memorial for respondent team ago fifth annual foreign ... - FDI Moot

equired by Article 25(1) of the ICSID Convention. In reaching this conclusion, the
majority of the Tribunal applied the so-called Salini criteria, 19 that have been frequently
applied in investment arbitrations to determine whether a particular transaction constitutes
an “investment” under Article 25(1) of the ICSID Convention. Mr. Viator, the Claimant-
appointed arbitrator, issued a dissenting opinion, accusing Professor Iracunda of refusing
to consider alternative viewpoints on the definition of “investment.” After the Tribunal
declined jurisdiction over the case, Claimant applied to the present ad hoc Committee for
an annulment of the Award under Article 52 of the ICSID Convention.
SUMMARY OF ARGUMENTS
10. The standard of review for annulment decisions is exceptionally limited.
Accordingly, this Committee should reject Claimant’s application for annulment, as
Claimant’s arguments do not meet the necessary standard of a “material defect”
sufficiently egregious to jeopardize the finality of the Tribunal’s Award.
11. First, the Award should be upheld because the Tribunal was properly constituted
pursuant to the relevant provisions of the ICSID Convention. The Two Members properly
dismissed the initial challenge to Professor Iracunda and complied with all procedures as
well as substantive requirements in rendering the Challenge Decisions.
12. Second, the Award should be upheld because the Tribunal did not manifestly
exceed its powers. The Tribunal is the judge of its own competence and, in deciding that
competence, it must consider whether a dispute is outside the jurisdiction of the Centre.
The Tribunal acted within its powers in determining that the Contract between Bela Rano
and Max Solutions did not constitute an investment within the meaning of Article 25 of the
ICSID Convention. Moreover, the Tribunal’s reliance on the Salini criteria follows a long
and established line of persuasive precedent and commentary and therefore cannot be
considered to constitute a manifest excess of power.
13. Finally, the Award should be upheld because the Tribunal did not violate any
fundamental rule of procedure under Article 52(1)(d) of the ICSID Convention. On the
19 Salini, para. 52.
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