1.It might be Respondent’s contention that claims submitted by Claimant to the ICSID Tribunal are
contractual in nature and therefore the jurisdictional offer in the Art. 11 of the BIT is too narrow to
encompass such claims (Let us say, that the keyhole is too small to enter the key.). However, Claimant
formulated its claims as arising out of violation of the BIT. As it was stated above, the tribunal has to
accept these claims as they are and cannot subject them to a too strict scrutiny in the jurisdictional
phase. Then the Claimant´sicle 11 of the BIT is too narrow to encompass such claims. (Let us say that
the keyhole is too small to enter the key.) However, claimant formulated its claims as arising out of
violation of the BIT. As it was stated above, the tribunal has to accept these claims as they are and
cannot subject them to a too strict scrutiny. Than the key brought by Claimant gets easily to the keyhole.
2.Even if the tribunal classifies the Claimant’s claims as based on the JV Agreement, Claimant asserts
that the jurisdiction of the ICSID Tribunal is not limited to the breaches of the BIT itself. The tribunal is
authorized and indeed required to decide on such claims due to the BIT’s umbrella clause. The effect of
the umbrella clause is, that it makes a non-performance or a breach of the contract a breach of the BIT.1
It is Respondent’s obligation under Art. 10 of the BIT to “constantly guarantee the observance of any
obligation it has assumed with regard to investments”. Therefore, every obligation arising out of the JV
Agreement is an “obligation […] under this Agreement [the BIT] in relation to an investment of the
latter” according to Art.Claimant’s claims as based on the JV Agreement, Claimant asserts that the
jurisdiction of the ICSID Tribunal is not limited to the breaches of the BIT itself. The tribunal is
authorized and indeed required to decide on such claims due to the BIT’s umbrella clause. The effect of
the umbrella clause is, that it makes a non-performance or a breach of the JV Ageement breach of the
BIT.2 It is Respondent’s obligation under Article 10 of the BIT to “constantly guarantee the observance
of any obligation it has assumed with regard to investments”. Therefore, every obligation arising out of
the JV Agreement is an “obligation […] under this Agreement [the BIT] in relation to an investment of
the latter” according to Article 11 of the BIT.
3.The Eureko Tribunal based its jurisdiction on similarly narrow jurisdictional offer in the Dutch-Polish
BIT3 as it is drafted in Art. 11 of the BIT. The relevant provision of the Dutch-Polish BIT stated that an
investor could subject to the arbitration “dispute […] relating to the effects of a measure taken by the
[state party]with respect to the essential aspects pertaining to the conduct of its business, such as the
measures mentioned in Art. 5 of this Agreement […]”.4 Despite narrow drafting of the Polish
jurisdictional offer, the tribunal did not agree with the responding party´s objection to jurisdiction which
was based on a contractual nature of the claims5 and even accepted jurisdiction over contract-based
claims through operative effect of the umbrella clause.6 Claimant urges the tribunal to follow theicle 11
of the BIT. The relevant provision of the Dutch-Polish BIT stated that an investor could subject to the
arbitration “dispute […] relating to the effects of a measure taken by the [state party]with respect to the
essential aspects pertaining to the conduct of its business, such as the measures mentioned in Article 5
of this Agreement […]”.7 Despite narrow drafting of the Polish jurisdictional offer, the tribunal
withheld objections to jurisdiction based on contractual nature of the claims8 and even accepted
jurisdiction over contract-based claims through operative effect of the umbrella clause.9 Claimant urges
the tribunal to follow teachings of this tribunal.
