The Case Relating to a Nuclear Accident and Sovereign Debt

IN THE INTERNATIONAL COURT OF JUSTICE LA COUR INTERNATIONALE DE JUSTICE The Peace Palace, The Hague Netherlands

Federal States of Amuko Applicant v. Republic of Rentiers Respondent

ON SUBMISSION TO THE INTERNATIONAL COURT OF JUSTICE

MEMORIAL FOR THE APPLICANT

CONTENTS
INDEX OF AUTHORITIES ........................................................................................................... 2 STATEMENT OF JURISDICTION ............................................................................................. 10 STATEMENT OF FACTS ........................................................................................................... 11 SUMMARY OF ARGUMENTS .................................................................................................. 13 BODY OF ARGUMENTS ........................................................................................................... 15 I. REPUBLIC OF RENTIERS IS LIABLE TO FULLY REIMBURSE THE FEDERAL

STATES OF AMUKO FOR THE COMPENSATION PROGRAM ESTABLISHED BY THE AMUKO CONGRESS ..................................................................................................... 15 II. REPUBLIC OF RENTIERS IS LIABLE FOR THE DAMAGE SUFFERED IN THE

TERRITORY OF THE FEDERAL STATES OF AMUKO ..................................................... 18 III. REPUBLIC OF RENTIERS IS LIABLE FOR THE DEATH OF DRIVER AND

SECURITY GUARD, AME EMPLOYEES IN THE ACCIDENT WHO WERE KILLED DUE TO TRAUMA ASSOCIATED WITH THE ACCIDENT ............................................... 20 IV. DEFAULT OF RENTIERS ON ITS SOVEREIGN BOND IS VIOLATION OF

THE BASIC PRINCIPLE OF INTERNATIONAL LAW ........................................................ 21 V. FAILURE TO PAY A SOVEREIGN BOND ENGAGE THE STATES

INTERNATIONAL RESPONSIBILITY .................................................................................. 23 VI. THE DEFENSE OF THERE EXISTING A STATE OF NECESSITY DOES NOT

APPLY IN THE PRESENT CASE ........................................................................................... 27 CONCLUSION/PRAYER ............................................................................................................ 30

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LIST OF ABBREVIATIONS
1. 1997 Vienna Convention .: Protocol to Amend the 1963 Vienna Convention on Civil Liability for Nuclear Damage 2. 2004 Paris Convention.: Protocol to Amend The Convention on Third Party Iability in the Field of Nuclear Energy of 29 July 1960, as Amended by The Additional Protocol of 28 January 1964 and by The Protocol of 16 November 1982 3. AME.: Amuko Ministry of Energy 4. Amuko.: Federal States of Amuko 5. Brussels Supplementary Convention .:Convention of 31st January 1963 Supplementary to the Paris Convention of 29th July 1960, as amended by the additional Protocol of 28th January 1964 and by the Protocol of 16th November 1982 6. C.S.C.: The Convention on Supplementary Compensation for Nuclear Damage 7. CBD: Convention on Biological Diversity 8. I.A.E.A.: International Atomic Energy Agency 9. IAEA Assistance Convention.: Convention on Assistance in Case of a Nuclear Accident or Radiological Emergency 10. IAEA Early Notification Convention.: IAEA Convention on Early Notification of a Nuclear Accident 11. ICJ: International Court of Justice 12. ICSID .: the Settlement of Investment Disputes between States and Nationals of Other States 13. Johannesburg Summit.: the 2002 World Summit on Sustainable Development at Johannesburg 14. Joint Convention on Spent Fuel.: Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management 15. Joint Protocol.: Joint Protocol relating to the application of the Vienna Convention on civil liability for nuclear damage and the Paris Convention on third party liability in the field of nuclear energy. Concluded at Vienna on 21 September 1988 16. OECD/NEA.: Organisation for Economic Co-operation and Development/Nuclear Energy Agency 2|Page

17. OECD: Organization for Economic and Social Development 18. Paris Convention.: Paris Convention on Third Party Liability in the Field of Nuclear Energy 19. RABBIT.: the Rentiers-Amuko Bilateral Business Investment Treaty 20. Rentiers.: The Republic of Rentiers 21. Rio Declaration : United Nations Conference on Environment and Development at Rio De Janeiro 22. RNRA.: Rentiers Nuclear Regulatory Agency 23. Stockholm declaration : United Nations Conference on Human Environment held at Stockholm. 24. Vienna Convention.: the 1963 Vienna Convention on Civil Liability for Nuclear Damage 25. WSSD: World Summit on Sustainable Development 26. Y.B. Intl L.C.: Year Book of International Law Commission 27. Yale L.J.: Yale Law Journal

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INDEX OF AUTHORITIES

Serial No.

ARTICLES

REFERENCE (PAGE) IN THE BODY OF ARGUMENTS

1.

Crawford , James; The International Law Commissions Articles on State Responsibility: Introduction, Text and Commentaries (2002) p. 184

29

2.

Ernst H. Feilchenfeld, Rights and Remedies of Holders of Foreign Bonds, in BONDS AND BONDHOLDERS, RIGHTS AND REMEDIES (Silvester E. Quindry ed., 1934) Gallagher, Kevin, The New Vulture Culture: Sovereign debt restructuring and trade and investment treaties. (2011) IDEAs Working Paper no. 02/2011, IDEAs, New Delhi. Kaletsky, Anatole. The costs of default. (1985 ) Priority Press; New York Michael Waibel, Opening Pandoras Box: Sovereign Bonds in International Arbitration, 101 Am. J. Intl L. 711, 746 (2007)

25

3.

26,27

4.

29

5.

23,25,26,27

6.

OECD (2004), Indirect Expropriation and the Right to Regulate in International Investment Law, Paris: OECD.

26

7.

Schreuer, Christoph. The Concept of Expropriation Under the ETC and Other Investment Protection Treaties, in INVESTMENT ARBITRATION AND THE ENERGY CHARTER TREATY

25

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108, 139 (Clarisse Ribeiro ed., 2006) 8. UNCTAD, Sovereign Debt Restructuring And International Investment Agreements IIA ISSUES NOTE, No. 2, July 2011 27

9.

UNCTAD, Fair and Equitable Treatment: A Sequel , New York and Geneva,< www.unctad.org/iia.> last visited ov 24 Aug 2011

27

10.

