Summary

Source: icsid.worldbank.org

A. Summary

1. This claim, now presented as a claim against the Republic of Trinidad and Tobago ("T&T" or "GORTT") for breach of its international obligations under the Treaty, is misconceived.

2. The claim started out life as a claim by CMEC against its contractual counterparty, Alutrint. The claim, when it was in that form, alleged that Alutrint was liable to CMEC for losses it had suffered as a result of the termination of the 2005 Contract and the 2008 Contract.

3. This claim was made in 15 letters sent successively by CMEC to Alutrint. The claim was for ever-increasing and grossly-exaggerated amounts. These contractual claims, which were first made in 2011, peaked in a letter dated 15 August 2022, in which the sum claimed was US$304 million.

4. In early 2015, during the period when CMEC's claim was being presented as a contractual claim against Alutrint, CMEC initiated the contractual dispute resolution procedure under the 2008 Contract, by sending Alutrint formal notice of its intention to refer its claim to a Dispute Adjudication Board ("DAB").

Alutrint agreed to CMEC's claim being referred to a DAB and made some proposals as to how the DAB process should be conducted.

5. Later in 2015, CMEC, unilaterally and unaccountably, abandoned the contractually-agreed DAB process which it had initiated and to which Alutrint had assented and reverted instead to making yet more claims, in increasing amounts, in letters sent to Alutrint.

6. Then, after some years of discussions with T&T government officials aimed at achieving settlement of its claims against Alutrint, CMEC suddenly changed tack and instigated instead a claim against T&T alleging breach of its international treaty obligations (this claim).

7. The change of tack came out of the blue. CMEC had not intimated that it would be making any claim against T&T until Clifford Chance, on behalf of CMEC, served on T&T Notification of a Claim and Request for Consultations and Negotiations, dated 26 August 2022, pursuant to Article 10(2) of the Treaty ("CC's Notification of a Claim").

8. This was just 11 days after CMEC's said claim made against Alutrint on 15 August 2022, more than 11 years after CMEC had made its first claim against Alutrint in 2011, and some 12 years after the events which are now said to constitute T&T breaches of its obligations under the Treaty. Prior to receipt of CC's Notification of a Claim, T&T had no idea that it was the subject of any claim by CMEC, whether under the Treaty or otherwise.

9. Furthermore, in the course of the period since CMEC's Treaty claim against T&T was first intimated by CC's Notification of a Claim, the character of CMEC's claim has fundamentally changed.

10. In CC's Notification of a Claim, CMEC's claim mirrored the contractual claim it had been making against Alutrint. Hence CMEC there said that the value of its outstanding claims "exceeds US$300 million" (CC's Notification of a Claim, Annex, §47).

11. CMEC's Treaty claim continued to mirror its previous contractual claim against Alutrint in its Request for Arbitration dated 27 March 2023 (§70 said CMEC's claim "exceeds US$310 million") and also at the Bifurcation Hearing before the Tribunal on 24 April 2024 (§4 of CMEC's Written Submissions said CMEC's claim was "over US$300 million").

12. Then, with the service of the Memorial, CMEC changed tack. The amount CMEC now claims against T&T is US$156 million. So the claim has been slashed to about half of what CMEC had been consistently claiming against T&T throughout the previous two years. No explanation is given in the Memorial as to why the claim CMEC was previously making against T&T was in excess of US$300 million, nor why the claim CMEC is now making has been so substantially reduced.

13. CMEC's confusion as to the true target of its claim permeates the Memorial.

14. The Memorial, §1, says that since 2012 "the State has repeatedly made false assurances that it will compensate the Claimant...for the termination of the Project and related contractual rights". But T&T has given no such assurances; as appears from the above, T&T was not even aware that CMEC was seeking any compensation from it until it received CC's Notification of a Claim of 26 August 2022.

15. The Memorial, §1, also refers to the "State's decade-long avoidance of its obligations". But, again, this makes no sense, since prior to sending CC's Notification of a Claim CMEC had not asserted that T&T had any obligations.

16. CMEC's zigzagging between a contractual claim against Alutrint and a Treaty claim against T&T is further exemplified in §38 of the Memorial, which says:

"Unfortunately, now after more than a decade, Alutrint has still not paid any compensation to CMEC for the cancellation of the Project and/or the termination of related contractual rights."

But, as referred to above, CMEC commenced and then abandoned its contractual claim against Alutrint. CMEC cannot expect Alutrint to pay it compensation now it has switched its claim to a claim against T&T.

17. Most importantly, the belated re-packaging of CMEC's contractual claim against Alutrint as a Treaty claim against T&T does not work.

18. This is and always has been a contractual claim against Alutrint. CMEC's attempt to shoehorn it into a Treaty claim has not succeeded.

19. None of T&T's alleged breaches of its Treaty obligations can be substantiated.

20. CMEC gives prominence to its claim for expropriation. But its case on expropriation is a muddle. It is not even clear what property CMEC says has been expropriated. Each time CMEC has presented its expropriation claim (first in CC's Notification of a Claim, then in the Request for Arbitration, now in the Memorial) the identity of CMEC's property which is said to have been expropriated has changed. Insofar as CMEC now says that what has been expropriated are its contractual rights under the EPC Contracts, the same does not work in law and in any event CMEC has not been permanently deprived of such rights. These and T&T's multiple further responses to CMEC's expropriation claim are set out below.

21. CMEC's other major contention is that T&T has breached the fair and equitable treatment standard. None of the contentions that T&T treated CMEC unfairly or inequitably is sustainable. CMEC's main points are that T&T gave CMEC assurances to the effect that the Project would continue to completion and that amounts due to CMEC under the EPC Contracts would be settled.

22. But it is plain that T&T gave CMEC no assurances as to the further course of the EPC Contracts and no assurances that T&T would settle amounts due under the EPC Contracts. As to the latter, as stated above, CMEC had throughout sought payment only from Alutrint and not from T&T. T&T did not even know a claim was being made against it until it received CC's Notification of a Claim many years later. Furthermore, it is impossible to contend that it was unfair or inequitable for T&T not to pay the excessive amount of over US$300 million which CMEC was seeking, when it has now seen fit to slash its claim to half that sum.

23. As is often the case, CMEC's claim that T&T breached the Non-Impairment standard cannot succeed essentially for the same reasons its case that T&T breached the fair and equitable treatment standard cannot succeed. CMEC's claim that T&T breached the umbrella clause is plainly unsustainable - CMEC does not even address the elephant in the room viz the well-known "it" problem.

24. The above matters are all developed in Sections D to N below.

25. Thereafter, the Memorial on Preliminary Objections comprises Sections O and P.

26. In Section O, T&T respectfully contends that the Tribunal has no jurisdiction over CMEC's claim since the essential basis of the claim is breach of the EPC Contracts between CMEC and Alutrint; hence the claim falls outside the jurisdiction of ICSID and the Tribunal.

27. In Section P, T&T contends that CMEC's claims are barred on the grounds of (1) extinctive prescription, (2) acquiescence and estoppel and (3) abuse of process and bad faith.

28. It is submitted that the preliminary objections in Section O and Section P are each fatal to CMEC's claim.

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