MEMORIAL for RESPONDENT Team Code: 017

2021

Before,

The World Trade Organisation Panel

CASE CONCERNING NATIONAL SECURITY AND INTERNATIONAL TRADE RELATIONS

AMAGADIA (APPLICANT)

v.

NORTH AMRUBIA (RESPONDENT)

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TABLE OF CONTENTS
INDEX OF AUTHORITIES......................................................................................................4

STATEMENT OF FACTS........................................................................................................8

STATEMENT OF ISSUES......................................................................................................10

SUMMARY OF ARGUMENTS.............................................................................................11

I. THE APPLICABLE LAW FOR THE DISPUTE IS THE BIT, WHICH STANDS
TERMINATED....................................................................................................................11

II. MARKET ACCESS OBLIGATIONS UNDER ARTICLE XVI (1) OF THE GATS
RELATING TO CPC 844 HAD NOT BEEN VIOLATED BY NORTH AMRUBIA.......11

III. IN ANY EVENT, NORTH AMRUBIA CAN SEEK PROTECTION OF ITS

ESSENTIAL SECURITY INTERESTS UNDER ARTICLE XIV BIS OF GATS.............12

ARGUMENTS ADVANCED.................................................................................................13

I. THE APPLICABLE LAW FOR THE DISPUTE IS THE BIT, WHICH STANDS
TERMINATED....................................................................................................................13

A. The BIT covers market access as a subject matter....................................................13

B. The maxim lex specialis derogat legi generali is applicable.....................................14

C. The measure may be challenged through the survival clause...................................14

D. North Amrubia does not attract provisions of nullification and impairment under the
GATT................................................................................................................................15

II. MARKET ACCESS OBLIGATIONS UNDER ARTICLE XVI (1) OF THE GATS
RELATING TO CPC 844 HAD NOT BEEN VIOLATED BY NORTH AMRUBIA.......16

A. North Amrubia has not committed to grant full Market Access in the relevant sector
in its Schedule of Specific Commitments under Article XX(1)(a)...................................16

a.) The services supplied by Hello! fall under the sector of ‘Computer and Related
Services’........................................................................................................................16

b.) North Amrubia, in its Schedule of Specific Commitments, has not undertaken full
Market Access Commitment for Computer and Related Services supplied by Hello!
through the relevant modes of supply...........................................................................17

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B. The Law on Intermediary Liability does not accord “less favorable” treatment than
provided for under the terms, limitations and conditions specified in North Amrubia’s
Schedule within the meaning of Article XVI (1) of GATS..............................................17

C. The measures taken by North Amrubia are protected under Article XIV...................19

a.) North Amrubia is justified in implementing measures which it considers necessary

for maintaining public order under Article XIV(a).......................................................19

i) The measure falls within the range of policies designed to maintain public
order:..........................................................................................................................19

ii) The measure is necessary to protect public morals and maintain public order..19

b.) North Amrubia is justified in implementing measures for the protection of its
essential security interests under Article XIV bis.........................................................20

III. IN ANY EVENT, NORTH AMRUBIA CAN SEEK PROTECTION OF ITS

ESSENTIAL SECURITY INTERESTS UNDER ARTICLE XIV BIS OF GATS.............20

A. The measures were reasonable in the current circumstances....................................20

a.) The measures were taken during war or other emergency in international
relations.........................................................................................................................21

b.) The measures were taken towards the protection of essential security interests22

i) The potential of threat is sufficient to justify the measures adopted for the
protection of essential security interests....................................................................22

c.) There is no need to prove the necessity of the measures.......................................23

B. The measures were taken in good faith........................................................................24

a.) There was a nexus between the measures taken and the essential security
interest...........................................................................................................................24

PRAYER..................................................................................................................................25

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INDEX OF AUTHORITIES

CASES

1. Técnicas Medioambientales Tecmed, S.A. v. The United Mexican States [2004]

ICSID Case No. ARB (AF)/00/2, Final Award 43 ILM

2. MTD Equity Sdn. Bhd. and MTD Chile S.A. v. Republic of Chile [2004] ICSID Case
No. ARB/01/725 Final Award 12 ICSID Reports 6

3. Saluka Investments BV v Czech Republic [2006] PCA Partial Award IIC 210 para
309.
4. Nicaragua v. U.S.A [1984] ICJ 215

TREATIES AND CONVENTIONS

1. General Agreement on Tariffs and Trade [1994] 1867 UNTS 187 Art XXIII.

2. General Agreement on Trade in Services [1994] Marrakesh Agreement Establishing

the World Trade Organization Annex 1B 1869 UNTS 183, 33 ILM. 1167 [1994].

3. Understanding on Rules and Procedures Governing the Settlement of Disputes,

Marrakesh Agreement Establishing the World Trade Organisation, Annex 2, Apr. 15,
1994, 1869 U.N.T.S. 401
4. Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155
U.N.T.S. 331

APPELLATE BODY REPORTS

1. Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres,

WT/DS332/AB/R, adopted 17 December 2007

2. Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled and
Frozen Beef, WT/DS161/ AB/R, WT/DS169/AB/R, adopted 10 January 2001

3. Appellate Body Report, United States – Anti-Dumping Measures on Certain Hot-

Rolled Steel Products from Japan, WT/DS184/AB/R, adopted 23 August 2001

4. Appellate Body Report, United States – Measures Affecting Imports of Woven Wool
Shirts and Blouses from India, WT/DS33/AB/R and Corr.1, adopted 23 May 1997

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5. Appellate Body Report, United States – Measures Affecting the Cross-Border Supply
of Gambling and Betting Services, WT/DS285/AB/R and Corr.1, adopted 20 April
2005

