|Notice of Intent||Notice of Intent to Submit a Claim to Arbitration under Chapter Ten Of The United States-Oman Free Trade Agreement dated 19 April 2011.|
|Request||Request for Arbitration dated 5 December 2011.|
|Claimant's Memorial||Claimant's Memorial dated 16 November 2012.|
|Oman's Counter-Memorial||Oman's Counter-Memorial dated 5 June 2013.|
|Claimant's Reply||Claimant's Reply Memorial dated 1 November 2013.|
|Oman's Rejoinder||Oman's Rejoinder dated 11 March 2014.|
|Claimant's Pre-Hearing Skeleton||Claimant's Pre-Hearing Skeleton of Argument dated 14 April 2014.|
|Oman's Pre-Hearing Skeleton||Oman's Pre-Hearing Skeleton dated 14 April 2014.|
|Claimant's Post-Hearing Answers||Claimant's Post-Hearing Answers to the Tribunal's Questions dated 30 June 2014.|
|Oman's Post-Hearing Answers||Oman's Response to the Tribunal's Post-Hearing Questions dated 30 June 2014.|
|US Submission||Submission of the United States of America dated 22 September 2014.|
|Claimant's Response to US Submission||Claimant's Response to the Submission of the United States of America dated 31 October 2014.|
|Oman's Response to US Submission||Oman's Memoranda [sic] in Response to the Submission of the United States of America dated 31 October 2014.|
|Claimant's (Corrected) Submission on Costs||Claimant's Submission on Costs dated 6 March 2015 (as corrected by Claimant's Submission on Costs dated 9 March 2015).|
|Oman's Submission on Costs||Oman's Costs Submission (by letter dated 6 March 2015, including Respondent's Statement of Costs).|
|Claimant's Reply on Costs||Claimant's Reply to Respondent's Costs Submission dated 16 March 2015.|
|Oman's Reply on Costs||Oman's Reply to the Claimant's Submission on Costs (by letter dated 16 March 2015).|
|Claimant's Updated Submission on Costs||Claimant's Updated Submission on Costs dated 22 September 2015|
|Al Azri, Dr||Dr Hilal Al Azri, Chairman of OMCO until late 2008; also former Director-General of Minerals, Ministry of Commerce and Industry (MOCI).|
|Al Bulushi, Mr||Yasser Al Bulushi, Head of Government Affairs, Emrock.|
|Al Busaidi, H E||H E Hamoud Al Busaidi, former Minister of Environment and Climate Affairs (MECA).|
|Al Dheeb, H E||H E Ahmed Al Dheeb, Chairman of OMCO from late 2008; also Under-Secretary, MOCI.|
|Al Hinai, H E Dr||H E Dr Abdullah Bin Ali Al Hinai, Director-General of Industry, MOCI.|
|Al Maimani, H E||H E Al Maimani, Undersecretary for Administrative & Financial and Region Affairs at MOCI.|
|Al Muharrami, Mr||Mohammed Al Muharrami, Director-General of Environmental Affairs, MECA.|
|Al Rushdi, Dr||Dr Ghaleb Al Rushdi, Director of Legal Department, MECA.|
|Al Tamimi, Mr||Adel A Hamadi Al Tamimi, otherwise known as "the Claimant".|
|Al Waily, Mr||Ali Al Waily, General Manager, OMCO.|
|Emrock||Emrock Aggregate & Mining LLC, a company incorporated in the UAE of which 49% of the shares are owned by the Claimant.|
|GEO-Resources||GEO-Resources LLC, environmental consultants who assisted the Claimant with the obtaining of environmental approvals from MECA.|
|Gupta, Mr||Subodh Gupta, Manager of Mining and Director of Operations, Emrock.|
|Guzman, Mr||Jaime Guzman, Business Development Manager, OMCO.|
|Ibrahim, Mr||Saad Ibrahim, Chief Engineer and Manager of Rock Procurement, Nakheel Properties.|
|Maqbool Bin Ali Sultan, H E||H E Maqbool Bin Ali Sultan, former Minister of Commerce and Industry.|
|MECA||Omani Ministry of Environment and Climate Affairs (also used for convenience herein to refer to the Ministry's predecessor, the Ministry of Regional Municipalities, Environment and Water Resources - see also entry for MRMEWR.|
|MOH||Omani Ministry of Housing, Electricity and Water.|
|MOCI||Omani Ministry of Commerce and Industry.|
|MRMEWR||Ministry of Regional Municipalities, Environment and Water Resources (predecessor before September 2007 to the Ministry of Environment and Climate Affairs, MECA).|
|Nakheel Properties||Nakheel Company LLC, a real estate development company wholly owned by the Dubai government.|
|Oman||Sultanate of Oman, otherwise known as "the Respondent".|
|OMCO||Oman Mining Company LLC, an Omani state-owned enterprise.|
|Rahman, Mr||Mamoun Al-Zubair Abdul Rahman, a survey engineer from MOH.|
|Ralutin, Mr||Francisco Pine Ralutin, scale bridge operator and assistant accountant, Emrock, and later Site Office Manager, Emrock.|
|Royal Oman Police||State police force of Oman.|
|SFOH||SFOH Limited, a company incorporated in the UAE of which the Claimant owns a 100% stake.|
|Van der Wiele, Mr||Adriaan Hendrick Van der Wiele, Principal, GEOResources.|
|Al Dheeb Witness Statement||Witness Statement of His Excellency Ahmed Al Dheeb dated 11 March 2014.|
|First Al Rushdi Witness Statement||Witness Statement of Dr Ghalib bin Abdullah Al Rushdi dated 4 June 2013.|
|Second Al Rushdi Witness Statement||Supplemental Witness Statement of Dr Ghalib bin Abdullah Al Rushdi dated 11 March 2014.|
|First Al Tamimi Witness Statement||Witness Statement of Adel A Hamadi Al Tamimi dated 15 November 2012.|
|Second Al Tamimi Witness Statement||Second Witness Statement of Adel Al Tamimi dated 1 November 2013.|
|First Al Waily Witness Statement||Witness Statement of Ali Al Waily dated 5 June 2013.|
|Second Al Waily Witness Statement||Supplemental Witness Statement of Ali Al Waily dated 11 March 2014.|
|First Gupta Witness Statement||Witness Statement of Subodh Gupta dated 16 November 2012.|
|Second Gupta Witness Statement||Second Witness Statement of Subodh Gupta dated 1 November 2013.|
|Maqbool Bin Ali Sultan Witness Statement||Witness Statement of His Excellency Maqbool bin Ali Sultan dated 5 June 2013.|
|Rahman Witness Statement||Witness Statement of Mahmoun Al-Zubair Abdul Rahman dated 11 March 2014.|
