AD HOC ARBITRATION UNDER THE 1976 UNCITRAL ARBITRATION RULES PCA CASE 2016-20 DAWOOD RAWAT THE REPUBLIC OF MAURITIUS AWARD ON JURISDICTION Professor Lucy Reed (Presiding Arbitrator) Mr Jean-Christophe Honlet Professor Vaughan Lowe QC ClaimantDawe Rawat» Th Republi of Mais (UNCITRALY ‘warden Jaron 1, INTRODUCTION Hl, PROCEDURAL HISTORY, TILFACTUAL BACKGROUND... A. Rawat’s Personal History B, BAICM and Bramer Bank History C. Developments Post-Novermber 2014 IV.KEY TREATY PROVISIONS. \V. THE PARTIES’ POSITIONS A. Jusdiction Ratione Volunanis ‘The Respondent's Postion, fi, The Claimant's Position BB, Jurisdiction Ratione Personae {The Respondent's Position. li, The Claimants Postion C. The Relief Requested VI. THE TRIBUNAL’S ANALYSIS AND DECISION A. The Sequence for Addressing the Jurisdictional Objections B. Analysis of Consent i. Step I: Does the France: Mauritius BIT Apply?. ii. Step 2: Does the MEN Clause in Antile 8 of the BUT Apply? ©. Costs, \VILAWARD.Davos Ras The Republic ef Mawr UNCETRAL Award Juridetin 1 INTRODUCTION 1, The Claimant, Mr Dawood Ajum Rawat (Rawa), is pursuing this arbitration against the Respondent, the Republic of Mauritius (Mauritius), to clam for alleged breaches Of the Investment Promotion Treaty entered into on 22 March 1973 between the Republic of France and Maustius (France-Mauritiws BIT).* Rawat brings this arbitration under the 1976 UNCITRAL Arbitration Rules through the Most Favored Nation (MIN) clause in the France-Manritias BIT and the arbitration clause in the 2007 Agreement between the Government of the Republic of Finland and the Government of the Republic of Mauritius on the Promotion and Protection of Investments (Finland Mauritius BIT) 2. Inbief, Rawat alleges that Mauritius violated the Prance-Mauritius BIT by freezing. ‘and misappropriating his protected investment inthe group of companies known as British American Investment Co, (Maurties) (BAC), which includes the Bramer Banking Corporation Ltd (Bramer Bank). He secks compensation for these alleged treaty breaches in an amount exceeding USS | billion. Mauritius does not dispute ‘hat certain ofthe actions alleged by Rawat have occurred, but denies any violation ofits obligations under the France-Maurtius BIT. According to Mauritius, the freeze ‘of Rawat’s personal and business assets and related actions ae part of an ongoing, and legal, investigation of alleged Ponzilike schemes orchestrated by him and/or his family members, involving money laundering and fraud at the level of MUR 1 bilion. [Mauritius has raised preliminary objections based on the alleged lack of jurisdiction ‘ratione voluntatis and ratione personae, and requests the Tribunal to dismiss Ravat's claims, In response, Rawat requests the Tbunal to dismiss the jurisdictional ‘objections and proceed ta decide the merits of his claims. 4. Porthe reasons set out below, the Tribunal determines tha it lacks jurisdiction rations ‘Personae to hear the claims made. I. PROCEDURAL HISTORY 5. On 8 June 2015, the Claimant sent a Notice of Dispute to the Respondent, through his tegal representatives Dr Andrea Pinna and Professor Xavier Boucobza. By letter " Comenton ene le Gouvernement de fa République onale et le Gowernemen dele Mowe sa rotection des imsasvment, suis 3 Poreovis 22 mars 1973 (France Mauris BID) Ex C1), To ‘Sten anguage ofthe France artis BIT Freeh * Agreement batnec the Government of the Republic of Finland and the Government of the Republic o Matis on he Procotion wed Proton of vexed 12 Setersbec 2007 (Exh C2}.woos Rowoy The Rec of Mots (UNCYTRAL} ‘xwardon Jerson dated 11 September 2015, through its appointed legal representatives Lalive SA, ‘Mauritius informed Rawat that it found no basis in the France- Mauritius BIT for his claims. (On 9 November 2015, Rawat sent and Maurits received the Notice of Arbitration and Siatement of Claim. Pursuant to Article 3(2) of the UNCITRAL Rules, and as confirmed in paragraph 2.6 of the Tribunals Terns of Appointinent executed on 2Sepiember 2016, these proceedings are deemed to have commenced on 9 November 2015; Inthe Notice of Arbitration, Rawat notified Mauritius ohis appointment of Mr Jean= ‘Christophe Honlet as the fest arbitrator. By letter dated 9 December 2015, Mauritius notified Rawat ofits appointment of Professor Vaughan Lowe QC as the second arbitrator. By Rawat’s letter dated 6 May 2016 and Mauritius’ leter dated 15 May 2016, the Parties appointed Professor Lucy Reed as Presiding Arbitrator In paragraph 4(4) ofthe Tenms of Appointment, the Parties confirmed that che members ‘of the Tribunal have been validly appointed in accordance with the France-Maurtius BIT, the Finland-Mauritius BIT and the UNCITRAL Arbitration Rules. By email dated 31 May 2016, counsel for Mauritius sent tothe Tribunal drafts ofthe ‘Terms of Appointment snd Procedural Order No. 1, prepared jointly by the Parties, ‘The drafts highlighted remaining differences between the Parties, notably the place ‘of arbitration the language of arbitration, and the responsibility to pay the advance (on costs forthe arbitration By email also dated 31 May 2016, Rawat indicated his intention to request that, ‘Mauritius bear the entire advance on costs. In tum, by letter dated 31 May 2016, “Mauritius indicated it intention to seek termination of the case should Rawat refuse to contribute his equal share of the advance on cost, as envisioned in Article 41(1) ‘of the UNCITRAL Rules ‘After a further exchange of eorespondence, the Tribunal conducted a conference call ‘with counsel for the Parties on 9 June 2016 to address procedures for the opening phase of the arbitration. In Procedural Order No. I issued on 15 June 2016, the ‘Tribunal ordered the Parties jointly to request the Permanent Court of Arbitration (PCA), oF such other institution as they might agree, to administer tis arbitration, ‘and to deposit the inital advance on cass af € 100,000 in equal shares with the PCA cor substitute institution by 13 July 2016. By email dated 17 June 2016, in response to inquiries from the Parties, the Tibunal clarified that the role for the PCA or other administering institution was most eeuraoad Rawat Tie Repub ef Mauris (UNCITRAL) Award on Surin importantly to collet and manage the deposits toward the advance on cost, as the ‘Tribunal members were notin a position to open and manage an escrow account 12, The Parties proceeded to arrange depository services with the PCA, By email dated 14 July 2016, the PCA acknowledged receipt of Mauritius’ and Rawat's inital deposits oF € 50,000 each on 30 June and 12 July 2016, respectively. 13. The Tbuned issued Procedural Order No, 2 on 12 August 2016. This Order established Brussels as the place of arbitration and English as the language of arbitration, and annexed the procedural calendar for the Initial Phase of the arbitration, ‘The Initial Phase was described to include Rawat’s anticipated “request for interim measures to shift responsibility forthe fll advances on costs to Maurits” ‘and Mauritius’ anticipated “application for security for costs tn relation” to Raswat's incerim measures request. 14. On August 2016, Rawat submitted his Request for Interim Measures. He asked the Tribunal to order Mauritius to fund the entire advance on costs, either directly or by unfreezing certain of his bank accounts and real property andlor releasing certain ocuments to potential third-party funders; to enjoin Mauritius ffom continuing alleged retaliation measures against his family; and 10 enjoin Mauritius from taking action aggravating the dispute, such as media eampaigns and retaliatory measures. ‘The Request included 10 witness declarations, including the Witness Statement of Rawat dated 29 July 2016, 65 documentary exhibits, and six legal authorities, On 5 and 7 September 2016, Rawat submitted six additional documentary exhibits 15, On September 2016, Mauritius submitted its Application for Security for Costs in the amount of €3 million, The Application ineluded four documentary exhibits and 20 legal authorities. 16, On 26 September 2016, Mauritius submitted its Answer to Rawat's Request for Interim Meascres, with 22 legel authorities. On the same date, Rawat submitted his ‘Answer to Mauritius’ Application for Security for Costs, with five documentary exhibits and one legal authority 17. On 10 October 2016, Mauritius submitted its Reply to Claimant's Answer to the Application for Security for Costs, with three witness statements, three additional documentary exhibits, end four additional legal authorities. On the same date, Rawat submitted his Reply to Respondent’ Answer to the Request for Interim Measures, with thee additional documentary exhibits and one additional legal authorityDemon Raw Th Republic of Moar (UNCITRAL) Award on sursition 18 a By letter dated 14 October 2016, Rawat asked the Tribunal to direet Mauritius to indicate whether two of his properties, described as his “former residence in ‘Mouritius and the villa at La Preneuse” were subject to freezing orders in Mauritius ‘On 16 October 2016, with leave ofthe Tribunel, Mauritius submitted six new exhibits related to Mauritian court proceedings involving, among others, one of Rawat’s Trrscrp of 16 Jnury 2018 wih conoid erections (Transrip),p 191 ins 2428, Dr Par: p ngs 2.3, Dr Vekanen, “ Rospenden’s Memon Surin, pra 68; py of Ravats Mauritian NaoalIenity Car dated 17 ‘November 1989 (Ev 823), Claman’s Comer Memaral on lrsiton, para * Conied rat ofa Bir Ey of Dawood Aju Rawat ded 73 August 1944 (Ex R29, “Oia ofthe Commsioner of Poe of Pot Lous, Mata, Atestatoncetijingcivng licence ded 2 ‘une 2017 (Exh R36) Maran Registre of Compass, Ls of eompani in which Rawat eva ated 6 ne 2017 (ch Ret; leer rom he Electoral Commissioner tthe Solicoe Genea dts 28 June 2017 GxnR32) * Cetiied Exact of @ Mariage Fry between Dawood Aj Rawat and Ayesha Hass Mota dated It Seplenber 1969 (Enh RN) cevtiid Exact of ith Entry of Krina Dawood Rew dated 23 Sly 1971 °Dao Raval» Ta Republi of Masia (UNCITRAL) ‘Award an Jurieton 47, Imation w being a prominent business, Rawat has been a pilanthnopist and political advisor in Mauritius. He served as the President of the Mauritian Employers’ Federation and a meraber of the Commission of the Prerogative of Merey, advising ‘the President of Mauritius in relation tothe President's extraordinary right to grant pardon, respite, remit or substitute punishments to persons convicted of offences Rawat also made a donation to a focal college i Mauritius in 2009, naming, the college afte his grandfather? 48, On 22 December 1998, Rawat submitted a Declaration of French Nationality under Aricle 21-2 of the French Civil Cods,"® which was registered by the French authorities on 4 October 1999, Acconding to Rawat, as the French authorities did not ‘oppose his Declaration within one year from the date of registration, he acquired French citizenship as of 22 December 1998 by operation of Article 21-4 ofthe French Civil Code." 49, Rawat holds a French identity card issued on 17 June 2011, and a French passport issued on 13 February 2015, ° 50, On IT July 2014, Rawat wes made 2 knight of the French Légion d'Homeur in recognition of his “distinguished contribution to the econamie and social life of Mauritius, as the president ofan important group of companies and as 2 French and Mauritian citizen". The French embassy in Mauritius thanked Rawat for the contribution of his company to the organization of the French national day of 14 July Jn Mauritius and for his contibution to the training center ofthe Institut Fangais de Maurice. (Gh R37) cred Exact of a Beh Entry of Adela Dawood Rawat aed 16 Dessmber 1977 (Exh 38); ‘ceruied Eat o th iyo Loa Dewood Rast ced 6 March 196 (x RY), * Respoedoa's Memo on Jason para 9; exqessin, "Lome dere empire: Bia Dawood ie sea mar Sted ? Api 2018 (Exh R$0}; express, "fate Bl: gl est Daycod Raa dated § Apri 2015 (Ro) "Mins of ication & tuman sores, “History of GMD Atcia Sate Coleg” (Exh RA). Claimants Courier Merri lassen, p 5, and pee 2; Declaration de Nainalté fone de Moraisor Dawood Rawat (Exh C-3) * Chimants Coxe Memerial on Jaron, pura 2, 12; Aequstion del national fone @redson ch marie, French Civil Code in ce on 2 Domb 199%, Freeh Civil Coe, Fit Book, Te Ibis "The Frnek Natiomaliy", Atel 2-4 (Ee CLA-I8). " Copy f Rawat reach deta ised on 17 Je 2011 an vali uti 16 June 2021 (Ex 95); copy oF Rawa's French pasprt sued on 13 Feary 2018 and valid ual 12 Febuary 2028 (Exh C98), Ler roth French embassy in Metso Dawood Rava dred 2 July 2014 (ExhC-96,Deseo Raa» The Republic of Mawrtias {UNCITRAL) ‘Award ea Joradicton 54 55, 1B, BAICM and Bramer Bank History Inthe late 1980s, Rawat, as an employee of British American Insurance (Mauritius branch) (BAD, acquired » 20% share as part of his compensation package.'* He went fm in 1990 to acquire 2 70% shareholding in British American Insurance Company (BAIC), the then perent company of BAI." In 1992, he purchased a further 30% share of BAT through an Initial Public Offering, According to the Respondent, in addition tothe BAICM group, Rawat oved shares in and participated in numerous ‘other Mauritian businesses."® 1p 1993, Rawat settled 2 trast called Carmina Trust, of which he isthe beneficiary, and Klad Investment Corporation (lad), wholly owned by Rawat's Carmina Trust, ‘was incorporated in the Bahamas in 1994." 