Kidd, Steve; Liability for nuclear accidents - how is it handled?, available at < http://www.neimagazine.com/story.asp?storyCode= 2059241 > last visited on : August 24th, 2011

16

11.

Japanese experts

discuss

nuclear liability post-Fukushima,

17

available at < http://www.oecd-nea.org/general/mnb/2011/julyfukushima.html />, last visited on: August 24th, 2011

12.

Uranium Information Centre. Civil Liability for Nuclear Damage. UIC Nuclear Issues Briefing Paper #70. (2006). Available at

18

<http://www.uic.com.au/nip70.htm> last visited on: Aug, 24, 2011

13.

Nathalie L.J.T. Horbach, Nuclear liability for international transport accidents under the modernised nuclear liability conventions: an assessment, Int. J. Nuclear Law, Vol. 1, No. 2, 2006

20

14.

Julia A. Schwartz, International Nuclear Third Party Liability Law: The Response to Chernobyl

15,16,17,21

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Serial No.

BOOKS

REFERENCE (PAGE) IN THE BODY OF ARGUMENTS

1.

Douglas Helman, Nuclear Damage and Liability; An introduction 21,22 to the Vienna and Paris Conventions, their Amending Protocols and Supplementary Conventions

2.

Fitzgerald, P.J.; Salmond on Jurisprudence, 12th edition, Sweet 17 & Maxwell Ltd., London IAEA INTERNATIONAL LAW SERIES NO.3, The 1997 17,19,21 Vienna Convention On Civil Liability For Nuclear Damage And The 1997 Convention On Supplementary Compensation For Nuclear Damage: Explanatory Energy Agency, Vienna (2007) Text; International Atomic

3.

4.

ILC Commentary 2001

28

5.

Newcombe, A. and L. Pradell (2009), Law and Practice of 26 Investment Treaties Standards of Treatment, The Hague, Kluwer Law International.

6.

Lauterpatch, Oppenheim International Law

23

7.

Shaw, Malcolm International Law, Cambridge Uni. Press 5th 22 edi.

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Serial No.

CASE LAWS

REFERENCE (PAGE) IN THE BODY OF ARGUMENTS

1.

C.I.T. v. G.R. Karthikeyan 1993 Supp (3) SCC 222

25

2.

Canada Sugar Refining Co v R [1898] AC 735

19

3.

Certain Norwegian Loans (Fr. v. Nor.), 1957 ICJ REP. 9 ( July 6)

27

4.

CMS Gas Transmission Co. v. Argentine Republic, Award, ICSID 28,29 Case No. ARB/01/08, Award (May 12, 2005), 44 ILM 1205 (2005)

5.

Consortium R.F.C.C. v. Kingdom of Morocco, ICSID Case No. 26 ARB/00/6, Award, para. 65 (Dec. 22, 2003).

6.

Gabtikovo-Nagymaros Project case, ICJ Reports, 1997, pp. 7, 40

28

7.

ICJs Opinion in, Legal Consequences of the Construction of a Wall 29 in the Occupied Palestinian territory 43 I.L.M. 1009 (2004).

8.

Impregilo S.p.A. v. Islamic Republic of Pakistan, ICSID Case No. 26 ARB/03/3, Jurisdiction, para. 261 (Apr. 22, 2005)., para. 276

9.

Lauder v. Czech Republic, Final Award, para. 200 (UNCITRAL 27 Arb. Trib. Sept. 3, 2001)

10.

Metalclad Corp. v. United Mexican States, ICSID Case No. 27 ARB(AF)/97/1, Award, para. 103 (Aug. 30, 2000),

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11.

New Zealand v. France (Nuclear Tests Case) ICJ Reports, 1974, pp 23 253,267; 57 ILR, pp. 398,412.

12.

R v Loxdale, (1758) 97 ER 394

19

13.

Re BIdie{deceased}[1948] 2 ALL ER 995

19

14.

Rylands v Fletcher (1868) L.R. 3 H.L. 330

16

15.

United States V Eagle Bank, (1829) 7 Connecticut 457

19

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REFERENCE Serial No.

MISCELLANEOUS (TREATY, DECLARATIONS, COVENANTS, ETC.)

Convention on Third Party Liability in the Field of Nuclear Energy of 29th July 1960

(PAGE) IN THE BODY OF ARGUMENTS

1.

15

2.

Joint Convention On The Safety Of Spent Fuel Management And On The Safety Of Radioactive Waste Management,1997

15

Declaration on Principles of International Law Concerning 3. Friendly Relations and Co-operation among States adopted by the General Assembly in resolution 2625 (XXV), 1970 23

Joint Protocol relating to the application of the Vienna 4. Convention on civil liability for nuclear damage and the Paris Convention on third party liability in the field of nuclear energy. Concluded at Vienna on 21 September 1988 5. United Nations Charter 23 15

6.

Vienna Convention on Civil Liability for Nuclear Damage, 1997

20

7.

Vienna Convention on the Law of Treaties, 1969, Protocol to Amend The Convention on Third Party Iability in the

23

8.

Field of Nuclear Energy of 29 July 1960, as Amended by The Additional Protocol of 28 January 1964 and by The Protocol of 16 November 1982

20

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STATEMENT OF JURISDICTION
The Federal States of Amuko and The Republic of Rentiers have submitted this dispute to the International Court of Justice pursuant to a Special Agreement, signed at Granada, Spain, on 6 June
2011. This Courts jurisdiction is invoked under Article 36(1) read with Article 40(1) of the

Statute of the International Court of Justice, 1950. The Parties shall accept any Judgment of the Court as final and binding upon them and shall execute it in its entirety and in good faith.