|Ralutin Witness Statement||Witness Statement of Francisco Pine Ralutin dated 24 August 2012.|
|First Van der Wiele Witness Statement||Witness Statement of Adriaan Hendrik Van der Wiele dated 5 June 2013.|
|Second Van der Wiele Witness Statement||Supplemental Witness Statement of Adriaan Hendrik Van der Wiele dated 6 March 2014.|
|Archibald Expert Report||Expert Report of Robert D Archibald, dated 1 November 2013.|
|First Boyd Expert Report||John T Boyd Company, Independent Review, dated November 2012.|
|Second Boyd Expert Report||John T Boyd Company, Independent Review, dated November 2013.|
|Elite Media Expert Report||Elite Media, Expert Report: Economic and construction industry conditions in the UAE as of June 1, 2009, dated March 2014.|
|MEED Expert Report||MEED Insight, Limestone Market Study as of June 1, 2009, dated 1 November 2013.|
|First Navigant Consulting Expert Report||Expert Report of Brent C Kaczmarek, CFA, Navigant Consulting, dated 5 June 2013.|
|Second Navigant Consulting Expert Report||Second Expert Report of Brent C Kaczmarek, CFA, Navigant Consulting, dated 11 March 2014.|
|First RPM Expert Report||Expert Report of RPM (RungePincockMinarco) dated 5 June 2013.|
|Second RPM Expert Report||Supplemental Expert Report of RPM (RungePincockMinarco) dated 11 March 2014.|
|CCL||Commercial Companies Law (Oman), Royal Decree No 4/1974 (RLA-052).|
|CRL||Commercial Register Law (Oman), Royal Decree No 3/1974 (RLA-049).|
|CRLA||Commercial Register Amendment Law (Oman), Royal Decree No 88/1896 (RLA-048).|
|FCIL||Foreign Capital Investments Law (Oman), Royal Decree No 102/1994 (CLA-049).|
|Immigration and Nationality Act||Immigration and Nationality Act, 8 USC § 1101 (2010) (RFA-CLA-005; CLA-045).|
|Law on Conservation of the Environment and Prevention of Pollution||Law on Conservation of the Environment and Prevention of Pollution (Oman), Royal Decree No 114/2011 (RLA-055).|
|Regulations for Crushers, Quarries and Transport of Sand from Coasts, Beaches and Wadi s||Ministerial Decision No 200/2000, Issuing Regulations for Crushers, Quarries and Transport of Sand from Coasts, Beaches and Wadi s (RLA-050).|
|Royal Decree 6/89||Royal Decree 6/89, Regulating the Relationship between Landlords and Tenants of Dwellings, Commercial and Industrial Premises and the Registration of Lease Agreements relating thereto, dated 5 January 1989 (CLA-003).|
|Royal Decree 11/81||Royal Decree 11/1981 (establishing OMCO) (CLA-002).|
|UAE Law Concerning Nationality, Passports and Amendments thereof||Federal Law No 17 for 1972 Concerning Nationality, Passports and Amendments thereof (UAE) (Exhibit J-003).|
|US-Oman FTA||Agreement between the Government of the United States of America and the Government of the Sultanate of Oman on the Establishment of a Free Trade Area, which entered into force on 1 January 2009 (Exhibit J-001).|
|AEP||Application for an Environmental Permit, in this context referring to the Application for an Environmental Permit submitted by the Claimant/OMCO to MECA in November 2006 (Exhibit J-077).|
|Certificate of Quarry Operation||Certificate for the Issuance of License No 1/1/39/2007 to establish (quarry for rock extraction), dated 4 June 2007 (Exhibit J-103).|
|DCF||Discounted cash flow, a valuation methodology.|
|EIA||Environmental Impact Assessment, in this context referring to the Environmental Impact Assessment (version 6) prepared by the Claimant/OMCO in September 2006 (Exhibit J-074).|
|EMP||Environmental Management Plan, in this context referring to the Environmental Management Plan (version 2) prepared by the Claimant/OMCO in August 2006 (Exhibit J-070).|
|ICSID||International Centre for Settlement of Investment Disputes.|
|ICSID Convention||Convention on the Settlement of Investment Disputes between States and Nationals of Other States, which entered into force on 14 October 1966.|
|ICSID Rules||ICSID Rules of Procedure for Arbitration Proceedings, which entered into force on 10 April 2006.|
|ILC Articles||International Law Commission, Responsibility of States for Internationally Wrongful Acts, 2001 (CLA-005).|
|Jebel Wasa||A mountain range located in the municipality of Mahda, Oman.|
|Joint Production Agreement||Agreement for Production of Limestone Quarrying and Crushing Project between SFOH and Emrock dated 15 January 2007 (Exhibit J-087).|
|krooki||Omani term for a site plan or plat issued by MOH relating to land in Oman.|
|MoU||Memorandum of Understanding.|
|OMCO-Emrock Lease Agreement||Agreement of Lease for Limestone Quarrying Project between OMCO and Emrock dated 8 April 2006 (Exhibit J-048).|
|OMCO-SFOH Lease Agreement||Agreement of Lease for Limestone Quarrying Project between OMCO and SFOH dated 25 May 2006 (Exhibit J-058).|
|UAE||United Arab Emirates.|
|WACC||Weighted average cost of capital.|
|wadi||Arabic term referring to a dry riverbed containing water only during times of heavy rain, in this context referring to the Wadi Sumayni, a riverbed plain adjacent to the Jebel Wasa range.|
|Representing Adel A Hamadi Al Tamimi:||Representing the Sultanate of Oman :|
|Mr David W Rivkin||Mr. Stanley McDermott III|
|Mr Mark W Friedman||Ms. Kiera Gans|
|Mr Carl Micarelli||DLA Piper LLP (US)|
|Ms Floriane Lavaud||1251 Avenue of the Americas|
|Mr Clay H Kaminsky||New York, NY 10020|
|Ms Raafia M Lari||USA|
|Ms Corina Gugler Debevoise & Plimpton LLP 919 Third Avenue New York, NY 10022 USA||Mr. Bruce Mullins Ms. Sarah Al-Moosa DLA Piper Oman LLP Penthouse, Al Manahil Building Al Sarooj Street Shatti Al Qurum P.O. Box 200|
|Mr Peter Mansour|
|Hamad Al Sharji, Peter Mansour & Co. Standard Chartered Bank Building 3rd Floor, CBD||Postal Code 134, Jewel Beach Muscat, Oman|
|PO Box 959||Abdullah Al Nofli & Mohammed Al-Tayed Co.|