1h 2003, BAT was re-structured into BAICM, a new public holding company."™ ta 2006, BAIC sold its Kenye and Maka companies and BAICM became the parent company of BAIC.” BAICM acquired South East Asis Bank in 2008, which was renamed Bremer Banking Corporation Ltd. Bramer Bank provided retail, private, corporate and international banking services.”” The Bank of Mauritius issued a Denking license to Bramer Bank on 27 August 2008, and Bramer Bank commenced operations." Between 2008 and 2015, BAICM was composed of more than 50 companies ‘operating in the economic sectors of financial services, transportation, construction ‘and property development, tourism and leisure, healthcare, and information and ‘communication technology. 1m 2010, BAICM was delisted and held in a corporate chain. Carmina Trust wholly ‘owned Klad, Klad owned 85.15% of subsidiary Seaton Investment Ltd (Incorporated Notice f Arieation an State of Chim (Statement of Clan), par 10 " Susan of Ca, eta "= Respondent's Merit on Jutistion, es 85 133; Resta of Companies, tis of comics in wich awa evolved dad 6 Jane 2017 (ch Rol), "Steere of Claim, par ° stesent of Clan par 12. "© sietsent of Claim, par 3. Satorentof Chim, pars 36 » Sutesen of Cat, para. 36, ® Staten of Chim part 29,Pawo Ra Ta Republi of Mears UNCITRAL, Award on ert 56, 37 58 in Mauritius), and Seaton controlled the delisted and privately held BAICM.” ‘Thereafter, with epproval of the Bank of Mauritius, Bramer Bank acquired debt from and amalgamated with other related companies C, Developments Post-November 2014 According to Rawat, Mauritius took @ series of actions in violation ofits obligations under the France-Mauritius BIT to protect his USS | billion investments, starting from 15 December 2014 with the withdrawal by the State Insurance Company of ‘Mauritius of MUR 30 million fiom Beamer Bank and continuing through 2015. The alleged violations include: a campaign of premature encashment by Government of “Mauritius officials and Govemment-elated entities of funds from their Bramer Bunk accounts; revocation of Bramer Bank’s Banking License; appointment of receivers for Bramer Bank and ransfer of Bramer Bank assets toa company wholly-owned by Mauris for @ value far below their market value; appointment of conservators for BAICM afilistes; improper enactment ofthe Mauritius Insurance (Amendment) Act. 2015 with retroactive effect applying to BAL; appointment of special administrators for BAL and all BAICM companies; and disposal of assets of BAICM companies to the benefit of Mauritius or thi pares Jn May 2015, the Benk of Mauritius commissioned an investigation by Tan, an ‘accounting frm based in Singapore, into the activities of BAICM from 2007 through 2014, According tothe nTan interim report dated 27 January 2016, which is publicly available, BAICM liabilities exceeded assets by MUR 12 billion by the end of financial year 2013, which the group was able to hide by operating Ponzislike schemes. As characterized by Mauritius, the oTan Report sets cut evidence that BAICM channeled funds exceeding MUR I billion to Rawat andlor his family members. The Tan Report caveats that the investigation proceeded without informing all individuals and entities investigated, and such individuals end entities ere not provided the opportunity io oer comments or earrections and [this report shouldbe read subject his limitation” °* According to the submissions before the Tribunal, Rawat is facing a Warrant to ‘Apprehend in Mauritius for money laundering, conspiracy to defraud, and misuse of ® statement of Clin, pare 4; Siplifed Organogram fhe Group 31. March 2018 (EXC); 2010 Takeover by Seaton Investet Li ofthe MineityStarchotings in BAI (Exh C-9}. > Lene on Beamer Bank td 16 March 201,» 2(Euh 62), Repu o he examisato by Tan Coroeie Advisory Pl Lid, Conta appointed bythe Bank of Mauris, dated 27 Ienury 2016, gee 2, 1D end 158 16 and 1583) (nTam Report (Exh C28, aan Report, pi {Exh C4)Davo Rar Tae Republi of Mania (UNCTTRAL company assets. Rawat, who remains outside Mauritius in France, has not been convicted of any of these crimes. Acconding to Mauritius, as a matter of Mauritian criminal fae, Rawat faces provisional charyes until he can be physically presented before 2 judge. Receivers of Rawat's companies have also initiated civil suits in “Mauritius, in which Rawat and various family members are named defendants 59 Inconnection with the criminal investigation, the Martius Supreme Court issued an ‘Onder on 18 April 2015 listing immovable properties allegedly belonging to Rawat that “shall not be disposed of or otherwise dealt with, by any person, except upon a Sudge's Order” 2* 460, Rawat’s daughters Laing and Adeela Rawat and sons-inlaw Brian Bums and Claudio Feistritzer were questioned by Mauritius’ Central Criminal Investigation Department, and arrested and provisionally charged for money laundering, conspiracy to defraud, risuse of company property, and giving false statements. It is undisputed that all ‘were freed on bal. However, thoy were barred from leaving Mauritius by operation ‘of an Oijection to Departure issued by the Mauritius Passport and [mmigration Office, and had to surrender their passports to the Mauritius courts, As of 25 April 2017, according to Mauritius, the measures affecting Rawat’s daughters and theit husbands objected to by Rawat in the Initial Phase “have heen abandoned following ‘the closing ofthe investigations” ?” GL. On 2 December 2015, edminstrators initiated legal proceedings before Mauritius courts sginst Rawat though the adminisrator BDO & Co, claiming the sum of MUR 24 billion.®® On 29 December 2015, the appointed BAICM Special Administrator serve a Summons against Rawat and 18 others, claiming MUR 3.8 billion In July 2016, BAICM's assets, the Apollo Bramwell Hospital and Brita Kenya's shares were sold.” * Once shud by Her Ladyshin, Mis Gate Ingessur- Manoa, ude ofthe Supreme Cour of Mauss siting ‘i Chamrs dated 18 Apel! 2015, 92 (Es 2). » Respondent's Memerial on Jason, pS, fn & Maurine News, “BAT Case - Covet ste oe charge against he Ret sare” da 25 Apel 307 (Exh RM), 2" Chaman’s Aplin for lntesin Measures, pa 48; leer counsel or BDO & Co. dated 2 December 218 @HCD, » Chie agaist theives fr cerpeeston amusing to MUR 3. lon gperximately USD 97 il) (ewer), > Claimant's Application for Irn Messrs, pars 2%; Pam LLP, Cuca to the sharboiders of Beta Holdings Limtd onthe proposed aenustion of fur hundred and fy two malin, five hundred and fxr thousand (452,504,000 ordi shares by Pir LLP, 30 Jone 2016 (Exh C-18); Sith Nabonal Asembiy, Paraentary Deb, Hirst Sessa, 8 July 2016 (excep 7-72 (Exh C8. bDao Romar» The Rpt of Maar (UNCITRAL) ‘Award on ursetine a v. 63, 65, 66 ° Ciimane’ ft othe Trina td 25 Apt 2017 Around 6 10 9 April 2017, Mauritius appointed a Commitee of Inquiry to review the sale of BAICM assets." KEY TREATY PROVISIONS “The Tribunal sets out the relevant treaty provisions below and, in the next section, ‘summarizes the Parties’ eaty interpretation submissions. ‘The France-Mauritius BIT does not provide fora direot right of arbitration of a treaty Respondents Memeri on ursition, pre 13,eso Rasa The Repub of Meat (UNCYTRAL ‘wat on Juraiction 72, Its undisputed that there is no direct investorstate arbitration clause inthe France: Mauritius BIT; The Claimant acknowledges this in his Notice of Arbitration The France Mauritius BIT does not provide for a clause of setlement of [disputes] Between a contracting Party and av investor, unless an agreement ‘has been entered into in relation tothe investment 73. ‘The France-Mauritius BET does contain a clause—Anticle 9—providing. that Snvestment contracts between a national of one ofthe Contracting States andthe other Contracting State are 19 contain ICSID arbitration clauses: Article 9 is quoted in paragraph 65 above, 74. Mauritius acknowledges Rawat's position that Article 9 “ensure[s] thar dhe substantial rights established by the BIT will actually be enforced”, but only inasmuch as disputes arising under investment contracts are to be resolved through ICSID contractual arbitation. Anticle 9 “does not purport to say, and does not say “anhing about investor State arbitration wrder the Treaty” 75. Maus submits tha the Contracting Sates have the same understanding of the meaning of Article ®. Mauritius relies primarily onthe 2010 Feance-Mausitus BIT, which does provide fo dest investor sat arbitration under the ICSID Convention As evidenced by the impact asessient study prepared by the French National ‘Assembly, one reason forthe new treaty was to “mademise” he 1973 BIT, including to"garantraccis dune justice netre et indépendant via Varblvage imermatonal investisseu-Eua” (in fee wansation: “grant... acces to newral and independent Justice via invetor-State arbitration") This confirms, says Maurits, the view oF ‘the Contracting States that the 1973 Treaty “ad mot contin a dispute resoution clause providing for imvestor-Sate arbitration (emphasis in original)” 76. Without a direct investorstate arbitetion clause—at all—in the France-Mauritius BIT, Mauritius denies that Rawat can establish jurisdiction via the MFN clause. ‘Mauritius relies on what it argues is the “well-established prineiple of international law tha, to be able 1 rely on ax MEN clause in the basle treaty. a party must first ttemest of Clan, pare 68 > Respondents Memorial on Jurieticon, pra 16 » Respondent Memorial on Jerson, para 16 2 Respondent's Memorial oc Jurisstion par 1; Impact asses concerning he deat aw ethorsag he approval fhe agreement tween the Gvernment ofthe Hench Repu end he Gove othe Repullie ‘of Mauridus on te pomtion and eipacl protection fiavetnets, (Ex R15} > Respondent's Memorial on rsdn, pa 18Dawood Rar» The Repo Morita CUNCTTRAL) Award ot Sorction establish the mibunal jurisdiction ander that teaty"." citing the decision of the Intemational Court offstice (FCA) in he Anglo-Iranian Oil Company case. As found by the tribunal in Penesuela US, SRL, v Venezuela, where, as here, the issue is consent to direct investor-state arbitration" the MEN clause cannot serve the purpose of importing consent to arbitration when none essts under the (basic treaty) 77. Mauritius further contends that, absent clear language otherwise, MN clauses do not apply to dispute resolution and cannot be used to import dispute resolution clauses from othersreates. Here, says Mauritius, the MFN clause—Anicle 8 of the France- Mauritius BIT—is silent on dispute resolution and, indeed, the language used implicitly excludes dispute resolution. Interpreting Article 8 with the ordinary meaning rule in Article 31(1) of the Vienna Convention on the Law of Treaties (YGET) and the ejusdem generis re, the scope of the MFN treatment obligation is limited to “les matidres régies par la présente Convention" (“the matters governed by the present Convention”)? As direct invesior-state arbitration is not mentioned in ‘the France-Mauritius BIT, t cannot be a “mative” governed by the Treaty, and it niecessaily falls outside the MEN clause, 78, Further counsel for Mauritius argued atthe hearing that Acie 8 lis the benefit ofthe MEN clause to teatment of "nvestments, not “investors, even assuming that Claimant were a protected “ressotissant": “Pow les maior régies par fa présente Convention ., les investssements des ressorsians .binéfcion également de toutes les disposiions plus favorable que celles du présent Accord” (emphasis audded)** In any event, Mauris rejects Rawar’s argument that Anicle 9 of the Franee-Mauritus BIT makes dspate resolution a “maugre" governed by the treaty, triggering MEN rights. Counsel emphasized that Anicle 9 references 1CSID axbiation ony inthe context of Faure investment contracts. Ariel 90 he France- Mauritius BIT deals with “the procedure for conclusion of investment contracts", hile Article 9 of the Finland-Mauritus BFP iw ursdertonalclause.