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period of time. 155 Here, Max Solutions did not need to invest one cent in a long-term
project. Its expenditures were short term and limited to personnel and materials. 156 Thus,
the Tribunal was “reasonable” in finding that this was tenuous.
ii. The Tribunal did not manifestly exceed its powers in finding that Max
Solutions only tenuously fulfilled the regularity of profits requirement.
79. With regards to regularity of profit and return, the Tribunal found that the
expectation of being paid on a “bounty” basis meant that the requirement was only met
tenuously. 157 The Tribunal was at the very least “reasonable” because in every single case
that has found this criterion to have been fulfilled, there has been “regular remuneration”
rather than bounty payments. 158 In Helnan, for instance, the claimants operated an
international hotel for 26 years over which they made high profits and had regular
income. 159 Most ICSID cases are similar to Helnan: there is typically nothing resembling
bounty payments. 160
80. Claimant may argue that expectations of profits from pharmaceutical companies
and from the sale of the Sireno Kanto’s songs should also be taken into account. This
argument fails, however, because neither form of income was contemplated by the
Contract. When ICSID tribunals evaluate a contract, they do not focus on possible
downstream income, but rather on the profits and returns provided by the contract in
question. Moreover, this argument is again based on the merits of the underlying dispute
and its consideration therefore lies beyond the scope of the ad hoc Committee’s proper
role.
iii. Max Solutions did not take sufficient risks in the sense envisioned by the
Salini criteria.
155
See, Romak.
156
Award, 14: 695-670.
157
Award, 14: 678-690.
158
Helnan, para. 77.
159
Id.
160
See, e.g., Salini; L.E.S.I.; Joy Mining; Jan de Nul; Bayindir; CSOB; Patrick Mitchell;
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