1 SGS v Phillipines, Schreuer; Newcombe & Paradell,The Law and Practice of Investment Treaties (2009) 436
2 SGS v Phillipines, Schreuer; Newcombe & Paradell,The Law and Practice of Investment Treaties (2009) 436
3 Agreement between the Kongdom of the Netherlands and the Republic of Poland on Encouragement and
Reciprocial Protection of Investments, signed on 7 September 1992, Art. 8
4 Ibid, Art. 8
5 Eureko, § 112
6 Ibid, § 250
7 Ibid, Article 8
8 Eureko, § 112
9 Ibid, § 250
A.1.(iv) Jurisdiction of the ICSID Tribunal is not affected by noncompliance
with the waiting period which is merely a procedural
requirement
4.Claimant also assert that it was not obliged to conform with requirement to settle the dispute
“amicably within six months of the date of a written application” pursuant to Art. 11(1) of the BIT in
order to invoke the jurisdiction of the ICSID Tribunal. It is a well-settled case law – relying on the
arguments developed by PCIJ and ICJ10 – that the waiting period is a mere procedural, and not a
jurisdictional requirement.11 to conform with requirement to settle the dispute “amicably within six months of the date of a written
application” pursuant to Article 11(1) of the BIT in order to invoke the jurisdiction of the ICSID Tribunal. It is well settled case law – stemming from
arguments developed by PCIJ and ICJ12 – that the waiting period is a mere procedural, and not jurisdictional requirement.13
5.Claimant is not obliged to wait and attempt to negotiate before submitting its case to the tribunal,
where the prospect to amicable settlement is elusive.14 Respondent clearly manifested its refusal to
negotiate by the use of CWF against Claimant’s seconded personnel.15 Furthermore, strict interpretation
of the waiting period clause would contravene the principle of orderly and cost-effective procedure.16
Therefore, it may be concluded, that the jurisdiction of the negotiate through threats to use force against
Claimant’s seconded personnel.17 Further, strict interpretation of the waiting period clause would
contravene the principle of orderly and cost-effective procedure.18 Therefore, it may be concluded, that
the jurisdiction of the ICSID Tribunal is not affected by non-compliance of Claimant with the waiting
period.
A.2. Jurisdiction of the ICSID Tribunal, properly established under the ICSID
Convention and the BIT, is not ousted or superseded by municipal agreement of
the parties
6.There are three main reasons for the conclusion that the jurisdiction of the ICSID Tribunal is not
affected by the existence of Settlement of Dispute Clause 17 in the JV Agreement and the pending
arbitration commenced on a basis of the JV Agreement. Firstly, the treaty cause of action is to be
distinguished from contract cause of action. Secondly, the JV Agreement arbitrator is not authorized to
decide on obligations arising out of the BITmainly three reasons why the jurisdiction of the ICSID Tribunal is not affected by
existence of Settlement of Dispute Clause 17 in the JV Agreement and pending arbitration commenced on basis of the JV Agreement. Firstly, the
treaty cause of action is to be distinguished from contract cause of action. Secondly, the JV Agreement arbitrator is not authorized to decide on
obligations arising out of the BIT.
A.2.(i) Treaty-based claims exist independently from any claims arising out
of the contract
7.It is a well-settled case law, that dispute settlement clauses in contracts do not deny jurisdiction to the
international investment tribunals.19 The ad hoc committee in Vivendi Annulment stated thatwell settled
10 PCIJ, Certain German Interests in Polish Upper Silesia, Judgment on Jurisdiction No. 6, 1925 PCIJ Series A, p. 14;
ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Judgment on Jurisdiction and Admissibility, 26 November 1984, ICJ Reports (1984) 427 – 429
11 Ethyl v. Canada, § 74 – 88; Lauder v. Czech Republic, § 187; SGS v. Pakistan, § 184
12 PCIJ, Certain German Interests in Polish Upper Silesia, Judgment on Jurisdiction No. 6, 1925 PCIJ Series A, p. 14;
ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Judgment on Jurisdiction and Admissibility, 26 November 1984, ICJ Reports (1984) 427 – 429
13 Ethyl v. Canada, § 74 – 88; Lauder v. Czech Republic, § 187; SGS v. Pakistan, § 184
14 Lauder, §§ 188 – 189
15 Minutes, Annex 2 (Uncontested Facts), § 11
16 SGS v. Pakistan, § 184
17 Minutes, Annex 2 (Uncontested Facts), § 11
18 SGS v. Pakistan, § 184
19 Vivendi Annulment, § 95; SGS v. Pakistan, § 147, 154; SGS v. Philippines, § 155; Noble Ventures, § 53; Eureko, §
112 – 113
case law, that dispute settlement clauses in contracts do not deny jurisdiction to the international
tribunals.20 The ad hoc committee in Vivendi Annulment stated that
”where the ’fundamental basis of the claim’ is a treaty laying down an independent
standard by which the conduct of the parties is to be judged, the existence of an exclusive