|114 Jibroo, Muscat||503, Pent House|
|Sultanate of Oman||Fahad Plaza P.O Box 1643, Postal Code 112, Muscat, Oman|
For the Claimant:
Mr David W Rivkin Debevoise & Plimpton LLP
Mr Mark W Friedman Debevoise & Plimpton LLP
Mr Carl Micarelli Debevoise & Plimpton LLP
Ms Floriane Lavaud Debevoise & Plimpton LLP
Mr Clay H Kaminsky Debevoise & Plimpton LLP
Ms Raafia M Lari Debevoise & Plimpton LLP
Ms Corina Gugler Debevoise & Plimpton LLP
Ms Mary Grace McEvoy Debevoise & Plimpton LLP
Mr Malte Ernsting Debevoise & Plimpton LLP
Mr Jeff Isler Infographics Inc
Mr Adel A Hamadi Al Tamimi Emrock Aggregate & Mining LLC
Ms Alia Fadili Daughter of Adel Al Tamimi
Mr Jeff Karll Associate of Adel Al Tamimi
Ms Merwin (May) Canlas Associate of Adel Al Tamimi
Factual Witnesses (subject to sequestration)
Mr Subodh Gupta Formerly of Emrock Aggregate & Mining LLC
Mr Sari Alabdulrazzak MEED Insight
Mr Robert D Archibald The Archibald Consulting Group
Mr Michael F Wick John T Boyd Company
Mr Joseph G Jandrasits John T Boyd Company
For the Respondent:
Mr Stanley McDermott III DLA Piper LLP (US)
Ms Kiera Gans DLA Piper LLP (US
Mr Bruce Mullins DLA Piper LLP (US)
Ms Sarah Al-Moosa DLA Piper LLP (US)
Ms Vivian Hoffman DLA Piper LLP (US)
Mr David Webb DLA Piper LLP (US)
Ms Sara Tumey DLA Piper LLP (US)
Mr Khalid Saeed Al Shuaibi Director General International Organisations & Committees, Ministry of Commerce and Industry
Mr Faisal Al-Nabhani Senior Legal Researcher, Ministry of Legal Affairs
Factual Witnesses (subject to sequestration)
Dr Ghalib Al-Rushdi Director of Legal Department, Ministry of Environmental and Climate Affairs
Mr Ali Al-Waily General Manager, OMCO
Mr Adriaan Hendrick Van der Wiele Managing Director and Principal Environmental Consultant, GEO-Resources
H E Ahmed Al Dheeb Undersecretary, Ministry of Commerce and Industry
Mr Mahmoun Al-Zubair Abdul Survey and Planning Department, Al Buraimi Directorate
Rahman General of Housing, Ministry of Housing
Ms Delia Meth-Cohn Elite Media
Mr Brent C Kaczmarek Navigant Consulting
Mr Tim Swendseid RungePincockMinarco
Mr Gerard Maglio Navigant Consulting
Mr Andrew Preston Navigant Consulting
(i) Called by the Claimant:
Mr Adel A Hamadi Al Tamimi [x T2.11, xx T2.14, xxx T3,104];
Mr Subodh Gupta [x T3,172, xx T3,190, xxx T4.80];
Mr Sari Alabdulrazzak [x T6.2, xx T6.25, xxx T7.2];
Mr Michael F Wick and Mr Joseph G Jandrasits [x T7.36, xx T7.56, xxx T7,163; fxx T7,187]; and
Mr Robert D Archibald [x T7,188, xx T7,204].
(ii) Called by the Respondent:
Mr Ali Al-Waily [x T4,106, xx T4,107, xxx T5.60, fxx T5.67];
Mr Adriaan Hendrick Van der Wiele [x T5.69, xx T5.70, xxx T5.91];
Dr Ghalib Al-Rushdi [x T5,100, xx T5,101];
Mr Mahmoun Al-Zubair Abdul Rahman [x T5,119, xx T5,120, xxx T5,126];
H E Ahmed Al Dheeb [x T5,128, xx T5,129, T5,145];
Ms Delia Meth-Cohn [x T7,226, xx T7,227, xxx T7,268];
Mr Tim Swendseid [x T8.1, xx T8.2, xxx T8.80]; and Mr Brent C Kaczmarek [x T8,103, xx T8,105, xxx T8,194].
(i) A declaration that the Sultanate of Oman has breached its obligations under the US-Oman Free Trade Agreement;
(ii) Compensation in an amount of approximately $560 million for the damages caused by Oman's failure to provide Mr Al Tamimi national treatment, fair and equitable treatment, and full protection and security and its expropriation of Mr Al Tamimi's valuable interest in unrestricted mining concessions, which sum includes profits Mr Al Tamimi reasonably could have expected to receive had the Government of Oman not deprived him of the opportunity through its breaches and indirect losses;
(iii) Moral damages;
(iv) Costs associated with these proceedings, including all professional fees and disbursements;
(v) Pre-award and post-award interest at a rate to be fixed by the Tribunal; and
(vi) Such further relief that counsel may advise and that the Tribunal may deem appropriate ".
(i) A declaration that the Sultanate of Oman has breached its obligations under the US- Oman Free Trade Agreement;
(ii) Compensation in an amount no less than USD 226.8 million for the damages caused by Oman's failure to provide Mr Al Tamimi national treatment, fair and equitable treatment, and its expropriation of Mr Al Tamimi's investment;
(iii) Moral damages in an amount no less than USD 10 million;
(iv) Costs associated with these proceedings, including all professional fees and disbursements;
(v) Pre-award and post-award interest at a rate to be fixed by the Tribunal; and
(vi) Such further relief that counsel may advise and that the Tribunal may deem appropriate".
(a) A declaration that the [sic] Oman has breached its obligations under the FTA;
(b) Compensation of not less than US$273 million for injuries caused by Oman's failure to provide Claimant national treatment and fair and equitable treatment, and its expropriation of Claimant's investment, consisting of at least US$263 million in economic damages and at least US$10 million in moral damages;
(c) Costs associated with these proceedings, including all professional fees and disbursements;
(d) Pre-award and post-award compound interest at a commercial rate to be fixed by the Tribunal; and
(e) Such other or further relief that counsel may advise and that the Tribunal may deem appropriate ".3
(a) Dismiss Mr Al Tamimi's claims in their entirety; and
(b) Award Oman all costs incurred in connection with these proceedings, including legal fees, experts' fees, and other costs, and Oman's share of the fees and expenses of the Tribunal ".
(a) Dismiss Mr Al Tamimi's claims in their entirety; and
(b) Award Oman all costs and expenses incurred in connection with these proceedings, including all legal fees, experts' fees, hearing costs and Oman's share of the Tribunal's fees and expenses ".