PANEL REPORTS

1. Panel Report, Russia — Measures Concerning Traffic in Transit, WT/DS512/R,

adopted 29 April 2019
2. Panel Report, Saudi Arabia – Measures Concerning the Protection of Intellectual
Property Rights, WTO Doc. WT/DS567/R
3. Panel Report, United States – Measures Affecting the Cross- Border Supply of
Gambling and Betting Services, WT/DS285/R, adopted 20 April 2005
4. Panel Report, Uruguayan Recourse to Article XXIII 9L/1923 (1962), para 15; GATT
BISD (11th Supp) (1962)

ARTICLES

1. José E. Alvarez, ‘A BIT on Custom’ [2009] 42 NYU J International Law & Pol. 17

2. Joshua Meltzer, ‘Governing Digital Trade’ [2019] 18 WTR, 23; Susannah Hudson,
Applying WTO and FTA Disciplines to Data Localisation Measures, [2019] 18 WTR

3. Panos Delimatsis, ‘The Interaction Between GATS Articles VI, XVI, XVII and XVIII
after the US - Gambling Case’ [2006] 8 NCCR Trade Regulation

4. Rüdiger Wolfrum, Peter-Tobias Stoll, Clemens Feinäugle, WTO - Trade in Services,

Max Planck Commentaries on World Trade Law (Vol. 6, Martinus Artinus Nijhoff
Publishers 2008)

BOOKS

1. Aaron X Fellmeth and Maurice Horwitz, Guide To Latin in International Law

(Oxford University Press 2009)

2. Thomas Cottier and Pangiosis Delimatsis, Article XIV bis: Security Exceptions
(Martinus Nijhoff Publishers 2008)
3. Walter Goode, Dictionary of Trade Policy Terms (6 ed. 2020)
4. World Trade Organisation, ‘Guide to GATT Law and Practice – ANALYTICAL
INDEX’ (1995)
ONLINE RESOURCES

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1. Cornell Law School, ‘Bilateral Investment Treaty’

<https://www.law.cornell.edu/wex/bilateral_investment_treaty> accessed 24 August
2021

2. 'Government Bans 59 Mobile Apps Which Are Prejudicial To Sovereignty And

Integrity Of India, Defence Of India, Security Of State And Public Order' (Pib.gov.in,
2020) <https://pib.gov.in/PressReleasePage.aspx?PRID=1635206> accessed 21
August 2021

3. Keshav Somani and Nandini Pradhan, 'Analysing The Ban Of Chinese Apps Under
The WTO Regime' (Society of International Law and Policy, 2021)
<https://silpnujs.wordpress.com/2020/10/31/analysing-the-ban-of-chinese-apps-
under-the-wto-regime/> accessed 21 August 2021
4. Meghan Lyon, 'Radio In The Rwandan Genocide - The Devil's Tale' (The Devil's
Tale, 2021) <https://blogs.library.duke.edu/rubenstein/2013/05/10/radio-in-the-
rwandan-genocide/> accessed 18 August 2021
5. 'Myanmar Coup: Facebook, Instagram Place Immediate Ban On Military' (BBC News,
2021) <https://www.bbc.com/news/world-asia-56191657> accessed 20 August 2021
6. Naomi Elegant, 'Tiktok Banned Trump Before Trump Could Ban Tiktok' (Fortune,
2021) <https://fortune.com/2021/01/11/tiktok-bans-trump-before-trump-bans-tiktok/>
accessed 20 August 2021

7. Nathalie Bernasconi-Osterwalder, Sarah Brewin and Martin Dietrich Brauch Suzy

Nikièma, ‘Terminating a Bilateral Investment Treaty’ (IISD, March 24 2020),
<https://www.iisd.org/system/files/publications/terminating-treaty-best-practices-
en.pdf> accessed August 24 2021

8. Will Kenton, ‘Market Access’, (Investopedia, 25 April 2021)

<https://www.investopedia.com/terms/m/market-access.asp> accessed 24 August
2021

OTHERS

1. Fragmentation of International Law: Difficulties arising from the Diversification and

Expansion of International Law, Int’l Law Comm’n on its Fifty-Eight Session [2006]
UN Doc A/CN.4/L.702
2. Intermediary Guidelines and Digital Media Ethics Code Rules, 2021 Section 4(d)(2).

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3. World Trade Organization, Guidelines for the Scheduling of Specific Commitments

under the General Agreement on Trade in Services (2001)

4. World Trade Organisation, Services Sectoral Classification List, MTN.GNS/W/120,

Special Distribution (July 10, 1991)

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STATEMENT OF FACTS

BACKGROUND

North Amrubia emerged as a democratic country from military rule in 2003, after which a
compromise was arrived to hold democratic national elections but with the military having
40% Parliament seats which continued till 2020. In 2003, North Amrubia also shifted from a
closed towards an open and globalized economy. Amagadia, on the other hand, is one of the
world’s largest democracies and headquarters “Hello!”. Amagadia & North Amrubia signed a
Bilateral Investment Treaty (BIT) in 2007 for the liberalization of the economy and many
other co-operations.

“HELLO!”

“Hello!” is an international social media platform where users can create profiles, upload
photos, post any information such as opinions or important events, and add other people to
increase their social network profile. It commenced operations in North Amrubia in 2010,
supplying the service of a social networking platform which allows unregulated flow of any
information, mainly news, via its host of databases. There have been differences between the
government and “Hello!” over unchecked posting of information by anonymous users

VIOLENCE AND INSTABILITY IN NORTH AMRUBIA

Post an advancement in the political structure, “Hello!” acted as the principal platform to
coordinate anti-government protests, and concocted facts were illegally propagated vide
“Hello!”. “Hello!” acted as a tool to incite violence in the country during politically fragile
times, threatening the national security, integrity and sovereignty of North Amrubia.

