Romak SA (Switzerland) v. Republic of Uzbekistan

Abstract

Applicable — Customary international law — Interpretation — Whether the BIT contained an agreement as to applicable law — Whether the VCLT was applicable where the BIT entered into force before the State’s accession to the VCLT — Whether the VCLT codified customary international law

Interpretation — Customary international law — VCLT, Article 31 — VCLT, Article 32 — Whether the list of investments under the BIT determined the existence of a protected investment — Whether the interpretation of the BIT should be guided by arbitral awards of other investment tribunals

Jurisdiction — Investment — Interpretation — Salini test — Territoriality — Whether there was an objective meaning of investment — Whether the concept of investment differed depending on whether the investor resorted to ICSID or UNCITRAL arbitration — Whether the four elements of the Salini test were mandatory legal requirements — Whether the BIT contained further limits on the scope of protected investments regarding territoriality

Jurisdiction — Investment — Contract — Sale of goods — Duration — Risk — Whether one-off transactions relating to the sale of goods satisfied the criteria of contribution, duration and risk — Whether short-term projects were deprived of their status as investments solely by virtue of their limited duration — Whether there was a difference between pure commercial risk and investment risk

Jurisdiction — Investment — Arbitral award — Whether the embodiment or crystallisation of contractual rights in the form of an arbitral award transformed the underlying transaction into an investment

Costs — Costs follow the event — Whether costs should reflect the relative success and failure in the arbitration — Whether there was a justification to shift the arbitral costs against the losing party