Argos Enterprises Ltd (“Argos”) is a mining company incorporated in, and having its seat of control in, Australia. Argos is weighing up whether to make a significant investment in the mining industry in one of 2 nearby States, either Utopia or Draconia.

Argos Enterprises Ltd (“Argos”) is a mining company incorporated in, and having its

seat of control in, Australia. Argos is weighing up whether to make a significant

investment in the mining industry in one of 2 nearby States, either Utopia or Draconia.

The Australian government had attempted to negotiate a bilateral investment treaty

with Utopia, but due to widespread public opposition in Utopia, these efforts were

unsuccessful. Australia had more success in negotiating a bilateral investment treaty

with Draconia, which was keen to attract foreign direct investment. Draconia

suppressed all internal opposition to the treaty and the treaty was signed by both States

in 2020 and it came into force upon signature. The bilateral investment treaty between

Australia and Draconia contains standard provisions on investor State dispute

settlement.

You are a lawyer working for a large law firm in the Gold Coast. Argos is seeking a detailed

legal advice on how it might protect any future investments in Utopia or Draconia and

whether Argos would require the support of the Australian government. Provide a

detailed legal advice to Argos on the different international legal issues (under the law

of diplomatic protection and the bilateral investment treaty) that may arise depending

on whether Argos invests in Utopia or Draconia. For the purposes of this question,

please note that Utopia has made an unconditional declaration under Article 36(2) of

the Statute of the International Court of Justice whereas Draconia has not. 

Your advice should be detailed and should include references to relevant case law/judicial decisions.