ALL GOOD

As a viable legal alternative to “Hello!”, All Good was launched (August 2020) by North
Amrubia, providing similar features to “Hello!”, albeit in a legal and transparent manner.

LAW ON INTERMEDIARY LIABILITY AND BAN ON CERTAIN SOCIAL MEDIA

PLATFORMS

To quell terrorist activities coordinated using such social media platforms, North Amrubia
brought the Law on intermediary liability to remove inciteful content within 36 hours of a

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government order, as long as to trace, find and report the first originator of such information
by all social media platforms to the government. The rules applied equally to all platforms,
and despite repeated demands, “Hello!” refused to abide by the terms of complete removal of
content as well as provision of first originators. On refusal to comply with domestic laws, the
government banned those social media platforms, which included “Hello!”. Such Law and ix
Ban applied equally to all service suppliers, and these measures constitute measures for
consideration. In August 2020, North Amrubia had also declared that it had “immediately
terminated” the BIT Amagadia. The said BIT was set to expire on 30 November 2020.

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STATEMENT OF ISSUES

In the present dispute, the following issues arise for the kind consideration of this Panel:

I. Whether the applicable law for the instant dispute is WTO law, or the BIT, which stands
terminated.

II. Whether North Amrubia violated Market Access obligations under Article XVI (1) of the
GATS.

III. Whether North Amrubia can seek protection of its essential security interests under
Article XIV bis of GATS.

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SUMMARY OF ARGUMENTS

I. THE APPLICABLE LAW FOR THE DISPUTE IS THE BIT, WHICH

STANDS TERMINATED.

North Amrubia & Amagadia signed a Bilateral Investment Treaty (BIT) in 2007. North
Amrubia had also declared that it had “immediately terminated” the BIT Amagadia in its
initial validity period. So, firstly, the termination of the BIT is unilateral termination.
Secondly, North Amrubia does not attract any provisions of nullification and impairment
under the GATT and thirdly North Amrubia contends that no international obligations have
been violated hence the request for the panel by the Government of Amagadia is invalid.

The fair and equitable treatment standards set in BITs implies market access, as without it,
the BIT becomes infructuous and is not afforded an “effective interpretation”. Moreover,
BIT’s standard of market access provides for no commitments for North Amrubia under the
GATS as BIT is lex specialis while GATS is lex generalis. Also, being the later law (2007) as
opposed to the earlier Schedules (1994), the BIT gains use of the application of lex posterior
derogat legi priori. Finally, the jurisdiction of the BIT proves good for the time period for
which BIT existed, even if BIT is extinguished subsequently, and given that the BIT had an
arbitration clause, the BIT arbitration procedure would be the correct fora.

II. MARKET ACCESS OBLIGATIONS UNDER ARTICLE XVI (1) OF THE

GATS RELATING TO CPC 844 HAD NOT BEEN VIOLATED BY NORTH
AMRUBIA

The service sector classification of the social networking platform “Hello!” is to be done
under CPC 1991 Sector 844 or Database Services, as the posting of information, photos and
videos online and its subsequent receipt by other users happens through the structured
databases through a common communication network, the Internet. North Amrubia has
undertaken a market access commitment in relation to Computer and Related Services
through ‘cross-border mode of supply’ by having marked ‘None’ in the Market Access
column of its schedule. However, North Amrubia retains its rights to enforce limitations
through the Commercial Presence (Mode 3) by marking ‘Unbound’ in the Market Access
column of its schedule for the mode Commercial Presence which clearly means that it has not
undertaken any market access commitment through this mode of supply. This establishes the
primary intention of North Amrubia to retain limitations on market access to its Computer

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and Related Services suppliers. Therefore, North Amrubia is under no constraint or obligation
to grant full and unrestrained market access within the terms of Article XVI. This also
implies that North Amrubia has the right to implement any regulatory measure it deems
necessary for the services provided through Commercial Presence. The provisions in the Law
on Intermediary Liability which ‘ban content affecting national security, sovereignty and
integrity’ and ‘require the identification of the originator of such content’, do not fall within
the impermissible ‘limitations’ set out in Article XVI (2) because they do not limit the
number of service suppliers (no quantitative restriction) in North Amrubia. Hence, those
requirements do not constitute a restriction in market access and do not accord “less
favourable” treatment. Even if the market access obligations have not been fulfilled by North
Amrubia, it is justified in implementing measures which it considers necessary for the
maintenance of public order and for the protection of its essential security interests under
Article XIV of GATS.

III. IN ANY EVENT, NORTH AMRUBIA CAN SEEK PROTECTION OF ITS

ESSENTIAL SECURITY INTERESTS UNDER ARTICLE XIV BIS OF GATS.

The three prerequisites required under Article XIV bis GATS; emergency in international
relations, protection of essential security interests and, good faith, all are satisfied in the given
factual situation. The protests against the government and the occurrence of large-scale
terrorist activity shows a situation of general instability engulfing the state, thus fulfilling the
first condition. Moreover, the country’s essential security interests were threatened by
potential protests and terrorist attacks. Thus, the measures were taken in order to protect
them.

The threat the social media platforms spread during the already existing instability in the
country justified the passing of law and subsequent ban of the app due to the non-compliance
of the law. Hence, the measures were completely reasonable to protect the sovereignty and
integrity of North Amrubia.

Also, there was a clear nexus between the measures taken to quell the violence during a
politically fragile time in the emergency situation, which satisfies requirement of ‘good
faith’. 