jurisdiction clause in a contract between the claimant and the respondent state or one of its
subdivisions cannot operate as a bar to the application of the treaty standard.”21
8.Furthermore, the tribunal – relying on Art. 3 of ILC Art., the tribunal – relying on Article 3 of ILC
Articles on Responsibility – observed that the Respondent cannot rely on an exclusive jurisdiction
clause in a contract to avoid the characterization of its conduct as internationally unlawful under a
treaty.22 The fundamental principle is that same set of facts can give rise to different claims grounded on
differing legal orders.23
9.Respondent will probably rely on conclusions of Vivendi Annulment – at the first sight opposing to
the arguments presented above – that “[i]n a case where the essential basis of a claim brought before
an international tribunal is a breach of contract, the tribunal will give effect to any valid choice of
forum clause in the contract.24 However, this argument has to be rejected because (1) Claimant properly
formulated its claims as treaty-based and the umbrella clause has the effect of changing the breach of a
contract to the breach of the BIT; and (2) the essential basis test has to be read with reference to
theputatively opposing the arguments presented above – that “[i]n a case where the essential basis of a
claim brought before an international tribunal is a breach of contract, the tribunal will give effect to
any valid choice of forum clause in the contract.25 However, this argument has to be rejected because
(1) Claimant properly formulated its claims as treaty-based and otherwise, the umbrella clause has the
effect of changing the breach of a contract to the breach of the BIT; and (2) the essential basis test has to
be read with reference to other parts of the Vivendi Annulment decision.
10.The essential basis test was objected by Government of Poland in Eureko. The Eureko Tribunal
rejected the objections and held, that the essential basis test was a mere obiter dictum.26 Furthermore,
the tribunal stated that if Claimant advances claims for breaches of the BIT “decisicion of ad hoc
Committee in Vivendi […] authorizes, and indeed, requires, this Tribunal to consider whether the acts of
which Eureko complains, whether or not also breaches of the SPA and the First Addendum [the relevant
contracts], constitute breaches of the Treaty.”27 Claimant asserts that facts of this case require the
Tribunalmere obiter dictum.28 Furthermore, the tribunal stated that if Claimant advances claims for
breaches of the BIT “decisicion of ad hoc Committee in Vivendi […] authorizes, and indeed, requires,
this Tribunal to consider whether the acts of which Eureko complains, whether or not also breaches of
the SPA and the First Addendum [the relevant contracts], constitute breaches of the Treaty.”29 Claimant
asserts that facts of this case require to refuse Respondent’s objections and recognize jurisdiction,
notwithstanding Clause 17 of the JV Agreement.
20 Vivendi Annulment, § 95; SGS v. Pakistan, § 147, 154; SGS v. Philippines, § 155; Noble Ventures, § 53; Eureko, §
112 – 113
21 Vivendi Annulment, § 105
22 Ibid, § 103
23 SGS v. Pakistan, § 147; ELSI case, §§ 73, 124
24 Vivendi Annulment, § 98
25 Vivendi Annulment, § 98
26 Eureko, § 103
27 Ibid., § 112
28 Eureko, § 103
29 Ibid., § 112
A.2.(ii) The JV Agreement arbitrator does not posses a competing
jurisdiction, because it is not empowered to decide on the BIT
claimobligations
11.Claimant asserts that there is no competing jurisdiction conferred to the JV Agreement arbitrator. In
Art.article 11(2) of the BIT, Respondent offered three options for settlement of investment disputes: (1)
domestic courts; (2) UNCITRAL ad hoc international arbitration; and (3) ICSID arbitration. Claimant
decided for the third option.30 It might be Respondent’s contention, that the JV Agreement arbitration
was commenced within the second option, so that Claimant’s decision is too late to posses any legal
consequences.
12.However, terms “dispute arising out of or relating to this Agreement” used in Clause 17 of the JV
Agreement cannot encompass claims based on violation of the BIT, as a source of international law,
because the JV Agreement is a municipal agreement with effect not exceeding the municipal law.
13.Secondly, the investment dispute within the meaning of the BIT may be commenced merely by the
investor. Art. 11(1) of the BIT clearly states that “the investor in question may in writing submit the
dispute;” not the state partyicle 11(1) of the BIT clearly states that “the investor in question may in writing submit the dispute;” not the
state party. If the international investment practice significantly limits the admissibility of counterclaims,31
it could be hardy contended, that the host state is allowed to commence an investment dispute.