On 8 August 2007, for example, MECA issued a complaint pertaining to Emrock's use of a screen.46 On 28 August 2007, OMCO wrote to Mr Al Tamimi alleging that Emrock was in "clear violation" of the OMCO-Emrock Lease Agreement by "processing material originating in the alluvial deposits located in the area's streams".47 On 22 September 2007, MOCI issued a notice to OMCO that its experts had observed during a site visit that the Claimant was working beyond the borders of the delimited site.48 On 29 September 2007, OMCO wrote to Mr Al Tamimi advising that Emrock was engaging in blasting outside the perimeters of OMCO's concession.49 MECA issued further infringement notices to OMCO on 7 October 2007 and 24 October 2007.50 On 25 December 2007, MECA issued an infraction report and fined OMCO RO 2,000.51
Article 10.27 relevantly defines an "investor of a Party’ as follows: "[...] a natural person who is a dual national shall be deemed to be exclusively a national of the State of his or her dominant and effective nationality". The Respondent contends that, as Mr Al Tamimi had previously stated that he was a national of the UAE,100 and as it remains unclear whether Mr Al Tamimi has lost or still retains that citizenship, he may be deemed an exclusive national of the UAE and hence not a covered " investor of a Party " for the purposes of the US-Oman FTA.
The Claimant has submitted that his investments in Oman, made through Emrock and SFOH, comprised the OMCO-Emrock Lease Agreement and the OMCO-SFOH Lease Agreement as well as " tens of millions of dollars " spent implementing those agreements, including building a road to the quarry site, designing a modern quarrying operation, developing the site, employing and training hundreds of labourers, creating a market presence, and leasing and purchasing equipment.107
The Claimant has submitted that the Tribunal does have jurisdiction ratione materiae in the present case on the basis that: (i) the Claimant is an investor of " the other Party " as defined in the US-Oman FTA; (ii) he has a " covered investment "; (iii) his allegations of breach under Chapter 10 of the US-Oman FTA pertain to measures adopted or maintained by Oman relating to the Claimant and/or his covered investment; and (iv) he has alleged loss or damage by reason of, or arising out of, the breaches he has alleged.108
The Claimant's investments are " covered investments ", the Claimant has submitted, because they were in existence as of the date of entry into force of the US-Oman FTA on 1 January 2009. The present dispute, moreover, concerns measures adopted or maintained by Oman on or after 1 January 2009 relating to the Claimant and his covered investments, which the Claimant alleges caused him to suffer loss.109 As to why the Claimant submits that his investments continued in existence as of the date of entry into force of the US-Oman FTA, again see the summary under the " Jurisdiction ratione temporis ’ heading below.
The Respondent notes that the US-Oman FTA relevantly provides that a " covered investment " under that instrument requires that the purported investment comport with Omani laws and be " in existence as of the date of entry into force of " the FTA (ie 1 January 2009).110 Oman claims that the Claimant's alleged investments fail to meet this requirement.111
The Claimant submits that it had valid leases on the date the US-Oman FTA came into force and thereafter, and notes that the leases are captured by the definition of " investment " in Article 10.27 of the US-Oman FTA.132 The Claimant notes that the Ibri Court of Appeal found on 6 June 2010 that the OMCO-Emrock Lease Agreement was in force and not validly terminated,133 and that although that court's judgment did not address the OMCO-SFOH Lease Agreement, such agreement was also never validly terminated.134
The Claimant notes that the second letter relevantly provides that OMCO " hereby terminate[s] EMROCK with immediate effect because EMROCK has not complied with making payments to [OMCO]."154 The Claimant submits that this language clearly reflects OMCO's understanding that the lease was still in place as of 17 February 2009 (the date of the second letter), as the lease could not be terminated " with immediate effect " had it already been terminated in July 2008.155 Further, the Claimant contends that subsequent statements by OMCO also confirm OMCO's understanding that the lease agreement was not terminated until after the US-Oman FTA entered into force: in various communications made by OMCO in 2010, OMCO referred to the OMCO-Emrock Lease Agreement having been cancelled/terminated since March 2009.156
The Claimant also notes that OMCO never attempted to terminate the OMCO-SFOH Lease Agreement on the basis of SFOH's alleged failure to register.166 Instead, OMCO only stated in its 22 August 2007 letter that the lease would be treated as " null and void " if SFOH did not register by 30 November 2007; it never issued a notice of substantial breach under that lease and a 60-day opportunity to cure.167 Even if the 22 August 2007 could be construed as a notice of substantial breach, the Claimant observes that no actual notice of termination was subsequently issued (as required under the lease) and no judicial decree of termination was obtained (as required under Omani law).168
As to operation within site boundaries, the Claimant alleges that, among other evidence, the Ibri Court of Appeal considered the testimony of Mr Mamoun Al-Zubair Abdul Rahman, a survey engineer from Oman's Ministry of Housing, Electricity and Water, who had visited Emrock's site on 4 May 2013.193 The Claimant submits that Mr Abdul Rahman testified that the Emrock encampment was within the boundaries of Emrock's approved area and that " there was no work taking place outside the western side, and likewise there was no exploitation on the northern side of the site ".194 The court, after reviewing all the evidence (including Mr Abdul Rahman's testimony), concluded that the evidence proved that Emrock was operating within the authorised area.195
As to the question of environmental approvals, the Claimant submits that the Ibri Court of Appeal held that the documents in the record established that OMCO " obtained all the required government licenses for the quarrying and crushing operations in addition to the requisite authorisations for carrying out this activity ".196 The court accordingly declared Mr Al Tamimi innocent of the charge of operating quarries and crushers without the proper permits.197
To the extent that the Respondent may wish to challenge the findings of the Ibri Court of Appeal, the Claimant argues that such judgment is entitled to res judicata effect against Oman in this arbitration.203 In so doing, the Claimant submits that the principle of res judicata, including the subsidiary doctrine of " collateral estoppel ", applies in both international arbitration and under Omani law.204 Applying such principle, as a result of the Ibri Court of Appeal judgment, the Claimant contends that the Respondent cannot challenge in this arbitration the lawfulness of Mr Al Tamimi's operations.205
The Claimant also submits that the 25 April 2010 judgment of the Mahda Court of First Instance is entitled to no weight in this arbitration.206 The Claimant argues that this judgment was not the result of a " civil " proceeding against Mr Al Tamimi, but rather was (like the proceeding before the Ibri Court of Appeal) a criminal proceeding.207 Relevantly, the Claimant notes that the Ibri Court of Appeal's judgment resolved substantially the same issues as the 25 April 2010 judgment of the Mahda Court of First Instance, and as the Ibri Court of Appeal is a higher court, and as its judgment was later in time, such judgment must supersede that of the Mahda Court of First Instance.208
1. Each Party shall accord to covered investments in accordance with customary international law, including fair and equitable treatment and full protection and security.
