GEA v.

Ukraine and the Battle of Treaty

Interpretation Principles Over the Salini Test

^ J O S H U A FELLENBAUM*

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ABSTRACT
In order to unlock the proverbial doors to the International Centre for Settlement of Investment
Disputes, an investor must gain the key by convincing the arbitral tribunal that the economic
activity constitutes an investment under both the applicable investment treaty or contract and
Article 25(1) of the Convention on the Settlement of Investment Disputes between States and
Nationals of Other States. Pursuant to Article 25, thejurisdiction of the Centre depends upon the
existence of a dispute 'arising directly out of an investment'. The founding fathers of the ICSID
Convention did not define the term 'investment'. Against this backdrop, a trend is discernable,
according to which arbitral tribunals have applied a more restrictive approach by importing
objective criteria into Article 25, known as the so-called Salini test. Tension arises between the
definition of an investment set out in the instrument providing consent to ICSID jurisdiction and
the reliance that arbitral tribunals place on the objective criteria of an investment in Article 25.
The issue boils down to two opposing principles of treaty interpretation. One view relies on a
textual approach to treaty interpretation and the other side relies on the teleological approach to
treaty interpretation. Instead of crafting an award that provides guidance on the critical question
of interpretation, the high calibre arbitral tribunal in the recent case of GEA Group
Aktiengesellschqft v. Ukraine ultimately sidestepped the controversy leading the distinguished
arbitral tribunal away from what could have been a legally significant decision on this long-
standing debate.

Each, in any case, employs a different approach ... For the 'meaning of the text' school, the
prime object is to establish what the text means according to the ordinary or apparent
signification of its terms: the approach is therefore through the study and analysis of me text. For
the 'aims and objects' school, it is the general purpose of the treaty itself that counts, considered
to some extent as having, or as having to come to have, an existence of its own, independent of
the original intentions of the framers. 1

* Joshua Fellenbaum is an associate with Mannheimer Swartling in Stockholm, Sweden. This article draws
from a one-sided position paper presented by the author to stimulate a debate at the Fifth Annual Juris
Conference on Investment Treaty Arbitration. The views expressed herein do not necessarily reflect the
views of the author or Mannheimer Swartling.
1
Judge Sir Gerald Fitzmaurice, 'The Law and Procedure of the International Court of Justice' in (1951) 28
BTIL 2.

ARBITRATION INTERNATIONAL, Vol. 27, No. 2

LCIA,2011

249
250 Arbitration International, Volume 27 Issue 2

I. I N T R O D U C T I O N
IN T H E recent case of GEA Group Aktiengeselbchaft (GEA) v. Ukraine,2 the distin-
guished arbitral tribunal had an obligation to enforce general principles of
treaty interpretation under the Vienna Convention on the Law of the Treaties 3
and attempt to reconcile one of the most widely debated topics in the investment
arbitration community: namely, how to define the term 'investment' under

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Article 25(1) of the Convention on the Settlement of Investment Disputes between
States and Nationals of Other States ('ICSID Convention' or 'Convention'). 4
Instead of crafting an award that provides guidance on the critical question of
interpretation, the high calibre arbitral tribunal ultimately sidestepped the
controversy.
Pursuant to Article 25 of the ICSID Convention, the jurisdiction of the Inter-
national Centre for Setdement of Investment Disputes ('the Centre') depends
upon the existence of a dispute 'arising direcdy out of an investment'. The
founding fathers of the ICSID Convention did not define the term 'investment'. 5
Against this backdrop, a trend is discernable, according to which arbitral tribunals
have applied a more restrictive approach by importing objective criteria into
Article 25, known as the so-called Salini test.6
In most cases, it is a fairly straightforward determination of whether the
economic activity is readily recognisable as an investment. 7 As such, the
application of the Salini test is not so common, but undoubtedly does involve a
pressing and important issue that must be addressed. The issue boils down to two
opposing principles of treaty interpretation. One view relies on a textual
approach to treaty interpretation and gives great deference to the mutually
agreed definition of investment in the relevant instrument that provides consent
to ICSID jurisdiction. The otfier side relies on die teleological approach to treaty
interpretation and imports objective criteria (the Salini test) into Article 25 using a