14.Thirdly, the JV Agreement arbitrator is not bound by Arbitration Rules of the UN Commission on
International Trade Law as the BIT requires. The arbitrator is bound by 1959 Arbitration Act of Beristan
which remains – albeit it incorporates 1985 UNCITRAL Model Law on International Commercial
Arbitration, as amended in 200632 – a source of municipal law with its own methods of interpretation
and application. Moreov. Further, Arbitration Rules of the UN Commission on International Trade
Law33 are not to be confused with 1985 UNCITRAL Model Law on International Commercial
Arbitration, as amended in 2006.34
15.Fourthly, the waiting period in Clause 17 of the JV Agreement is of specific wording and orders party
– after the notice of arbitration – to “attempt to settle the dispute amicably and, unless they agree
otherwise, cannot commence arbitration until 60 days after the notice of intention to commence
arbitration. [emphasis added]”. Beritech did not complied with the waiting period.35 The strict
prohibition to commence arbitration differs substantially from standard of drafting the waiting period in
the BITwidely from standard drafting of the waiting period in the BIT. Therefore – unlike in the BIT – the JV arbitrator
lacks jurisdiction if the Settlement of Dispute Clause is invoked before the waiting period expires.
BThe Tribunal has jurisdiction over Claimant’s contract-based claims arising under the JV Agreement
by virtue of Art.. In addition, the Tribunal has jurisdiction over Claimant’s contract-based claims
arising under the JV Agreement by virtue of Article 10 of the Beristan-Opulentia BIT
16.According to Art. 10 of the BIT, the Respondent is obliged to observe any obligations it has assumed
with regard to Claimant´s investment in its territory. The term “any obligation” may be applied to the JV
Agreement. The effect of the umbrella clause is, that it makes a non-performance or a breach of the JV
Ageement breach of the BIT.36icle 10 of the BIT, the Respondent is obliged to observe any obligations it has assumed with regard to
Claimant´s investment in its territory. This renders Respondent internationally responsible for breaches of the JV Agreement – as a principal vehicle to
30 Minutes, Annex 2 (Uncontested Facts), § 14
31 [Saluka Counterclaim] Saluka Investments BV (The Netherlands) v. The Czech Republic, Decision on Jurisdiction
over the Counterclaim, 7 May 2004, §§ 60 – 61, 76; Klökner v Cameroon, ICSID Case no. ARB/81/2, Decision on
Annulment, 3 May 1985, 2 ICSID Reports 162, p. 165;
32 Clarification Requests (4 June) Responses, § 130
33 General Assembly resolution 31/98 (15 December 1976)
34 General Assembly resolution 40/72 (1985), General Assembly resolution 61/33 (2006)
35 Minutes, Annex 2 (Uncontested Facts), § 10, 13
36 SGS v Phillipines; Newcombe & Paradell,The Law and Practice of Investment Treaties (2009) 436
make an investment in the Sat-Connect project. This applies even if these breaches were committed by Beritech because actions of Beritech are imputable
to the Respondent. Further the scope of the umbrella clause is wide enough to encompass the breaches of the JV Agreement.
17.Scope of the umbrella Clause shall be interpreted extensively as the state practice shows (Germany).
The umbrella clause may be applied both to obligations of an administrate (sovereign) nature (e.g.
concession agreements) and to obligations of a commercial nature. The BIT expressly states that the
state has a duty to observe any obligation it assumed (SGS v Philippines, Noble Ventures v Romania,
Eureko v Poland).
18.Distinction between obligations of administrative and commercial nature–although sometimes
considered–has no basis in relevant texts of the BITs and, as remarked the tribunal in Noble Ventures,
distinction between commercial and sovereign acts of the host state is not manageable in practice,
therefore should have only a little relevance. Also the tribunal in Siemens v. Argetina rejected the
distinction between different types of investment contracts ,since it found no basis for such a distinction
in the wording “any obligations” and in the definition of investment.
19.Some tribunals proposed that the scope of umbrella clause should be limited only to sovereign acts
(administrativ obligations) of the host state. Purely commercial obligations are not intense enough to be
covered by the umbrella clause; significant interference of government or public agencies is required to
trigger the limit for protection thereunder (CMS v Argentina, Joy Mining v Egypt).
