PRELIMINARIES:

Madam President, in this proceeding, respondent will begin with its objection as to the
jurisdiction of this tribunal then claimants answer will follow. Afterwards, rebuttal and sur-
rebuttal will follow. Claimant will then proceed with the merits of the case followed by
Respondents answer and then followed by rebuttal and sur-rebuttal.

SPEECH PROPER:

Madam President, Honorable Members of the tribunal, again my name is Maxencio A. Rios Jr.
and I am here to represent the claimant, Vasiuki LLC and to answer respondents allegation with
respect this tribunals lack of Jurisdiction.

It is our submission that this tribunal acquired jurisdiction over the claims based on three
grounds:
(1) The BIT was never terminated .
(2) Vasikuis is an investor in B, thus this Tribunal has Jurisdictio Rationae Materiae
over the Alpha and the other photovoltaic projects,
(3) Vasiuki, under the laws of Cogitatia, has the legal standing to initiate this arbitration,
thus the Trubunal has Jurisdictio Rationae Personae.

Claimant likewise submits that the claims herein set forth are admissible for two reasons:
(1.) The claims of Vasuiki were timely raised in accordance with the provisions of the
subsisting BIT.
(2.) Claimant exhausted the remedies provided under the BIT (Or should I say that by reason
of the Arbitration Agreement, the Claimant may validly resort to arbitration without the
necessity of exhausting local remedies )
(3.) Lastly, even assuming that the claims are inadmissible, the LCIA rules of Procedure
grants no power to this tribunal to rule on the admissibility of the claims.

I. On to the issue of Jurisiction.

For our first submission under the issue of juridiction, The BIT was never terminated under
Article 59 of the Vienna Connvention on the Law of Treaty (VCLT) by reason of the accession of
both Cogitatia and Barancasia to the European Union (E U). I will prove this in two points
1. The elements of Article 59 was never established as to warrant termination.
2. Barancasias termination violated the BIT which provided that the same may not be
unilaterally terminated for a period of ten (10) years.

Jurisdiction is primarily conferred to the tribunal on the basis of the consent of the
contracting state parties embodied in the treaty. As for the investor of either of the
contracting parties, it will have standing to enforce a claim that actually belongs to its
own national state thus the investment treaty actually confers that right directly upon the
investor. In the investment treaty, a provision contains a unilateral offer to arbitrate made
to all foreign investors. In this case, the subsisting Cogitatia-Barancasia Bilateral
Investment Treaty (BIT) embodies the consent of both parties and its continuing offer
to arbitrate with investors in case of disputes.

Par. 5 of the facts, page 19 of the records, provides that Barancasia and Cogitatia joined
the European Union (EU) on 2004. This prompted the Barancasian Government to
review its -EU bilateral investment treaties (BITs) and on page 20 par 8-9 of thefacts
respondent terminated its Intra-European BITs concluding that the same was rendered
obs olete by reason of material inconsistency with the Treaty of Functioning European
Union.
Insert par or discussion that a state cannot simply declare its treaty obsolete without
grounds satisfying VLCT.

Madam President, in light of the general principles of international law as expressed in

the Vienna Convention on the Law of the Treaties (VCLT), the act on the part of
Barancasia is erroneous for mere accession of Barancasia and Cogitatia with the EU will
not amount to an automatic and implicit termination of the BIT.

In the few investment arbitration cases involving the same issue, arbitral tribunals have
determined that intra-EU BITs were not implicitly terminated when those countries
acceded to the EU. The Eastern Sugar v. Czech Republic tribunal, for instance, rejected
 the Czech Republics argument that all of its BITs with the other EU Member states were
implicitly terminated when it acceded to the EU.

In applying the VCLT provision it appears that three test must be satisfied before the
treaty in question may be considered as terminated.
First, the two treaties must cover the same subject matter;
Secondly a common intention of termination can be established; or
Thirdly, the two treaties are clearly incompatible.

On to the first test, the subject-matter of the earlier treaty does not cover the same subject matter
of the later treaty.

In the case of Eastern Sugar v. Czech , the tribunal in examining the issue of subject-
matter ruled and concluded that on the basis that the applicable BIT and EC laws, both of
which did not cover the same precise subject matter even though both dealt with intra-
EC investment. While it is true that both regimes seek to promote cross-border
investment and establish a stable legal framework for such investments, the main purpose
of these two regimes still differs given that the BITs main purpose is to encourage
investments by providing a a high level of protection for investors once investment has
been effected while art. 56 1in contrast aims at eliminating obstacles of cross-border
capital movements and thus prohibits adverse measures applying post-investment merely
incidentally and only to the extent that they may constitute such an obstacle.