2. For greater certainty, paragraph 1 prescribes the customary international law minimum standard of treatment of aliens as the minimum standard of treatment to be afforded to covered investors. The concepts of "fair and equitable treatment" and "full protection and security" do not require treatment in addition to or beyond that which is required by that standard, and do not create additional substantive rights.344
The Parties confirm their shared understanding that "customary international law" generally and as specifically referenced in Article 10.5 and Annex 10-B results from a general and consistent practice of States that they follow from a sense of legal obligation. With regard to Article 10.5, the customary international law minimum standard of treatment of aliens refers to all customary international law principles that protect the economic rights and interests of aliens.
(a) First, the Claimant submits that Boyd's determination regarding the quality of the limestone contained in the concession area is fully supported, and in doing so notes that Boyd reviewed several testing samples which confirmed the high quality of limestone contained throughout the concession area.464
(b) Second, Boyd's projection that Emrock could ramp-up production to reach 25 million tonnes in 2022 is, on the Claimant's case, entirely realistic.465 The Claimant notes that this projection is consistent with the conclusions in the Archibald Expert Report and also with OMCO's own description of the project as a " mega quarry and crushing project with a very large scale operation ".466
(c) Third, the Claimant argues that Boyd's assumed product mix is reasonable given the market demand for armour rock, aggregate and chemical stone, and notes in this respect that Emrock did not need an additional permit to excavate limestone-based sand and gravel within the concession area.467
(d) Fourth, Boyd's assumption that Emrock would have diversified its product mix to include chemical stone is fully supported by the facts.468 The Claimant observes that Emrock was in the process of doing so at the time Oman shut it down, and in this regard points to ArcelorMittal (a major steelmaker) contacting Emrock in 2008 in order to establish what it called a " long term relationship " for the supply of chemical stone.469 Boyd explains that, had Emrock's business continued, it was reasonable to assume that it would have sold chemical stone in the Indian market.470
(e) Fifth, MEED's projection that Emrock could capture 29 percent of the total unmet limestone demand did not require Emrock to compete with existing players' own market share.471 In any event, even if Emrock had to compete with other players, the Claimant notes that Emrock had a number of competitive advantages, in particular its geographic location.472 As the MEED Expert Report notes, Emrock's location provides a " shorter distance " to the main centres of limestone consumption in the Emirates of Dubai and Abu Dhabi.473
(f) Finally, the Claimant submits that it is reasonable (even conservative) for Boyd to assume that the Claimant would be entitled to 90 percent of the overall project value.474 The Claimant notes that he owned 100 percent of Emrock's dividends and 80 percent of SFOH's dividends; assuming a 50/50 percent production split between Emrock and SFOH (as anticipated in the environmental applications), the Claimant is therefore entitled to 90 percent of the overall project.475
(a) Boyd relies upon a post-hoc business plan that does not accord with the reality of the project and otherwise relies on an inflated and unsubstantiated view of the market and the project's market potential.507 The Respondent submits that Boyd incorrectly adopts MEED's conclusions that there was a limestone supply deficit in the UAE and Oman (which there was not) and that the project was positioned and capable of supplying it (which it was not).508
(b) Boyd uses assumptions about resource quantity and quality that were not derived in accordance with accepted industry practice and which are otherwise unsound and unreliable.509
(c) Boyd assumes that Emrock would have become a major exporter and producer of chemical limestone, despite the fact that Emrock had never sold chemical limestone to a single customer (and lacked any long-term relationships with potential customers) and had not confirmed the location or existence of such materials within the Jebel Wasa.510
(d) The valuation is rendered invalid because Boyd's assumptions concerning the volumes of limestone to be mined, extracted, and sold require unfounded assumptions concerning transportation logistics.511 According to RPM and Navigant, those transportation logistics are impossible.512
(e) Boyd discounts projected cash flows at the WACC rather than the cost of equity for the project.513 Navigant opines that the correct discount rate is the cost of equity capital, given the nature of the Claimant's investment in the project.514 By incorrectly using the WACC, Navigant explains that Boyd wrongly lowers the discount rate and thereby increases its valuation.515
(f) Boyd purports to have calculated the Enterprise Fair Market Value of the project (ie the value of equity and debt), instead of the value of the Claimant's shareholding in the project.516 The Respondent notes that the distinction is significant, because Mr Al Tamimi did not directly invest in or own the Jebel Wasa quarry.517 As he only indirectly invested in the quarry through his equity shareholdings in Emrock and SFOH, he could expect to receive cash flows from the project only through dividends paid by those companies.518 As such, on the Respondent's case, the approach of Boyd and the Claimant ignores the capital structure of the project.519
(g) Boyd grounds its analysis in MEED's assessment of macroeconomic conditions in the region, but as shown by Elite Media in its expert report, MEED's assessment is entirely too optimistic.520 The Respondent submits that, in reliance upon the reports of Navigant and Elite Media, any conceivable market for limestone had dried up as a result of deteriorating macroeconomic conditions.521
(a) As in Desert Line, where the claimant's personnel were confronted, threatened, detained, and the claimant was coerced into a settlement, Mr Al Tamimi suffered physical intimidation, detention, humiliation and reputational harm and was forced to close his quarry or face indefinite detention for vague, unsubstantiated reasons.563
(b) As in Diallo, Mr Al Tamimi incurred psychological stress from an arbitrary arrest and suffered reputational damage caused by the Respondent in forcing him to leave Oman and sever his business ties.564
Footnote 1 of Chapter 10, requires that Art 10.5, the Minimum Standard of Treatment clause be interpreted in accordance with Annex 10-A. Under Annex 10-A, does a claimant bear the burden of proving the existence of an applicable rule of customary international law that is claimed to be breached by a respondent?
