Reference no: EM133682846
Question
Mekhen Wardl SA (MWS - a company incorporated in the Democratic Republic of Laasahn (DRL), bought land in the Kingdom of Alamy-Rapho (KAR) and built a factory on the land which produced goods which were bought by citizens of the KAR and which were also exported by MWS from the KAR.
About four years after the factory commenced production, the government of the KAR took control of the factory pursuant to a statute passed by the Lower and Upper Houses of the KAR legislature. No compensation was offered.
The bilateral investment treaty (BIT) between DRL and the KAR includes a choice of dispute resolution processes including either (i) International Chamber of Commerce (ICC) arbitration or (ii) the International Centre for Settlement of Investment Disputes (ICSID) arbitration. There is a provision in the BIT that local remedies must be exhausted. And the BIT also provides that the States parties will adhere to the 'international minimum standard' of treatment of alien investors.
MWS commenced an action in the High Court of the KAR but was denied access to a critical defence document that had been filed with the High Court by the Government of the KAR. MWS alleged that, as a consequence of not having access to that document, MWS was not able to respond to its content and that, as a consequence, the judgment of the High Court was in favour of the Government of the KAR.
MWS lodged an appeal with the Court of Appeal of KAR, but the appeals committee of the Court of Appeal refused to allow the case to go forward for appeal on the basis that MWS was out of time. MWS appealed to the Supreme Court of KAR on the basis that the Court of Appeal was wrong to hold that the appeal was out of time, but the appeals committee of the Supreme Court reasoned that no such appeal could be brought where the Court of Appeal had not reached judgment on the merits of the appeal.
MWS now wishes to bring a claim to an ICSID tribunal, and is hoping to prove that MWS has (i) had its investment expropriated unlawfully, and (ii) that MWS has been denied justice by the KAR courts in breach of the 'international minimum standard' and in breach of customary international law. Please advise MWS.
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