Otros factores causantes de mortalidad embrionaria.

171. Respondent contends that its jurisdictional objections are admissible. Respondent complied with Rule 41(1) of the Arbitration Rules. Respondent filed its jurisdictional objections with its Counter-Memorial. Respondent in good faith submitted its jurisdictional objections as early as possible in light of the procedural calendar established by the Tribunal. Even if the Tribunal were to consider that Respondent’s jurisdictional objections were filed after the deadline for the filing of the Counter-Memorial, such a belated submission would not in any event prevent the Tribunal from examining Respondent’s objections.

a)

Amicable settlement

172. Respondent alleges that ripeness does constitute a pre-requisite to the initiation of amicable settlement discussions, because a lack of ripeness means that there is yet no dispute, and in the absence of a dispute there is nothing to settle.

173. In relation to the letter of May 14, 2010, Respondent further alleges that Le Bridge applied for a Security Certificate for the airport store only on February 4,

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2010 and obtained it on June 18, 2010; therefore, no dispute could have existed in May 2010, as Le Bridge had no right to open the airport store.

174. In addition, Respondent alleges that it never had a fair opportunity to engage in settlement discussions at any time after the dispute had actually ripened. Respondent further notes that Moldova did not ratify the ICSID Convention until May 2011, and that, at the time of Mr. Arif’s letter in 2010, the Government could not have imagined that any arbitral procedure would be forthcoming. Claimant therefore cannot be excused for failing to satisfy the condition precedent to arbitration. Moreover, Respondent alleges that Claimant’s first attempt at settlement discussions occurred on July 12, 2012, 17 days before the Request for Arbitration. Nevertheless, the settlement discussion obligation is a mandatory pre-requisite to this Tribunal’s jurisdiction. Finally, Respondent submits that Claimant fails to demonstrate that any settlement discussions would have been futile.

b)

Many of the claims raised are not ripe for arbitration

175. Respondent further argues that Mr. Arif’s claims of a judicial expropriation of his investment in the duty free stores are not ripe for arbitration. These claims are directed at decisions of the lower courts of Moldova. On October 17, 2012, the Supreme Court of Justice overturned the decision of the Chisinau Court of Appeal of December 28, 2011. The case was sent back to the lower courts for further proceedings. As a result thereof, Le Bridge can continue to operate the border stores.

c)

Nationality

176. Firstly, Respondent submits that international tribunals are competent (and indeed obliged) to make their own assessment of a claimant’s nationality when it is challenged. In Respondent’s view, Claimant can offer no support for his assertion that, in investor-State disputes, unlike State-to-State disputes, this principle does not apply. Once a claimant’s nationality is challenged, it becomes a jurisdictional fact in dispute to be decided by the tribunal. There can be no doubt that the Tribunal is authorised to verify and must be satisfied of Mr. Arif’s nationality before proceeding to adjudicate this dispute.

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177. Secondly, a party bears the burden of proving its allegations. Only after that party has actually carried this burden does it shift to the opposing party. Mr. Arif has decided not to produce a certificate of French nationality as proof of his nationality in the present case. A decree of naturalization in and of itself is no proof of nationality as a matter of French law. Having failed to disclose a certificate of nationality, it is clear that even as a matter of French law the burden of proof still lies with Mr. Arif to establish that he is a genuine French national. In any event, Mr. Arif has not met the requirements for acquiring French nationality.

178. Thirdly, Claimant confuses dominant nationality and effective nationality. Mr. Arif cannot benefit from protection under the Treaty because he shows no real and effective link with France.

d)

Claimant has no investment subject to Treaty protection

179. Firstly, Claimant confuses the question of the law applicable to the qualification of a right as an “investment” under the BIT with that of the law relevant to identifying whether a right exists in the first instance. Claimant has not demonstrated that all of the alleged “investments” actually exist under Moldovan law, their existence being a matter of domestic law. One cannot rely on an abstract principle of the unity of an investment operation to avoid demonstrating why any alleged “right” actually exists, and in order to obtain protection for that right.

180. Regarding the three core investment rights that are actually alleged to be subject to an investment dispute (i.e. the alleged rights under the Tender, the alleged exclusivity right under the July 1, 2008 Agreement, and the Lease Agreement on the airport store), they were invalid pursuant to Moldovan law. The ordinary meaning of Article 1 of the BIT, “in accordance with the legislation of the Contracting Party”, does not limit legal compliance to specific investment legislation. It is a fundamental governing principle of international law that investments made in violation of the law of the host country cannot be afforded protection.

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181. Secondly, the ordinary meaning of the wording of Article 1.1(b) of the BIT is that, if an investor proves a shareholding in a company, then that shareholding is a category of investment protected by the Treaty. The default position in international law is that, absent a clear language to that effect, the corporate form is recognised as legally independent from the shareholders and confers only on the corporate entity the right to assert claims for damages suffered with regard to its assets. Contrary to Claimant’s assertion, therefore, the absence of an express reference to “indirect investments” is of important significance.

e)

The BIT contains no “specific undertakings” clause and such claims

would be inadmissible

182. Respondent further submits that the MFN clause in the BIT cannot, under any circumstances, import an “umbrella” clause. This applies in relation to all claims for breach of specific commitments made by Claimant: in relation to the Lease Agreement, the July 1, 2008 Agreement and the Tender.

183. Claimant seeks to rely on the MFN clause in order to secure rights that do not exist in the BIT, rather than to extend more favourable standards of protection than those set out in the BIT, as intended by Article 4. This type of manipulation of the MFN clause should be rejected.

184. Respondent does not allege that there is a waiver of the BIT’s dispute resolution clause, but rather that it is premature to invoke it in support of a claim for the breach of a specific undertaking until after the agreed forum has reviewed the question. Claimant’s argument that the July 1, 2008 Agreement has been annulled and that it would therefore be impossible for him to initiate a dispute under its terms ignores the fundamental principle of the separability of arbitration clauses.