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STATEMENT OF FACTS
The Federal States of Amuko and the Republic of Rentiers share a common territorial border. Investment companies in Amuko have purchased approximately 3 billion tenge worth of sovereign bonds issued by Rentiers. The Diablo Canyon Fault is a continental transform fault that runs through the central portion of the territory of Rentiers. Amuko and Rentiers are members of the United Nations & I.A.E.A and parties to statutes of I.C.J, Vienna Convention on the Law of Treaties, IAEA Early Notification Convention, IAEA Assistance Convention, CBD, Stockholm declaration, Rio Declaration, and Johannesburg Summit, ICSID and RABBIT. RECORD 1-14 On 5 February 2010, an earthquake struck the territory of Rentiers along the Diablo Canyon fault line. The privately-operated Nihon Nuclear Power Plant was affected and the reactor building was contaminated. RNRA discovered that the pools where spent fuel rods were stored had ruptured and had developed a leak. In accordance with Article 2.2 of the IAEA Assistance Convention, Rentiers requested assistance from Amuko. In accordance with Article 2.3 of the IAEA Assistance Convention, Amuko promptly responded that the Amuko Ministry of Energy (AME) would remove the fuel rods and transport them via highways in specially manufactured vehicles. RECORD 15- 19 On 12 February 2010, one of the vehicles, while in the territory of Amuko, crashed which was carrying spent fuel rod. The driver and one security guard were killed. As a result of the accident, the cooling system for the fuel rods failed. The fuel rod casings began to burn, releasing radioactive gases and particles into the environment. AME ordered the evacuation of Robelynch, the accident site. The area is now declared off-limits for human habitation. RECORD 20-24 On 26 February 2010, in an emergency session, the Amuko Congress established a compensation fund for the families of the deceased driver and security guard and the former residents of Robelynch for the loss of their property and established a lifetime medical monitoring program. RECORD 25-26

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On 10 March 2010, a diplomatic note was forwarded to Rentiers by Amuko. In which, it requested that Rentiers should take all the necessary measures to fully reimburse Amuko for the compensation program established by the Amuko Congress in accordance with Article 10 of the IAEA Assistance Convention and general principles of international law. In response of the note, Rentiers cleared its position that no reimbursement or compensation is owed. RECORD 27-29 On 17 September 2010, RNRA ordered a rapid closure of five nuclear power plants near the Diablo Canyon fault. Rentiers President Niall Ferguson issued a statement that the economy of Rentiers had suffered greatly and that Rentiers would default on its sovereign bonds. The Rentiers stock market declined 20% after the announcement. On 1 December 2010, in an emergency session, the Rentiers Parliament enacted Fresh Start Act which provided that Rentiers sovereign bonds were to be restructured such that investors would receive 10% of what they would otherwise be entitled to. RECORD 30-31 On 8 December 2010, a diplomatic note was forwarded to Rentiers by Amuko and requested that Rentiers should enter into negotiations with Amuko to arrive at a just rate of compensation for this expropriation. But, Rentiers rejected that request. The Amuko investment companies affected by the Fresh Start Act sought compensation in the domestic courts of Rentiers. These claims were denied. Additional negotiations between the Federal States of Amuko and the Republic of Rentiers failed to resolve the disputes regarding both the nuclear accident and sovereign debt but the parties agreed to submit these matters to the I.C.J. RECORD 32-38

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SUMMARY OF ARGUMENTS
I. RENTIERS IS LIABLE TO FULLY REIMBURSE AMUKO FOR THE COMPENSATION CONGRESS 1. The sending Operator is strictly and exclusively liable for damage during the transport of nuclear material to and from nuclear installation unless otherwise provided. 2. Those who carried out mischievous nuclear activities shall be fully responsible for consequences arise from the accident of those activities irrespective of whether whose fault was. 3. The whole liability of third party arises out of nuclear accident shall be fall on and only on operator of nuclear installation. 4. The accident due to drivers negligence was an only overt act but the main act was the leakage of pool where spent fuel rods were kept. The accident in Robelynch was only furtherance of the accident occurred in Nuclear Power Plant. II. RENTIERS IS LIABLE FOR THE DAMAGE SUFFERED IN THE TERRITORY OF AMUKO The compensation programme of Amuko Government was an economic expenditure and burden on the national economy. it is measure of reinstatement of impaired environment. The lifetime medical monitoring program is a preventive measure for the further loss or damage. Therefore, these should be compensated by the Rentiers. III. RENTIERS IS LIABLE FOR THE DEATH OF DRIVER AND SECURITY GUARD The deceased driver and guard was a third party and came for rendering assistance. The strict liability of operator could not be exonerated due to negligence of driver as against gross negligence. PROGRAM ESTABLISHED BY THE AMUKO

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IV.

DEFAULT OF RENTIERS ON ITS SOVEREIGN BON IS VIOLATION OF THE BASIC PRINCIPLE OF INTERNATIONAL LAW

1.

In Arguendo, unilateral structuring of sovereign bond was in violation of pacta sunt servanda, because agreement including contract must be honoured in good faith.

2.

In Arguendo, unilateral debt restructuring by Rentiers was not performed in good faith, as the request for renegotiation was refused.

V.

FAILURE

TO

PAY

SOVEREIGN

BOND

ENGAGE

STATES

INTERNATIONAL RESPONSIBILITY. 1. 2. 3. Substantial deprivation shows the existence of expropriation. In Arguendo, unilateral restructuring measure tantamount to expropriation. In Arguendo, restructuring of sovereign bond has violated the treaty obligation of fair and equitable treatment. VI. DEFENCE OF STATE OF NECESSITY DOES NOT APPLY IN THE PRESENT CASE. 1. Nuclear damage of level 4 of the IAEA nuclear event scale cannot be considered as grave and imminent peril. 2. Negligence in construction of nuclear power reactor waives the plea of force majeure. 3. 4. Extra-ordinary circumstances ware artificially created by the Rentiers. Defence of force majeure cannot be pleaded where there is an existence of conventional obligation 5. In Arguendo, the state of necessity under domestic law would not offer an excuse to preclude State from fulfilling its contractual obligation.

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BODY OF ARGUMENTS
I. REPUBLIC OF RENTIERS IS LIABLE TO FULLY REIMBURSE THE FEDERAL STATES OF AMUKO FOR THE COMPENSATION

PROGRAM ESTABLISHED BY THE AMUKO CONGRESS Nuclear liability in International regime is based on the certain concepts namely nuclear installation, operator, nuclear incident and nuclear damage. As per the fact of case, the accidents happened during the transportation of spent fuel which is also a type of nuclear fuel1. When any occurrence which causes damages results from the hazardous properties of nuclear fuel or radioactive products or waste is called nuclear incident.2 In International Nuclear Law, operators are strictly and exclusively liable for damage resulting from a nuclear incident or during the transport of nuclear material to and from nuclear installation.3 Liability for such damage rests with the sending operator of a nuclear installation.4 Only exceptionally and in accordance with a defined procedure may the carrier replace the operator and be held liable.5 The transfer of liability from one operator to another will normally be regulated by a contract in writing. 6
1

