TEAM BEBADON
INTERNATIONAL CENTRE FOR SETTLEMET OF INVESTMENT
DISPUTES ADDITIONAL FACILITY
ICSID Case No. ARB (AF)24/7
In the Arbitration Proceeding Between:
BIONPRO Inc.
(Claimant)
v.
THE REPUBLIC OF VALDRIS
(Respondent)
SKELETON BRIEF FOR CLAIMANT
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I. THE TRIBUNAL IS SEIZED WITH JURISDICTION
OVER THE DISPUTE IN LIGHT OF THE BILATERAL
INVESTEMENT TREATY
A. THE REPUBLIC OF VALDRIS IS AUTOMATICALLY BOUND
BY THE BIT AS A SUCCESSOR STATE
1. The BIT Between Xeneral and Arakis was a Valid and Binding Treaty in Force at the
Time of Succession
2. Article 34 of the VCSSRT Reflects Customary International Law Favoring Automatic
Continuity in Cases of Separation
3. Bilateral Investment Treaties are Analogous to Human Rights Treaties and Attract
Presumptions of Continuity
B. THE REPUBLIC OF VALDRIS ESTABLISHED AN IMPLIED
SUCCESSION AGREEMENT THROUGH DIPLOMATIC
CONDUCT AND RELIANCE
1. A Valid Succession Agreement May be Implied From Conduct Under International
Law
2. Valdris and Xenera Formed an Implied Succession Agreement Through Their
Diplomatic Exchanges
3. The Timing and Content of the Diplomatic Exchanges Reinforce the Legal Inference
of Consent
C. BY RETAINING THE PHO AND BENEFITTING FROM THE
INVESTMENT, VALDRIS ASSUMED RESPONSIBILITY FOR
PRE-INDEPENDENCE INSTITUTIONAL ACTS
1. The Cyberattack Giving Rise to the FPS Breach is Attributable to State Organs
Existing Pre-Independence
2. Responsibility is Transferred Where the Successor State Retains and Adopts the
Predecessor’s Institutions
3. The Succession Agreement and the Institute of International Law Resolution Confirm
Successor Responsibility
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II. THE RESPONDENT’S ADMISSIBILITY OBJECTION
UNDER THE MONETARY GOLD PRINCIPLE MUST BE
REJECTED
A. THE MONETARY GOLD PRINCIPLE IS INAPPLICABLE IN INVESTOR-
STATE ARBITRATION
1. The principle derives from inter-state ICJ litigation and is not suited to ISDS
2. The dispute is between an investor and a host state, not between states
3. Investment tribunals have consistently rejected expansive interpretations of Monetary
Gold
B. THE CLAIM DOES NOT REQUIRE A DETERMINATION OF ARRAKIS’
INTERNATIONAL RESPONSIBILITY
1. The Claimant seeks no finding against Arrakis, but only against Valdris
2. The factual origin of the breach does not require adjudication of third-party fault
3. The dispute concerns succession and attribution, not third-state breach
4. Responsibility flows from Valdris’ adoption of the conduct and institutions, not from
Arrakis’ liability
C. THE TRIBUNAL HAS COMPETENCE TO DECIDE THE LEGAL
CONSEQUENCES OF VALDRIS’ OWN CONDUCT
1. Valdris’ post-independence conduct provides a sufficient jurisdictional hook
2. Institutional succession is a question squarely within the Tribunal’s mandate
3. Attribution under ARSIWA does not require adjudicating Arrakis’ conduct
4. Jurisprudence affirms that adoption and benefit create new legal responsibility
D. THE CLAIM DOES NOT INFRINGE ON THE SOVEREIGN RIGHTS OR
CONSENT OF A THIRD STATE
1. The relief sought is directed only at the Respondent
2. The legal interests of Arrakis are not the “very subject matter” of the dispute
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3. No declaratory finding against Arrakis is necessary
4. Monetary Gold cannot be used to shield successor states from treaty-based liability
III. THE RESPONDENT HAS BREACHED ITS OBLIGATION
UNDER ARTICLE 3 OF THE BIT BY FAILING TO
ENSURE FULL PROTECTION AND SECURITY
A. ARTICLE 3 OF THE BIT IMPOSES A DUTY OF VIGILANCE AND DUE
DILIGENCE ON THE HOST STATE
1. The FPS standard extends beyond physical security to include legal and digital
protection
2. The scope of FPS must be interpreted in light of technological risk and modern
expectations
3. Due diligence is an affirmative obligation, not merely passive tolerance
B. THE RESPONDENT FAILED TO PREVENT OR RESPOND TO THE
CYBERATTACK IN VIOLATION OF THE FPS OBLIGATION
1. The PHO’s cyberinfrastructure was objectively negligent and foreseeably vulnerable
2. The Respondent was put on notice of the deficiencies and failed to act
3. The breach was neither investigated nor mitigated by Valdris post-independence
C. VALDRIS ASSUMED RESPONSIBILITY THROUGH INSTITUTIONAL
SUCCESSION AND CONDUCT
1. Valdris retained the PHO and incorporated it into its public health administration
2. Articles 10–11 of ARSIWA confirm responsibility through adoption and continuation
3. The IIL Resolution provides persuasive confirmation of legal responsibility for retained
organs
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IV. THE RESPONDENT HAS BREACHED ARTICLES 4 AND
5 OF THE BIT BY RESTRICTING THE FREE TRANSFER
OF FUNDS
A. ARTICLES 4 AND 5 GUARANTEE FREE, PROMPT, AND UNRESTRICTED
TRANSFER OF INVESTMENT-RELATED FUNDS
1. The treaty provides an unambiguous right to transfer returns, profits, and royalties
2. BIT provisions on transfers are binding and not subject to discretionary override
B. THE RESPONDENT’S DELAYS AND REJECTIONS AMOUNT TO AN
UNLAWFUL DE FACTO RESTRICTION
1. BionPro’s transfer requests were ignored, delayed, or denied without justification
2. Administrative obstruction constitutes a treaty breach even without formal prohibition
3. The Respondent offered no legal process or reasons for its restriction
C. THE RESPONDENT HAS NOT JUSTIFIED ITS CONDUCT UNDER ANY BIT
EXCEPTION OR CUSTOMARY RULE
1. No evidence of a balance-of-payments emergency or systemic risk has been presented
2. Temporary capital control exceptions require transparency and proportionality
3. There is no showing that the restriction was the only available means under Article 25
ARSIWA
D. THE RESPONDENT DISCRIMINATED AGAINST THE CLAIMANT IN
VIOLATION OF ARTICLE 5 OF THE BIT
1. Comparable investors from GOD countries were allowed to transfer funds freely
2. The Respondent applied the restrictions inconsistently and non-transparently
