5. MARCO LEGAL
6.2 CONSTRUCCIÓN DE LAS VIS EN CONCRETO
507. The Tribunal notes that there is no independent obligation not to discriminate under the BIT. Claimant’s argument that there was such a breach would only make sense if this obligation were analysed in the context of national treatment
220 Claimant just argues that this standard does not differ from the FET and that to this extent all the acts
and omissions alleged to have breached the FET standard also are in breach of Respondent’s obligation not to impose unreasonable or arbitrary measures.
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(Article 4 of the BIT) or if an independent obligation not to discriminate could be imported via the MFN clause.221
508. Article 4 of the BIT provides in its relevant part that: “Each Contracting Party shall extend, in its territory and in its maritime area, to nationals and companies of the other Contracting Party, regarding their investments and activities connected with these investments, treatment not less favourable than that granted to its nationals or companies…”
509. Discrimination is an essential element of a “national treatment” clause, such as that contained in Article 4 of the BIT. Discriminatory measures towards the foreign investor in relation to more favourable treatment awarded to national investors will imply a breach of the national treatment standard. Claimant has to prove how the alleged acts and omissions are in breach of Respondent’s obligation not to discriminate in order for the Tribunal to find a breach of national treatment for discrimination.
510. Claimant indeed tries to prove discrimination based on certain facts. Nevertheless, the Tribunal is not persuaded that there has been discrimination against Claimant for the reasons stated below.
511. With regard to the cancellation of the Lease Agreement, the Tribunal has already found that it was the result of the application by the Moldovan courts of Moldovan law, under which the Lease Agreement was invalid. The legitimate application of Moldovan law cannot be considered discriminatory against Claimant and Claimant’s argument to the contrary is rejected by this Tribunal.
512. With regard to Dufremol’s authorization to open border duty free stores without a tender, the Tribunal notes that both Parties agree that, under Moldovan law, such authorization may be granted.222 In fact, it seems that Le Bridge has been
221 The Tribunal notes that Claimant alleges discrimination of the investor only with regard to Moldovan
investors.
222 See Respondent’s Counter-Memorial, para. 647 and Respondent’s Rejoinder, para. 342. During the
Hearing Professor Knieper asked counsel for Claimant the following: “…I asked whether you still agree that these lease agreements at the border can be concluded without any tender or without any other
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granted the authorization for the opening of several border stores without a tender.223 The Tribunal further notes that the local customs office of Leuseni signed the lease agreement with Dufremol on December 2010224 and the local customs office of Cahul signed the lease agreement with Dufremol on January 2011,225 both dates being posterior to the irrevocable cancellation by the Supreme Court of both the July 1, 2008 Agreement and the Tender results (November 24, 2010). The Tribunal finds no discrimination against Claimant in these circumstances.
513. With respect to Dufremol and Le Bridge’s respective locations at Leuseni and Cahul, based on the aerial photographs submitted by Respondent as Exhibits R- 102 to R-103, the Tribunal is not persuaded that the locations granted to Dufremol are better than those granted to Le Bridge. Moreover, the Tribunal notes that Claimant does not contest Respondent’s argument that Le Bridge selected its locations at both border crossing points because at that time it considered they were the best locations. Further, regarding the fence erected in front of Le Bridge’s border store in Leuseni, Claimant has not proved that there were no legitimate reasons for this measure or that the Dufremol shop was similarly positioned as Le Bridge’s shop, which would have justified the erection of a fence in front of it too.226 Finally, Claimant alleges in his Memorial227 that Respondent prevented customers from shopping at Le Bridge’s duty free store in Cahul. The Tribunal is not persuaded, based on the evidence,228 that the isolated incident alleged by Claimant by which a customer “asked to be served quickly formality…” to which counsel for Claimant answered that: “…Now, on the question of the validity of lease agreements, absent a tender, we believe today that it is possible…”, Hearing Transcript, Day 1, p. 213 and
215.
223 Counsel for Respondent stated at the Hearing that: “
And now Le Bridge itself has been allowed to open further border stores without a tender, so there’s no discrimination there either”, Hearing Transcript, Day
1, p. 167. Counsel for Claimant did not rebut this statement.
224 See Agency for Land Resources and Cadastre, Hincesti Territorial Cadastral Office, Extract from the
Register of real estate for performing transactions for Le Bridge / Leuseni, dated May 23, 2011 Exhibit C- 159 to Claimant’s Memorial.
225 See Agency for Land Resources and Cadastre, Cahul Territorial Cadastral Office, Extract from the
Register of real estate for performing transactions for Le Bridge / Cahul, dated May 24, 2011 Exhibit C- 160 to Claimant’s Memorial.
226 The Tribunal notes that Claimant has not rebutted either in its Reply or at the Hearing Respondent’s
argument that the erection of the fence was necessary in order to prevent illegal sales at the frontier with Romania.
227 See Claimant’s Memorial, para. 280.
228 See internal note from Ms. Elena Garnet to Ms. Irina Chirilescu, dated November 4, 2011, Exhibit C-
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because a customs officer had not allowed her to stop in front of Le Bridge’s store” and that “She also requested that her purchase not be put in a Le Bridge branded bag to avoid problems with the Customs Officers”, can be considered discriminatory per se or amount to a breach of Respondent’s obligation not to discriminate.229
514. Because this Tribunal finds no discrimination on the basis of the above facts, Claimant’s claim for discrimination is rejected and there is no need to address Claimant’s argument that the obligation not to impose discriminatory measures is imported through the MFN clause.
515. Finally, the Tribunal notes that even though discrimination may also be considered an element of FET, the actions and omissions in breach of FET will not necessarily imply a breach with respect to non-discrimination. Therefore, Claimant’s general argument that all of Moldova’s acts and omissions in breach of FET also constitute breaches of Moldova’s obligation not to discriminate is dismissed. Claimant has to prove that each of the alleged acts and omissions were in breach of Respondent’s obligation not to discriminate in order for the Tribunal to find such breach. Claimant has not satisfied his burden of proof.