™* ““esponden’s Merial oo. Juin, pars 20-3; Anglo thaan 04 Co. Cave aed Kung ra, Preliminary objection fudge of 2 July 1952, (1982) UC, Rept 93, p 109 (sh LAS). © Respondent's Memeval ee Justo, pra 29; Fonecuea US SAL y The Boltriae Repl of Vena etc Award ition PCA Case 0 2013-3, 26 ly 2016, pr 105 (Exh RLA-66, 4 Respondet's Meal on Jiro, pera 37, citing Plama Consort Ld he Republic of Beara, Decision o risen, ICSID Case No, ARIO3/24, 8 February 2005, pra 212 (Ext RLA-33). * Respondents Memon ecto, paras 38-65 “Teasrpt 3% line 2 top 40, tne Dr Heskaen Teac A, ne 25 07 A, Fe, Dr Honeaod Raat The Republi of Maurie UNCETRAL) ‘Award oa eriction 79, Toillustate the diferense, Mauius explains thatthe elusdem generis rule could allow Rawat t impor a more favorable diectinvestorstate arbivation provision fiom another BIT, (the France-Maurtius BIT contained a direct invesorstate _xbitation clause ofthe same gms, meaning a similar (but less favorable) clause for dltectinvestorstate arbivation"® But there is no dispute resolution clause of that ‘ems nthe France-Maursos BIT, Maas relies on the finding ofthe tribunal in the Daimler v Argentina case that the state: “must have consented to the particular ‘ppe of dispute seemert in question before the claimant may rise any MEN claims ‘Before the designated forum” (emphasis in original) 80. Mauritius emphasizns that, except forthe Menzies v Senegal case, in every case dressing the question of whether an MEN clause ean be used to import more favorable arbitral provisions fom another teay, for example, a shorercooling-off period, the basi treaty contained a dice ovestorstate arbiatonclawse* Even in ‘Mensies v Senegal, where the claimants etempted to invoke consent to arbitration under the General Agreement on Trade in Services (GATS), which has no favestor- state dispute resolution clause, by way ofthe MPN clause ofthe GATS and a third- stat weay, the tsbunal declined jurisdiction because ofthe ack of “express, clear and wrequivocat” const oafitate of te host state” Maurus cites commentary ‘nsupport ofits position thatthe investor must establish he state's consent oabiate inthe basi wea and only then be allowed invoke an MPN clause onpon ore favorable provision fom thiedstate treaties Si, The Respondent asks the Tibunal to follow the same path inthe instant arbitration, ‘As counsel submitted in the hearing" The decision on whether international jurisdiction exlsts cannot be driven by ‘wr individual views as to whether extending the scope of international Jurisdiction is generally a goad thing as a matter of legal poliey ov othersise Whether or not international jurisdiction exists is exclusively a matter of law “© Respondeat's Mersvil on Jristicon, pra 48 © Daimler Fnac Services AG v Argentine Repu, Ava, ICSID Case No. ARB, 22 Avgst 2072, pare204 (Esk RLA-G), “ nespeodets Merial on Jrsdicson, para 48 ““Responden's Memorial on Justo, pare 54 Mens Middle East and fica SA, ad dvaion Hang Services Iernainal Luv Republic of Senge, Avast, ICID Case No, ARB SP, $ August 2011 pate 130 (tenes Senegal) (Eb RLACTS), ‘Respondents Modal on Jusieon pas 25267 Douglas “Tae MEN Cs it IevesteatAriraton “Teeat larpeationO he Ralls" (2011)(2)] Jounal of ltematonl Disp Setdeent 97,» 107 (ES RLA- 2) Teaasaip 98, les 1-9, Dr HeinenDeorood Rawat Th Repub of Mawr (UNCITRAL ‘Aard on Jursietion 82, 83, cand evidence, and what is required as a matter of international law i a strict ‘Proof of consent At the hearing, counsel also addressed the ‘ibunal’s fourth writen question cconceming the applicability of afr wil asa principle of teay interpretation. Citing the ILC's Draft Articles on the Law of Treaties, counsel described ef ule asa principle embodied in the general rule in VCLT Anicle 31 that a treaty isto be interpreted in good fait in accordance with the oxdinary meaning given wits tems in content and in light ofits object and purpose.* Investment treaty tribunals have cautioned that eft utile cannot be used 10 justify an illegitimate extension of meaning, As stated by the Cemex venezuela tual: [This principle does nor require that a macimum effect be given to atext. It ‘only excludes interpretations which would render the rext meaningless, when ‘@ meaningful interpretation is possible. ‘The effer ute principle, argued course), “cannot be applied to extend the scope of the treaty... contrary tothe letter and spirit of the teat”, nd inthis cas, “it corainly cannot be applied to gve effect tothe provisions ofthe France-Mauritus BIT soasto create jurisdiction over the Claimant claims, whether ratonevolunttie cor ratione personae... and) res creating jersdition out of thin ai” The Claimant's Postion In his Counter-Memorial on Jurisdiction, Rawat chose first to defend against Mauritius’ jurisdiction ratione personae objection, as he argues it goes to his very status asa protected investor under the France-Maurtius BIT and thus tothe sheer possibilty for him even to invoke the MEN clause. ‘As 10 the Respondent's jurisdiction ratione voluntais objection, Rawat's main positon is thatthe very broad language in the MEN clause, Article 8, of the Prance- Mauritius BIT—covering “les matidres régies par la présente convention autres que celles visdes & Varticle 7 (the matters governed by the present Convention other than those referred to in Aricle 7}—ellows investors to beneiit from all more favorable substantive and procedural treatment granted by ether France or Mauritius *Trasrip, p 72, line 18 to 13, line 25, Dr Heskanen; Draft Arles on the Law of Tete, wih ‘Commentaries, text adopt by te Inermational Law Cormsson a ts epee sein, Harb of te Ince Law Commission, 6, yl, 219 Exh RLAIOB), > ramscrip, p75 les 15-28, Dr Heikanen; CEMEX Caasas oettnents A and CEMEN Caracas i Inseenets 8» Paar Republic of Yomul, Desson on Irion (SID Case No, ARBVONS, 30 Deceniber 2010, pr 118 (CEMEN) (0M RLA-I2S), = Tranetip 7 tics 616, Dr Helston,Dawood Rama Th Repub of Masri (UNCITRAL) 86. 7, 88, to third-state investors jn other investment treaties. AS investorstate dispute resolution is covered in Article 9 of the France-Mauritius BIT, albeit for contractual investorstate arbitration, “investor-state dispute resolution” ** is. the relevant “mati” for purposes of the MEN clause. Therefore, Rawat asserts, Mauritius consented to direct arbtraion with French investors as soon as Mauritius entered into ‘an investment treaty with third state providing access to such direct arbitration, such a the 2007 Fialand-Mauritias BIT. Rawat's case is that Mauritius gave its consent to arbitrate the preseat dispute in two steps: first, in 1973, when it consented to the MFN clause, drafted in very broad tems, through which it undenook to grant French investors any more favorable treatment that it would grant investors of third states; and second, in 2007, when it offered erbitation in the Finland-Mourtius BIT, granting more favorable trestment to those third-party investors and thus setting the MFN clause into mation” ‘As a preliminary issue, Ravsat contends that itis necessary to interpret the specific language of an MEN clause on @ case-by-case basis, applying the rules of interpretation in the VCLT. In. suppor, Rawat cites commentary * and the International Law Commission's Final Report of the Study Group on the Most- Eavouned-Netion Clause (ILC Report: “the key question of efusdem generis—what is the scope ofthe treatment that can be clatmed-—has to be determined on acase-by- ‘case basis" The Tribunal should approach interpretation “neither restrictively nor ‘expansively bt rather objectively and in good faith” ® ‘Among his arguments, Rawat disagrees with Mauritius on the significance of the 2010 France-Mauritius BIT. Noting that the Contracting States intended the 2010 BIT to “mmadernize” the 1973 France-Maurtius BIT and to improve the “legal security” of foreign investors, he contends that these intentions were fulfilled by making express the procedural rights and substantive protections that investors ‘Teas, 132 Hews 15.28, De Pin © Claimant’ Counter Merial on Isc, pes 157 * Climan'sCauner Meri on icin, 37. * Claiman’s Counter Memorial on Jurisdiction, paras 162-164, 168; 2 Douglas, The Ieroatonal Law of Investment Citims (Canbidge University Press 2008), Rule 3, 34¢(ExhCLA). E Gall, "Esubliting estievon tro a Most avered-Naton Cle, New York Jour, 2 ame 200, Vlume 233. No tS {sh CLAS2}, SW Sebi, "Msslsing Incaent Trin Throvgh Mos Favore-Nation Clause, {204 72) Besley Houma of teratonl Law #96, p 49 Fah ALA) Claimant's Cour Memorial on Jrsition para 16; Final Report ofthe Sindy Group oo the Mos Fayre: Nation le, Adeptodty the Insrtionol Law Commision ts y-seventh sesso, 2015 ad submited to the Genera Assembly p26 par 7 ILC Report (Exh CLA), © Claims Canter Memoria on sco, pars 168Davo Rav Te Republic of Masia (UNCTTRAL) ‘warden dersdition already enjoyed under the earlier BIT.*" The express right to direct investorstate lispute resolution would serve to enhance legal security 89, Rawat’s core argument is thatthe MFN clause, interpreted in aecordance with Article 31 of the VCLT, includes investor-state dispute resolution as covered “matiére”. 90, Firs, asmatter of ordinary meaning, the expression “matiévesrégies parla présente convention” is wisely recognized to cover dispute resolution mechanisms. Rawat relies on the ILC Report, which idemifies six categories of MFN clauses aocording to their respective drafting features and the common interpretation attached to them by tribunals. Amicle 8 of the France-Mautitivs BIT, which applis to all “matires régies par la présente Convention”, falls under the second category in the ILC Report MN clauses that refer “to ‘all ceatment’or ‘ll matters" governed by the treaty"—and tend 0 be interpreted broadly 91. Im addition, Rawat refers to the wibunal’s decision in Maffezini v Spain, where the MEN clause was applicable to “all mauters subject to shis Agreement”, that"[novwithstanding the fact that the Basie treaty containing the clause does not ‘refer expressly to dispute seulement as covered by the most fwored nation clause, the Tribunal considers that there are good reasons to conclude that today dispute settlement arrangements are inextricably related to the protection of foreign Dvestors”"® Rawat also refers to the Suez v Argentina case and commentary, as supporting the interpretation thatthe phrase “all matters" in an MEN clause includes matters relating to dispute senlement 92. Still examining ordinary meaning, Rawat emphasizes that there is, in fact, an investor-state dispute resolution provision in the France-Mauritius BIT—this is “precisely covered by Article 9 ofthe France-Mawritus BIT”. Amicle 9 provides that any agreement concluded deiween a Contracting State and an investor of the ‘other Contracting Stat shall contain an arbitration agreement, Rawat argues that his Claims Counter Memoria on Juste, paras 202-204 © Claman’ Counter Memorial on Jrisiton, pra 176; H.C Repo, saa note 59,» 34, para 197 © Claman Count Merril n ison, pra: Eno Auta Maly Kado of Spi, SID (Case No, ARIU97/, Decision ofthe tidal on the eto fo justin ded 28 Janory 200, pres $4 56 (EXACLAL10, Claimants Counter Memorial on ison, paras 178-182; Scil supra rote 58 at» 550 (Exh RLA-3} Cail, supra note 58 (Exk CLAS}, 8 Poulan, “Cicer de a Nation la Phi Favors et Clauses Aarbirage inestssew-Bia: esc a Fin dete Jersprudence Mafizin”™, ASA Bulletin 22007 (xe), BP 279-340 (ExACLA-77, Sez, Sactedod General de Agua de Barcelona and Ine guas Servicios heats de! ‘Agua v Argentina, 1CSID Case Nox ARBUSIN, Desi on Iris dt 16 Ny 2006, arn 59 (Sue) (esncLn-s, © Cisimct’s Caomer Memorial on sition, par 15Dowood Kent» The Repub of Mow (UNCTTRAL) ‘wardonJarieion 98, is how the “matizre” of “investor-state arbitration” is “régie” (Le. “yoverned” or ““reated”) inthe BIT ‘That this is limited to contractual investor state arbitration, he says, is justified by the fect tha, in 1973, it was not usual for sates to include permanent offers to arbitrate in BITS, 95 compared 10 investment contacts ‘Nonetheless, argues Rawat, within this context “if is obvious that investor State arbitration was one of the matters envisaged by the contracting States when they centered into this BIT ‘As further confirmation that France ancl Mauritius intended dispute resolution to be among the “matiéres nigies par la présente convention” for MEN purposes, Rawat points to the express exclusion of tax matters (Artiele 7) in Article 8, If the Contracting, States had intended also to exclude dispute resolution matters, they ‘would have specified tha as they did for tax masters and would have excluded Article 9 fiom the scope of MEN treatment in addition to Article 7. In support, Rawat refers to the decisions of the tribunals in Suer v Argentina and Gas Natural SDG v Argentina, wich found that where an MN clause excludes certain matters, the absence of dispute resolution ftom the excluded matters indicates that dispute resolution was intended to be included for MFN teeatment.°* ‘Sevond, Rawat tums to interpretation of Article in context and in light of the objest land purpose of MEN clauses, Acconding to Rawat, one reason that states agree to MEN provisions in BITS is so tat, at any given time, investors will benefit from the outcome of more successful negotiations with thitd state, Here, Article 9 of the Finlend-Mauritius BIT is more favorable than the France-Maurtivs BIT because it allows investors the choive of dispute settlement with a Contracting Ste before the national courts or an international arbitral tribunal. Another reason for sates to egree to MEN provisions ist allow a treaty to adapt to legal evolution that cannot be foreseen.”” Rewat submits that, before the AAPL. Sri Lanka Award in 1990, France and Mauritius did not expect that a state’s consent to “frst 130 nes 1-5, Dr Pins © Cusimant’s Cause Mri on rsicto, pare 185. Choma’ Counter Menai Kardon, ars 187-199; Sue, spr ot 64, pare 36th CLAS); Ge Natural SDG + drgetina, ‘Case No. ARB/O/1, Decision of te Tina on Penny Quesons on Jursieion dated 17 lve 2008, pra 30 (Fah CLAS}, © Clana’ Counter Memorial on Irate, para 197 Clisant’s Courter Memoria on arson, paras. 