20.Claimant suggests the tribunal not to restrict the scope of the umbrella clause. References to abstract
concepts, such as distinction between acta iure imperii and acta iure comercii, has no methodological
power of persuasion for it has no basis in the modes of interpretation set out by Vienna Convention on
Law of Treaties (Dolzer & Schreuer).
21.The wording of Art. 10 of the BIT leaves no space for doubts that the JV Argeement should not be
covered by the umbrella clause protection. Schreuer considers the reasoning of SGS v. Philippines
clearly preferable to the one in SGS v. Pakistan, because “[i]t does justice to a clause that is evidendly
designed to add extra protection for the investor.”37
B.1. The effect of the umbrella clause is to make the host state internationally
responsible for the breaches of contracts
22.The principal question of tribunal considering the application of the umbrella clauses was what effect
should be given to such clauses. Claimant asserts that Article 10 of the BIT makes it a breach of the BIT
for Respondent to fail to observe binding commitments, including contractual commitments, which it
has assumed with regard to specific investment.38 This conclusion is supported by actual wording of the
terms and by the principle of effet utile which requires to interpret the treaty provisions to be rather
effective than ineffective.39
23.It is well-known fact that this effect of the umbrella clause was not recognized by some tribunals.40
However, the arguments presented mainly in SGS v. Pakistan in order to make the umbrella clause
ineffective shall be rejected.
24.Firstly, the tribunal in SGS v. Pakistan feared the indefinite expansion of claims based on the
violation of the umbrella clause.41 However, the scope of application of the umbrella clause is limited to
“obligations with regard to investments” and the floodgate argument is easy to reject with standard
floodgate responses concerning the high costs.42
37 Schreuer: Travelling the BIT Route , 255
38 SGS v. Phillipines, § 128; Newcombe & Paradell, The Law and Practice of Investment Treaties (2009) 436; P Weil,
Problems relatifs aux contrats passés entre un Etat et un particullier, 128 Receuil des Cours III, 1969, p. 130
39 SGS v. Philippines, § 115; Noble Ventures, § 50 – 53; Salini v. Jordan, § 95
40 SGS v. Pakistan, § 163 – 174; Joy Mining, §§ 80 – 81
41 SGS v. Pakistan, § 166
42 Crawford: Treaty and Contract, p. 369
25.Secondly, the general principle of international law that “a violation of a contract entered into by a
State with an investor of another State, is not, by itself, a violation of international law”43 was used to
support the restrictive mode of interpretation.44 However, it is obvious, that a rule of customary
international law can be derogated from by a treaty unless the customary law rule is peremptory.45
26.Thirdly, the Tribunal was concerned that the effect of a broad interpretation would be, inter alia, to
override dispute settlement clauses negotiated in particular contracts.46 However, the purpose of the
umbrella clause is not to replace the JV Arbitrator with ICSID Tribunal; this purpose is to make the
performance of the JV Agreement enforceable under the BIT.47 Claimant also recalls that the exercise of
the contractual jurisdiction has to be distinguished from application of the terms of a contract in order to
determine whether there has been a breach of the BIT.48
27.Claimant urges the tribunal to prefer the interpretation which renders the umbrella clause effective as
other tribunals did.49 Also Schreuer considers the reasoning of SGS v. Philippines clearly preferable to
the one in SGS v. Pakistan, because “[i]t does justice to a clause that is evidendly designed to add extra
protection for the investor.”50
B.2. Respondent can be held liable for obligations assumed via Beritech
28.The issue of attribution is elaborated in respective parts of this memorial. However, the obligation
arising out of Article 10 of the BIT is international obligation, therefore, the principles of attribution are
operative.51 Article 4(1) of the ILC Articles on Responsibility states that “[t]he conduct of any State
organ shall be considered an act of that State under international law, whether the organ exercises
legislative, executive, judicial or any other functions.” It is commented that “[i]t is irrelevant for the
purposes of attribution that the conduct of a State organ may be classified as “commercial” or as acta
iure gestionis.”52
29.Accordingly, the tribunal in Nykomb v. Latvia acknowledged as covered by the umbrella clause in
Article 10(1) of the ECT a contract between the investor and a wholly owned state enterprise.53 In
Eureko, independent legal personality of Polish State Treasury did not preclude liability of the host state
for the breach of the umbrella clause.54 Similarly, the tribunal in Noble Ventures stated that
30.“this Tribunal cannot do otherwise than conclude that the respective contracts [...]
