Here is an investment arbitral tribunal has taken and exercised jurisdiction, and has gone on
to find the Respondent party liable for breach of one or more international standards, the next
step is always for the tribunal to calculate the amount of the Claimant’s losses which have been
caused by the Respondent’s breach. The amount so calculated will fully compensate the
Claimant for its capital and income losses. To what extent do you agree with the propositions
made in the previous two sentences?
Please also identify and examine the international standards which a Respondent party can be
held to have breached, and discuss the concept of compensation as an appropriate remedy. What
options does an international investment tribunal have in deciding on an appropriate amount of
compensation for breach of one or more international standards?
(B) Onatli & Tang Limited. (OTL – a company incorporated in Canada) owns and manages
vineyards in Canada, in Australia, and elsewhere. In 2018, OTL bought a large tract of land in
the Federal Republic of Kawadin (the FRK) and developed a vineyard on one-half of the land.
This required a large outlay in money and physical effort, including preparing the ground,
installing water pipes, and erecting essential buildings. By 1st May 2020 the vineyard started in
full operation and the profits for the year to 30 April 2021 were good.
The other half of the land remained fallow, and was intended to be brought into use when the
business had expanded. Meanwhile, OTL allowed holiday-makers to camp on the fallow land in
return for helping with weeding and harvesting grapes.
Then, in December 2021, the government of FRK (the Government) requisitioned the whole of
the productive land and the fallow land. No explanation was given and no compensation was
offered. The directors of OTL and the staff were ordered off the land.
The bilateral investment treaty (BIT)1
between Canada and the FRK provides for fair and
equitable treatment and full protection and security. The dispute resolution clause in the BIT
provides for ICSID arbitration.
OTL is proposing to commence arbitration against the Government seeking compensation.
Please advise OTL on commencement, jurisdiction, liability, and on remedies, including how
compensation might be assessed by the arbitral tribunal.
1
Fictitious. Assume that the FRK is a fully sovereign State.
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UoW LLM ICL
2021-22
(C) Please analyse, compare and contrast the relationship between the issues raised in Part A
and the issues raised in Part B: identifying the similarities and discrepancies between the issues
in Part A and the issues in Part B, and commenting on why you think that there are those
similarities and discrepancies between Part A and Part B. For example, does the Part A question
raise exactly the same or different issues as the Part B question; or is Part A broader or narrower
than Part B in its issues – if so in what way or ways? (This comparison is to be made primarily
on the basis of the content of the Question in Parts A and B, and not merely on the basis of the
content of your essay.)
Parts (A) (B) and (C) above comprise the whole question.
This assessment carries 60% of the total marks for the module.
- You are required to respond to the above question by preparing an essay which is
3,000 words in length (+ / – 10%). - Although marks are not awarded separately for each of the three parts, your overall
mark for this essay will be seriously reduced if you fail to answer each part effectively. - Please remember to number the pages.
- Please use double line spacing for the body of the essay and single line spacing for
footnotes and bibliography. - The essay must be researched, written-up, and typed by you; presented in Times
New Roman, font size 12; with 2.0 spacing; and with standard margins (2.54cms top
and bottom, and 2.54cms left and right). - Please remember to use footnotes, and to include a bibliography at the end of your
essay. - You must use double inverted commas (“—”) to indicate extracts from published
sources (including books, articles, statutes, case reports, and internet sources).
An ‘extract’ means that you are taking the exact words from the published source. - You must not use double inverted commas to indicate paraphrases of text found in
published sources (books and other sources as indicated above). A ‘paraphrase’ is
the taking of an author’s ideas but not the exact words of the author. - You must acknowledge the sources that you use, whether you take extracts or
paraphrase from published sources; and you must acknowledge authors’ work even
where referring to them but without extracting or paraphrasing from their work. - Each source must be acknowledged by a full reference and citation at the point at
which the source is first mentioned, and then again whenever the sources is used
subsequently. - Please state at the end of the bibliography the number of words used. Unless there is
a misuse of the footnote system, the word count does not include footnotes; and the
word count does not include the bibliography. - The assessment criteria are set out in the Student Handbook.
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UoW LLM ICL
2021-22 - You are advised to formulate your own opinions in response to the essay question.
And, as noted above, you must reference every statement of fact, law, and opinion
(other than your own unique opinion) which you use in your essay. - You are advised to prepare all your work, including drafts of your essay, in
handwriting and to preserve all your written work, print outs, and electronically
stored research work, drafts and final version at least until after you have been
notified of your degree result. This is in case you are required to submit to a viva
assessment. - From the moment that this essay question is released by the module leader, each
student taking the module must work entirely on her or his own: there must be no
discussions with other students or with anyone else; and each student must work
entirely on his or her own without help of any kind from any other person, whether
a student or otherwise. - The University’s regulations which prohibit collusion and plagiarism apply to this
assessment (as they do to all assessments). Please see and observe the additional
information and comment below. - This assessment is subject to the Turnitin submission requirements and to the
Turnitin plagiarism detection procedures which are explained below.
WARNING REGARDING PLAGIARISM
For the avoidance of doubt, when it comes to plagiarism and other forms of cheating, the
University adopts a ZERO TOLERANCE APPROACH and ALWAYS recommend the
TOUGHEST POSSIBLE PUNISHMENT.
At the very least, by such conduct students who cheat make it impossible for members of staff to
provide a positive reference for them in future. As the rules make clear, students breaking
these rules are likely to have their registration suspended or be excluded from the whole
course.
If you are in any doubt about what is expected of you or how you should proceed with your
research and writing up, the onus is on you to check with your Course Leader or Module Leader.
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