200-20aoc Rawors The Rubi of Mauris (UNCITRAL Amar om Serincion arbitrate with an investor could be infered directly from an investment treaty.” Hence, Anicle 8 “comes as an adjustment clause in order to grant the Investor the Benefit ofthe evolution of the analysis of the State's consent 10 arbitrate” 97. Rawat contends that broad interpretation of Article 8 is consistent with the object and purpose of the France Mauritius BIT, to “protéger et stimuler les investissements” (Gn free translation: “protect aut stimulate investments”). He cites with approval Professor Stephan Sehill’s opinion that “policies anderlying investment treaties further justify the broadening of MEN treatment to include the host State broader ‘consent 10 inesior State dispute settlement”. 98, Thitd, Rawat submis that a broad interpretation of Article 8 is confirmed by supplemeniary means of inerpetaion, as envisioned in VCLT Aniole 32. He characterizes the debates befor the French Sénar in elation to the France Mauritius BIT, including Article 9 on ICSID srbitation, as emphasizing the importance of bitaton to investment protection 99, Fourth, in elated vein, Rawat looks tothe negotiations ofthe France-Mauritus BIT {0 argue that the Contracting States endorsed investorstae dispute resolution, As direct access to investorstae arbitration was not usual atthe time of the negotiations, the languape of Article 9 reflects the “will ofthe Parties to submit State-investars disputes to arbitration” by contract.” In that era, the purpose of investment treaties ‘was merely to provide governing rules for investment contracts. It was only after 1990, and the AAPL » Se! Lanka developments, that Mauritius changed the drafting of its dispute resolution provisions, such as the one in the Finland-Maurtius BIT. Given the context prior to 1990, Anticle 9 must be interpreted 282 clear expression of the Contracting Stats" intent to submit any investor state disputes to arbitation.”* 100. Pith, Rawat tums to the ejusdem generis rule of interpretation of MEN clauses, He submits that the elusdem generis rule applies when the basic treaty, here the France- Mauritius BIT, is of the same nature and concerns the same subject matter as the * Asan drieulnrat Pract Led (AAPL) Repub ofS Lanka, (SID Case No ARIST, Fz Award 27 Tune 1990 (Exh CLACL, > Claimants Counter Msi on isdn, para 20 7 Claman’ Couser Memorial ox Jusiton, para 208 Claimants Cour Meera on wiscictn, para 209; Soil, supa nate SB a $84 (Exh BLA), Claman’ Coster Memeril on isto, paras 10 a 210. " Claman'sCouner Menara on uishton, paras 213-218 Claman Contr Memorial ox Jrsition, par 228, Clana’ Counter Memorial on Haden, pst 224.296woo Rove The Republi of Meare {UNCITRAL} relevant third-state treaty here the Finland-Maurtius BIT.” Accordingly, as both the France-Mauritius BIT and the Finland-Mauritius BIT are investment treaties and both have dispute resolution provisions, Article & ofthe France-Maurtius BIT should be interpreted to allow him to benefit from the more favorable investor-state arbitration rights in the Finland- Mauritius BIT, 101. Rawat disagrees with Mauritius’ postion thatthe efusdem generis rule roquires direct investor state arbitration clauses in both the France-Mauritius and Finland-Mauritius BITS. Inhis view, the focus for gjusdom: generis review must be the subject matter of the MFN clause fiself rather than the specific trety provision that is sought to be applied through MFN. In support, he cites the ILCs commentary on the 1978 Draft “Articles on MFN Treatment" is also not proper to say thatthe treaty oF agreement including the clause must be of the same category (fusdem generis) as that ofthe benefit that are claimed wider the clause. To hold otherwise would seriously diminish the value of a mast favoured’-nation clause, 102, fnany event, Rawat submits thatthe Finland- Mauritius BIT is of the sare nature as the France-Mauritias BIT for purposes of application of the ejusdem generis rule and that Articles 9 ofthe two treaties, altematively, ae also of the same nature for these purposes, because they both address the resolution of disputes between investors and a host state, regardless of how consent to arbitration is established in either case (ie. simultaneously through contact in Article 9 ofthe France-Maurtius BIT or consent being dissociated in time—“atbitration without privity”—in Article 9 of the Finland-Mauritius BIT).*? In essence, Rawat argues that “investor-state dispute setlement” isthe “mative” of both Articles 9 of the two treaties and that “arbitration consent to be given by contract” or “arbitration consent given under treaty” are how these “‘matires” are “governed” or “‘reated” in each treaty respectively, 103. Asa final argument against Mauritius’ position onthe relationship between the MEN clause and consent to arbitration, Rawat submits that the MN clause, Antcle 8, of the France-Mauritius BIT automatically went into effect when Mauritius entered into the Finland Mauritius BIT. This is reflected by use of the verb “béngfcient” in Clans Counter Memorial ox Jursiton, paras 234-27, cag Gala, suea ate S8(Fah CLAS) and ‘eh supra ate $8 ap 323 (Eh RLAAS), climes Counter Memorial co Tursdition, pars 245 ILCs Draft Ares on Most-Fevoure- Nation Clauses, wits Commenarie 1978 p30 (EMH RLA-70, Chains Contr Memorial on rion, prs 212 nd 250, "Tensrpt p31, ines 10-12, Dr Pina; p 133, ines 17-28, Dr Pia; ad p13, Hees 1-3, Pa,Darvon Rawat The Republic of enn (UNCITRAL) ‘svard on dorsiton los. 106. © Claman’ Counter Memorial on Iuscio, gras 296-257 This semehing tt the is imi Measures Order, spr nt 32, toot 8, p16. transcrip 38, ls 23 9p 138, iw 14, Dr Pina, © Framer 7139 nes 19.25, DrPina tsponden’s Memorial on Jaro, prs 56-60, Article 8 ofthe France-Maurtius BIT, which isin indicative present tense, denoting an imperative in the French language, as opposed to an obligation te do something in the future.® At the hearing, Rawat’ counsel addressed the Tribunal’s fourth written question cconceming effet ule in conection with interpretation of Antcle 8 of the France- Mauritius BIT, Counsel agreed with Mauritius’ counsel that effee mile is “indeed, principle of imerpretation included in the good faith condition of Article 31 of the Vienna Convention [with the purpose to avoid] too restrictive [an] interpretation of clauses and ofterms that would deprive the clause of any role at all’ Counsel went conto argue that eft wile supports Rava’s interpretation of the MEN clause, which reflects the drafters’ support of arbitration, and undermines Mauritius’ “very, very narrow” interpretation, which would leave the clause “useless” with respect to Article ‘9 ofthe France-Mauritius BIT. In sum, according to Rawat, with the ratification ofthe Finland-Maurtius BET, the direct investor state arbitration provisions in Article 9 of the Finland-Mauritus BIT ‘became available to protected French investors by automatic operation of Article 8 of the France-Mauritius BIT. At that moment, Mauritius consented to arbitrate with rene investors, whieh offer was accepted by Rawat when filing for arbitration in this ese, B. Jurisdiction Ratione Personae 1 The Respondent's Position Should Rawat prevail on the issue of jurisdiction ratione voluntatis, Mauritius submits thatthe Tribunal manifestly lacks jurisdiction ratione personae for three separate reasons. Fist, Rawat has felled to prove his French nationality and, even if he were a French national, the France-Mauritius BIT does not apply 0 dual nationals. Second, even ifthe BIT does apply to dual nationals, Rewat’s dominant and effective nationality is Mauritian, and there is no exception in the BIT to the intemational law principle that a dus) national cannot bring a claim against his state ‘of dominant and effective nationality. Third, the BIT requires an investor to have theDawont Raver v De Rube of Mais UNCTTRAL) ‘ward oa doriction ‘nationality of a Contracting Party on the date of she relevant investment, and Rawat ‘mae his investment before allegedly becoming a French national in 1998, 107. The Respondent, as well as the Claimant, devoted most attention to the dual nationality issue. ‘. The Claimant’s Dual Nationality 108. Mauritius oréginally challenged Rawat’s status as a Freneh national, arguing thet Rewat’s Declaration of Netionality based on mariege to a French national is insufficient proof” Following Rawat’s production of his 2015 French passport and 2011 French identification card, Mauritius effectively accepted thet Rawat became a French national in December 1998 by reason of marriage. Mauritius’ counse stated ‘atthe hearing* The Claimant has produced now evidence in the Cownter Memorial on Jurisdiction 10 prove his French nationality. This evidence is still usaisfactory in our view, bu forthe purposes ofthis hearing the Respondent does not challenge the Claimant French nationality. 109, ual nationality does not support jurisdiction ratione personae, submits Mausitus, because the France-Mauritius BIT does not protect dual nationals. 110, Mauritius relies most heavily to support this argument on the text of Article 1(2) of the France-Mauritus BLT, in specific the reference therein to investments made by the “ressortissants, socisiés ou autres porsonnes morales de l'un des Etats Cconiractamts” (emphasis added)" Mauritius distinguishes use of the French term “ressortissants" inthe 1973 BIT from use ofthe broader term “nationauy" in more recent investment treties concluded by France.” UL, Theterm “ressortissant", contends Mauritius, hasan established ordinary meaning in the French language tht specifically excludes dual nationals.” In support, Mauritius cites the Dictionnaire de I Académie francaise, deseribed as having the status of an official administrative document, and the Larousse dictionary, which define " Respoadeat’s Memos Jrston, pun 62 “Trane 9, ine 28 top 48 ine 5 87, lines 2-7, Dr Heike France Mauris IY, Ale U2) (Exh C1) ™ Respondent's Memeria! on islton, pra ° Respondents Memaril on rnin, pas 645, suDero Rawors Th Republic of Maar (UNCTTRAL Award on deristeon “ressortissnt” asa person possessing the nationality ofa state and who benefits ftom that state’ diplomatic and consular protection outside that state. 112, To qualify as & French “ressortissané” under the France-Maurtivs BIT, therefore, Rawat mast prove nat only that he isa French national, but also that be is entitled to the benefits of consular and diplomatic protection of France in Maurtis.”> He ‘cannot do this, beeause the oficial position of the French Government is that it does not grant consular or diplomatic protection to French citizens who are also nationals of the state in which they reside or travel, To quote ftom the website of the French Government: * {Un Francais binaional ne peut. pas fire prévaltr sa ationalté francaise caypres des antorités de Youtre ou des autres Etars) dont il posséde aussi la hationalitélorsqu'itrésde sur son trritoire. Ce binational ou plurnational cst alors généralement considéré par ces Etats comme leur ressorissant cexclusif ei s'en suit que la protection diplomatique de fa France ne peut sexercer contre VauireErat dant dépend le binational, (Emphasis added) In fee translation 4 French dual national cannot ... invoke his French nationality with the ‘auhortis ofthe other State(s) of whch he is also a national when he resides in is territory. This dual national o multivational is then generally considered by these States as thelr exclusive ressortssant and it follows that France cannot exercise its diplomatic protection against the dual national's other Stare of nationality. (Emphasis adéed) 113. a sum, even as a French-Mauritian duat national, Rawat cannot qualify asa French “ressortissant” under the France- Mauritius BIT."