1 Article 56.

1. The provisions of this Chapter and measures taken in pursuance thereof shall not
prejudice the applicability of provisions laid down by law, regulation or administrative
action providing for special treatment for foreign nationals on grounds of public policy,
public security or public health.

2. Before the end of the transitional period the Council shall, acting unanimously on a
proposal from the Commission and after consulting the European Parliament, issue
directives for the co-ordination of the above mentioned provisions laid down by law,
regulation or administrative action. After the end of the second stage, however, the
Council shall, acting in accordance with the provisions referred to in Article 189b, issue
directives for the co-ordination of such provisions as, in each Member State, are a matter
for regulation or administrative action
Significantly also, most BITs provide for a specific dispute resolution mechanism in a
form of arbitration not only between the investor and the host state but also between the
investor and the host state. In fact, the tribunal in the Eastern Sugar case noted that, the
EC law did not provide the investor-state dispute resolution mechanism found in BITs,
which it considered the best guarantee that the investment will be protected against
potential undue infringements by the host state

On to the second test, the provisions of the later treaty are NOT incompatible
with those of the earlier one that both treaties cannot be simultaneously
applied

Prior to the Treaty of Lisbon, the term Foreign Direct Investment was never included in
the Common Commercial Policy (CCP) of the European Union. In Eastern Sugar case it
was ruled that the BIT and the EC Treaty are not incompatible.

The Lisbon Treaty confers on the EU only a general competence on FDI but does not
confer any details as to how the EU should treat and regulate FDI. Since the EU has not
yet taken action to enter into BITs by Member State, one cannot claim that existing intra-
EU BITs are incompatible with the new EU Treaty because FDI competence and FDI
regulation are two different things. Until the competence is exercised, and in a way
which conflicts in an irreconcilable manner with the existing intra-EU BITs, such
incompatibility may not be established.

Lastly, it was never established that both contracting parties intended that the BIT
be terminated by the later treaty.

In the Eastern Sugar case, it was ruled that a common intention on the part of the
contracting parties to terminate the BIT or to supersede it by the EC laws must be
established. In this case, Cogitatia never expressed any manifest intention to terminate the
BIT with Barancasia. Neither can the notification of confirmation of receipt by the
Foreign Ministry of Cogitatia that they received the notice of termination by Barancasia
amounted already to a manifestation of this intent.

In this particular instance however a strong indication of the absence of intention on the
part of Cogitatia is the fact that even Barncasia was uncertain if indeed Cogitatia assented
to the termination proposed. Thus, given the absence of an apparent intent to terminate
the treaty, it can be said that no intention was ever solicited that would satisfy the
condition of termination. (Make this fact based)

In fact, even with the expanded scope of the TFEU which includes Foreign Direct
Investments now, it is still provided that intent must still be manifest on both parties for
EU Members states are yet to reach a consensus to terminate existing intra-EU BITs and
to replace them with Community Law.

For our next point, Barancasias termination violated the BIT which provided that the
same may not be unilaterally terminated for a period of ten (10) years.

As a rule, a treaty may be terminated by the parties only after the end of the initial period
or after submitting advance written notice. This is to give foreign investors assurance of a
predictable and a stable legal framework in investment treaties.

The BIT in its provision provided that the Agreement shall remain in force for a period of
ten years and that thereafter, the agreement shall remain in force until the expiration of a
twelve month period from the date either Contracting Party notifies the other in writing of
its intention to terminate the Agreement. The Cogitatia - Barancasia BIT which only took
into force on August of 2002 had an initial period of ten (10) years which supposedly
would end only in 2012. Thus, either party is prohibited from terminating the treaty
unilaterally within the said period. However herein Respondent announced its intention to
terminate its Intra-EU BITs which eventually led to the notification of termination by
Barancasia, on June 29, 2007 of its intention to terminate the Cogitatia-Barancasia BIT.

These acts amount to a clear violation of the BIT and hence devoid of any legal effects.
On to our second submission for jurisdiction, The LCIA has jurisdictio rationae materiae for
two reasons:

First, the dispute arose from a valid investment made by Vasiuki.

Second, Vasiukis investments are protected by the subsisting BIT.

In treaty-based disputes, in order for the tribunal to acquire jurisdiction, the dispute must
involve a claim as to the violation of a right or obligation by the state party. Thus, the
subject matter must be capable of being submitted to arbitration, which means that the
same must arise from an investment.

For our first point, the dispute arose from a valid investment because the Alpha, Beta and the 12
other prospective photovoltaic plants are investments under the BIT.

In elaborating what may be considered as investments, treaties usually adopt different techniques.
Some treaties would contain an exhaustive list while others would contain illustrative lists. Under
Article 1 of the Cogitatia-Barancaisa BIT, the term investment is comprised of every kind of
asset invested in connection with economic activities by an investor of one Contracting Party in
the territory of the other Contracting Party. Under the list provided, it may include, among others,
movable and immovable property as well as any other property rights, such as mortgages, liens
or pledges.