Art 2(n) of 42. Joint Protocol as "spent fuel" means nuclear fuel that has been irradiated in and permanently removed from a reactor core. 2 Art 1 (a) I of Convention on Third Party Liability in the Field of Nuclear Energy of 29 th July 1960, as amended by the Additional Protocol of 28th January 1964 and by the Protocol of 16th November 1982, Art. 1(1)(12) of the 1997 Vienna Convention on Civil Liability for Nuclear Damage as Nuclear incident means any occurrence or series of occurrences having the same origin which causes nuclear damage. And art 1(1)(11) define nuclear damage as "Nuclear damage" means - loss of life, any personal injury or any loss of, or damage to, property which arises out of or results from the radioactive properties or a combination of radioactive properties with toxic, explosive or other hazardous properties of nuclear fuel or radioactive products or waste in, or of nuclear material coming from, originating in, or sent to, a nuclear installation; 3 Julia A. Schwartz, International Nuclear Third Party Liability Law: The Response to Chernobyl 4 Ibid . 5 Article II (2) of the 1997 Vienna Convention on Civil Liability for Nuclear Damage; the Installation State may provide by legislation that, in accordance with such terms as may be specified therein, a carrier of nuclear material or a person handling radioactive waste may, at his request and with the consent of the operator concerned, be designated or recognized as operator in the place of that operator in respect of such nuclear material or radioactive waste respectively. In this case such carrier or such person shall be considered, for all the purposes of this Convention, as an operator of a nuclear installation situated within the territory of that State. 6 Article II of the 1997 Vienna Convention on Civil Liability for Nuclear Damage, article 4 of the 1960 Paris Convention on Third Party Liability in the Field of Nuclear Energy

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In the present case, Rentiers had requested assistance from Amuko to remove spent fuel rods and transportation of them under Article 2.2 of the IAEA Assistance Convention. There was no such agreement between two States for the transfer of liability in case of any nuclear incident. So, it is not a case of transfer of liability from one operator to another and thus, liability falls on the sender operator. 1.1. In Arguendo, Nuclear damages are covered by Principle of Strict Liability A person who, for his own purposes, brought on his land and collected and kept there anything likely to do mischief if it escaped, had to keep it in at his peril; and if he did not do so, he was prima facie answerable for all the damage which was the natural consequence of its escape.7 It is liability for a wrong that is imposed without the claimant having to prove that the defendant was at fault8. In laymans terms: strict liability means a claimant does not need to prove how an accident occurred.9 Due to the unusual risks associated with the operation of nuclear installations or the transport of nuclear substances, it was clear that those who carried out those activities should be fully responsible for any injurious consequences resulting therefrom.10 Strict liability relieves a claimant of the burden of proving fault or negligence, and imposes liability, together with the obligation to compensate the damage suffered, merely on proof of a causal link between the damage and the nuclear accident in issue.11 1.2.Operators remains exclusively liable for under Theory of Exclusive Liability Exclusive liability of the operator means that in the case of an accident, all claims are to be brought against the nuclear operator 12. Two primary factors have motivated this exclusive liability of the operator, as distinct from the position under ordinary law of torts. Firstly, it is desirable to avoid difficult and lengthy questions of complicated legal cross-actions to establish in individual cases who is legally liable. Secondly, such exclusion liability obviates the necessity for all those who might be associated with the construction or operation of a

7 8

Rylands v Fletcher (1868) L.R. 3 H.L. 330 Oxford law Dictionary, FIFTH EDITION, (ed. ELIZABETH A. MARTIN) 9 Kidd, Steve; Liability for nuclear accidents - how is it handled?, available http://www.neimagazine.com/story.asp?storyCode= 2059241 > last visited on : August 24th, 2011 10 Julia A. Schwartz, International Nuclear Third Party Liability Law: The Response to Chernobyl 11 ibid 12 Supra 9

at

<

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nuclear installation capacity available.13 The advantages enjoyed by suppliers are extended to carriers who are not responsible for the packaging of the nuclear substances being transported, who do not necessarily have the specialised knowledge of how to handle them and who would otherwise also be required to purchase costly third party liability insurance to cover their liability exposure.14 On 15 June, Japanese experts attending the NEA Nuclear Law Committee meeting described Japans nuclear liability system and its application to the accident at the Fukushima Daiichi nuclear power plant. 15 According to the Act on Compensation for Nuclear Damage, the operator of the installation, in this case Tokyo Electric Power Company (TEPCO), is exclusively liable to compensate victims who only need to demonstrate a causal link between the accident and the damage suffered16. 1.3. Negligence of driver does not break causal link A system of law may hold a man liable either for performing acts which are dangerous in tendency or for causing actual damage or injury.17 In this present situation, the Rentiers knew of the existence of the Diablo Canyon Fault and even thereafter, permitted the nuclear power plants to be built nevertheless18. The nuclear incident happen when as earthquake stuck and affected the reactor 2 of Nihon Nuclear Power Plant.19 In order to avoid greater damage, the Rentier requested assistance to the Amuko for the transfer of spent fuel rod from his territory to a safer place in his territory.20 Then, in response of that request, the Amuko had sent two vehicles in which one met with accident. Ordinarily, any event results from the combination of factors, namely abnormal factors and human acts. Here, the presence of nuclear material on the vehicles was abnormal factor and vehicle accident due to the negligence of driver was
13

IAEA INTERNATIONAL LAW SERIES NO.3, The 1997 Vienna Convention On Civil Liability For Nuclear Damage And The 1997 Convention On Supplementary Compensation For Nuclear Damage: Explanatory Text; International Atomic Energy Agency, Vienna (2007) 14 Julia A. Schwartz, International Nuclear Third Party Liability Law: The Response to Chernobyl 15 Japanese experts discuss nuclear liability post-Fukushima, available at < http://www.oecdnea.org/general/mnb/2011/july-fukushima.html/>, last visited on: August 24th, 2011 16 ibid 17 Fitzgerald, P.J.; Salmond on Jurisprudence, 12 th edition, Sweet & Maxwell Ltd., London 18 See, Special Agreement Annexure A para 34 19 Ibid, Annexure A , para 15-16 20 Ibid, Annexure A, para 18