* 114, In reliance on Article 31 of the VCLT, Mauritius adds that this ordinary meaning interpretation of “ressortissant” is supported by the context and object and purpose of the France-Mauritius BIT, 115, As for object and purpose, Mauritius looks to the Preamble of the France Mauritius BIT, where the two states recite that they are “[alnimated by the desire to intensify Dietnaive de Académie ragsive (se) JORE (2017) dated 26 Janey 2017, 91 (Exh RD: “Twte ervome poss la nationals dvs Ba et binkicin’ & Vévanger de sx protection dipiomatine ct, ‘corel Larose oni ditions ast visite on uly 2017) (Exh R28) "Personae prog rls [nprisentante dplomatques ou connie wn aye donn, org réside da anu pa ° ueipoadents Merril om uisdicon, ps 6668 Resqoaden's Menor onJuiicion, pra 68; exact um he wie of he French Goverment (is sted on 4 July 2017) pane service public paricaliewvasiroasF3M (Exh K-26) * Respondent's Memorilon Jon, pra 69Devoe Rama» The Republic of Naaru UNCITRAL) ‘Award on urton economic cooperation between the two countries [and] [interested to his effect in protecting and stimulating investments" This ean only mean protection of foreign investment, says Mauritius, not domestic investment. In suppor, Mauritius cites the Lemire y Uline ICSID Award” ‘States confer rights to foreign investors, which are unavailable to their own celticens. Tie differen treatment benween foreign ane domestic investors i a natural consequence of a BIT. However, this sequal treatment 18 not without Jusieaton: justice is ot to gramt everyone the same, bul stam culgue iribuere. Foreigners, who lack political righs, are more exposed than diomestc investors to arbitrary actions of the hast State and may ths, as 2 mater oflegtinate policy, be granted a wider scope of proection. (Emphasis seed) 116, Turning to context, Mauritius argues that the tenn “ressortissani" is not used ‘synonymously with “national” inthe BET. ‘The term “national” does not appear and the term “veasortissam is expressly used in all antiles of the treaty except Articles 1 and 12, Most significantly, the tem “ressortissant” is used in connection wi ‘contractual ICSID arbitration.” Article 9 provides that investment contracts between ‘8 Contracting State and a *ressortissant" (ora company ot othe legal entity) of the other Contracting State “must include a clause providing that their disputes relating 10 these investments shall be submited, 0 .. {HCSID], with a view to their settlement By arbitration, in accordance with the {ICSID Convention}” 117. In tur, Amicle 25(2Xe) of the official English version of the ICSID Convention expressly excludes from arbitral jurisdiction “any person who ... also had the nationality of the Contracting State part to the dispute"."" The official French version of Article 25(2Xa) uses the term “ressortissant” in this context:° “Ressortissant d'un autre Btatcontractant” signif (@ toute personne physique qui posséde la nationalité d'un Etat contractant ‘autre que Etat partie au diffrend ata dat elaguelle les parties ont consenti a soumettre le diférend dla conciliation ow arbitrage ainsi qu‘ a date & % Responders Memorial on Jurseton, pa 73 (nee esa), © Respondem’s Memorial on Jrsdicion, pra 74; Janepk Charl Lamine » brine, 1CSID Case No ARB/O/TB, 25 March 2011, pas $687 (Exh BLA), Responden’s Memorial on Jason, paras 7072 © ICSID Canvension (English fil version) p 1 Ancl25(2o) (Exh RLA-7), 2 1CSID Convention Frnch oll version p 18, Anile2(2Xs) (Exh RLA-ES), suDao Ra The Republi of Mewritns UNCCTRAL) ‘Award on daredition laquelle ta requéte été enregisirée .. d Vexclusion de toute personne qui, a l'une ow a autre de ces dates, posséde également la nationalité de U'Etat ‘contractant partie au différend, (Emphasis added) ‘The English oficial version reads as follows: “National of another Contracting State” means: (2) any natural person who had the nationality of @ Contracting State other ‘than the State party tothe dispute on the date on which the partes consented ta submit such dispute to conciliation or arbitration as well ae anthe date on hich the request was registered ., but does not include any person who on either date also had the nationality of the Contracting State party to the dispute, (Emphasis added) LIB. Relying on the context of Article 9 of the France-Maurius BIT read with Article 25(2}@) of the ICSID Convention, Mauritius argues that the BIT “therefore mates clear that dual nationals are not covered by the Treaty”. The ICSID Convention and the reference to itn Article 9 of the France-Mauritius BIT support interpreting “ressortisant”to exclude dual nationals undet VLCT Article 31(1), with Article 9 as context, and under VCLT Article 31(3)(e), with [CSID Convention Article 25(2)a) 1s a relevant rule of international law applicable between Mauritius and France 119. Atthe hearing, counsel specifically addressed the Tribunals second written question, ‘namely the relationship between the ICSID Convention and the France- Mauritius BIT an, “more particularly, the meaning of the term “ressorissants” in Article 25(2) of the ICSID Convention and in Artcte (2) ofthe France-Mawritius treaty”. Counse! took the position that Article 9 offers no consent to jurisdiction for direct investor- state arbitration: Article 9 ofthe France-Mauritius BIT Is nota jurisdictional clause. There is no consent to arbitrate. It simply requires — creates a obligation for the State partes 19 consent to arbitrate in an investment contact 120, Mauritius’ counsel argued further thatthe France-Mauritius BIT shouldbe interpreted in accordance withthe ICSID Convention: [Rawat] cannot escape the effects ofthe ICSLD Convention, since the ICSID Convention is the only treaty that is referred to in this BUT, and it therefore farms part ofthe context of interpretation ofthis treaty °JeSID Convention English oil version, p 1, Ale 252) (Exh RLA-S7), °Regondem’s Memorial on Jrisieton, paras 72-73, 2" tacserpp 168, ins 37, De Heiskanen "oe Trnsrt 3 nes 7-10, Dr eisanenDawood Rona» The Republic of Maw us (UNCTRAL) ‘sovardon Jatin 121. Mauritius’ counsel submitted that iPan ICSID arbitration clause were to be inserted into an investment contract with Rawat, it would not be enforceable: Now, fo conclude on the Issue of context and Article 31.16), if the term, “ressortissants", is not given the same meaning in the French -- France Mauritius BIT and the ICSID Convention, if itis not given the meaning excluding dual nationals, this would lead to the absurd result that Mauritius, ic entered imo an Investment Contract with Mr Rawat, would be under an obligation to Include, in that contract, an ICSID arbitration clause hat would be unenforceable, 122. Insummary, whether looking to plain meaning of the term “ressartissant", the context ‘or the object and purpose of the France-Mauritius BIT, Mauritius argues thatthe treaty does not protect the Claimant as a dul national b. The Claimant's Domi it and Effective Nationality 123. Even if the France-Mauritius BIT could be interpreted to protect dual French- ‘Mauritian nationals, Mauritius argues that Rawat's claims would fall ouside the ‘Tribunals jurisdiction rations personae, because the international law rae of ‘dominant and effective nationality” is applicable under the BIT and Rawat's dominant and effective nationality is indisputably Mauritian. 124, Marius first explain that, while clasicintemational law excluded claims by dual nationals against sates—as reflected in the terms of the France-Mauritus BIT and the ICSID Convertion—a “further and more nuanced rule has developed allowing, claims by dual nationals who can establish that their dominant and effective nationality is that of their espousing state (For diplomatic protection) or their home state (for direct claims). In support, Mauritius cites the IC's judgment in Nottebokm and other diplomatic protection related authorities.” Mauritius further cites the Case No. 4/18 decision ofthe lran-Uinited States Claims Tribunal (USCT) Tease.» 5, ns 1-19, Dr Helene. ‘Resende’ Memoirs paras 76:7 "© Respondent's Mami on usin, paras 76: Wrebokn Cave (Liehensin » Guoemola, udm ‘oF 6 Ape 1955, (195) LC. Report 4921 etsy (Eh RLASD}: Monn Cane (United Sater a), aly td United Sates Gonolion Commission, 14 RIAA 236, 10Jupe 1988,» 246 Exh RLA-93), Flegnheimor Case (United Stzes» Ha, aly and United Sts Conelizion Commis, 14 RIAA 327, 20 Sepember 1958, park 62 (AREA), ' Repondea's Memorial on Juristiction, pars 81-82; Cte No 4/18, Ddsion No, DEC 328, § Ia US CTR 25, 6g 194, p 255 (orate med) (Exh LAS,Pawo Rowat The Republic af Mawr (UNCITRAL) ‘ver on Jr ‘an important development tn the application of the dominant and effective nationality rule. because, asthe IUSCT noted, arbitration before the JUSCT dl not represent a form of diplomatic protection. Private partes had direct ‘access 10 the IUSCT and aocordinglv the dominant and effective nationality rule came to be applied primarily asa jurisdictional rule rather than as rae of aimissbily: 125, According to Mauritius, the dominant and effective nationality rule is now an established rule of intemational law, coed in Article 7 ofthe ILC Draft Antieles on Diplomatic Protetion: A Sate of nationality may not exercise diplomatic protection in respect of a person against a State af which that person is also a national unless the nationality ofthe former Stace is predominant, both a the date of injury and tthe date ofthe official presentation ofthe claim. 126, Mauritius acknowledges thatthe dominant and effective nationality rule is nota jus cogens norm, and accordingly state panies fo a tealy—which would be lex speclalis~may consent to allow their own nationals to asset claims against them, However, argues Mauritius, the dominant and effective nationality rofe must agply in ‘the instant case absent a clearly stated exception regarding dual nationals in the France-Mauritius BIT, As there is no such exception, the BIT reflects the classic rule ‘ofintemational law that excludes claims by dual nationals against either of thei stares ‘of nationality, andthe dominant and effective nationality rule applies."® This follows from VCLT Anicle 31(X¢), which directs that account must be taken of “any relevant rdes of international law applicable in the relations Between the partes” in interpreting the treaty." 127. _Inapplying the dominant and effective nationality rule tribunals examine the facts of the overall ie of the relevant individual. As stated by the Ballantine v Dominican ‘Republic wibunal, absent any express standards inthe relevant treaty, the elements includes!” the State of habitual residence, the circumstances in which the second nationality was acquired, the individual’. personal attachment for a ° Reponden's Memorial on ursicion, para 85; Dif Arch on Diplomatic Proton, with commen ais tex adopted byte eratonal Law Comsnsion ais y-ight session, Yearbook ofthe Intraoral Law Commission, 200, vl Pat Two, p43 ULC Draf Ares on Diplomatic Protection (Exh RLA91). Respondet’s Memorial an urstcto, pres 14-110, "Respondent's Meron radon, paras 105-07 \ Respondea’s Memoria an sito, pa 6; Michac! Ballantine nd Lia Ballantine v The Dominican Repub, Proce Odes No.2, PCA Ces No. 201617, 21 Apil2017, 6, prt 25 (Ex RLA-I01)Dawood Rona «Th public of Moura (UNCITRAL} particular country and the conter of the porson's economic, social and family Wife. 128, Second, Mauritius contends that Ue relevant elements readily demonstrate that Rawat is dominantly and effectively a Mauritian national 129, As set out in the Factual Background above, the Claimant's links to Mauritius are long and deep." He was born and esised in Mauritius and, with the exception of three years in the United States and his recent residency’ in France, has had his habitual residence in Mauritius. He was mareied in Mauritius, and his children were all born in Mauritius, married Mauritian nationals, and reside in Mauritius. He owns substantial property in Mauritius, ineluding shat he considers to be his principal residence. He holds a Mauttian driving license and is registered to vote in Mauritius He has held management positions ar shares in at feast 65 companies incorporated in Mauritius. He has always used his Mauritian passport to enter Mauritius and, apparently except on two occasions, has alays used his Mauritian passpor to enter France! To the best of Mauritius’ knowledge, Rawat has not made any application under the applicable Mauritian law to acquire his properties asa foreign national." 130, Incomparison, says Mauritius, Rawa's links to France are tenuovs."® He apparently spent only two years in France over S1 years, and has no significant business interes or assets there. He was awarded the French Légion d’Honneur as a foreigner, ‘nominated by the Protocol Service ofthe French Ministry of Foreign AMrs, fr his Jong service as president of an investment company in Maurits.” € The Claimant's Nationality atthe Time of Investment 131. Mauritius’ thied and final argument against jurisdiction rarione personae is hat even accepting that Rawat acquired French nationality in 1998, he was not a French rational when he acquired his relevant interest in Mauritius, in his own terms, from the “tae eighties” to 1992." "Respondent's Menor on Jeon parse 2897 °% Respondent's Memeria) on Jursiton, para 97; Muri movement summary and paspor and inmigton ofc wae! hisry of Mr Rawal p13 (Ex RS). "Respondent's Memorial on Jr, pra 90 "Respondent's Memorial on Jieon, ras 98.98, 1” Resgonden’s Memorial on Jurletian, ar 95 Code da gion homme ete a male mila 3p 18 apd 37 (Exk RSD); Présdence de i République, Orivenainal de fa legion ome, Dieret paras promotion et nomination JORF C20) ted I Ialy 2018, p 5 (Exh R33); excer From the webite of he French Minis of Foreign Afi Exh 2-3) * Wines Statemen of Dood Rawat da 29 July 2016, p2 e109 {Exh} 2aos Ramat» The Republic of Mourns UNCETRAL) Award on uri 132, Mauritius relies on Article 1(2) of the France-Mauritius BIT, which provides for protection of “es jnvestissoments que les ressortissants .. de Un des. tats ‘contractants ont, en conformité dela legislation de Vautre Fiat contraciany, effectués [made] .. sue trritoire de ce dernier”.) As Rawat was exclusively a Mauritian national when he made the relevant investments in BAIC and BAT from the late cigities to 1992, he is not x protected investor under the BIT. The Claimant’ Position 133, The Claimant disputes all of the Respondent’s arguments on jurisdiction ratione personae, Rawat asserts that, if the France-Mauritius BIT is interproted properly under VLCT Article 31, the only relevant requirement of the BIT is that he be @ national of one of the Contracting States—which he is. There is no need, submits Rawat, for the Tribunal to address his status as @ dual national or his dominant and effective nationality a. The Claimant’s Dual Nationality 134, Fits, Rawat focuses substantial attention on the ordinary meaning of the term "essortissant” in Antcle 9 of the France-Mauritius BIT, He argues that the non-legal efinitions of “ressortissat in French language ditionaries cited by the Respondent cannot apply in interpreting the BIT in content. As the term “ressortssant” is not defined in the France-Mauritius BIT, it should be used as a synonym of the tem “national” according to French law and conventional practice in the context of 135, Rawat emphasizes that French law on nationality does not distinguish between “ressortissants” and “nationaue". Several provisions of the French Civil Code refer to these terms interchangeably in designating natural persons holding. French nationality. 