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ARGUMENTS ADVANCED

I. THE APPLICABLE LAW FOR THE DISPUTE IS THE BIT, WHICH

STANDS TERMINATED

A. THE BIT COVERS MARKET ACCESS AS A SUBJECT MATTER

As a rule, BITs ensure that all covered investments are treated fairly and equally. 1 Fair and
equitable treatment requires Contracting Parties to treat international investments in a way
that does not jeopardise foreign investors' basic expectations in making the investment. 2 The
foreign investor expects the host state to behave consistently, without ambiguity, and
completely transparently in its dealings with the foreign investor, so that it is aware of all
laws and regulations that will govern its investments in advance. 3 Fair and equitable
treatment is treatment that is conducive to fostering the promotion of foreign investment. 4 A
foreign investor whose interests are protected under the Treaty is entitled to expect that the
host state will not act in a way that is inconsistent, non-transparent, unreasonable or
discriminatory.5 Market access describes the extent to which an imported good or service can
compete in another market with goods or services made there. 6 It refers to the legal ability of
a company sell goods and services in a foreign company.7

The BIT has a fair and equitable treatment standard. The interpretations of ‘fair and equitable
treatment’ show that it protects against arbitrary or unjust measures or rules which restrict
market access. If the BIT did not guarantee market access to the contracting party, it would
serve no purpose. The purpose of the BIT is to create an environment conductive to fostering
the promotion of foreign investment. Therefore, there is an implicit undertaking of market
access.

1
Cornell Law School, ‘Bilateral Investment Treaty’
<https://www.law.cornell.edu/wex/bilateral_investment_treaty> accessed 24 August 2021.
2
Técnicas Medioambientales Tecmed, S.A. v. The United Mexican States [2004] ICSID Case No. ARB
(AF)/00/2, Final Award 43 ILM, para 133.
3
Ibid para 133.
4
MTD Equity Sdn. Bhd. and MTD Chile S.A. v. Republic of Chile [2004] ICSID Case No. ARB/01/725 Final
Award 12 ICSID Reports 6, para 113.
5
Saluka Investments BV v Czech Republic [2006] PCA Partial Award IIC 210 para 309.
6
Walter Goode, Dictionary of Trade Policy Terms (6 ed. 2020) 326.
7
Will Kenton, ‘Market Access’, (Investopedia, 25 April 2021) <https://www.investopedia.com/terms/m/market-
access.asp> accessed 24 August 2021.

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B. THE MAXIM LEX SPECIALIS DEROGAT LEGI GENERALI IS APPLICABLE

As in this situation, the maxim lex specialis derogat legi generali is a widely recognised legal
principle and a tool of interpretation. It argues that when two or more standards deal with the
same subject area, the more particular norm should take precedence. 8 BITs are regarded lex
specialis, and their purpose is to exclude the application of general laws to the contrary. 9 Lex
generalis refers to law as it relates to all subjects or subject matters in universal, as opposed to
a specialised legal system that applies exclusively to particular subject matter or to specific
people, such as parties to the concerned treaty. 10 Only the six measures in Article XVI (2)
11
 are covered by the GATS Scheduled Commitments in terms of market access. In
comparison to the GATS, the BIT is called lex specialis since it provides more explicit
obligations with relation to covered investments, such as fair and equal treatment, extortion,
and dispute settlement. The BIT only applies to two Members. 12 With regard to the services
covered by GATS and covered investments under the BIT, the GATS becomes the lex
generalis and the BIT becomes the lex specialis. North Amrubia's commitments to Amagadia
under the GATS with regard to Hello! are not included in the BIT's market access criteria.

C. THE MEASURE MAY BE CHALLENGED THROUGH THE SURVIVAL CLAUSE

Generally, BITs have a survival clause which allows allowing for the BIT to continue
producing legal effects after it has been terminated.13 These legal effects apply to investments
established in the host country after the BIT came into force, but before it was terminated. 14
In practice, this means that those investors can use a terminated BIT to launch an
international arbitration against the state during the survival period.15 The BIT was signed in

8
Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of
International Law, Int’l Law Comm’n on its Fifty-Eight Session [2006] UN Doc A/CN.4/L.702, para 8.
9
José E. Alvarez, ‘A BIT on Custom’ [2009] 42 NYU J International Law & Pol. 17.
10
Aaron X Fellmeth and Maurice Horwitz, Guide To Latin in International Law (Oxford University Press 2009)
168.
11
General Agreement on Trade in Services [1994] Marrakesh Agreement Establishing the World Trade
Organization Annex 1B Art XVI, para 2 1869 UNTS 183, 33 ILM. 1167 [1994].
12
Moot Compromis Annexure-III.
13
Nathalie Bernasconi-Osterwalder, Sarah Brewin and Martin Dietrich Brauch Suzy Nikièma, ‘Terminating a
Bilateral Investment Treaty’ (IISD, March 24 2020),
<https://www.iisd.org/system/files/publications/terminating-treaty-best-practices-en.pdf> accessed August 24
2021.
14
Ibid.
15
Ibid.

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200716 and terminated in 2020.17 Hello, a covered investment, was established in North
Amrubia in 2010.18 Hello! was established during the period in which the treaty operated and,
thus, Hello! may bring a suit arising out of the BIT against the respondent.

D. NORTH AMRUBIA DOES NOT ATTRACT PROVISIONS OF NULLIFICATION AND

IMPAIRMENT UNDER THE GATT

Both North Amrubia and Amagadia are signatories to the BIT (2007) agreement, wherein
they are committed to achieving specific binding commitments in the area of economics.
Amagadia’s Company Hello! was not complying with the law of intermediary rules despite
repeated demands in the form of government or legal notice. 19 It was then banned as the
government of North Amrubia noticed the seditious activity and comments which were the
real threat to national security. It has been traditionally held that the burden of proof lies with
the party asserting a fact,20 in the instant case being Amagadia, has not bought any
substantive point before the panel. North Amrubia has enhanced its trade obligations and
ensured the overall objective of the Agreement is met. It did not take away any benefit that
was guaranteed to any of the trading members 21 and hence the request for the formation of the
panel by the Amagadia is invalid.

