Discovery Global LLC v Slovak Republic - ICSID Case No. ARB/21/51 - Claimant's Memorial on the Merits - 30 September 2022
Reproduced from www.worldbank.org/icsid with permission of ICSID.
1. This Memorial is submitted by the Claimant, Discovery Global LLC ("Discovery"), pursuant to the procedural timetable set out in Annex B of Procedural Order No. 1 (as amended), and sets out Discovery's claim against the Respondent, the Slovak Republic.
2. In brief summary:
(1) As part of the Slovak Republic's efforts to improve its energy security by increasing domestic production of oil and gas and thereby reducing dependence on Russian imports (which represented 99% of domestic supply), the Slovak Republic granted (and successively extended) licences to Discovery's subsidiary company, AOG (as defined below), which expressly permitted AOG to explore for oil and gas in specified areas.
(2) Based on the assurances and specific commitments contained in the licences, Discovery made a significant investment in Slovakia (of time, money and effort) exploring for oil and gas. Discovery assembled a team of experts and contractors who were tasked to carry out these tasks from 2014 onwards. In reliance on clear and specific representations made by Slovakia, Discovery sunk millions of dollars into the project.
(3) Nonetheless, Slovakia subsequently frustrated Discovery's legitimate expectations that it would be entitled to do what the State had expressly permitted it to do - explore for oil and gas. Roadblock after roadblock was put in AOG's way by organs of the State that acted inconsistently, arbitrarily and treated Discovery less favourably than a domestic State- owned competitor, NAFTA. What is more, Discovery was denied justice by manifestly arbitrary decisions of the Slovak courts and unwarranted delays.
(4) By its conduct, Slovakia breached its obligations under the Treaty between the Czech and Slovak Federal Republic and the United States of America concerning the Reciprocal Encouragement and Protection of Investment dated 22 October 1991 (the "BIT"). As a result of those breaches, Discovery is entitled to recover full reparation from Slovakia, in the form of monetary compensation of at least USD 568.2 million.
VI. REQUEST FOR RELIEF
335. For the reasons set out above, Discovery requests the Tribunal to:
(1) DECLARE that it has jurisdiction over Discovery's claims;
(2) DECLARE that Slovakia has breached its obligations to Discovery under the BIT;
(3) ORDER Slovakia to compensate Discovery for the loss of its investment arising from its breaches of the BIT, by paying reparation to Discovery in the form of monetary compensation in an amount to be determined by the Tribunal, but in any event in an amount not less than USD 568.2 million;
(4) ORDER Slovakia to pay all costs incurred by Discovery in connection with this arbitration, including fees and expenses of the Tribunal and ICSID; all legal fees and other expenses incurred by Discovery (including, for example, fees and disbursements of legal counsel, experts, consultants, and fees associated with third party funding); and administrative and overhead costs, including management time;
(5) ORDER Slovakia to pay post-award interest at a rate and in an amount to be determined by the Tribunal on any monetary compensation and costs awarded to Discovery; and
(6) ORDER such further or alternative relief as the Tribunal considers just and appropriate.
336. Discovery hereby expressly reserves its right to introduce (at a subsequent stage of this arbitration) additional claims, arguments, and evidence.
Respectfully submitted by Counsel for the Claimant
Signature Litigation LLP