were concluded on behalf of the Respondent and are therefore attributable to the
Respondent for the purposes of [the umbrella clause].”55
B.3. The scope of the umbrella clause is wide enough to encompass the breach of
the JV Agreements
31.Article 10 of the BIT is imperative and Claimant asserts that the wording “any obligation with regard
to investment” obliges Respondent to honor obligation of any kind, notwithstanding the nature the
obligation could posses. As the tribunal in SGS v. Philippines stated the term “any obligation” – used in
43 Schwebel: On Whether the Breach, pp. 434 – 435
44 SGS v. Pakistan, § 167
45 VCLT, Article 53; cf. Noble Ventures, § 55
46 SGS v. Pakistan, § 168
47 SGS v. Philippines, § 126
48 Vivendi Annulment, § 105
49 Eureko, §§ 244 – 260; Noble Ventures, §§ 46 – 62; Fedax Award, § 29
50 Schreuer: Travelling the BIT Route, p. 255
51 MN Shaw, Intenational Law (2008) 785; International Law Commission (fifty-third session), Draft articles on
Responsibility of States for Internationally Wrongful Acts (2001), Articles 4 – 9; ICJ, Difference Relating to
Immunity from Legal Process of a Special Rapporteur, ICJ Reports, 1999, §§ 62, 87; ICJ, Case concerning
Genocide Convention (Bosnia v. Serbia), ICJ Reports, 2007, § 385
52 International Law Commission at its fifty-third session, General Assembly resolution A/56/10 (2001), p. 41, § 7
53 Nykomb v. Latvia, p. 31, § 4.1
54 Eureko, § 260
55 Noble Ventures, § 86
applicable Switzerland-Philippines BIT56 as well as in the Beristan-Opulenta BIT “is capable of
applying to obligations arising under national law, e.g. those arising from a contract.”57 The scope of
application of the umbrella is not restricted to obligations of a specific kind.58 The umbrella clause is to
be interpreted extensively as the state practice shows.59
32.Although some tribunals proposed that the scope of umbrella clause should be limited only to
sovereign acts of the host state (the administrative contracts) whereas purely commercial obligations are
not covered,60 or it should be limited to significant interference of government or public agencies61, this
opinion is not preferable.62 The umbrella clause may be applied both to obligations of administrate
nature and to obligations of commercial nature. The BIT expressly states that the state has a duty to
observe any obligation it assumed.
33.Distinction between obligations of administrative and commercial nature – although sometimes
recognized – has no basis in relevant texts of the BITs and, as remarked the tribunal in Noble Ventures,
distinction between commercial and sovereign acts of the host state is not manageable in practice,
therefore should have only a little relevance.63 Also the tribunal in Siemens v. Argentina rejected
distinction between different types of investment contracts since it found no basis for such a distinction
in wording “any obligations” and in the definition of investment.64
34.Claimant suggests the tribunal not to restrict the scope of the umbrella clause. References to abstract
concepts, such as distinction between acta iure imperii and acta iure gestionis, has no methodological
power of persuasion for it has no basis in modes of interpretation according to VCLT.65
56 Switzerland-Philippines BIT, Article X(2)
57 SGS v. Philippines, § 115
58 SGS v. Philippines, § 118; Noble Ventures, § 51; Eureko, §§ 257 – 258
59 Note of German Government to Parliament concerning 1959 BIT between Germany and Pakistani; cited in J
Alenfeld, Die Investitionsförderungsverträge der Bundesrepublik Deutschland (1971) 97 [Frankfurt am Main:
Athenaum]̈
60 SGS v. Pakistan, § 172; Joy Mining, §§ 78 – 79
61 CMS Award, §§ 302 – 303
62 Schreuer: Travelling the BIT Route, p. 255; Wälde, T.: The Umbrella Clause in Investment Arbitration – A Comment
on Original Intentions and Recent Cases, 6 Journal of World Investment and Trade (2004) 183, 225
63 Noble Ventures, § 82
64 Siemens Award, § 206
65 Dolzer, Schreuer, p. 161