It has been agreed that if there is a clear infringement of provisions of the General
Agreement, or in other words, where measures are applied in conflict with the provisions of
GATT and are not permitted under the terms of the relevant protocol under which the GATT
is applied by the contracting party, the action would, prima facie, constitute a case of
nullification or impairment and would ipso facto require consideration of whether the
circumstances are serious enough to justify the authorization of suspension of concessions or
obligations.22 Therefore, it could be implied that North Amrubia has not infringed its
obligations under its international obligations of world trade. Amagadia was not affected by
any of the measures that were taken in North Amrubia hence a panel should not be formed.

16
Moot Compromis, para 1.
17
Ibid para 12.
18
Ibid para 3.
19
Moot Compromis, para 10.
20
Appellate Body Report, United States – Measures Affecting Imports of Woven Wool Shirts and Blouses from
India, WT/DS33/AB/R and Corr.1, adopted 23 May 1997 paras 12-16.
21
General Agreement on Tariffs and Trade [1994] 1867 UNTS 187 Art XXIII.
22
Panel Report, Uruguayan Recourse to Article XXIII 9L/1923 (1962), para 15; GATT BISD (11th Supp)
(1962), para 95

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II. MARKET ACCESS OBLIGATIONS UNDER ARTICLE XVI (1) OF THE

GATS RELATING TO CPC 844 HAD NOT BEEN VIOLATED BY NORTH
AMRUBIA

(A.) North Amrubia has not committed to grant full Market Access in the relevant sector and
mode of supply in its Schedule of Specific Commitments under Article XX(1)(a) of the
GATS; (B.) The measures taken by North Amrubia like the enactment of the Law on
Intermediary Liability are protected under Article XIV of GATS; and (C.) The Law on
Intermediary Liability does not accord “less favourable” treatment than provided for under
the terms, limitations and conditions specified in North Amrubia’s Schedule within the
meaning of Article XVI (1) of GATS.

A. NORTH AMRUBIA HAS NOT COMMITTED TO GRANT FULL MARKET ACCESS IN THE

RELEVANT SECTOR IN ITS SCHEDULE OF SPECIFIC COMMITMENTS UNDER ARTICLE

XX(1)(A)
(a) The services supplied by Hello! fall under ‘Computer and Related Services’ sector; and
(b) North Amrubia, in its Schedule of Specific Commitments, has not undertaken full Market
Access Commitment for Computer and Related Services supplied by Hello! through the
relevant modes of supply.

a.) The services supplied by Hello! fall under the sector of ‘Computer and Related
Services’
Hello! is a renowned international social media platform, on which the users can create a
profile, upload photos, post any information such as opinions or important events, and add
other people to increase their social network profile.23 Amagadia wrongfully characterized the
classification of the services supplied by Hello! which should fall within the sector
‘Computer and Related Services.’ Even though the sector excludes data and message
transmission services, the posting of photos and videos, a feature of most social media
platforms like Hello! happens through the structured databases located in their respective
countries through a common communication network, the Internet. Hence, the social media
platform Hello! is data base services24 and fall under ‘Computer and Related Services’.

23
Moot Compromis, paras 3-4.
24
Moot Compromis, Annexure 2.

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North Amrubia has enlisted Computer and Related Services in its Schedule of Specific
Commitments.25 The Computer and Related Services sector is identified in the Secretariat
Services Sectoral Classification list26 by the Corresponding Central Product Classification
Number27 (CPC) 844 which includes data base services.

b.) North Amrubia, in its Schedule of Specific Commitments, has not undertaken full
Market Access Commitment for Computer and Related Services supplied by Hello!
through the relevant modes of supply
It is established that North Amrubia has undertaken a market access commitment in relation
to Computer and Related Services through ‘cross-border mode of supply’ by having marked
‘None’ in the Market Access column of its schedule. However, North Amrubia retains its
rights to enforce limitations through the Commercial Presence (Mode 3). North Amrubia has
marked ‘Unbound’ in the Market Access column of its schedule for the mode Commercial
Presence which clearly means that it has not undertaken any market access commitment
through this mode of supply. This establishes the primary intention of North Amrubia to
retain limitations on market access to its Computer and Related Services suppliers. Therefore,
North Amrubia is under no constraint or obligation to grant full and unrestrained market
access within the terms of Article XVI. This also implies that North Amrubia has the right to
implement any regulatory measure it deems necessary for the services provided through
Commercial Presence.

B. THE LAW ON INTERMEDIARY LIABILITY DOES NOT ACCORD “LESS FAVORABLE”

TREATMENT THAN PROVIDED FOR UNDER THE TERMS, LIMITATIONS AND CONDITIONS

SPECIFIED IN NORTH AMRUBIA’S SCHEDULE WITHIN THE MEANING OF ARTICLE XVI (1)
OF GATS

The meaning set out in the words and context of Article XVI, confirms that the “restrictions
on market access that are covered by Article XVI are only those listed in paragraph 2 of this
Article.”28 The provisions in the Law on Intermediary Liability which ‘ban content affecting
national security, sovereignty and integrity’ and ‘require the identification of the originator of

25
Moot Compromis, Annexure 2.
26
World Trade Organisation, Services Sectoral Classification List, MTN.GNS/W/120, Special Distribution (July
10, 1991).
27
World Trade Organization, Guidelines for the Scheduling of Specific Commitments under the General
Agreement on Trade in Services (2001) para 23.
28
Panel Report, United States - Measures Affecting the Cross-Border Supply of Gambling and Betting Services,
WTO Doc. WT/DS285/26 (adopted May 22, 2007).

