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59. In Salini, the tribunal held that the term “investment” infers (a) a contribution; (b) a certain duration of performance of the contract; (c) a participation in the risks of the transaction by the investor; and (d) a contribution to the economic development of the host state. 112 As articulated by Schreuer, the Salini test has a fifth criteria, namely that there be some regularity of profit and return. 113 Another variation of the Salini test that is often cited is the version put forth in Phoenix Action where the tribunal listed the four Salini criteria and added two more: that the assets be invested in accordance with the laws of the host State and that the assets be invested bona fide. 114 60. Though not all of the criteria of the Salini test need to be satisfied, the failure of a transaction to meet one of the criteria increases the emphasis and importance placed on the other factors. For example, in Joy Mining, the tribunal acknowledged that the Salini test application will differ in various cases and will depend on the particular fact pattern of the individual case. 115 Similarly, the tribunal in Noble Energy noted that the Salini test is appropriate, but that the criteria can be interrelated and should be examined together. 116 61. The Salini test has been applied for over a decade in investment-treaty arbitrations and the widespread use of the Salini test in the arbitration community indicates that it is an appropriate and acceptable legal test for determining whether an investment has taken place according to Article 25 of the ICSID Convention. 117 62. At best, tribunals have expressed differences in opinion as to its applicability. A decision based on one of two equally valid legal theories cannot amount to a manifest excess of power. V. THE TRIBUNAL DID NOT MANIFESTLY EXCEED ITS POWERS IN REFUSING JURISDICTION BECAUSE THE CONTRACT DID NOT FULFILL THE SALINI CRITERIA. 63. The Tribunal was reasonable in finding no jurisdiction in this case. Framed properly, the question here is not whether the contract fulfilled the Salini requirements. 112 Salini, para. 52. 113 Schreuer (2001), p. 140. 114 Phoenix, para. 114. 115 Joy Mining, para. 53. 116 Noble, para. 128. 117 Jan de Nul, paras. 91-92; Saipem, para. 99; Bayindir, para. 130; Helnan, para. 77; Millicom, para. 80. 22
Rather, it is whether the Tribunal ignored or failed to take into account specific facts to such an egregious extent that it “manifestly” exceeded its powers. In other words, Claimant cannot contend that the tribunal failed to properly weigh the evidence in its Salini analysis because [a]n ad hoc committee is not a court of appeal and cannot therefore enter, within the bounds of its limited mission, into an analysis of the probative value of the evidence produced by the parties. 118 Claimant must show a “lack of jurisdiction . . . evident on the face of the award.” 119 Respondent merely needs to show that the tribunal acted “reasonabl[y]” or held a position that was “tenable.” 120 64. Subject to the variations noted supra in para. 59, the Salini elements are: (I) a contribution by the investor, (II) regularity of profits and returns, (III) significant duration, (IV) risks assumed under the contract, and (V) a contribution to the development of the host state. 121 Although the development criterion has faced some criticism, a recent annulment committee decision and Professor Schreuer have reaffirmed its importance. 122 In Patrick Mitchell, the ad hoc committee made clear that in prior cases where tribunals had rejected the factor it was doubtless covered by the very purpose of the contracts in question – all of which were State contracts – which had an obvious and unquestioned impact on the development of the host State. 123 65. Even if the Tribunal in this case ignored numerous other cases and relied solely on these authorities, that is enough to avoid a challenge on the basis of manifest excess of powers, because there is no stare decisis in ICSID arbitration. Additionally, given the reputation and tenure of commentators such as Christoph Schreuer who support this viewpoint, the Committee should at least recognize that it is a tenable position. 124 66. Max Solutions cannot show that the Tribunal failed to take into account important facts in the negotiations between the parties. Max Solution’s investment was a mere 118 Rumeli, para. 96. 119 Id. 120 Id. para. 96 121 See generally, Salini; Phoenix. 122 Patrick Mitchell para. 30; Schreuer, p.171-174. 123 Patrick Mitchell, para. 30. 124 See, Schreuer (2009) p. 171-174. 23
Page 1 and 2: MEMORIAL FOR RESPONDENT TEAM AGO FI
Page 3 and 4: A. The tribunal did not manifestly
Page 5 and 6: Shore & Weiniger Reisman Internatio
Page 7 and 8: LIST OF LEGAL SOURCES Abaclat Abacl
Page 9 and 10: Malicorp MCI Millicom Mobil Malicor
Page 11 and 12: Vivendi II Wena v. Argentine Republ
Page 13 and 14: Factual Background STATEMENT OF FAC
Page 15 and 16: 7. Additionally, the Two Members no
Page 17 and 18: contrary, the Tribunal properly adm
Page 19 and 20: evident error of fact in an award i
Page 21 and 22: 26. Since it is apparent that all p
Page 23 and 24: expressly acknowledged that her rol
Page 25 and 26: A. Under ICSID Art. 41(1), the Trib
Page 27 and 28: discretion, reject a decision that
Page 29 and 30: jurisdiction, and then applied the
Page 31 and 32: investment according to Article 25
Page 33: eached its decision in accordance w
Page 37 and 38: could not “be compared with the c
Page 39 and 40: ather because there was no contribu
Page 41 and 42: 76. In general, a party makes a sub
Page 43 and 44: 81. The Tribunal found that “the
Page 45 and 46: VI. THE TRIBUNAL PROPERLY ADMITTED
Page 47 and 48: [e]ach witness (which term includes
Page 49: REQUEST FOR RELIEF 98. For the afor

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