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IV. REGARDLESS, THE AWARD SHOULD BE UPHELD BECAUSE THE TRIBUNAL DID NOT
HAVE JURISDICTION TO HEAR THE MAX SOLUTIONS-BELA RANO DISPUTE.
48. The Award should be upheld, because the Tribunal correctly determined that it
could not hear the merits of a dispute over which it had no jurisdiction.
49. There are two widely accepted theories regarding when a tribunal has jurisdiction
to hear an investment treaty dispute. A decision based on one faction’s interpretation of the
law does not constitute a manifest excess of power. Further, it is not the role of the
Annulment Committee to apply its own interpretation of the law; it is simply to ensure that
the “manner in which the Tribunal approached” the Award was appropriate. 85
50. The Award should only be annulled if the Tribunal manifestly exceeded its
powers under Article 52(1)(b) of the ICSID Convention. The standard of review for
decisions on jurisdiction are the same as for any other subject matter. 86 In particular, when
jurisdiction is at issue, the applicant carries a “heavy burden” to establish that there has
been a manifest excess of power. 87 Since the Tribunal’s interpretation was reasonable and
since the Annulment Committee confers “special weight to the Arbitral Tribunal’s
interpretation of the jurisdictional instrument,” 88 the Award must be upheld as the Tribunal
did not manifestly exceed its powers by applying a widely accepted approach to the law.
51. One of the two widely accepted theories provides that the investment must only
satisfy Article 25 of the ICSID Convention for jurisdiction to exist. 89 The other theory
states that an investment must satisfy a “double-barreled test.” 90 The double-barreled test
requires that the investment at issue be an investment not only according to Article 25 of
the ICSID Convention, but also according to the applicable BIT. The Tribunal took the
latter approach. 91 Since both parts of the test had to be independently satisfied and the
Tribunal determined that the transaction at issue in the underlying arbitration was not an
85
Lucchetti, para. 97; see also CMS Annulment Decision, para. 136; MTD, para. 54.
86
MCI, para. 55.
87
Fraport II, para. 45.
88
Id. at para. 44.
89
See e.g. Joy Mining, para. 50; Mitchell, para. 31; Mobil, para. 156.
90
See e.g. Jan de Nul, para. 90; Malicorp, para. 107; El Paso, para. 142; Global Trading, para. 43.
91 Award, 16:794-797.
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