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human act. The nuclear accident in Robelynch was resulted from a combination of factors, of which is the presence of nuclear material. This accident would not be nuclear accident which caused nuclear damage, unless the presence of nuclear material was abnormal in the circumstances. In absence of such nuclear material, it would be a simple vehicle accident. Gross negligence is a conscious and voluntary disregard of the need to use reasonable care, which is likely to cause foreseeable grave injury or harm to persons, property, or both 21 whereas, negligence is the failure to exercise ordinary or reasonable care; that is: what would be the conduct of an ordinarily prudent, careful person in the same or similar circumstances as the defendant found himself.22 It is conduct that is extreme when compared with ordinary Negligence, which is a mere failure to exercise reasonable care and it differ in degree of inattention, while both differ from willful and wanton conduct, which is conduct that is reasonably considered to cause injury.23 Gross negligence occurs on the continuum between ordinary negligence and intentional misconduct.24 Moreover, The Vienna Convention is generally viewed as only applying to damage suffered within the territory of a Contracting Party and on or over the high seas. The Vienna Convention Protocol significantly extends that geographic scope so that the revised convention will apply to nuclear damage wherever suffered,25 subject to a permitted exclusion for a non-Contracting State which has a nuclear installation on its territory and does not provide equivalent reciprocal benefits. II. REPUBLIC OF RENTIERS IS LIABLE FOR THE DAMAGE SUFFERED IN THE TERRITORY OF THE FEDERAL STATES OF AMUKO It is a basic principle of International Nuclear law that compensation must not discriminate on the basis of nationality, domicile or residence. 26 Under article II (1)(2)(1)-(3) of Vienna convention, the word another nuclear installation would also include the nuclear installation
21 22

West's Encyclopedia of American Law, edition 2 http://www.judiciary.state.nj.us/civil/charges/5.12.pdf. Last visited on 24 Aug 2011 23 ibid 24 Ibid 25 See Article 3 of the Vienna Convention Protocol. Technically, this means damage suffered anywhere in the world, including in non-Contracting States. 26 Uranium Information Centre. (2006). Civil Liability for Nuclear Damage. UIC Nuclear Issues Briefing Paper #70. Available online at http://www.uic.com.au/nip70.htm Last viewed 20/12/2006.

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situated in the territory of the other contracting State. The use of words non-contracting State in clause 4 of the same article clearly shows the intention of the signatory. 27 Thus, the convention may be applicable even if the incident occurs outside the territory of a Contracting Party, in particular if it occurs during the transport of nuclear material originating from, or sent to, a nuclear installation situated in the territory of a Contracting Party.28 The two conventions i.e. The 1963 Vienna Convention on Civil Liability for Nuclear Damage and Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency, 1986 are adopted by the International Atomic Energy Agency and are pari materia 29 in nuclear law. Thus, article 10 of Convention on Assistance must be construed in the light of article II (1) (2) of Vienna Convention.30 The kind of nuclear damage that would be compensated under the Paris Convention31 and Vienna Convention32 were confined to damage directly linked to that suffered by individuals or their property, as well as damage that cannot be reasonably separated from nuclear damage, which, in case of transport accidents, arises out of or results from the radioactive properties (or a combination of radioactive properties with toxic, explosive or other hazardous properties) of nuclear fuel or radioactive products or waste coming from, originating in, or sent to a nuclear installation33. In the present situation, the former residents of Robelynch were required to leave their homes and abandon their possessions due to nuclear incident.
27

According to Lord Davey: Every clause of a statute should be construed with reference to the context and other clauses of the act, so as, as far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject-matter.(Canada Sugar Refining Co v R [1898] AC 735, p 742), according to Lord Green: to ascertain the meaning of a clause in the statute the court must look at the whole statute, at what precedes and at what succeeds and not merely at the clause itself.(Re BIdie{deceased}[1948] 2 ALL ER 995 , p 998{CA}) 28 IAEA INTERNATIONAL LAW SERIES NO.3, p 15 (The 1997 Vienna Convention On Civil Liability For Nuclear Damage And The 1997 Convention On Supplementary Compensation For Nuclear Damage: Explanatory Text Vienna : International Atomic Energy Agency, 2007) 29 Statutes are in pari materia which relate to the same person or thing, or to the same class of persons or things. The words per must not confused with the word simlis. It is used in opposition to it-- intimating not likeness merely but identity. It is a phrased applicable to public statute or general laws made at different times and in relation to same subject [United States V Eagle Bank, (1829) 7 Connecticut 457, P 470]. 30 As stated by Lord Mansfield : where there are different statutes in pari materia though at different times, or even expired, and not reffering to each other, they shall be taken and construed together, as one system and explanatory of each other. [ r v loxdale, (1758) 97 ER 394, p, 395] 31 Article 3 Vienna Convention 32 Article I(1)(k)(i) Vienna Convention 33 Article 1(a)(v) Paris Convention and Article I(1)(h) Vienna Convention

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Moreover, both the 2004 Paris Convention and 1997 Vienna Convention extended the narrow definition of nuclear damage to explicitly also include: A. costs of measures of reinstatement of impaired environment if actually taken or to be taken34 B. certain loss of income resulting from an (a direct) economic interest in any use or enjoyment of the environment resulting from a significant impairment of the environment35 C. costs of preventive measures and further loss or damage caused by such measures36, The compensation fund programme organised by the Amuko to cover all the medical expenses and a lifetime medical monitoring programme is a preventive measure37 for further loss. III. REPUBLIC OF RENTIERS IS LIABLE FOR THE DEATH OF DRIVER AND SECURITY GUARD, AME EMPLOYEES IN THE ACCIDENT WHO WERE KILLED DUE TO TRAUMA ASSOCIATED WITH THE ACCIDENT A person suffering damage due to a transport accident may have two rights of action, i.e. one against the operator under the Vienna Convention or Paris Convention in case of transportation of nuclear material and one against the carrier liable under such existing agreement38. Under the principle of Exclusive Liability39, the operator of a nuclear installation is exclusively liable for damage to third parties resulting from a nuclear incident at its installation or during the course of transport of nuclear substances to or from that
34 35

Artcle 1(a) (vii) (4) 2004 Paris Convention and Article 1(1)(k)(iv) 1997 Vienna Convention Ibid, Article 1(a) (vii) (5) and Article 1(1)(k)(v) 36 Ibid, Article 1(a) (vii) (6) and Article 1(1)(k)(vi) 37 Ibid, Article 1(a) (ix) and Article 1(1)(n) 38 Nathalie L.J.T. Horbach, Nuclear liability for international transport accidents under the modernised nuclear liability conventions: an assessment, Int. J. Nuclear Law, Vol. 1, No. 2, 2006 39 Article II (5) Vienna Convention; 5 except as otherwise provided in this Convention, no person other than the operator shall be liable for nuclear damage. This, however, shall not affect the application of any international convention in the field of transport in force or open for signature, ratification or accession at the date on which this Convention is opened for signature and Article 6(b) Paris Convention; Except as otherwise provided in this Article, no other person shall be liable for damage caused by a nuclear incident, but this provision shall not affect the application of any international agreement in the field of transport in force or open for signature, ratification or accession at the date of this Convention.