Article 10.15(1)(a)(i) of the FTA permits the Tribunal to determine whether there has been a breach of any obligation set forth in s A of that Chapter. Article 10.21, Governing Law, requires the Tribunal to "...decide the issues in dispute in accordance with this Agreement and applicable rules of international law." What is the relationship between the Tribunal's subject-matter jurisdiction and the Governing Law clause?
a. First, according to the Claimant, the United States' view on questions of treaty interpretation are consistent with those of the Parties and need not be decided by the Tribunal. These views are: (i) that Article 10.5 and Annex 10-A incorporate customary international law standards rather than "an autonomous treaty-based standard"; and (ii) that the governing law clause in Article 10.21 does not extend the Tribunal's jurisdiction to include claims arising outside the FTA or undo the requirements of the Annex 10-A. However, the United States' views on questions of customary international law are improper under Article 10.19.2 for two reasons, and the Tribunal is entitled to ignore the US Submission in this regard. The burden of proof and the weight to be given to various evidence of customary international law are evidentiary and procedural matters that are neither addressed by the FTA nor are they issues of treaty interpretation. Moreover, the US submission goes further than addressing the burden of proof by commenting on the sufficiency of the evidence and the content of customary international law.
b. Second, on the issue of proportionality, the US Submission is not inconsistent with the Claimant's position. The United States concedes that proportionality may be " one factor in a discussion of expropriation ". In this regard, the Claimant's argument is that for Oman to be found not to have expropriated the Claimant's investment, it has to show prima facie that its shutdown of the quarry was a justified exercise of its police power and was not a disproportionate response to the alleged environmental irregularities. Moreover, the United States does not dispute that disproportionate treatment is relevant to the Claimant's national treatment claim. Here, the Claimant's argument is that it was treated with disproportionate harshness compared to local Omanis, so Oman had to prove that it had reasonable grounds for such differential treatment. Finally, the United States does not argue that proportionality is irrelevant to the Claimant's argument on the minimum standard of treatment. The United States only argues that proportionality is not an independent source of obligation within the minimum standard of treatment. The FTA is explicit that the minimum standard of treatment includes fair and equitable treatment and full protection and security. Fair and equitable treatment " necessarily implies that a state has an obligation not to apply penalties or restrictions that are seriously disproportionate to the violation that the state seeks to penalize or the harm the state seeks to prevent ".578
c. Third, according to the Claimant, arbitral tribunals have recognised, contrary to the United States' arguments, that proportionality is a part of the minimum standard of treatment under customary international law. Also, the views of the United States are not binding on the Tribunal under Article 10.19.2 of the FTA and the United States does not contend so. This is in contrast to Articles 10.21.3 and 19.2.3(b) which establish procedures for adopting binding interpretations of the FTA.
d. In addition, the US Submission assumes, in error, that the burden of proof applies to questions of law. However, numerous courts and tribunals have held that the doctrine of jura novit curia applies to questions of law, thus the Tribunal is free to determine questions of customary international law. The United States relies on Glamis Gold, Cargill, and several other cases. Glamis Gold gives little reasoning to support its conclusion that the Claimant has the burden of proving customary international law. The tribunal in Cargill acknowledged that its view, that the claimant has the burden of proof of change of customary international law, was a departure from the views of other tribunals. The other cases relied upon by the Claimant, ie ADF Group, Methanex, and North Sea Continental Shelf, do not decide the question of burden of proof. The United States cited yet other cases, none of which support its position.
e. In any event, if the Claimant has the burden of proof, it has met it. Tribunals have recognised proportionality as a freestanding requirement of fair and equitable treatment under the minimum standard of treatment. The United States, in arguing that the Claimant bears the burden of proving the content of customary international law, does not dispute that arbitral decisions may constitute sufficient evidence, especially since the United States itself relies on such decisions to support its arguments. What the United States disputes is relying on awards decided under autonomous treaty standards, rather than customary international law. However, tribunals have found no difference between fair and equitable treatment based on treaties versus customary international law, and proportionality has been found to be a part of the minimum standard of treatment in either instance.
The Respondent makes two main arguments in its submission of 31 October 2014: (i) the US Submission addresses issues of treaty interpretation; and (ii) the US submission has reaffirmed accepted rules of law. These are summarised below:
a. First, the Respondent argued that the United States offers its general views on the nature and scope of the obligations to which it has agreed, and by implication not agreed. The substance or content of the minimum standard of treatment obligation is what defines the signatory parties' obligations under the FTA. The Claimant's burden " to establish the existence and applicability of a relevant obligation under customary international law that is not otherwise incorporated expressly in the text of Art 10.5 " is precisely the type of issue on which the signatory parties are expected to provide their views. The United States made a similar submission in Railroad Development Corp v Guatemala.
b. Second, the Respondent submitted that there is abundant authority supporting the view that the party seeking to rely on customary international law bears the burden of proving the existence and content of that law. Disagreeing with the Claimant, the Respondent added that the four decisions in Cargill, ADF, Glamis Gold, and Methanex all support its view. It is a two-part test based on consistent State practice and an understanding that the practice is required by law. Here, Mr Al Tamimi has failed to carry his burden to prove, based on either, that the doctrine of proportionality is part of customary international law cognisable under the FTA.
c. In addition, the Respondent submitted that the Claimant's interpretation of the doctrine of jura novit curia is flawed in that the doctrine allows a tribunal to take judicial notice of certain legal authorities or pre-existing laws and regulations to ascertain and apply the governing law. The Respondent cited a number of decisions that it claimed support this view. For example, in Glamis Gold the tribunal found that " the inquiry as to whether particular rules have become part of customary international law is ‘necessarily a factual inquiry, looking to the actions of States and the motives for and consistency of these actions '".579 In Patrick Mitchell v Democratic Republic of Congo, the annulment committee found that " while tribunals may have jura novit curia powers, they are not obliged to exercise them ".580 The tribunals in CME Czech Republic BV v Czech Republic and Cargill reached similar conclusions.
d. The question whether a particular rule has attained the status of customary international law cannot be answered by looking to arbitral tribunals' decisions. Such decisions interpreting certain provisions do not constitute evidence of the content of customary international law required by Article 10.5 and Annex 10-A.
e. The Respondent argued that many of the cases cited by the Claimant do not support his claims of proportionality. Notably, the reference to Occidental cannot, without more, satisfy the burden of proving that the doctrine of proportionality has become a part of the minimum standard of treatment under customary international law, because the decision is not grounded in the type of evidence necessary to prove State practice and opinio juris.
f. According to the Respondent, the Claimant's proportionality claim is that OMCO acted disproportionally when it terminated the OMCO-Emrock Lease Agreement for relatively small sums Emrock owed to OMCO. However, OMCO's actions are not attributable to Oman, which precludes an investment treaty claim based on the termination. In addition, OMCO had a unilateral right to terminate the Agreement based on Emrock's non-payment, without regard to the amount due or the duration of the debt. Principles of customary international law would be applicable here only if Oman had exercised its sovereign power to direct OMCO's action, which was not the case.
g. Similarly, the Claimant's claims that the doctrine of proportionality should have a bearing on the Tribunal's assessment of Mr Al Tamimi's arrest as well as the police shutdown of the project site are both unfounded.
h. Lastly, the Respondent contended that the United States' submission correctly confirms that the governing law clause does not expand the Tribunal's jurisdiction, which is limited to breaches of the obligations listed in Chapter 10 of the FTA.
