I. INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES TRIBUNAL, SPYRIDON ROUSSALIS v ROMANIA, DECISION OF 7 DECEMBER 2011
Published online by Cambridge University Press: 30 January 2013
International lawyers interested in international investment law and treaty interpretation issues should consider the international award recently delivered by an ICSID Tribunal in the case of Spyridon Roussalis v Romania.1 The case arose out of the privatization of a Romanian warehouse company (SC Malimp SA). On 23 October 1998, another Romanian company (Continent SRL) entered into a share purchase agreement with the Romanian authority for state assets recovery (AVAS) to purchase 372,523 shares in SC Malimp SA, or the equivalent of a 70 per cent interest in the company. Following the acquisition of SC Malimp SA, the name of that company was changed to SC Continent Marine Enterprise SA (or ‘Continent SA’ for short).
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1 Spyridon Roussalis v Romania, ICSID Case No. ARB/06/1, Award Dispatched on 7 December 2011. Available through the webpage of the International Centre for Settlement of Investment Disputes: <http://icsid.worldbank.org > .
3 Agreement between the Government of Romania and the Government of the Hellenic Republic on the Promotion and Reciprocal Protection of Investments, Done at Athens, on 23 May 1997.
4 See, however, Lalive, P and Halonen, L, ‘On the Availability of Counterclaims in Investment Treaty Arbitration’, (2011) 2 Czech Yearbook of International Law 141Google Scholar.
10 Spyridon Roussalis v Romania, ICSID Case No ARB/06/1, Separate Opinion by arbitrator Michael W Reisman, Dispatched on 7 December 2011. Available through the webpage of the International Centre for Settlement of Investment Disputes: <http://icsid.worldbank.org>.
12 Today, international practice seems to accept as undisputable that customary international law is fully reflected in Articles 31–33 of the VCLT. See eg Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Merits, International Court of Justice, Judgment of 26 February 2007, para 160; La Grand Case (Germany v United States of America), International Court of Justice, Judgment of 27 June 2001, para 101. Both judgments are available through the webpage of the Court: <http://www.icj-cij.org>.
16 Cf art 31(1) of the VCLT.
18 Emphasis added.
20 Cf art 31(1) VCLT.
29 Cf art 31(2) VCLT.
30 ‘[T]he ordinary meaning of a term is not to be determined in the abstract but in the context of the treaty and in the light of its object and purpose’. (Draft Articles on the Law of Treaties with Commentaries, adopted by the International Law Commission in 1966, Report to the UNGA on the work of the second part of the seventeenth session and the eighteenth session of the ILC, ILC Yearbook, 1966: 2, 221.)
35 78 UNTS 277.
36 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (n 12) para 166.
37 ‘Under international law, the Organization (i.e. the United Nations] must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties.’ (Reparations for Injuries Suffered in the Service of the United Nations, International Court of Justice, Advisor Opinion of 11 April 1949, ICJ Reports, 1949, 174, at 182.)
38 See section E.
39 The oft-used maxim expressio unius est exclusio alterius may be seen to confirm this proposition.
40 Saluka Investments BV v The Czech Republic, Decision on Jurisdiction over the Czech Republic's Counterclaim, Decision of 7 May 2004, available through the webpage of the Permanent Court of Arbitration: <http://www.pca-cpa.org>.
42 Agreement on Encouragement and Reciprocal Protection of Investments between the Kingdom of the Netherlands and the Czech and Slovak Federal Republic, Done on 29 April 1991, 2242 UNTS 205. The Agreement was acceded to by the Czech Republic on 1 January 1993, upon the dissolution of the Czech and Slovak Federal Republic.