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MEMORIAL for RESPONDENT

such content’, do not fall within the impermissible ‘limitations’ set out in Article XVI(2)
because they do not limit the number of service suppliers in North Amrubia. Hence, those
requirements do not constitute a restriction in market access and do not accord “less
favourable” treatment. Even if a measure would fall under the limitations under Article XVI
(2), a member retains the ability to apply any of the measures of Art. XVI (2) when it has
inscribed “unbound” in the relevant market access column of its Schedule.29

Article XVIII acknowledges that there are measures other than those subject to scheduling
under Article XVI which can still affect market access. Thus, this provision supports the view
that the absence of the limitations listed in Article XVI in a Member's Schedule does not ipso
facto mean that this Member allows for full market access. 30 This interpretation is in line with
the principle of progressive liberalization as well as Members' right to regulate. 31 To
determine whether the “no less favorable” treatment standard of Article XVI (1) is violated,
the minimum treatment set out in Member's specific market access commitments must be
juxtaposed with the actual treatment, the member offers. 32 Article XVI defines the scope of
the obligation laid down in Article XVI to provide “no less favorable treatment”, by
comparing it with the benchmark of “the terms, limitations and conditions agreed and
specified” in a Member's Schedule.33

It is submitted that the law on intermediary liability was a necessary measure taken for the
maintenance of national security, integrity and sovereignty of North Amrubia amid rising
concerns regarding the use of Hello! as tool to incite violence and disturb the stability and
harmony of the country during politically fragile times. North Amrubia enacted a WTO
consistent alternative measure in order to achieve a necessary objective 34 and it is not against
North Amrubia’s Schedule of Commitments. Moreover, North Amrubia's lack of
commitment in Computer and Related Services through Commercial Presence gives it the
right to introduce any measures that might restrict or limit the ability of other service
suppliers. Therefore, the measures taken by North Amrubia are in line with its market access
29
Rüdiger Wolfrum, Peter-Tobias Stoll, Clemens Feinäugle, WTO - Trade in Services, Max Planck
Commentaries on World Trade Law (Vol. 6, Martinus Artinus Nijhoff Publishers 2008).
30
Panos Delimatsis, ‘The Interaction Between GATS Articles VI, XVI, XVII and XVIII after the US -
Gambling Case’ [2006] NCCR Trade Regulation 8.
31
Panel Report, US - Gambling (n 35).
32
Appellate Body Report, United States – Measures Affecting the Cross-Border Supply of Gambling and
Betting Services, WT/DS285/AB/R and Corr.1, adopted 20 April 2005.
33
Panos Delimatsis (n 37).
34
Appellate Body Report, Korea - Measures Affecting the Import of Fresh, Chilled and Frozen Beef (n 31).

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MEMORIAL for RESPONDENT

commitment for Computer and Related Services through Commercial Presence and do not
constitute a less favorable treatment.

C. THE MEASURES TAKEN BY NORTH AMRUBIA ARE PROTECTED UNDER ARTICLE XIV
(a) Even if the market access obligations have not been fulfilled by North Amrubia, it is
justified in implementing measures which it considers necessary for the maintenance of
public order; and (b) for the protection of its essential security interests.

a.) North Amrubia is justified in implementing measures which it considers necessary for
maintaining public order under Article XIV(a)
(i) Article XIV(a) of GATS provides that it is essential to demonstrate that the measure is
designed in a manner to maintain public order; and (ii) the measure for which justification is
claimed, is necessary to maintain public order.

i) The measure falls within the range of policies designed to maintain public order:

Article XIV(a) allows deviation from the substantive obligations under GATS, if it is
necessary to protect public morals or to maintain public order. 35 Measures necessary for the
enforcement of laws and regulations relating to the safety of the public, are included in the
legal concept of public order.36 In the present matter, the military had thwarted a large-scale
terrorist activity that was organized on a social media platform that sought to undermine the
sovereignty of North Amrubia and there were rising concerns regarding the use of Hello! as
tool to incite violence and disturb the stability and harmony of the country during politically
fragile times.37 Every member invoking Article XIV has the right to determine its own level
of protection against the risk sought to be addressed,38 which has been done by Anduin by
implementing the Law on Intermediary Liability. Provisions of this law ban content affecting
the sovereignty and integrity of North Amrubia and that which threatens the national security
of the country.

ii) The measure is necessary to protect public morals and maintain public order:

35
GATS Art XIV(a).
36
Panel Report, United States – Measures Affecting the Cross- Border Supply of Gambling and Betting
Services, WT/DS285/R, adopted 20 April 2005.
37
Moot Compromis, para 6.
38
Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/
AB/R, WT/DS169/AB/R, adopted 10 January 2001.

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MEMORIAL for RESPONDENT

North Amrubia enacted the Law on Intermediary Liability in light of concerns related to the
maintenance of public order and the national security, which is a fundamental requirement of
the societal interests.39 With regards to the contribution of the measure to the object pursued,
a means-end analysis is to be used.40 As already submitted, the military had thwarted a large-
scale terrorist activity that was organized on a social media platform that sought to undermine
the sovereignty of North Amrubia and therefore, it was clear that social media platforms were
being used a means for execution and planning of terrorist activities in North Amrubia,
challenging the nation security, sovereignty, integrity and public order.

b.) North Amrubia is justified in implementing measures for the protection of its essential
security interests under Article XIV bis
Article XIV bis relating to security exceptions, allows Members to adopt and enforce
measures, in the interest of national or international security, otherwise inconsistent with
GATS obligations.41 The Law on Intermediary Liability was implemented in light of concerns
relating to national security and can be justified under the provision of Article XIV bis: 1(b)
(iii) as North Amrubia was in an emergency situation, as highlighted previously.