136. Purther, Rawat submits thatthe definitions given to the terms “ressortssamts™ and “nationaua” in other BITS are important, as states rely on prior practice in treaty ‘eyotiations. Based on BITS concluded by France between 1960 and 1990, in which ‘bath ferms are defined as “les personnes physiques possédant la natlonalit de 1'une "© Regondsnt's Memoril on Fraction, pees 17-18 "Claimants Courter Memon Jrsition, paras 38-36 "Claimant's Cumsr Memeril on Hrsdion, pars 37-38. Rawat ces, in paicua Ale 21-13] of be Freeh Cv Code, which provides that a person car be pated French autlnaliy trough a dco f amongst he condos, eae ascendant ofa reo ressorisan” (Exh CLAS). o eeuewe Rawat» Te Rept ato Joris Mowtsue(UNCITRAL} ddes Parties contractaes",* Rawat asks the Tibunal to infer thatthe drafters ofthe France-Mauriius BIT didnot intend to distinguish between “nationaux” and “ressortissans”. ln particular, Rawat cites the examples of the 1978 France-Jordan BIT, the 1977 France-Korea BIT and the {978 Franoe-Sudan BIT, which use the term “nationoux” to define protected individual investors, andthe term “ressotssant to describe the protection granted 10 these persons.” Moreover, the term “ressorissané” used in Article 3 of the Hague Convention on Certain Questions relating tothe Confit of Nationality Laws, adopted by Mauritius in 1969, is defined 1s “national”: “a person having two or more nationalities may be regarded as its rnational by each ofthe States whase nationality he possesses” 137. Seoond, Rawat looks to the object and purpose in the Preamble of the France- Mauritius BIT to “intensifthe econamie cooperation between the two States” and t0 “protect and encourage investments", Rawat argues that dual French-Maurtan nationals who invest ether in Mauritius or France setf-evidently do contribute to the {economie cooperation between these two States. He relies on the decision ofthe Paris Court of Appeal in Fenecuela v Gareia Armas, which noted the object and purpose of the relevant treaty in refusing t0 distinguish betwoen single and dual nationals regarding their eligibility to protection ratione personae under the treaty." 138, Third, emphesiing that che France- Mauritius BIT does not contain any condition on the nationality of naturel person investors other than being a “ressotissant" of one of the Contracting States, Rawat cautions tha adltonal conditions cannot be added to the BIT: This is what the Tribunal would be doing, argues Rawat, fit were to accede "Claimants Casnter Memorial on Srsito, paras 40-1 ' Convention ete le Goermement el Ripabliq franclte te Gouvernement Royone Hachémit de Londons sur Foncourgement ta potection des etstaments, 23 Feary 1978 entre ita fro 0018 ‘tober 1979) (xd CLA. 29; Accord enr Gouvernement de a Républie fagaite ot e Gomverement de 1a Rdpubligue de Corde sur Vncourapemert la prowecion des iverson’, sight d Past 28 dicen: 1977 (rare ino thee on 1 February 1979), Atel 3, (Exh CLAS2}; Conserion ene le Gouvernement Se 4a Ripublie fang e Gnvernoment de a République dimocratqn du Soudan our encouragement ef 1a protection reprogus des esto, sgnde& Pai Te 31 jae 1978 (ered no Fore 083 July 1980), Anite (EARL) "2 Chumant's Conner Memorial on Justo, para 43; Convention on Cerin Quesons reaing 1 the Confit of Nationality Laws, sign at The lagu os 12 Ape 930, Arle 3, (Exh CLA-LS) (Clans fe vrarsiion foe! Fecch original” "sous résorve dis portions de le prea convertion, wt indi poss! deve oc pheurs nationals potora de consid, par Gas des Eat dot i a mona Comme som resorteon, "3 Fraeo Mita: BUT (Clamans fee wansaion thm Freeh otgial: “inensfar la ceopération omega ee es ds pap, “protiger emer es sestmete "= polvarian Ropu of oneal v Serafin Garcia Armar and Karina Garia Gruber, Court of Appel of Pari, 8G No, 15901040, Desvion of 25 pi 207 (Venetela > Garta Arman (Exh RLAcIIS) Te tans sear was vena pals se byte Paris Court of pea na ifferent rodDemo Rawat The Republic of Mawr (UNCITRAL} Award Surition to the Respondent’s request to examine his dominant and effective nationality as an international law rule applicable between the Contracting States under Article 31(3\¢) ofthe VCLT. In support, he cites findings by the Saluka v Czech Republic and Oostergetelv Slovak Republic tibunals thatthe relevant BIT did not require the Investor's nationality to be “effeetve" or impose further conditions such as the existence of a genuine link to the non-host state," and that the treaty's object and [Purpose to promote mutual investment would not be furthered if dual nationals are ‘excluded from protectin. 139, Rawat adds that if Pranee and Mauritius had intended to st additonal imitations on jurisdiction ratione personae, they would have expressly done so. Both France and Marius have expressly provided such restrictions in many other treaties, for ‘example the France-China BYP and the Maurtos-Eaype BIT! 140, Fourth, Rawat points out that unlike Article 25(2)(a) ofthe ICSID Convention, the LUNCITRAL Rules—under which this arbitration is filed do not contain an express exclusion of dual national claims against ahost state. Indeed, argues Rawat, the need for the express exclusion of dual national jurisdiction in the ICSID Convention demonstrates the common understanding under international law that dual nationals are not precluded from bringing claims against one of their states of nationality. The ICSID exclusion of dual nationals, therefore, cannot be generalized to investment treaty arbitration under ather rules." 141, At the hearing, addressing the Tribunal’s second written question, counsel took the postion thatthe question of nationality must be assessed separately under the Prance- Mauritius BIT and the ICSID Convention, Counsel ergued that the term “ressortssant” in the France-Maurtius BIT has a different oninary meaning than ° Claimant's Coutee Memorial on Jurisiction, paras SHLS6; Saluka Istmene 8°» Coech Rep, UNCITRAL, Parl nad 17 March 2006, pras 229 ae 231 (Exh CLAHD}, Oneal v Son Ree i, Onstergiel and Thesora Laren» Sovak Republic, UNCITRAL Ad Ie Arbiasion, Deion on Saison, 39 Apt 201, pra 130 (Exh CLA-T6). ' Climan’s Counter Memorial an Jarsicton, pars 578; Vbor Pey Catado an President Alende owndaton Rope of Chile, XID Case No. ARBVOR?2, Award I, & May 200, para 415 (Pey Cava © ‘Ait (Ess CLAM); Sevan Garcia Ar and Karina Garcia Graber » Bavarian Republi of onus PCA Case No. 2013-3, Decision a frist, 15 December 2015, pars (80(8] (Gare Armas» Fone) (Es CLALS. "decor ene e Gomeroment dla Répaline fonts Gowarnemant dea Républqe palate de Chive su encenragement et a protection réciroque des iesssements, 30 May 1984 (emer ino force on 19 March 1985, eminned, Article (3) (Exh CLA-YT}; Agreement betaoen the Goverment ofthe Republic of Maurie ad the Goveanet ofthe Ars Republic of Beye on teresa! promton and protston of laveseents, 25 une 2014 entered ino fore on 17 Octabe 2014), Arie 13) (Exh CLA). ©" Claimants Cosnter Memorial on ron, pra 0,Devo Rot The Republi of Mawr (UNCTTRAL) ‘ward on Sarton vessortissant” in the ICSID Convention. While the ordinary meaning is as “a synonym of, "National” andl] does not exclude dual national”,) the texm is a “precisely and... specfically-defined term inthe ICSID Convention”: The reference in the ICSID Convention -- the reference to the ICSID Convention in Article 9 of the BIT cannot be interpreted as restricting the meaning of the term, “ressortissants", and restricting the meaning of the term, “ressortissants”, to physical persons having the nationality of only ane contracting State, and not to the State national of the host State of the investment 142, The very length ofthe definition of “reesortissant” inthe ICSID Convention, argued ‘counsel, shows that the term is not being used in its general sense because “[Y/ this was the ordinary meaning of the term, it was not necessary 10 go into such a long definition” 143, Counsel cautioned against interpreting the general coverage of claims under the Prance-Mauritius BIT against the specific reference in Anicle 9 to mandatory inclusion of ICSID arbitration clauses in investment contract" [lf would be very artifical to try to find in the language of Article 9a specific definition, a delimitation of the general scope of application ofthe treaty Article 9 and the specific condition af Article 9, Investment Contract, are very Timived, the scope is much more broad. 144, Counsel stressed that Article 9 of the Pranee-Mauritus BIT reflects Mauri general willingness fo sete investment disputes by arbitration. 14S. Finally, Rawat submits thatthe Tribunal, in interpreting the France-Mauritius BIT under VCLT Article 31(3)(), may refer to rules of international law only if their application to a particular issue is not disputed, which distinguishes rules from broader principles or considerations that may not be finmly established." "The ominant and effective nationality concept, says Rawat, is not such @ rule of Intemational law applicable to investor-stat disputes. [twas developed in the limited context of diplomatic protection, The diplomatic protection cases cited by Mauritius, "rast, p 107, nes 21-24, De Pinna "transit p18, nes 15-16; p 108, ne 219 p 10, ine 4, Br Pin = Trasrit p 10% oes 19.20, Dr Pino "Treas pI ins 19-2, Dr Pine "Transcript, p16, ies 1-14, Dr ine ° Caimant’s Couter Memorial en Juristcon, paras 72-26, C MeLachan, “The Prscpe of Syste Integration aml Artile 31{C) ofthe Vena Convention’, (2005) 542) The Fntaresional and Comper Lao Qureny 299, p290 (Exh READ", ”Deseo Row the Rabi itu (UNCITRAL) ‘Award ot Jriatioa ‘and the awards of the special-purpose Iran-United States Claims Tribunal, are not relevant to determination of whether this rule applies in the context of investment ‘realy protection generally." Investment treaty tribunals, including in the eases of ‘Micula v Romania and Pey Casado v Chite, have repeatedly found that diplomatic protection rules, and in particular the dominant and effective nationality principle, do not apply in investor-stete disputes, absent express inclusion as in the Dominican [Republic-Central America Free Trade Agreement. 146, In sum, Rawat submits thatthe France-Mauritius BIT constitutes fer specials for the Panties and, ebsent the express inclusion ofthe dominant and effective nationality rule Jn the treaty, excludes application of the rule, Rawat’s interpretation ofthe ILC’s Daft Articles on Diplomatie Prcection is that they cannot be applied when they are “inconsistent” with “provisions for the protection of investments”, which is the case with the France-Maurtius BIT." , The Claimant’s Dominant and Effective Nationality, 147. As Rawat does not accept the applicability ofthe dominant and effective nationality rule, he offered no submissions om his dominant and effective nationality. He did not materially dispute the facts alleged by Mauritlus as to his comparative Hinks to Mauritius and France. The Claimant's Nationality atthe Time of Investment 148, Rawat rejects Mauritius’ submission that he must prove he was a French national When he made—"a effecné”—tis original investments in Mauritius. He contends that, for the purposes of personal jurisdiction, he had to be—and was—a French national when Mauritius allegedly breached is BIT obligations in 2015 and when he submitted his Notice of Arbitration in late 2015." 149, _insuppor, Raat relies on the tribunal decisions in Pey Casado v Chile and in Garcia Armas.» Venezuela tn the ater case, the Pari Court of Appeaisotably confirmed that it was enough in order to establish the ratone personae jurstiction of the "© Clainane’sCouner Meme on rst, paras 7-79 ad 8095, "> Claian’s Courter Memovial Surin, pr Micra Romonia,1CSID Case No, ARBI20, Decision on Jurision ana Adis, 24 September 208, yrs 99 (Exh CLAW), Py Cazado v Chie, spr oe 12%, para 5 "> Clainae’s Coumer Memoria sion, pas 103105; ILC Daft Ailes an Diplomate Protection, spre 108, 7p 89:90. "© Clamaet’sCauster Memeri on isn, pare 120, °" Cheiman’s Courter Memarial on Friston, paras 21-196, Pey Casad v Chie, supra nae 128, ara 14 Goria Ara» Vesa rant UB 8Pawo Rowoty The Republic of Mourns UNCITRAL) warden Serie ‘tribunal, that one of the contracting states should recognize the investor as its own national a the time the investor brought the relevant treaty claim.!? He further relies ‘on eading commentary." 150. Rawat egues that, in any event, his original investments continued for spproximately 49 years, with reinvestment of profit and dividends. In his view:'™* Iewwould therefore be artificial to require an investor, and in particular Mr Rawat, to hold the nationality of one ofthe contracting parties toa bilateral investment treaty at the time ofthe fist purchase ofthe shares that constitutes ‘only the first step of the whale investment ner consideration, ©. The Relief Requested 151, The Respondent requests that the Tribunal dismiss the Claimant's cleims for lack of |juisdction, and order the Claimant to pay Respondent's costs on a full indemnity basis as defined in Antclo 38 ofthe UNCITRAL Rules. 