Applying the foregoing definition of what constitutes an investment, the assets of Vasiuki, which
includes land plots and even the acquired several other land plots suitable for the development of
photovoltaic power plants, satisfies the requirement that it must be a kind of asset which is
invested in connection with economic activities of the claimant investor in the territory of the
Barancasia. At the same time, the assets are composed of movable and immovable property that
squarely falls within the definition of investments under the BIT.

For the second point, the investments of Vasiuki are protected under the treaty.

Investment treaties protect investments made after the date the treaty comes into force. Thus
investments made during the subsistence of a BIT shall be protected under its protective
provisions. In this case, given the invalid termination of the Cogitatia- Barancasia BIT on June of
2008, the investments capitalized by Vasiuki are still under its protection. The subsequent acts of
Barancasia in implementing its administrative and regulatory acts that amounted to a violation of
the BIT thus gave rise to a dispute arising from an investment capable of being heard under this
respective tribunal.

On to our last submission for jurisdiction, the tribunal has jurisdiction Rationae Personae.

The investor must be a national of the other contracting party which in case of a juridical person,
must be a company having the nationality of the state in which it is incorporated.

Vasiuki a Limited Liability Company (LLC) was incorporated in 2002 under the Laws of
Cogitatia. Under International Law, the test preferred in the determination of the nationality of the
corporation or company would be the place of incorporation. In this case, Vasiukis nationality
would thus follow the place where it was incorporated making it a national of the State of
Cogitatia.

Going now to the issue of admissibility,

It is our contention that the claims herein are admissible and even in the event that it may not
be admissible, this tribunal has no power to dismiss on the basis of inadmissibility.

Madam President, Jurisdiction and admissibility are not used steadily in investment treaty
arbitration. Usually, the pleadings and awards often refer to objections to jurisdiction and
admissibility without distinguishing between the two.

1. The claims set forth herein are admissible.

The following are the issues to be considered namely: exhaustion of local remedies and
unwarranted delay in making a claim might appropriately be viewed as a bar to the admissibility
of a claim.

First, the claims of Vasuiki were timely raised in accordance with the provisions of the subsisting
BIT.
One of the issues included that determines the admissibility of a claim is the unwarranted
delay in making the claim against the other. It is our submission that that no such
unwarranted delay happened in this particular instance. On 20 April 2014, Claimant already
initiated negotiations regarding the dispute and its corresponding intention to pursue legal
remedies under the BIT if the dispute was not resolved to Vasiukis satisfaction. Respondent
however persistently declined negotiations.
Article 8 of the BIT provides that in cases of disputes between an investor of one
Contracting Party and the other Contracting Party and the dispute cannot be settled within a
period of six months from the written notification of a claim, the investor shall be entitled to
submit the case to a tribunal of his choice. Thus, pursuant to the BIT, if the parties fail to
reach a settlement within the period of six months, the investor may thereafter pursue other
remedies available, which is resort to arbitral tribunal of his choice, for the settlement of the
dispute.
In this particular instance, the claimants resort to Arbitration on November 2, 2014 is neither
delayed nor unreasonable for it is in accordance with the BIT. Clearly, the claimant acted
with utmost good faith when it initiated the talks and with utmost diligence when it
promptly resorted to arbitration after the expiration of the six month period to negotiate.

Second, Claimant exhausted the remedies provided under the BIT.

In the BIT the main device afforded for the settlement of a dispute which may arise between
an investor and the host state in connection with an investment shall be through negotiations
between the parties to the dispute. Thus under the BIT the only remedy available to Claimant
in cases of treaty-based disputes are negotiation and arbitration.

2. Even if the claims herein are inadmissible, the LCIA grants no power to the tribunal to
dismiss the claims on the basis of inadmissibility

Under the additional powers of the LCIA it is provided that the Arbitral Tribunal shall have the
power only to decide whether or not to apply any strict rules of evidence as to the admissibility,
relevance or weight of any material tendered by a party on any issue of fact or expert opinion.
Thus, no such power to rule on admissibility of claims was vested to the LCIA tribunal. Under the
given rules, it only provided that the LCIA the power to rule on the admissibility of the evidence
of the parties rather than the allowing it to rule on the claims of the Claimant.

In Methanex Corporation v United States, it was held that since the UNCITRAL Arbitration Rule
does not expressly nor impliedly accord the Tribunal any power to rule on the objections relating
to admissibility, there is thus no power to dismiss the claim on the ground of admissibility. Hence,
following the same line of argument, it cannot be claimed by Respondent that the claims herein
set forth by the Claimant must be dismissed on the question of admissibility since thus tribunal
has no power to rule on such issues.