Chapter 10 of the US-Oman FTA,582 headed ""Investment’, applies only to measures adopted or maintained by a Party relating to the covered investments of " investors of the other Party ".583 Article 10.27 defines " investor of a Party " in the following terms:
investor of a Party means a Party or state enterprise thereof, or a national or an enterprise of a Party, that attempts to make, is making, or has made an investment in the territory of the other Party; provided, however, that a natural person who is a dual national shall be deemed to be exclusively a national of the State of his or her dominant and effective nationality.
(a) with respect to Oman, any person who is a citizen within the meaning of its domestic laws governing nationality; and
(b) with respect to the United States, "national of the United States" as defined in Title III of the Immigration and Nationality Act;
[...] any natural person who had the nationality of a Contracting State other than the State party to the dispute on the date on which the parties consented to submit such dispute to conciliation or arbitration as well as on the date on which the request was registered […]
Nationality of the country shall be lost from any person enjoying such nationality in the following cases:
C. If he has adopted, voluntarily, a nationality of another country.
The investor in this dispute is Mr Adel A Hamadi Al Tamimi. He is a naturalized citizen of the United States of America. Prior to obtaining his American citizenship in 1986, Mr Al Tamimi was a national of the United Arab Emirates ("UAE"). Mr Al Tamimi no longer holds UAE nationality.
In any event, as a matter of interpretation of Article 10.27, the Tribunal does not consider that the language of " dominant and effective nationality " is intended to prevent dual citizens of both the United States and a third-party State, such as the UAE, from invoking the US-Oman BIT - even where the nationality of the third-party State is predominant. Rather, the Tribunal considers that the provision is aimed at preventing claims by dual nationals of both State parties (ie the United States and Oman) from seeking to use the FTA to claim against their own State of dominant and effective nationality -thereby defeating the purpose of the FTA to apply investment protection only to " investors of the other Party ". However, it is unnecessary for the Tribunal to definitively determine this interpretative point because the evidence does not disclose that Mr Al Tamimi is a national of any country other than the United States.
Pursuant to Art 10.1, the investment protections contained in Chapter 10 of the US-Oman FTA apply only to " covered investments ".594 The meaning of " covered investment " is defined under Article 1.3:
covered investment means, with respect to a Party, an investment, as defined in Article 10.27 (Definitions), in its territory of an investor of the other Party in existence as of the date of entry into force of this Agreement or established, acquired, or expanded thereafter;
The jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment, between a Contracting State […] and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre.
The meaning of " investment " is relevantly defined in Article 10.27 of the US-Oman FTA:
investment means every asset that an investor owns or controls, directly or indirectly, that has the characteristics of an investment, including such characteristics as the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk. Forms that an investment may take include:
(a) an enterprise;
(b) shares, stock, and other forms of equity participation in an enterprise;
(c) bonds, debentures, other debt instruments, and loans;
(d) futures, options, and other derivatives;
(e) turnkey, construction, management, production, concession, revenuesharing, and other similar contracts;
(f) intellectual property rights;
(g) licenses, authorizations, permits, and similar rights conferred pursuant to domestic law; and
(h) other tangible or intangible, movable or immovable property, and related property rights, such as leases, mortgages, liens, and pledges;
The Respondent has not challenged Mr Al Tamimi's entitlement to bring the present proceedings in respect of assets owned and controlled by him only indirectly. The Tribunal therefore does not consider it necessary to make a direct ruling on this issue. It suffices to observe that although recent ICSID tribunals have reached varying positions on the standing (" ius standi ") of parties to bring investment protection claims in respect of assets held or controlled only indirectly, the language of Article 10.27 (" owns or controls, directly or indirectly ") is sufficiently broad to encompass Mr Al Tamimi's claims.
The US-Oman FTA came into force on 1 January 2009. There is no suggestion in the language of the Treaty that the investment protections of Chapter 10 were intended to apply with retrospective effect.604 Indeed, the definition of " covered investment ", cited at  above, stipulates that in order to qualify for the purposes of Chapter 10 an investment must be either " in existence as of the date of entry into force of this Agreement " or else established thereafter. Equally, Article 10.1 provides that Chapter 10 will apply only to measures " adopted or maintained " by a party affecting an investment, which presupposes the existence of an investment after 1 January 2009.605 The Claimant has acknowledged that the effect of Article 10.1 is that investment protection can apply only to measures taken or maintained against an investment after the Treaty entered into force.606
The evidence shows, however, that the parties did not act in a manner consistent with the termination of the OMCO-Emrock Lease Agreement at that date. Most significantly, on 17 February 2009, OMCO sent Mr Al Tamimi a second termination notice. That second notice referred again to Article 10(iv) and Emrock's purported " non-compliance with payment obligations ", and again stated that " we [OMCO] hereby terminate [the OMCO-Emrock Lease Agreement] with immediate effect because EMROCK has not complied with making payments to us ".611
It is true, as the Respondent has submitted, there is no evidence that the OMCO Board of Directors ever expressly rescinded or otherwise vacated the termination notice of 20 July 2008. Equally, however, the language and intent of the second termination notice of 17 February 2009 demonstrate that this second notice was not intended as a mere reaffirmation of the 20 July 2008 notice. The use of the wording " we hereby terminate " and " with immediate effect " in the second notice, for instance, indicates that OMCO did not consider that the OMCO-Emrock Lease Agreement had already been terminated.612 The schedule of late payments attached to the second termination notice, on which OMCO relied as its ground for termination, was additionally updated in the second termination notice to 13 February 2009.613 As the Claimant has submitted, " Oman's assertion that the 2009 termination notice was just a reiteration or confirmation of the 2008 notice is inconsistent with the language of the 2009 notice itself ".614
The OMCO's Board's willingness to reconsider the matter culminated in the Board's meeting with H E Maqbool in September 2008, when H E Maqbool said it was up to the Board to proceed with the termination of the OMCO-Emrock Lease Agreement if it believed it had legal justification for doing so. […] But for the fact that OMCO's Chairman, Dr Al Azri, stepped down from that position in late 2008, the Board would have reaffirmed the decision to terminate the OMCO-Emrock Lease Agreement before 1 January 2009.
In light of this evidence, the Tribunal finds that the second termination notice of 17 February 2009 must be taken to have superseded the earlier notice of 20 July 2008, with the effect that the earlier notice was rendered ineffective. In other words, the specification of a 2009 termination date in the second termination notice (" we hereby terminate […] with immediate effect ") effectively waived the earlier purported termination date.
