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ENERGY, ENVIRONMENT & SECURITY ASSESSMENT
1. The Kingdom of Saxonia and the Socialist Republic of Hispanicana are both members of the Energy Charter Treaty. Electronica is a company specialising in electricity generation and distribution established in Saxonia.
In 2013, Electronica was awarded a 15-year exclusive licence by the Ministry of Energy of Hispanicana to operate and modernise the electricity networks of Mercato, the largest city of Hispanicana. Electronica paid USD67 million and committed to spending a further USD13 million on the modernisation project over the next 4 years in particular on new energy efficient facilities. In return, the operating licence allowed Electronica to annually adjust electricity tariffs up to a maximum of 2.5%.
In November 2015, following an unprecedented parliamentary electoral win by the Hispanicana Anarchist Alliance, the Hispanicanan Parliament enacted a law which inter alia prohibits any tariff increases for all public utilities (including electricity) for five years to rein in the official inflation rate of 7%.
In January 2016, after a week of heavy storms Electronica issued a press statement and contacted all households in the Mercato metropolitan area to inform them that their electricity will be cut periodically during February 2016 to allow for the repair of the damage caused to the distribution system by the week-long storms.
In response, the Ministry of Energy summarily decided to impose a fine of $2.7million on Electronica to be spent on the costs of a full investigation of the damage caused to the network. The investigation is being conducted by the state’s Public Engineering Audit Agency has not as yet come to any conclusion. Furthermore, the Minister of Energy -Dr Fidel Markez- in a televised speech before the Parliament in late 2017 encouraged the citizens of Mercato to: “…refuse to pay their electricity bills until our investigators find out what the heck is going on!”
Electronica wishes to bring a claim based on the Energy Charter Treaty and asks for your advice on whether the conduct of the Parliament, the Ministry of Energy and Dr Fidel Markez are in breach of the provisions on ‘expropriation’.
You must ensure you cite works clearly using the OSCOLA system.
The work should:
q be based on your sound understanding and application of the relevant law
q set out your conclusions clearly and prominently
q explains the conclusions you have reached
q be based on your sound and practical analysis of the relevant law and practice, and the issues raised by the question
q be justified by your own sound reasoning
q demonstrate your critical analysis and evaluation of the sources used.
a. Identifies and focuses on the key issues and themes raised by the question
b. Uses the relevant law to answer the specific question asked
c. Does not refer to irrelevant material
d. Avoids inaccuracies of fact and law.
a. Shows a deep understanding of relevant principles and key cases
b. Uses appropriate examples to illustrate points and justify arguments
c. Applies relevant authorities to the issues in a practical manner.
3. STRUCTURE and ORGANISATION
a. Deals with relevant issues in a logical order
b. Presents logical argument(s)
c. Avoids repetition
d. Shows good grammar and style
e. Has appropriate physical layout.
4. ANALYSIS and EVALUATION
a. Distinguishes between important and unimportant facts
b. Explains why a particular fact/issue/authority is important
c. Does not simply take a fact/issue/authority at face value (lacks analysis)
d. Does not simply state a fact/issue/authority (merely descriptive)
e. Weighs up different positions and reaches conclusions.
5. USE and ATTRIBUTION of appropriate material
a. Uses basic texts and module materials appropriately
b. Cites sources appropriately and precisely
c. Shows evidence of wider, independent, reading, going beyond basic texts and module materials.
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ESE Coursework info for Case Study
Road map à table of contents as shown in the example on the board in the class find that from IT law investment cases
Write it as if you are doing an opinion for a client
It should read like a table of contents à it should have subheadings
Stay consistent à international harm test
Have to show link – causation to the actual harm done
What are the potential breaches ? identify them ? does it ago against judicial propriety?–> this is for what the leader of the party stated
Expropriation à do we care about the intent ? but what about its lawful ? is he powerful person in government ?
In terms of content – in the start yiou need to have it very well structured – identify the breaches in the headings
You are not submitting a claim – so you can say this paper argues that …
Say firstly , secondly , and make sure you have summary of arguments
Road map : it should flow , each paragraph should be one argument ( positive argument. It should be done as is done in practice( common law style) . Use the road map to help you structure
Think of headings and subheading first , and then based on these arguments analyse
Separate each measures and actors
Talk about scope and applicable law – what applies to what
Attribution of the actions of the prepertator to the state – can not sue individuals under the ECT
Possible defences the state can put forward
The shortest form of your argument should be the subheading ( X is in breach of article X of the ECT)
Bonus point : calculation of damages à if action is lawful then damages entitled to are market value of assets at the time of action . If unlawful, the value of the time from prifit lost , and expected profit. If you are not dealing with lawful it’s the market value at the time.
If no breach then no entitlement to anything
If it is an exemption – then not liable at all – there is an argument that you are not entitled to anything. Exeption to illegality
Exceptions that you are dealing with national security for example when in war.
Don’t write a classic paragraph for conclusion ( not a classic summary) – so be a little bit bold with that – practical level advice – would you tell them to pursue all heads of claim – how much damages they should claim – what line of argument they should follow – who have these courses of actions these are the strongest , weakest and the most beneficial are xxx , these are good they may not have a significant effect . Give them all the argument
Dispute prevetion – ICJ can not make any state to to go to dispute ??
FET – the place that that start first you look at ECT Art 10 – which talks about a general thing – this means that something that is higher than international law. Then you look at the hallmarks of FET – which are denial of justice , breach of promises , the main thing is , the big umbrealla is that legitimate expectations – you have a two level test : you have to establish the expectations and legitimacy – then you have to show if they were breached. You can expect that the state will not breach it express undertakings . you can not rely a change of law but you can expect a rule of law ( you expect the state to satisfy their own laws). You expect the law to be applied.
If they will be major changes then you expect that you will be consulted and heard and a recourse to an appeal
If you deal with a court case it is not legitimate to expect that a court case will be solved in 2 weeks – is it going beyond the normal time ? 10 years > is it a long time?
The way that you would argue FET – when you deal with things that are not expropriation ( some sort of deprivation exists ) then you argue that you legitimately expected it not to happen. Also when you deal with protection and security you can argue FET – a state has to protect the company within that state always at At level that is consistent with the state always . the time of your expectation is at the time you make the investment !
You have to show that you relied on the factor that the Minster made a statement at the time you made an investment – if you made your investment and it had an effect on you decision then easier to ask for damages. Did you rely on that express undertaking
At level that is consistent with the state always .
à ITLAW.com for cases ( summary of cases) any arbitration case you see the roadmap
ü ITAreporter good places for cases
ü Clone digest
ü PDF in revision à this has link to places you can look at – summaries of relevant cases
ü Good book in the libraryà chapter 2 International Investment law and lex petroleum by Dr. Nima L