Summary

Source: icsid.worldbank.org

CLAIMANT'S REQUEST FOR ARBITRATION

A. Introduction
B. Names and Addresses of the Parties
C. Nature and Circumstances of the Dispute
C.1 Overview
C.2 The Origins of the Project
C.3 The 2005 EPC Contract
C.4 The 2008 EPC Contract
C.5 Certificate of Environmental Clearance
C.6 Suspension and Termination of the Project
(a) First Suspension following the 2009 High Court Decision
(b) Second Suspension following the Election of United National Congress
(c) The State's Decision to Terminate the Project
(d) CMEC's Notice of Termination and Claims for Payment
(e) The State's Assurances as to Settlement of the Payment Claims
(f) Election of People's National Movement and Continued Settlement Discussions
C.7 Lead up to this arbitration
D. Jurisdiction under the BIT
D.1 Jurisdiction ratione personae
D.2 Jurisdiction ratione materiae
D.3 Jurisdiction ratione voluntatis
D.4 Jurisdiction ratione temporis
E. Breaches of the BIT
E.1 Unlawful Expropriation
E.2 Failure to Accord Fair and Equitable Treatment (FET)
E.3 Breach of the State's non-impairment obligation
E.4 Breach of the umbrella clause
F. ICSID Jurisdiction
F.1 Article 25 of the ICSID Convention
F.2 Contracting State
F.3 National of a Contracting State
F.4 Investment
F.5 Legal Dispute
F.6 Consent in Writing
G. Constitution of the Tribunal
H. Orders and Relief Sought
I. Submission
Index of Factual Exhibits
Index of Legal Authorities
Annexure A: Authorisation
Annexure B: Power of Attorney

A. INTRODUCTION

1. By this Request for Arbitration (Request), China Machinery Engineering Corporation (CMEC or Claimant), a company incorporated in the People's Republic of China (China or PRC), submits its dispute with the Republic of Trinidad and Tobago (State or Trinidad and Tobago) for resolution by arbitration to the International Centre for Settlement of Investment Disputes (ICSID).

2. The dispute that is the subject of this Request arises out of the breach of multiple international obligations that bind the State under the Agreement between the Government of the Republic of Trinidad and Tobago and the Government of the People's Republic of China on the Reciprocal Promotion and Protection of Investments, signed at Port of Spain on 22 July 2002 and in force since 7 December 2004 (BIT).1

3. The nature and circumstances of the dispute - relating to a 125,000 metric-tonne-per- year aluminium smelting complex located at Union Industrial Estate, La Brea, in Trinidad and Tobago (Project) - are set out below in Section C. In the words of the incumbent Prime Minister of Trinidad and Tobago, Dr Keith Rowley (Prime Minister Rowley):

(i) the Project was "improperly shut down" and "politically extinguished"; and

(ii) CMEC was "chased out".2

4. This Request is submitted pursuant to Article 10 of the BIT.

5. The Claimant confirms that it has obtained all necessary internal authorisations to file this Request, as evidenced by the Authorisation attached as Annexure A.

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C. NATURE AND CIRCUMSTANCES OF THE DISPUTE

C.1 Overview

12. The Claimant's investment relates to the works it carried out on the Project as contractor.

13. The conduct of the State has dispossessed the Claimant of all outstanding rights and interests under the investment it made in Trinidad and Tobago. In particular, but not exclusively, the State has (i) "shut down the plant and chased out the contractor"4 and (ii) completely failed to pay amounts due to CMEC under two Project-related EPC Contracts with State-owned Alutrint Limited (Alutrint) upon termination of the Project.

14. Prime Minister Rowley recounts that, after the State terminated the Project, CMEC "kept making their claims [but the Government then] ignored it, they danced around it, they did other things except deal with it because they didn't want [the people of Trinidad and Tobago] to know that there was a cost to that political action."5

15. In so doing, the State has committed multiple breaches of its obligations toward CMEC under the BIT. All acts of Alutrint at the root of or in connection with these treaty breaches have been assumed by the State and/or are attributable to it.

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H. ORDERS AND RELIEF SOUGHT

117. The Claimant seeks the following relief from the tribunal to be constituted:

(i) a DECLARATION that the State has violated its obligations under Article 6 of the BIT by unlawfully expropriating the Claimant's investment and an ORDER that the State pay damages or compensation accordingly (in an amount to be quantified at a later stage in the proceedings);

(ii) a DECLARATION that the State has violated its FET obligations under Article 3(2) of the BIT and an ORDER that the State pay damages or compensation to the Claimant accordingly (in an amount to be quantified at a later stage in the proceedings);

(iii) a DECLARATION that the State has violated its duty not to impair by unreasonable or discriminatory measures the Claimant's management, maintenance, use, enjoyment or disposal of its investment under Article 3(3) of the BIT and an ORDER that the State pay damages or compensation to the Claimant accordingly (in an amount to be quantified at a later stage in the proceedings);

(iv) a DECLARATION that the State has violated its duty to observe any commitments that it entered into with regard to the Claimant's investment under Article 13(2) of the BIT and an ORDER that the State pay damages or compensation to the Claimant accordingly (in an amount to be quantified at a later stage in the proceedings);

(v) an ORDER that the State pay the Claimant's costs of these proceedings, including but not limited to the Claimant's legal fees and expenses, the fees and expenses of the tribunal, the costs of ICSID, and the costs of the Claimant's employees and officers;

(vi) an ORDER that the State pay pre-award interest on any monetary compensation ordered by the tribunal; and

(vii) any other relief as the tribunal determines to be just and appropriate.

118. The Claimant reserves all its rights in relation to its investment and the Project as well as the dispute that is the subject of this Request, including its right to amend, supplement, and/or expand its claims in this Request, the orders and relief sought in this Request, and/or any other aspects of this Request.

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