152, The Claimant requests thet the Tribunal dismiss the Respondent's jurisdictional ‘objections, rule that it has jurisdiction to decide the merits of the claims, and order the Respondent to pay all costs of this phase ofthe arbitration proceedings, VL‘ THE TRIBUNALS ANALYSIS AND DECISION A. The Sequence for Addressing the Jurisdictional Objections, 153, As noted in the Procedural History section above, the Tribunal posed four writen questions to the Parties in advance of the jurisdiction hearing. The first was “Whether the order n which the Tribunal assesses the tvo jurisdictional objections ‘regarding nationality and MEN objections has significance and, ifs, why?” 154, Rawat's counsel took the position atthe hearing thatthe nationality objection should ‘come first because it concems the very applicability of the Frence-Mauritus BIT 10 2 The Paris Cour of Appeal however parially set ase the awa on the basis of a mixed rane ‘materzelraton lenpore ejection, at he spel lnguage nthe elvan testy req, inf view te [nvesteus wo have bon made a ie when te veto abeady helt home Sales national. Veneswela Gari drman, spe le 126,97 "For example Dal and C Schroer, Pips of lnematonl Investment Law (2012) p282 (Exh CLA- ”, °*Claioam's Counter Memoria ridin, paca 168.Dao Rn The Republic of Manin (UNCTTRAL Award on Jurieion 156, 137, Rawat 25 a protected investor, which must be determined before examining, the applicability of the MPN clause: [Te question of nationality, whether Mr Rawat isa protected investor under the BIT, concerns the general scope of application, the applicability of the (reaty in general as a whole. On the other hand, the question of the MEN clause ro determine whether tt applies to jurisdictional protection, oF 10 the Jurisdictional protection Mr Rawat is asking, ie 2 question of applicability of ‘nly one clause of the treaty, of Article 82. This question arises once and ‘nly once the claim of Mr Ravsat is considered ofall within the general scope ‘of application ofthe ereary Mauritius’ counsel took the epposite position on grounds that the MFN objection relates tothe existence of Mauritius’ consent to arbiteation, which must be determined before assessing the scope ofthat consent, including whether Rawat is a protected investor." So the sequence is frst youhave an Arbitration Agreement, then you can make fan MEN claim. dnt MEN clause fs nat a jurisdictional clause, Counse! for Mauritius, without disagreement from Rawat's counsel, acknowledged atthe hearing that dhe Tribunal has fill discretion to se the order for determining. the preliminary jurisdictionl objections: ‘The Tribunal certainly remains free to choose the legal bass of ts decision, 80 if the Tribunal decides that the nationality issue is mare appropriately addressed frst, itis certainly free to do so, and choose the basis ofits legal decision, This doesn? change the ~ what we just said, but I I the exercise of discretion that the Tribunal has on this issue ‘The Tribunal will frst address the jurisdiction ravione personae objection. Although ‘We first examine that objection, as proposed by Rawat, we consider the question of Rawat’s status as a dual French-Mauritan national fundamentally to raise an issue of ‘consent to jurisdiction as well, as prioritized by Mauritius. B. Analysis of Consent 158 2“ Trnserip, p85 tines 8-18, Dr Pin, "© yrsript p27, oes 1-21, Dr eisanes, "msrp ines 17-23, Dr elsanen ‘The Tribunal agrees with Mauritivs that consent to arbitration is foundational to jurisdiction. ‘This isin fact common ground between the Parties. Al objections to jurisdietion, be they of w ratione personae, ratione materiae or ratione temporis natu, are for this reason sub-types of rarione voluntatis objections. ‘The festDowoad Ra The Republic of Maura (UNCTTRAL) Award on derdiion ‘question before us is whether Mauritius, a5 a Contracting Sate, consented to confer {iutisdiction on the Tribunal t resolve ths dispute with this Claimant. 159, The analysis of consent requires two steps, 160. Fist the Tribunal must determine ifthe 1973 France-Mauritius BIT applies, meaning ‘whether the disputed conditions for application are met. If the treaty does not apply, consent to jurisdiction is missing, and Rawat isnot entitled to any ofthe substantive protections provided inthe BIT, including access to the MPN clause in Article 8 61. The second step is necessary ifthe BIT does apply. This step would entail examining, in the absence of an express direct investor state arbitration provision in the BIT, ‘whether the MPN clause in Article 8 operates to demonstrate Maurtus’ consent t0 such direct arbitration through application of the direst investor-stat clause in the 2007 Finland-Mauriius BIT, arbitration i Step I: Does the France- Mauritius BIT Apply? 162. There isno dispute that, for purposes ofthe condition in Amticle 1(2) of the Frances ‘Maurisius BET, Rawat made substantial “owesiscements”({nvestments) in Mauritius vera long period of time. This is reffected inthe Feetual Background section above. 163. Amicle 1@2) of the France-Mauritis BIT does not use the term “investissexe” investor, but only the term “Fessortssant”, the precise meaning of which (in French ‘or English) is not agreed between the Parties. It plainly isa condition of application of the BIT that a natural person claiming protection, such as Rawat, be “ressortisant” of France or Mauritius, The term “ressortssant” is used in every article ofthe BIT except Articles 11 and 12, which deal with the purely state-level issues of entry into force, denunciation and implementation of the treaty in the domestic legislation of the Contracting States. 164, The question, therefor, is whether Rawat isa Presch “ressortissant”, as understood under the BIT, who can invoke the protections ofthe BIT against Mauritius 165. The Tribunal accepts that Rawat isa French national, and was a French national long ‘before this dispute arose and he commenced arbitration."* Whether or not Mauritius efinitively waived its objections to Rawat's proof of his French nationality atthe hearing, we find the evidence sufficient to prove that he became a French national in 1998 by operation of French law, following registration of his Declaration of The buna aed not esol th Parties’ pea 1 what Raat alo lad abe a Preach natoal fie he mde i eleva inveseents ls Marius ight of our dsmisal of bis clans on ier grounds “raod Rewat The Rapa of writes (UNCITRAL ‘ward ot Sericton [Nationaliy based on mariage to e French national. (Factual Background, paragraph 448) Further, although Mauritius explained that one need not be w French national to bemade a knight ofthe French Légion d Horr, the fact remains that when Rawat was so honored he received it “as a French and Maurition citizen”. (Factual ‘Background, paragraph 50) 166, {ts undisputed that Rawat is also'a Mauritian national, and has been since his birth in Mauritius in 1944, The Tribunal notes thet, if we had t determine Rawat’s dominant and effective nationality the basic facts of his connections to Mauritius recited in the Factual Background readily show that he is dominantly and effectively Mauritian. As will be clear ftom the analysis to follow, such a determination is immaterial to resolution ofthe present dispute 167. What is material, for purposes of determining the applicability of the France- Mauritius BIT to the present cas, is that Rawat is a dual national of Mauritius and France. 168. The first and key legal question, then, is whether the term “ressorissamt”, 35 used ‘throughout the France-Mauritius BIT includes or excludes dual nationals. The ‘question of whether an individual (or legal entity) is national or “ressortiscant” of, state isa question of municipal law. Whether that nationality, once demonstrated, yas legal effects on the international plane—the plane of investment treaties—is a question of international law." 169, This brings the Tribunal tothe challenge of interpreting the relevant provisions ofthe France-Mauritius BIT. 170. ‘The Tibunalacceps, es argued by Rewat, that we are no to add conditions to the [BIT, as drafted and ratified by France and Mauritius. There is no express exclusion of dual vationals from protections under the BIT, unlike other investment weaies entered into by both Mauritius and France (erence in pararapt 139 above). This ‘would seem to point the inclusion, eather than the exclasion, of dual nationals Within the scope of the Fance-Mautvs BIT. 171, This s not the end ofthe matter, however. As both Parties emphasized, the lodestar {or our finding on how dual nationals are tobe treated under the BITT must be Article 31(1) of the VCLT. Under Anticle 31(1), we are to interpret terms in the BIT— °c tense maroains de rttenaid, PU Repos, Series, Advisory Opinion No, 4,7 Febrary 1925, p24 (CLAAL4 ILC Dra Arles om Diplomatic rotor spa nts 108, 031-35; Soa na Avab Emits, SUD Case No. ARID, Aan, uy 2004, pra 38 (Fab RLACES): Pep Cando » Ce supra 128, paras 255-257, 319 2 eeuDanco Rasa The Rep of Marit (UNCTTRAL) ‘Award on dardition including the term “ressartissant”™—according ta “the ordinary meaning to be given 10 the lerms of the treaty in their context and in the light of ts abject and purpose” (emphasis added), 172, The Tribunal considers that, but forthe requirement that we take the context ofthe ‘ordinary mesning of the term “ressortisan ito account, the object and purpose of, the France-Mauritius BIT would also point ro the outcome of ineluding, rather than ‘excluding, dual nationals as protected “ressortissance” within the ambit ofthe BIT. ‘The Preamble highligh the goal ofthe treaty 10 “protect and stimulate” investment, ‘and the BIT does not distinguish between the possible sources of the investments Sought, Other investment treaty tribunals have reached the same conclusion, for ‘cxample in the cases of Pey Casado v Chile and in Garcia Armas v Venezuela, as cited by Rawat! 173, However, in addition tothe object and purpose of the France-Mauritius BIT, we must Jinecpret the term “ressortssamt”, as applicable to dual nationals, in context. Under VCLT Article 31), the context includes the text of the treaty itself, including its preamble and annexes. Interpreting Leaty text in context means, of necessity, ‘examining the relevant provisions of the BIT in which the term to be interpreted is used. 174, Tuming back to the France Mauritius BIT, the tem “ressortiesant” is used beyond Article 12), Most important to the interpretation issue before the Tribunal, which ‘goes to arbitral jurisdiction, Adicle 9 of the BIT also uses the term *ressortssant” Aaicle 9 directs all French and Mauritian “ressortssants” who enter int investment contracts with the other state to arbitrate disputes with the host state under the ICSID Convention. The text of Aticle 9 bears quoting apain, in French and English Les accords refarife aux imvesiscements & efectuer sur le territoire d'un des Etats contractants, par les ressorissants,socités ou autres personnes morales ide Cautre Etat contractant, comparteront obligatoirement wie clause prévoyant aque les différends elatif ces investissements devrontétre sounis, aucas olsun ‘accord amiable ne powrait interven & bref dla, au Centre international pour le riglement des différends relatifs aux investistements,en vue de leur rbglement par arbitrage conformément & la Convention sur le réglement des differends rolargs aux inestissements entre Beas et ressortssants d'autres Etats. 1 Awl beer ram the allowing iscsi, the Tabane docs nt purport odie wth the eonchsons reached by th burs in these two cases, but ders te cote the two trees ned hese as, ‘he Spas-Chile BIT on tie one hand, ad the Spa- Venezuela BIT on he oter bang, was erat. Ipocamy, ‘hese ees rovided for a enw of ston options fr ovesrs. They ci ot mae itn oigtion fe Jnvess to bing does agaist he host tate Before an abla bua conshed und the auspices oF ‘SID, alike what scout in tile 9 ofthe Fences BIT inthe preset asovocd Naver The Repub of Mourn (UNCTTRAL) ‘ard on Jaristion 176, In free translation: Agreements relating to investments 10 be made in she territory of one of the Contracting States by nationals, companies or other legal persons of the other Contracting State, must include a clause providing that their dsputes relating 2 these investments shall be submitted, in the event that an amicable agreement ‘cannot be reached within a short period of time, to the International Center for the Settlement of Investment Disputes, with a view to their settlement by arbitration, in accordance with the Convention on the Settlement of Investment Dispur benween States and nationals of other States Antcle 25(2) of the ICSID Convention, which Anicle 9 of the BIT necessarily refers by referencing the ICSID Convention, also uses the term “vessortssant” in the ‘authentic French version. Indeed, the ICSID Convention includes a definition ofthe term, which also bears quoting again: “Ressortissant dn auare Btat comtractant” signifie (@) toute personne physique qui passéde la nationalité d'un Etat contractamt ‘autre que I'Etat parte au différend dla date é laquelle es parties ont consenti AG sounetire le diférend & la conciliation ou & Uarbitrage ainsi qu la date & Jaguelle la requéte a été enregisirée ..