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installation.40 The operator is legally liable regardless of whose acts or omissions were the actual cause of the accident.41 Article IV. (2) provides that, if the operator proves that the damage resulted wholly or partly form the gross negligence of the person suffering such damage, or from an act or omission of such person done with intend to cause damage, the competent caurt may relieve him wholly or partly from his obligation to pay compensation for the damage suffered by that person.42

3.1. AME employees have claim against Rentier as third party A third party is anyone other than the nuclear operator itself and other than a supplier of goods, services or technology for use in connection with a nuclear installation 43. A third party may be inside or outside of the nuclear installation and as such the term includes employees of the operator of the nuclear installation at which an accident occurs 44. Third parties are anyone that is not the plant operator or associated suppliers of goods, services or technologies.45 In most countries, employees of the nuclear operator will also have a right to claim compensation under a system of public health insurance, social security, workers or occupational disease compensation.46 It is submitted, therefore, that AME employees have claim against Rentier as third party. IV. DEFAULT OF RENTIERS ON ITS SOVEREIGN BOND IS VIOLATION OF THE BASIC PRINCIPLE OF INTERNATIONAL LAW It is submitted on behalf of applicant that the default or restructuring of sovereign bonds by the republic of rentiers is a violation of a basic principle of international law, viz. pacta sunt

40

Douglas Helman, Nuclear Damage and Liability; An introduction to the Vienna and Paris Conventions, their Amending Protocols and Supplementary Conventions 41 Julia A. Schwartz, International Nuclear Third Party Liability Law: The Response to Chernobyl 42 IAEA INTERNATIONAL LAW SERIES NO.3, The 1997 Vienna Convention On Civil Liability For Nuclear Damage And The 1997 Convention On Supplementary Compensation For Nuclear Damage: Explanatory Text; International Atomic Energy Agency, Vienna (2007) 43 Supra- 36 44 Ibid 45 Douglas Helman, Nuclear Damage and Liability; An introduction to the Vienna and Paris Conventions, their Amending Protocols and Supplementary Conventions 46 Supra-36

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servanda. The fundamental principle of treaty law is undoubtedly the proposition that treaties are binding upon the parties to them and must be performed in good faiths. 4.1. In Arguendo, unilateral restructuring of Sovereign bond was in violation of pacta sunt servanda By virtue of principle of pacta sunt servanda , i.e., agreements are to be honoured; state party is incompetent to alter unilaterally the terms of a relevant international agreement, because the contract itself by its very nature becomes 'internationalised' and thus subject to international law.47 In the instant case, unilateral restructuring of sovereign debt is the violation of the basic principle of international law as well as Article 26 of the Vienna Convention on the Law of Treaties, 1969.48 4.2. In Arguendo, unilateral debt restructuring by Rentiers was not performed in good faith It is submitted that unilateral debt restructuring by Rentiers was not performed in good faith. Perhaps the most important general principle, underpinning many international legal rules49, is that of good faith, which is of overriding importance. 50 The International Court declared in the Nuclear Tests cases 51 that One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. Trust and confidence are inherent in international co-operation, in particular in an age when this cooperation in many fields is becoming increasingly essential.

47 48

Shaw, Malcolm International Law, Cambridge Uni. Press 5th edi. , p 739 The rule of pacta sunt servanda was reaffirmed in Article 26 of the Vienna Convention on the Law of Treaties, 1969 which states that . 49 This principle is enshrined in the United Nations Charter, which provides in article 2(2) that 'all Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter', and the elaboration of this provision in the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States adopted by the General Assembly in resolution 2625 (XXV), 1970, referred to the obligations upon states to fulfil in good faith their obligations resulting from international law generally, including treaties. 50 Lauterpatch, Oppenheim International Law, p 38 51 New Zealand v. France (Nuclear Tests Case) ICJ Reports, 1974, p p 253,267; 57 ILR, pp. 398,412.

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Whether the performance of an act by a State is in good faith or not, it can be determined by the interpretation of the act performed. 52 In the instant case, when a diplomatic note was forwarded by the State of Amuko, on 8 December 2010, to the Republic of Rentiers requesting negotiation for debt restructuring; then in response the Republic of Rentiers has denied any responsibility and expressed the intention of invoking force majeure.53 Whereas; negotiation is an essential pre-requisite for sovereign debt restructuring.54 The omission of renegotiation clearly indicates that unilateral debt restructuring by Rentiers was not performed in good faith. V. FAILURE TO PAY A SOVEREIGN BOND ENGAGE THE STATES INTERNATIONAL RESPONSIBILITY In the diplomatic note forwarded by the Rentiers ambassador, Yuri Nium, to the Government of the federal States of Amuko it was stated with reference to Michael Waibel, Opening Pandoras Box: Sovereign Bonds in International Arbitration,55 that there is ample authority that failure to pay a sovereign bond does not engage the states international responsibility, even if it constitutes a default under the bond. But, here it is notable that in the same piece of literature, Michael Waibel has pointed out four specific treatment standards, departure from which may engage the states international responsibility, namely; MFN treatment, national treatment, expropriation, and fair and equitable treatment. 56 It was observed by him that unilateral measures specifically exercised by public authority could give rise to expropriation.57 Additionally, forceful restructuring and repudiation of sovereign bonds would amount to expropriation.58 5.1.In Arguendo, the restructuring of the sovereign bonds is an expropriation in violation of the RABBIT

52 53

Ibid See Special Agreement Annexure A para 32-33 54 Michael Waibel, Opening Pandoras Box: Sovereign Bonds in International Arbitration, 101 Am. J. Intl L. 711, 746 (2007) p 735 55 Ibid 56 Ibid p. 738 57 Ibid p. 745 58 Ibid p. 747

