Philip Morris Brands Sàrl, Philip Morris Products S.A. and Abal Hermanos S.A. v. Oriental Republic of Uruguay, ICSID Case No. ARB/10/7 (formerly FTR Holding SA, Philip Morris Products S.A. and Abal Hermanos S.A. v. Oriental Republic of Uruguay), Respondent's Reply on Jurisdiction (April 20, 2012)
1. Pursuant to paragraph 13 of the Agreement of the Parties on Procedural Matters, Respondent Uruguay respectfully submits this Reply to the 23 January 2012 Counter-Memorial on Jurisdiction presented by Claimants Philip Morris Brands Sàrl, Philip Morris Products S.A. and Abal Hermanos S.A..
2. Nothing Claimants argue in their Counter-Memorial can or does change any of the conclusions presented in Uruguay’s Memorial. The Tribunal lacks jurisdiction for all the reasons previously stated, namely:
• Claimants did not satisfy Article 10’s requirement that they litigate this BIT dispute in Uruguayan courts for at least 18 months before instituting arbitration;
• The most-favoured nation (“MFN”) clause of the Uruguay-Switzerland BIT does not apply to dispute resolution, and therefore does not excuse Claimants’ failure to comply with Article 10;
• Article 2 removes public health measures from the scope of the substantive protections the BIT otherwise accords investors; and
• Because they impede Uruguay’s economic development, Claimants’ activities do not constitute an “investment” within the meaning of the ICSID Convention.
Rather than undermining these conclusions, Claimants’ Counter-Memorial in many respects only serves to highlight the reasons Uruguay is correct.