@ Vexclusion de toute personne qui, Pune owa Vauire de ces dates, posséde également la nationalté de PEtat contractant partie au différend ; (Eexphasis added) ‘The English official version reads as follows: “National of another Contracting State" means: (a any natural person who had the nationality ofa Contracting State other ‘than the Site party to the dispute on the date on which the parties consented 1a submit such dispute to conciliation or arbitration as well as on the date on which the request was registered ., but does not include any persou who on either date also had the nationality of the Contracting Stae party to the dispute; (Emphasis added) Alice 252) expressly end definitively excludes dual nationals from the term Sressortssami”, The impor is clear: there would be no ICSID jurisdiction of any dispute that arises under hypothetical investment contract between a French- “Mauritian duat national and either France or Mauritius, ‘To repeat, Article 9 of the BIT and—by explicit reference in Article 9 tothe ICSID ‘Convention—Article 25(2) ofthe ICSID Convention are also part of the context in which the BIT term ressortisant™ must be interpreted. Even accepting the (Claimant's position thatthe general meaning of *vessortissan” can be equated withDoswoo Rows The public of Maar (UNCITRAL) 78, 179, 180, ial the notion ofthe erm “national” in French," the duty ofthe Tribunal i to interpret “ressortissant” according to the ordinary meaning of the term in the context of the France-Mauritus BIT. “The Tribunal finds it decisive, in inerpreting the tem “ressortissant™ in the treaty context, that Amticle 9 of the BIT makes it an obligation, as opposed to an option, for the Contracting States to include an ICSID arbitration clause in investment contracts wilh protected “ressortissants". This creates a strict and conventional alignment between the notion of *ressortissant” under the ICSID Convention and under the France- Mauritius BIT. “The Tribunal cannot but conclude that, by incorporating a mandatory reference to the {CSID Convention in the notion of “ressortssant” through Article 9 of the BIT, France and Mauriius have implicitly, but necessarily, excluded French-Mauritian ‘dual nationals from the scope of application of the BIT. ‘The Tribunal acknowledges Rawat's argument seeking to avoid this conclusion, At ‘the hearing, his counsel agreed that had he sought the application of Article 9 with his French nationality in a (hypothetical) investment contract with Mauritius, the mandatory (CSID stbitration clause would have had no effect due to his dual nationality." Counsel effectively asked the Tribunal to read Anicle 9, as applied to us] nationals, out ofthe BIT and instead focus onthe possibility offered by the MEN Tanguage in Article 8 of the BIT and Article 9 of the Finland-Mauritius BIT to open the effective avenue of UNCITRAL arbitration, which pases no express jurisdictional bar to dual nationals ‘The Tribunal carefilly examined this argument, but finds that it cannot succeed. Taken to its Fogical conclusion, the result would be two different meanings being ascribed tothe sane term inthe same treaty, The term “ressortissan* would be read to include dual rationals in all provisions ofthe BIT except Anile 9, and to exclude ual nationals in Amicle 9. There is no room for such an internally conflicting interpretation ofthe same tem in a treaty under VCLT Anicle 31, Thata treaty tem ‘Te Tuna essonly ares sith he Claimant in his spect. anything. and ping ae the spe ‘omex ie wl he ters mst he inert in th BIT, the aon of rsrtian"s ngeeral sya oNs ity and ceraincrcurcances nay even be soe a he broader than, he nlon of aoa, aoe sae by Mae. Consent eh hs iterpetion the Respondent at eeagize a the aig tht ‘he talon Of rasortacon?” "tad cera indus who woe not Nanonale of Fron 1 aiplomatic Protection. Tans, p50, ines 1-5, Dr Hikanen "TrasDaoood Ray The Reb of Mews (UNCTTRAL) 182, 183, Iss, 186, ‘wand on Jeretion must be ascribed the same meaning throughout the treaty iS in fet undisputed between the Parties.” “The Tribunals conclusion that lacks jurisdtion ratione personae fs coafimed by application of he principle of eer we, which the Parties agreed in response 10 our fourth writen question, pan of the applicable interpretive principles. Aft ate, although not expressly set out in the VCLT, is generally accepted to flow from the principle of interpretation of treaties in good faith as envisioned in VLCT Arte 3i(1), The Cemex v Venezuela tinal described the principle of fet wile as “exeludling] interpretations which would render the text meaningless, when a ‘meaning Imerpreation Is possile™." We consider that it would indeed be meaningless here to interpret Acle 9 of the BIT as obliging France and Mauritius to center into investment agreements containing ICID arbiation clauses with “rescrsissanis" of the other state who are Freneh-Maurtian dua nationals, wen such arbitration clauses would be ineffective precisely because ofthat duel nationality To conclude, having found that the term “ressortitsant” cannot encompass dust nationals when interpreted in the context of the France-Maurtiss BIT, the Tribunal ‘holds that the BIT does not apply to Rawat as a dual national of Mauritius and France. ‘The Claimant is neither protected under Anticle 12) of the BUT nor under the BIT as ‘whole, and Mauritius has aot consented in the BIT to arbitrate with him. ‘The Teibunal therefore upholds Maurits’ objection to jurisdiction ratione personae, 1 formulated at paragraphs 70-72 of Mauritius’ Memorial on Jurisdiction, and subsequently addressed by the Patis and the Tribunal atthe hearing, with the effect that the Tribunal has no jurisdiction to hear the claims made, Step 2: Does the MEN Clause in Article 8 of the BIT Apply? ‘As a result of the Tribunal’s decision that personal jurisdiction is lacking, we need not advance to the second step and examine whether the Claimant may benefit from the MEN avenus in Article 8 of the France-Mauritius BIT. Because dual nationals are not covered by the BIT, the Claimant cannot avail himself of the substantive protections of the BIT, including Article 8. We do wish to express our appreciation for the high quality of both Parties’ ‘submissions on the jurisdiction rarone volurtats objection, which to our knowledge °° Tamsrp, 8, ine23 tp 9 lin 8, Dr Pan, een tthe fet bat he tem “esarsan has eaaly he sume meaning” oughou the Pance Maus BI, °% CEMEX, spr pote 53, para 14 46Dera Rewat The Rpublicof sur (UNCTTRAL ‘Award on Jurado involved an issue of fist impression in investment treaty arbitration." AS the ‘Tribunal pointed out in is Interim Measures Order (paragraph 84) counsel forthe Partes have been unable to point the Tribunal 1 any decision In which an investment tribunal tasked with interpreting a BIT without any direct investor-state arbitration clause has found jurisdiction on the basis of ‘an MEN clause in the base treaty thereby allowing an investor effectively to ‘accept an arbitration offer made by the host state 10 investors ofa third sate. 187, _Ifithad proven necessary to deve the Respondents second jurisdictional objection, the questions to be reslved would have included defining for MEN purposes the “matére"in Acie 9 ofthe France-Mauri BIT and the “mative” in Article 9 of {he Finland- Mauritius BIT, and deciding whether these were ofthe same kind. This ‘would ave been the heart ofthe eludem: generis test obs applied and would have involved an assessment ofthe level of granularity at wich the “matitres” needed to be considered, in one to distinguish “mates” from “treatment” ofthese matters inthe respective Antles 9 of the two investment treaties. “Matters” cannot be “peered” by virtue of MEN clauses; “treatment” of matters may, in accordance with the wording of each relevant MEN clause. I was such questions thet the Tribunal highlighted in its Order on Incerien Measures (paragraph 81). ©. Costs 188, To reall, on $ March 2018, the Tribunal requested statements of casts from each Party by (9 March 2018, “including both thelr arblirarion costs and their legal fees and expenses through the jurisdictional objection phase” (emphasis added). 189. [nits 19 March 2018 Statement of Costs, counsel for Rawat reported his total costs and fees, as of 31 July 2017 (the date of Mauritius’ Memorial on Jurisdiction), 0 be € 277,523.66, including: arbitration costs of € 100,000 deposited with the PCA, legal fees of € 172,056.69 of De Gaulle Feurance & Associés for 685 hours, and expenses of € 5,466.97. The Statement indicated that “Claimant understands tha the Statement of Coss shall be limited to the jurisdictional objection phase only 190, Im Respondent's Cost Statement, also filed on 19 March 2018, counsel for Martins reported its total costs and fees, from the date of receipt of the Notice of Arbitration torough the jurisdictional objection phase, to be USS 723,973.53. In addlion 10 | The Moise» Senegal case, spr note 49, though simian some resp iret ina he ey inealing the MFM clase, tat the cians sought rely onthe GATS was not ap itvesment ey "By ti the buna means forsee tat "spt eters ess ranula asa"mae” thas vest state dispute setieren, wich el es gan than "sonra invsinr state pte stlemen ”Deaood Rana» The Republi of Mawr (UNCETRAL) Award on Juri 191 194, Mauritius” deposits of € 100,000 and € $0,000 to the PCA for arbitration costs, ‘counse! divided legal fees and expenses between five phases, as follows: Leg Fees o Lalive Expenses nial Phase $193,318.70 $5,208.30 264,51 hous) . Interim Measures $179,202.70 $6,64498 524,66 hoor Memorial on Jurisicion | $158,360.60 S534 (671.30 hous) Hearingon Sursdicion | § 152459.70 $12,862.41 (counsel) (419.58 hours) $6,491.00 (client) (Cost Statement $4,000.00 $120.00 hours) In its Statement of Account of 27 March 2018, the PCA Secretariat confiemed tht: (1) each Party had deposited € 150,000 as advances on costs, bringing the total advance on costs 19 € 300,000; (2) the PCA incurred fees, expenses and other bank, printing and telecommunications costs of € 4,886.76; and (3) the total fees and ‘expenses ofthe Tribunal were € 295,113.24, (This reflects reductions teken by the “Tribunal members and the PCA to keep the total owing for fees and expenses to the deposited € 300,000.) The PCAs Statement of Account is annexed to this Award Tho Tribunal sets the arbitration costs at € 300,000. ‘On the basis that neither Party prevailed on its request for aterm measuces, and that Doth Parties presented strong arguments on complex jurisdictional objections, the ‘Tribunal determines that each Party should bear one-half ofthe total arbitration costs ‘oF€ 300,000. As Rawat and Mauritius each deposited € 150,000 as advances on costs with the PCA, no further action is necessary with respect to arbitration costs, ‘On the basis that nether Party prevailed nits request for interim measures, and that Mauritius prevailed on one of its two jurisdictional objections, the Tribunal (by majority) determines that Rawat shell bear one-third of Mauritius’ total fees and expenses forthe jurisdictional objection phase. Using the smounis set out in the Respondent's Costs Statement forthe Memorial and Hearing on Jurisdiction phases, this comes to USS 111,697.00 ($163,592.74 plus $171,833.11 equals § 335,425.85, ‘multiplied by 33.3%, equals $111,696.81), Payment isto be made within 45 days of the date ofthis Award on Jurisdiction.Derood Rawat Te Ruble of Mears (UNCITRAL) vera on aration VI, AWARD For the foregoing reasons the Tribunal renders the following award: (1) The Respondents preliminary objection to jursdietion ratione personae i upheld; (2) The Thibund! therefore decides that i lacks jurisdiction to hear the claims made; (3) Each of the Parties fs to bear one-half of te toil arbitration casts oF € 300,000, confirmed by the PCA Secretariat, and its own lepal fees and expenses through the interim measures phase; no reimbursement therefore needs to be made in this respect; and (4) The Claimant is to pay the Respondent US $ 111,697.00 within 45 days ofthe date ‘of this Award on Jurisdiction, Place of ebiation: Brae, Balglam pus € Apr) Lux ‘The Tribunal: feo diobyte tld La porto ‘Mir Fean-Christopie Honiet Professor Vaughan Lowe QC Arbitrator Arbitrator ba fd Professor Lucy Reed Presiding Arbitratorawood Rawat» The Republic af Mounts (UNCITRAL) ‘Annex to Award on Jurisdiction Statement of Account 2016-20 Deposit Expenses Parties Claimane depos $50,000.00 Respondent deposits 150,000.00 “300,000.00 ‘Tribunal Mr.J.C. Honlee VA 364.84 Mr. J.C, Honfrarbieatrs foes 103 648.41 MJ. Hone expenses vst Prot L, Reed arbitrators fees 12131090 Prof L. Reed expenses 5,691.11 Prof V Lowe QC arbitrators fees 52,862.50 Prof. V, Lowe QC expenses 127694 295,138 ‘Other Teibunal Expenses Bank cots 8000 Printing and Supoies 3810 Telseoonmunication 25815 37425 Registry PCA reat fes- billed PCA, 3.99000 billed Fes the 2703/18 52051 45103) Totat FER 300,000.00 300,000.00 Remaining deposit 0.00