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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).
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 > .
2 ibid para. 10.
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.
5 See Spyridon Roussalis v Romania Award (n 1) paras 859–877.
6 ibid para 860.
7 ibid para 866.
8 ibid para 869.
9 ibid para 869.
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>.
11 ibid.
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>.
13 Cf Dolzer, R and Schreuer, C, Principles of International Investment Law (OUP 2008) 243CrossRefGoogle Scholar and the several arbitral decisions cited in fn 126.
14 See Spyridon Roussalis v Romania Award (n 1) para 759.
15 ibid paras 866 and 860, respectively.
16 Cf art 31(1) of the VCLT.
17 See eg Linderfalk, U, On the Interpretation of Treaties: The Modern International Law as Expressed in the 1969 Vienna Convention on the Law of Treaties (2007) 217–27CrossRefGoogle Scholar and the further references cited there.
18 Emphasis added.
19 See Spyridon Roussalis v Romania Award (n 1) paras 868–869.
20 Cf art 31(1) VCLT.
21 See eg Linderfalk (n 17) 62–73.
22 This proposition is argued more fully in Linderfalk, U, ‘Who are “the parties”? Article 31 § 3(c) of the 1969 Vienna Convention, and the “Principle of Systemic Integration” Revisited’ (2008) 55 Netherlands International Law Review 346–51CrossRefGoogle Scholar.
23 See eg Levinson, S, Pragmatics (CUP 1983) 62CrossRefGoogle Scholar, 68–73.
24 Further on deixis, see ibid 55–96.
25 ibid 62, 73–9.
26 See eg Saeed, J, Semantics (Blackwell 1997) 188Google Scholar.
27 ibid.
28 See Spyridon Roussalis v Romania Award (n 1) para 875.
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.)
31 Separate Opinion by arbitrator Michael W Reisman (n 10).
32 ibid.
33 See n 30.
34 See eg Linderfalk (n 17) 287–94.
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>.
41 ibid, para 39.
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.