The OMCO-SFOH Lease Agreement was signed on 25 May 2006.626 On 11 September 2006, Mr Jaime Guzman of OMCO wrote to Emrock and SFOH reminded those companies that as a " crucial […] necessary and mandatory first step " they each needed to register in Oman.627 Mr Van der Wiele too informed Mr Al Tamimi by email 17 October 2006 that Emrock and SFOH needed to apply to register before seeking environmental approval from MECA.628
On 22 August 2007, OMCO wrote to Mr Al Tamimi, in his capacity as Chairman of SFOH, indicating that it would consider the OMCO-SFOH Lease Agreement " null and void " if he failed to complete the necessary documentation to register SFOH in Oman by 30 November 2007.629 Mr Al Tamimi did not do so. Six months later, on 2 June 2008, OMCO therefore purported to determine that the OMCO-SFOH Lease Agreement had been rendered null and void:630
Despite repeated requests from Oman Mining Company LLC (OMCO), you have failed to submit any documentation to show the Registration of SFOH LLC in the Sultanate of Oman. In particular, by our letter dated 22nd August 2007, OMCO gave you a deadline of 30 November 2007 to remedy this failure, failing which the agreement shall be treated as null and void.
Since you have failed to submit the requested documentation, this notice is to reiterate as null and void the Lease Contract between OMCO and SFOH dated 25 May 2006.
In order for a non-Omani to obtain a license to operate under the FCIL, Article 2 first requires that the proposed business must be " conducted by an Omani company with a capital of not less than RO 150,000 ", of which the foreign shareholding may be no more than 49% (or up to 65%, with the approval of the Foreign Capital Investment Committee and MOCI).641 An annex to the FCIL, entitled " Instruction for Establishment of Omani Companies Subject to Commercial Companies Law and Foreign Business and Investment Law " sets out the process for incorporation of an Omani company to satisfy the requirements of Article 2 of the FCIL, including obtaining a certificate from the Omani Commercial Register, preparing the company's articles of association, and establishing a corporate capital of no less than RO 150,000.642
The Claimant, however, has submitted that SFOH was not subject to these requirements because it was not " conduct[ing] any commercial, industrial or tourism business in Oman ".643 Under the terms of the Joint Production Agreement executed between Emrock and SFOH on 15 January 2007, the Claimant says, SFOH carried out no mining activities but merely held a real property lease.644 The Respondent, in return, has argued that SFOH cannot rely on a private contract such as the Joint Production Agreement to circumvent registration requirements imposed by domestic law.645
The Tribunal accepts the Respondent's submission that SFOH was not exempt from the registration requirement merely because Emrock and SFOH agreed under the Joint Production Agreement that Emrock would be responsible for day-to-day quarrying and crushing operations at the quarry site. The CRL contains a list of relevant " business activities " which includes " [o]il, gas and mineral resources investment ".646 The terms of both the OMCO-SFOH Lease Agreement and the Joint Production Agreement reveal that the carrying out of such activities was precisely SFOH's purpose.647 Under the terms of the OMCO-SFOH Lease Agreement, SFOH committed to " contribute any or all investment in the plant, equipment and working capital necessary to establish and maintain the quarrying and crushing operation, as appropriately reviewed by both parties, particularly in regard to the periodic production schedule ", as well as being " responsible for the day-to-day technical and financial management and administration of the project ".648
Similarly, the Joint Production Agreement provided that Emrock and SFOH would " establish a business relation […] the principal objectives of which shall be the Quarrying of Natural Stone, sale and distribution of products ".649 In that role, SFOH agreed with Emrock to secure all necessary permits and approvals for quarrying and crushing, provide necessary materials such as diesel and explosives, and obtain visas and working permits.650 SFOH additionally undertook to " prepare the site ", including the provision of explosives storage (with necessary permits), diesel and water storage tanks, a power generator, a graded and paved road from the quarry to the main road, and a mobile camp for 100 residents with kitchen, dining area and bathrooms.651 SFOH also assumed a monthly obligation under the Joint Production Agreement to pay Emrock for tonnage of material shipped out of the quarry (as well as 70% of stockpiled material if less than an average of 25,000 MT was picked up every month).652
What, then, was the legal consequence of SFOH's failure to do register in Oman? The Claimant has submitted that the " legal consequence for such a failure would have been a small fine ", and not the nullification of the OMCO-SFOH Lease Agreement, correctly noting that under Art 17 of the FCIL, the penalty for conducting business without a license is a fine of no less than RO 5,000 and no more than RO 10,000.657 However, as a matter of Omani law the consequences of SFOH's failure to register clearly run deeper. The provisions of the CCL cited above indicate that a company has no legal presence in Oman unless registered. Article 2 of the CCL, it will be recalled, provides that a company is " null and void ’ unless it " adopts one of the types listed ’.658 Article 4 of the CCL, moreover, provides that " [a]ll contracts, receipts, notices and other documents issued by commercial companies shall indicate the company's name, its form, its principal place of business and the number and place of its registration in the Commercial Register ".659 The Tribunal accepts the Respondent's submission that the effect of Article 4 is to " requir[e] an Omani registration number to meet the threshold requirement of having a legal presence in the jurisdiction. Accordingly, registration is a condition precedent for any agreement entered into by the company to become effective ".660
Without legal personality, SFOH had no capacity to enter into contracts such as the OMCO-SFOH Lease Agreement. The Tribunal therefore finds that OMCO was entitled to treat the lease agreement as null and void owing to SFOH's failure to register and obtain a business license in Oman. This consequence finds additional support in the wording of the OMCO-SFOH Lease Agreement: Article 2 provides that the lease agreement would only commence and come into effect " upon […] the issuance of all relevant licenses , permits and approvals from the relevant authority at the Sultanate of Oman ".661 There is no evidence that OMCO " acquiesced " in SFOH's non-registration, as the Claimant has contended.662
A Party's obligations under this Section shall apply to a state enterprise or other person when it exercises any regulatory, administrative, or other governmental authority delegated to it by that Party .
The Tribunal accepts the Respondent's submission that contracting parties to a treaty may, by specific provision (lex specialis), limit the circumstances under which the acts of an entity will be attributed to the State.674 To the extent that the parties have elected to do so, any broader principles of State responsibility under customary international law or as represented in the ILC Articles cannot be directly relevant.
a. " exploration and drilling for minerals […] excavating mines and establishing all equipments [sic] required for operating same and for collecting and fusing the produced raw materials ";
b. " [m]arketing produced raw materials "; and
c. " [m]anufacturing raw materials and marketing manufactured materials ".
a. " [m]ining activities of OMCO are controlled, monitored and licensed by the Ministry of Commerce ";688
b. " Oman's Ministry of Environment and Climate Affairs […] enforces Oman's laws pertaining to the environment and pollution controls " and is " responsible for issuing certain permits a quarry operator must have in order to excavate and process limestone ";689 and
c. " the Ministry of Housing has the power to record all land rights and grant land ownership rights " and is " responsible for zoning lands in Oman for residential, commercial and industrial uses ".690