III. IN ANY EVENT, NORTH AMRUBIA CAN SEEK PROTECTION OF ITS

ESSENTIAL SECURITY INTERESTS UNDER ARTICLE XIV BIS OF GATS

The Respondent, North Amrubia claims that it can seek protection of its essential security
interests under Art. XIV bis of GATS because (A.) The measures were reasonable in the
current circumstances. (B.) The measures were taken in good faith.

A. THE MEASURES WERE REASONABLE IN THE CURRENT CIRCUMSTANCES

The Panel while examining Russia -Transit case under Article XXI, examined three elements
while assessing the measures of Member States (a) taken during war or other emergency in
international relations, (b) articulation of ‘essential security interests’, and (c) necessity of the
measures. Art. XIV bis replicates Art. XXI GATT 1994. As Article XXI of GATT and
Article XIV bis of GATS are similar, the provisions, interpretations and case law under Art.

39
Farshad Ghodoosi, International Dispute Resolution and the Public Policy Exception (Routledge 2018) 16.
40
Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres, WT/DS332/AB/R, adopted
17 December 2007.
41
GATS Art XIV bis.

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MEMORIAL for RESPONDENT

XXI GATT are relevant and useful when interpreting Art. XIV bis. 42 It is submitted that the
present case qualifies all the three criterion.

a.) The measures were taken during war or other emergency in international relations
According to the Panel, an ‘emergency in international relations’ is a “situation of armed
conflict, or of a latent armed conflict, or of heightened tension or crisis or of general
instability engulfing or surrounding a state”. 43 Further, the measures have to qualify a two-
pronged test. Firstly, the threat should be imminent or the security measures should reflect a
rapid response and secondly, the measures must have been taken in order to deal with a
dangerous situation that arose suddenly and recently. 44 The words “other emergencies in
International Relation” is flexible to cover situations where there is terrorist group, who are
causing attack within the state.45

In North Amrubia, ‘Hello!’ app was used as a primary platform to protest against the military
rule as a majority of the citizens wanted the reinstatement of democracy. The political leaders
from the ruling party were put in detention. The protest resulted in the death of over 550
people and approximately 2000 arrests between June and September 202046. The law on
Intermediary Liability, that banned the content affecting the sovereignty, integrity and
national security of the country, was passed in September 2020.47 Subsequently, ‘Hello!’ app
was banned in November 2020. As there was no time gap, it can be said that the measures
were taken as a rapid response to the grave situation. Further, a large-scale terrorist activity
was about to happen in North Amrubia and more such attacks were imminent. All these
instances show a situation of general instability engulfing the state.

Such banning of apps in not uncommon. Radio-Television Libre des Mille Collines
(RTLMC) - a radio station - was banned during the Rwandan genocide in 1994 because it
became a strong instrument to instigate and direct the genocide. 48 Furthermore, during
42
Panel Report, United States — Gambling (n 35).
43
Panel Report, Russia — Measures Concerning Traffic in Transit, WT/DS512/R, adopted 29 April 2019.
44
Thomas Cottier and Pangiosis Delimatsis, Article XIV bis: Security Exceptions (Martinus Nijhoff Publishers
2008) 329
45
Joshua Meltzer, ‘Governing Digital Trade’ [2019] 18 WTR, 23; Susannah Hudson, Applying WTO and FTA
Disciplines to Data Localisation Measures, [2019] 18 WTR.
46
Moot Compromis, para 6.
47
Moot Compromis, para 11.
48
Meghan Lyon, 'Radio In The Rwandan Genocide - The Devil's Tale' (The Devil's Tale, 2021)
<https://blogs.library.duke.edu/rubenstein/2013/05/10/radio-in-the-rwandan-genocide/> accessed 18 August
2021.

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MEMORIAL for RESPONDENT

Myanmar's military coup, Facebook, which was a major source of information for Myanmar's
citizens (more so than in nearly any other nation), was used to incite violence. As a result, it
was banned.49 The measures were, moreover, adopted to protect the country from further
attacks which would cause loss of life, thus it would be covered under (iii) of clause (b),
which deals with ‘war or emergency in international relations’.

b.) The measures were taken towards the protection of essential security interests
The panel in Russia-Transit case, acknowledged that the essential security interests of its
member states vary and are subjective; therefore, only the member state can determine it. 50 It
loosely interpreted this phrase and left it to the discretion of States to determine which
security interests it considers essential. 51 It is the function of any state to protect its territory
and its population from external threats, and to maintain internal law and public order. 52 It is
the party invoking the exception which bears the burden of adducing evidence demonstrating
that the information at hand can be deemed part of that party’s public interest or its essential
security interests.53

The panel in Saudi Arabia- IP case54 found that Saudi Arabia’s articulation of essential
security interest, i.e., protecting itself from the “dangers of terrorism and extremism”, was
sufficiently precise and related to the “quintessential functions of the state”. North Amrubia
faced a terror threat. A large-scale terrorist activity was about to be carried out, though
fortunately it was thwarted. The country’s essential security interests were threatened by
potential protests and terrorist attacks. It is submitted that (i) the potential of threat is
sufficient to justify the measures.

i) The potential of threat is sufficient to justify the measures adopted for the
protection of essential security interests
The intent of knowing the ‘first originators’ as stated by the Amrubia’s government was to
ensure regulation of social media and access to information to ensure the safety of its citizens.

