INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES ITALBA CORPORATION, Claimant, v. THE ORIENTAL REPUBLIC OF URUGUAY, Respondent. ICSID Case No. ARB/16/9 CLAIMANT’S REPLY MEMORIAL May 12, 2017 HUGHES HUBBARD & REED LLP One Battery Park Plaza New York, NY 10004 United States of America FERRERE ABOGADOS Juncal 1392 Montevideo, C.P. 11000 Uruguay TABLE OF CONTENTS I. INTRODUCTION ............................................................................................................. 1 II. FACTS ............................................................................................................................. 11 A. Uncontested Facts ............................................................................................................ 11 B. Facts In Dispute ............................................................................................................... 28 C. Reply Facts ...................................................................................................................... 29 III. JURISDICTION .............................................................................................................. 55 A. Italba Is A Covered Investor Under The Treaty. ............................................................. 57 B. Uruguay Cannot Deny Italba The Protections Of The Treaty. ........................................ 78 C. Italba’s claims are timely. ................................................................................................ 88 IV. LIABILITY .................................................................................................................... 102 A. Uruguay Unlawfully Expropriated Italba’s Investment. ............................................... 102 B. Uruguay Has Denied Italba Justice By Frustrating The Judgment Of Its Own Highest Administrative Court. .................................................................................................... 124 C. Uruguay Breached Its Article 5 Obligation To Accord Italba Fair And Equitable Treatment. ...................................................................................................................... 134 D. Uruguay Failed To Afford Italba’s Investment Full Protection And Security. ............. 153 V. QUANTUM ................................................................................................................... 157 A. Compensation For Uruguay’s Treaty Breaches Must Be Determined Under The “Full Reparation” Standard Of Customary International Law. .............................................. 160 B. Full Reparation Should Be Calculated As Of March 1, 2015. ...................................... 162 C. Under The Full Reparation Standard, Italba Is Entitled To Compensation Equal To The Value Of Trigosul’s Rights To Use The Spectrum In A “But-For” Scenario In Which Uruguay’s Breaches Did Not Occur. ............................................................................. 164 D. In The “But-For” Valuation Scenario, URSEC Would Have Acted As A Reasonable, Good-Faith Regulator. ................................................................................................... 173 E. Under The Full Reparation Standard, Italba Is Entitled To Compensation Equal To The Historical Profits It Would In All Probability Have Received But For Uruguay’s Treaty Breaches. ........................................................................................................................ 176 F. Under The Full Reparation Standard, The Quantum Of Compensation Awarded Must Be Brought To A Present Value By An Award Of Interest. ............................................... 178 VI. CONCLUSION AND PRAYER FOR RELIEF ............................................................ 183 i I. INTRODUCTION 1. Italba Corporation (Italba), a company incorporated under the laws of the State of Florida in the United States of America (the U.S.), submits this Reply Memorial (Reply) in further support of its right to full reparation from the Oriental Republic of Uruguay (Uruguay) based upon Uruguay’s breach of the Treaty Concerning The Encouragement And Reciprocal Protection of Investment Between Uruguay and the United States (the Treaty).1 In its Memorial, Italba demonstrated that Uruguay unlawfully expropriated Italba’s investment through its non- compliance with and frustration of a final judgment (the TCA Judgment) of its own highest administrative court (the Tribunal de lo Contencioso Administrativo (TCA)) that reinstated the wrongly revoked telecommunications licenses of Italba’s Uruguayan subsidiary, Trigosul S.A. (Trigosul).2 2. Italba also demonstrated that Uruguay, through the conduct of its telecommunications regulator, the Unidad Reguladora de Servicios de Comunicaciones (URSEC),3 breached the Treaty’s guarantees of fair and equitable treatment, non-discrimination, and full protection and security because: (a) over the course of seven years, URSEC repeatedly failed to issue Trigosul a license conforming to regulations promulgated in March 2003, as 1. Treaty Between the United States of America and The Oriental Republic of Uruguay Concerning the Encouragement And Reciprocal Protection of Investment (signed on Nov. 4, 2005; entered into force on Nov. 1, 2006) (Treaty) (C-001). Italba’s Reply is submitted pursuant to the Tribunal’s Procedural Order No. 1, as amended by the Tribunal’s letter of April 28, 2017, and pursuant to Rule 31 of the International Centre for Settlement of Investment Disputes Rules of Procedure for Arbitration Proceedings (ICSID Arbitration Rules), and responds to the Counter-Memorial of the Oriental Republic of Uruguay (Jan. 30, 2017) (Counter- Memorial). It is accompanied by documentary exhibits C-001 through C-275 and legal authorities CL-001 through CL-155, the statements by seven fact witnesses (including supplemental witness statements from Dr. Gustavo Alberelli and Mr. Luis Herbon), and four new expert reports, respectively addressing: (a) the handwriting on the Data Transmission and Equipment Loan Agreement (Dec. 2010) (C-057); (b) the authenticity of certain emails produced by Italba; (c) technical telecommunications issues; and (d) relevant points of Uruguayan corporate law, as well as a supplemental report on quantum by Compass Lexecon (Second Dellepiane Report). In accordance with Procedural Order No. 1 (¶ 18.5.2), dated July 29, 2016, all of Italba’s Exhibits and Legal Authorities are numbered using the format provided therein (e.g., C-001 and CL- 001, respectively). 2. Claimant’s Memorial (Sept. 16, 2016) (Memorial) ¶¶ 177-80. 3. Id. ¶¶ 114-15, 122-50, 167-75. mandated by Uruguayan law, despite having provided Italba repeated assurances that a license would soon be forthcoming,4 and even while the agency responded to similar requests from many of Trigosul’s and Italba’s domestic and foreign competitors;5 and (b) in January 2011, URSEC summarily revoked Trigosul’s license to operate on its allocated frequencies, claiming that Trigosul’s offices in Montevideo had been abandoned, even though Trigosul had properly notified URSEC of a change of address months earlier.6 Finally, Italba has established that its damages, based upon the value of the investment expropriated in 2015 and business opportunities crushed by Uruguay’s prior unlawful conduct, amount to USD $61.1 million (including pre-award interest based on the cost of capital), as calculated in the supplemental valuation report submitted with this Reply.7 3. In response, Uruguay has accused Italba of attempting to perpetrate a fraud on this Tribunal and swindle the State out of tens of millions of dollars through a criminal enterprise based on forgeries and lies. 4. First, Uruguay argues that Italba has misrepresented itself as the owner of Trigosul because, at Trigosul’s inception, Dr. Gustavo Alberelli (the President and Chief Executive Officer of Italba) and his mother were listed as the company’s co-owners.8 In the event that Italba does own Trigosul, Uruguay claims to be entitled to deny Italba protection under the Treaty on the theory that Dr. Alberelli, an Italian citizen, controls Italba, and Italba is a 9 shell company with no business of its own. 4. Id. ¶¶ 30-34, 52. 5. Id. ¶¶ 155-66. 6. Id. ¶¶ 53-54, 63-67. 7. Id. ¶¶ 176, 212; Second Dellepiane Report Table 1. 8. See Counter-Memorial ¶ 56. 9. Id. ¶¶ 62, 69-83. 2 5. Second, Uruguay argues that Italba’s claims are time-barred because URSEC terminated Trigosul’s license in 2011, more than four years before a notice of dispute was sent in this case, and because URSEC’s subsequent refusal to implement the TCA Judgment anulling its termination of the license was merely a continuation of Uruguay’s prior conduct.10 6. Third, Uruguay denies Italba’s allegations on the merits, arguing: (a) Uruguay did not expropriate the license because it fully complied with the TCA Judgment; (b) even if it did not comply with the TCA Judgment, there can be no expropriation because the license was precarious in nature and terminable at will without compensation, and therefore worthless; (c) Trigosul deserved to be terminated in the first place because it failed to exploit the license; and (d) Trigosul’s complaints about URSEC’s failure to issue a conforming license are unfounded because no such conforming license was necessary under Uruguayan law.11 7. Finally, on damages, Uruguay repeats its argument that Trigosul’s license was worthless and also argues that Italba’s claim for lost business opportunities prior to the termination of Trigosul’s license