultural rights
Is Kronos a party to the international covenant on economic, social, and cultural rights?

Req. No: 584 nationality under the Law of Ticadia
What are the requirements of the nationality of corporations according to the domestic law of Ticadia?

Req. No: 585 Protocol of convention on the protection and use of transboundary watercourses
Have Ticadia and Kronos become parties to the protocol of convention on the protection and use of transboundary watercourses?

Req. No: 586 Constitution and Presidential Decree
Does the constitution have any provision regarding the possibility of issuing presidential decrees?

Req. No: 588 Constitution and KEA
Does the process of enactment of KEA comply with Kronian Constitution?

Round 2

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