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It is submitted that unilateral restructuring of sovereign debt by Rentiers amounts to expropriation against the investment by companies of Amuko. The Rentiers Parliament enacted a debt restructuring law, called the Fresh Start Act. The Fresh Start Act specifically provided that Rentiers sovereign bonds were to be restructured such that investors would receive 10% of what they would otherwise be entitled to. 5.1.1. Purchase of sovereign bond by Amukos investors is an investment It is submitted on behalf of Applicant that the purchase by investment companies of Amuko, of approximately 3 billion tenge of worth of sovereign bond issued by Rentiers, is an investment, as defined in Article 1 of the RABBIT.59 Sovereign debts fall under the category of title or claim to money or to any contract having a financial value. Even if it will not fall under the said category, still then it would constitute investment, because Article 1 of RABBIT provides an inclusive definition of investment by using the phrase including though not exclusively. It would be a wrong approach to try to place a given investment under one or the other subclause in Article 1(1) of RABBIT and if it does not fall under any of the sub-clause, to say that it does not constitute investment. Even if an investment does not fall within the ambit of any of the sub-clause in Article 1(1) of RABBIT, it may still be investment if it partakes of the nature of the investment. The idea behind providing inclusive definition in Article 1(1) of RABBIT is not to limit its meaning but to widen its net.60 The relationship of investment with a commercial undertaking, interlinks expropriation with investment. Schreuer highlighted that the law of expropriation proceeds not from a traditional concept of tangible property but from a broad concept of economic rights that are necessary for the investor to pursue its business successfully.61 Expropriation covers tangible
59

Article 1 of the RABBIT : For the purposes of this Agreement: The term investments means all kinds of assets that have been invested in accordance with the laws of the Contracting Party receiving them including though not exclusively any: (a) movable and immovable property and other property rights such as mortgage, usufruct, lien, or pledge; (b) title or claim to money or to any contract having a financial value. See, Special Agreement, Annexure- A, Para- 13 60 See C.I.T. v. G.R. Karthikeyan 1993 Supp (3) SCC 222, where B.P. JEEVAN REDDY, J. observed this approach of interpretation of an inclusive definition. In this case the approach was applied for the interpretation of definition of Income. 61 Schreuer, Christoph. The Concept of Expropriation Under the ETC and Other Investment Protection Treaties, in INVESTMENT ARBITRATION AND THE ENERGY CHARTER TREATY 108, 139 (Clarisse Ribeiro ed., 2006) p 24

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and intangible rights. Moreover, [d]ebts are property rights; as property rights they are protected by the general rule of maintenance recognized in international law; . . . this rule is not restricted to tangible property. 62 In the light of scholars view and the provisions of RABBIT, it is submitted that purchase of sovereign bond constitutes investment which was expropriated by Rentiers. 5.1.2. Test of Substantial Deprivation is satisfied Sovereign debt restructuring or default could be interpreted as constituting a direct or indirect expropriation.63 Expropriation is commonly defined and seen in IIAs as wealth deprivation where substantial deprivation occurs that could be direct where an investment is taken in the form of a title or physical seizure, or indirect whereby the title or physical nature of the investment is not changed, but its value may be diminished.64 Both defaults and restructuring obviously diminish the value of an asset, and under a take-it-or-leave-it swap arrangement a bondholder has the choice to either lose a bond altogether or to accept a new bond with a haircut. Tribunals perform a substantial deprivation test to examine the level of diminished value in a restructuring, and would thus in this case be examining the size of the haircut in a bond exchange.65 It was held that among the claims levied by Italian bondholders under the Italy-Argentina BIT is the alleged expropriation of their investments through restructuring. 66 It is, therefore, submitted on behalf of applicant that sovereign bonds were restructured such that the investors could receive only 10% of what they would otherwise be entitled to. Such a huge haircut in bond exchange would definitely constitute expropriation.67 5.1.3. In Arguendo, unilateral restructuring measure is tantamount to expropriation.

62

Ernst H. Feilchenfeld, Rights and Remedies of Holders of Foreign Bonds, in BONDS AND BONDHOLDERS, RIGHTS AND REMEDIES (Silvester E. Quindry ed., 1934) pp. 130, 203 63 Supra note 54. P 742 64 OECD (2004), Indirect Expropriation and the Right to Regulate in International Investment Law, Paris: OECD. 65 Newcombe, A. and L. Pradell (2009), Law and Practice of Investment Treaties Standards of Treatment, The Hague, Kluwer Law International. 66 Gallagher, Kevin, The New Vulture Culture: Sovereign debt restructuring and trade and investment treaties. (2011) IDEAs Working Paper no. 02/2011, IDEAs, New Delhi. P 19 67 As per changes made by Fresh Start Act, 2010. See, Special Agreement.

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It is submitted that unilateral restructuring measure gives rise to expropriation. In Consortium R.F.C.C. v. Morocco, it was held that only unilateral measures taken specifically as an exercise of public authority could give rise to expropriation. A host state acting as a contractual party does not interfere with the normal exercise of the investors rights, but rather fails to perform the contract.68 Amuko, therefore, submits that interference with the rights of bond holder is a direct failure to perform Rentiers contractual obligation. Lack of performance does not amount to a treaty breach unless it is proven that the state has gone beyond its role as a mere party to the contract and has exercised the specific functions of a sovereign authority.69 It is submitted that enactment of fresh start act is the conclusive proof of the exercise of sovereign authority by the Rentiers and, therefore, restructuring was expropriation. 5.2.In Arguendo, restructuring of sovereign bonds has violated the treaty obligation of fair and equitable treatment The principle of fair and equitable treatment is often interpreted as inter alia protecting investors legitimate expectations, guaranteeing freedom from harassment and coercion, and incorporating fundamental principles of due process.70 It is argued on behalf of Amuko that debt restructuring is undermining the States contractual promises and the associated legal framework, thereby destroys investors legitimate expectations.71 It is also argued that process of restructuring lacks transparency and that it is coercive. Rentiers intention for invocation of force majeure is coercive in nature.72 The take-it-orleave-it nature of exchanges is the violation of due process and is not in good faith, because there was no genuine restructuring negotiations. 73 Additionally, forceful or coercive
68