49
'Myanmar Coup: Facebook, Instagram Place Immediate Ban On Military' (BBC News, 2021)
<https://www.bbc.com/news/world-asia-56191657> accessed 20 August 2021.
50
Panel Report, Russia- Transit case (n 2), para 7.131.
51
Keshav Somani and Nandini Pradhan, 'Analysing The Ban Of Chinese Apps Under The WTO Regime'
(Society of International Law and Policy, 2021) <https://silpnujs.wordpress.com/2020/10/31/analysing-the-ban-
of-chinese-apps-under-the-wto-regime/> accessed 21 August 2021.
52
Panel Report, Russia- Transit case (n 2), para 7.130.
53
Cottier and Delimitsasis (n 4).
54
Saudi Arabia – Measures Concerning the Protection of Intellectual Property Rights, WTO Doc. WT/DS567/R

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MEMORIAL for RESPONDENT

In fact, Section 4(d)(2) of Intermediary Guidelines and Digital Media Ethics Code Rules,
2021 of India also provides for the identification of the first originator of the information. 55
The rationale for knowing about the details of the people would be to enable the government
to conduct better surveillance within its country in order to identify terrorist activities and
reduce the violence that led to instability. During the course of Uruguay round negotiations,
the embargo on Portuguese goods by Ghana was analysed. The Ghanaian Government said
that the situation in Angola was a constant threat to the peace of the African continent and
that any measures which, by bringing pressure to bear on the Portuguese Government, might
lead to lessening of this danger (despite broad margins of political questions), and so it was
justified invoking these measures”.56

Likewise, there was a high probability that the banning of ‘Hello!’ app will lessen the
violence and instability in the country. Given the fact that the app was used by a whooping 75
percentage of the population of Amrubia as a source of news, it was highly likely that the app
would further amplify the protests and destabilize the country, thus affecting its sovereignty
and integrity. In 2020, Government of India announced the ban of 59 Chinese apps giving a
pertinent reason of threat posed by these apps on national security which ultimately impinged
upon the sovereignty and integrity of India.57 Hence the measures were completely justified.

c.) There is no need to prove the necessity of the measures

In Saudi Arabia- Protection of IP case58, the panel examined the phrase ‘which it considers’
and decided to leave it to the states to scrutinize the necessity of the measures for the
protection of its essential security interests. Also, the ICJ in Nicaragua case 59, had also
indirectly recognized that it would not have the jurisdiction to review the ‘necessity’ of a
measures as it was prefixed by ‘which it considers’ in the provision. Thus, North Amrubia is
not mandated to prove the necessity of introducing the law on intermediary liability and
banning of the app for its essential security interests.60

55
Intermediary Guidelines and Digital Media Ethics Code Rules, 2021 Section 4(d)(2).
56
World Trade Organisation, ‘Guide to GATT Law and Practice – ANALYTICAL INDEX’ (1995) 600.
57
'Government Bans 59 Mobile Apps Which Are Prejudicial To Sovereignty And Integrity Of India, Defence Of
India, Security Of State And Public Order' (Pib.gov.in, 2020) <https://pib.gov.in/PressReleasePage.aspx?
PRID=1635206> accessed 21 August 2021.
58
Saudi Arabia (n 55).
59
Nicaragua v. U.S.A [1984] ICJ 215.
60
Russia-Transit case (n2) para 7.79.

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MEMORIAL for RESPONDENT

B. THE MEASURES WERE TAKEN IN GOOD FAITH

The principle of good faith, which is at once a general principle of law and a principle of
general international law, should be observed by WTO Members regardless of whether there
is an explicit reference to it.61 Although, in general, each Member may define its own
essential security interests, this freedom is limited by the obligation to interpret and apply the
provision in good faith.62 Under the obligation of good faith, the Member States are required
to articulate their ‘essential security interests’ in such a way that they are “minimally
satisfactory”. Member States are not required to articulate their interests precisely, but
adequately enough to enable the Panel to assess the plausibility of interests with the measures
taken.63 The respondent provided legal orders to remove the posts that incited violence and
destabilize the country. However, given a significant number of posts on the platform, it
could not remove them. Hello! was fraught with seditious comments and activities, which
probably had even given rise to terrorist activities. It is submitted that (a.) there was a
reasonable nexus between the measures taken and security interests.

a.) There was a nexus between the measures taken and the essential security interest
In the Protection of IP  case64, Saudi Arabia’s articulation of its essential security interest as
‘protection of national security from the dangers of terrorism and extremism’ was considered
sufficiently precise by the Panel. The measures could be considered so remote from, or
unrelated to the emergency so as to hold them implausible. 65 Similar to Saudi Arabia, North
Amrubia also asserted its security interests by setting forth the interests it wished to protect
and then stating the activities it considered prejudicial to those interests. Therefore, Amrubia
sufficiently articulated its security interests for the Panel to assess their plausible connection
with the ban.66

61
Appellate Body Report, United States – Anti-Dumping Measures on Certain Hot-Rolled Steel Products from
Japan, WT/DS184/AB/R, adopted 23 August 2001.
62
Cottier and Delimitsasis (n 4).
63
Keshav Somani and Nandini Pradhan (n 11).
64
Saudi Arabia (n 55).
65
Russia- Transit case (n 2), para 7.145.
66
Keshav Somani and Nandini Pradhan (n11).

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MEMORIAL for RESPONDENT

PRAYER

For the above-mentioned reasons, the respondent respectfully requests that this Panel
DECLARE that:

1. The applicable law for the instant case is the Bilateral Investment Treaty law, which stands
terminated.

2. Market Access obligations under Article XVI of the General Agreement on Trade in
Services read with Schedule of Specific Commitments have not been undertaken by
classification under CPC 844.

3. Supposing any commitments, Market Access commitments have not been violated under
Article XVI (1) by the Law on Intermediary Liability and Ban on social networking
platforms.

4. North Amrubia can take recourse to Article XIV bis of the General Agreement on Trade in
Services and the Law on Intermediary Liability and Ban on social networking platforms are
lawful under Article XIV Bis of the General Agreement on Trade in Services, as they are
instrumental to North Amrubia to seek protection of its essential security interests

25