Consortium R.F.C.C. v. Kingdom of Morocco, ICSID Case No. ARB/00/6, Award, para. 65 (Dec. 22, 2003). (quoted approvingly in Waibel, Michael; Opening Pandoras Box: Sovereign Bonds in International Arbitration, 101 Am. J. Intl L. (2007). P 748) 69 Impregilo S.p.A. v. Islamic Republic of Pakistan, ICSID Case No. ARB/03/3, Jurisdiction, para. 261 (Apr. 22, 2005)., para. 276. 70 UNCTAD, Fair and Equitable Treatment: A Sequel , New York and Geneva, <www.unctad.org/iia.> last visited on 24thAugust 2011 71 Supra note 66, P 19 72 Ibid p. 19 73 UNCTAD, Sovereign Debt Restructuring And International Investment Agreements IIA ISSUES NOTE, No. 2, July 2011, p. 5

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restructuring measures constitute expropriation. 74 Again, Repudiation of sovereign bonds would amount to expropriation, as it aims at extinguishing bondholders claims permanently.75 In this vein, Lauder v. Czech Republic affirmed that effective neutralization of the enjoyment of property amounts to indirect expropriation.76

A leading ICSID case on the predictability of the investment framework in economic crises is CMS v. Argentina, in which the tribunal upheld CMSs claim for violation of the fair and equitable standard. The tribunal noted: There can be no doubt . . . that a stable legal and business environment is an essential element of fair and equitable treatment. 77 It is submitted, therefore, on behalf of Amuko that the respondent has in fact entirely transformed and altered the legal and business environment under which the investment was decided and made. Thus, it is submitted that Rentiers has not provided fair and equitable treatment to the Amukos investors. VI. THE DEFENSE OF THERE EXISTING A STATE OF NECESSITY DOES NOT APPLY IN THE PRESENT CASE Article 25 of ILC provides that necessity may not be invoked unless the act was the only means for the state to safeguard an essential interest against a grave and imminent peril and the act does not seriously impair an essential interest of the other state or states or of the international community as a whole. Further, necessity may not be invoked if the international obligation in question excludes the possibility or the state has itself contributed to the situation of necessity.78 6.1.Nuclear damage of Level 4 on the IAEA Nuclear Event Scale cannot be considered as a grave and imminent peril
74 75

Supra note 54, P 747 Certain Norwegian Loans (Fr. v. Nor.), 1957 ICJ REP. 9 ( July 6). In dissent, id. at 90, Judge Read cited the French position that sovereign bonds issued abroad cannot be repudiated without giving rise to a breach of international law. 76 Lauder v. Czech Republic, Final Award, para. 200 (UNCITRAL Arb. Trib. Sept. 3, 2001). See Metalclad Corp. v. United Mexican States, ICSID Case No. ARB(AF)/97/1, Award, para. 103 (Aug. 30, 2000), where the tribunal held that indirect expropriation takes place if the effect of depriving the owner, in whole or in significant part, of the use or reasonably-to-be-expected economic benefits of property even if not necessarily to the obvious benefit of the host State. 77 CMS Gas Transmission Co. v. Argentine Republic, Award, ICSID Case No. ARB/01/08, Award (May 12, 2005), 44 ILM 1205 (2005) paras. 27475 78 See ILC Commentary 2001, p. 194

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In this case it cannot be said that there is existence of a grave and imminent peril. The damage suffered in the Nihon was due to earth quake and not due to nuclear damage. Damage suffer to nuclear reactor was classified as Level 4 on the IAEA Nuclear Event Scale,
(accident with local consequences). The minimum damage suffered with an earthquake measuring 9.2 on the Richter scale clearly point out non-existence of grave and imminent peril which is essential for taking of precautionary measure or plea of necessity. The International Court in the

Gabtikovo-Nagymaros Project case considered that it was a ground recognised in customary international law for precluding the wrongfulness of an act not in conformity with an international obligation, although it could only be accepted on an exceptional basis.79 In this case, ICJ has affirmed that the doctrine of necessity is not a general rule of international law stated that the conditions given in Article 25 must be cumulatively satisfied. Thus, it is submitted on behalf of applicant that plea of necessity is not available to Rentiers. Moreover, as noted by the International Law Commission the plea of necessity is excluded if there are other (otherwise lawful) means available, even if they may be more costly or less convenient.80 Rentiers, therefore, may have additional safety measures for running nuclear power plants. 6.2.Artificial extra-ordinary circumstances waived the plea of force majeure Debt default and restructuring cannot be excused as on the basis of principle of force majeure or doctrine of necessity, as Rentiers knew of the existence of the Diablo Canyon Fault and permitted the nuclear power plants to be built nevertheless. Moreover, sovereign debt restructuring cannot be said as prudent action by Rentiers, because according to economic theory of debt restructuring, cost of default had turned the situation from bad to worst.81 6.3.In Arguendo, the state of necessity under domestic law would not offer an excuse to preclude State from fulfilling its contractual obligations

79 80

Gabtikovo-Nagymaros Project case, ICJ Reports, 1997, pp. 7, 40; 116 ILR, p. 1. Crawford , James; The International Law Commissions Articles on State Responsibility: Introduction, Text and Commentaries (2002) p. 184. See ICJs Opinion in, Legal Consequences of the Construction of a Wall in the Occupied Palestinian territory 43 I.L.M. 1009 (2004). 81 Kaletsky, Anatole. The costs of default. (1985 ) Priority Press; New York

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In CMS Gas Transmission Company v. The Argentine Republic82, the facts of which are very similar to the instant case, a national emergency was declared in Argentina due to an internal crisis. However the tribunal maintained that the state of necessity under domestic law would not offer an excuse to preclude the Argentine Republic from fulfilling its contractual obligations. It was also observed that even if elements of necessity are partially present here and there, but as a whole do not meet the cumulative Test the inevitable conclusion would be that the requirements of necessity under customary international law have not been fully met so as to preclude the wrongfulness of the acts of the State, as is the case with Rentiers in the instant case.

82

CMS Gas Transmission Company v. The Argentine Republic, 44 I.L.M. 1205 (2005).

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CONCLUSION/PRAYER

Therefore in light of the facts of the case, arguments advanced and authorities cited, the Applicant respectfully requests that this Honble Court:

1. Delare that the Rentiers is liable for the nuclear accident which occurred in the territory of Amuko. 2. Declare that default of Rentiers on its sovereign bond is violation of pacta sunt servanda. 3. Declare that unilateral debt restructuring on its sovereign bond amounts to expropriation. 4. To pass an order of full reimbursement for the compensation programme stated by the Amuko government. 5. To pass an order, a just compensation should be granted for sovereign bond default and debt restructuring.

All of which is respectfully submitted Agents for the Applicant.

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