2 GEA Group Aktiengesellschqft v. Ukraine, ICSID Case No. ARB/08/16, Award, 31 March 2011.
3
See Vienna Convention on the Law of Treaties, Arts. 31 and 32, 23 May 1969, 1155 UNTS 331.
4
Article 25(1) includes the following: 'The jurisdiction of the Centre shall extend to any legal dispute arising
directly out of an investment, between a Contracting State (or any constituent subdivision or agency of a
Contracting State designated to the Centre by that State) and a national of another Contracting State, which
the parties to the dispute consent in writing to submit to the Centre. When the parties have given their
consent, no party may withdraw its consent unilaterally' (emphasis added).
5
For a one-sided discussion related to the term 'investment' in the ICSID Convention, see Joshua Fellenbaum,
'Putting the Needle to the Salini Bubble?' in Todd J. Weiler and Ian Laird (eds.), Investment Treaty Arbitration
and International Law (Juris Publishing, forthcoming), vol. V
6
Salini Costruttori SpA and Italstrade SpA v. Kingdom of Morocco, ICSID Case No. ARB/00/4, Decision on
Jurisdiction, 23 July 2001, paras. 50-58. The author notes that the Salini test with an additional criterion was
previously set out in FedaxNVv. Republic of Venezuela, ICSID Case No. ARB/96/3, Decision on Objections to
Jurisdiction of 11 July 1997, para. 43 ('The basic features of an investment have been described as involving
a certain duration, a certain regularity of profit and return, assumption of risk, a substantial commitment
and a significance for the host State's development' (citation omitted)).
7
History of the ICSID Convention: Documents Concerning die Origin and Formulation of the Convention
on the Settlement of Investment Disputes between States and Nationals of Other States (1968), vol. II-2,
p. 972 (Mr Broches stated 'agreed that while it might be difficult to define "investment", an investment was
in fact readily recognizable').
GEA v. Ukraine and the Battle of Treaty Interpretation Principles Over the Salini Test 251

'double-barrelled test'.8 In GEA v. Ukraine, the two opposing sides of the argument
met and, unfortunately, both retreated, missing a crucial opportunity to provide a
useful analysis to future tribunals, investors and Contracting States.

II. T H E SALINI TEST

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Before delving into the facts of GEA v. Ukraine, it is necessary to set out an accurate
portrayal of the Salini test. Some arbitral tribunals and commentators have
suggested that it contains five elements.9 Other arbitral tribunals and com-
mentators have suggested that it contains four.10 Upon closer examination, the
Salini test in its original form contains four elements. The author acknowledges
that although the distinguished arbitral tribunal in Biwater Gauff (Tanzania) Ltd v.
United Republic of Tanzania indicated in the award that the Salini test contained five
elements, this position was acknowledged and corrected in GEA v. Ukraine}1
In Salini v. Morocco, the arbitral tribunal had to determine whether a public
works construction contract fell within the definition of an investment in order to
grant jurisdiction to the Centre. The arbitral tribunal indicated that the definition

8
Malaysian Historical Sabors v. Malaysia, ICSID Case No. ARB/05/10, Award on Jurisdiction, 17 May 2007,
para. 55; Christoph H. Schreuer, The ICSID Convention: A Commentary (1st edn, Cambridge University Press,
2001), p. 123.
9
See Joy Mining Ltd v. Egypt, ICSID Case No. ARB/03/11, Award on Jurisdiction, 6 August 2004, para. 53;
Biwater Gauff (Tanzania) Ltd v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Award, 24 July 2008,
para. 310; Devashish Krishan, A Notion of ICSID Investment' in TJ. Grierson Weiler (ed.), Investment Treaty
Arbitration and International Law (Juris Publishing, 2008), vol. I, p. 62; Helnan International Hotels v. Egypt, ICSID
Case No. ARB/05/19, Decision on Objection to Jurisdiction, 17 October 2006, para. 77 ('The Arbitral
Tribunal accepts the Respondent's suggestion, based on ICSID precedents, as summarized in the
unchallenged statement by Prof. Ch. Schreuer, that to be characterized as an investment a project "must
show a certain duration, a regularity of profit and return, an element of risk, a substantial commitment, and
a significant contribution to the host State's development"').
10
See Emmanuel Gaillard, 'Identify or Define? Reflections on the Evolution of the Concept of Investment in
ICSID Practice' in Christina Binder, Ursula Kriebaum, August Reinisch and Stephan Wittich (eds.),
International Investment Law for the 21st Century, Essays in Honour of Christoph Schreuer (Oxford University Press,
2009), p. 404; Phoenix Action Ltd v. Czech Republic, ICSID Case No. ARB/06/5, Award, 15 April 2009, para. 83;
Jan deMlMv. Arab Republic of Egypt, ICSID Case No. ARB/04/13, Decision on Jurisdiction, 16June 2006,
para. 91 ('The Tribunal concurs with ICSID precedents which, subject to minor variations, have relied on
the so-called "Salini test". Such test identifies the following elements as indicative of an "investment" for
purposes of the ICSID Convention: (i) a contribution, (ii) a certain duration over which the project is
implemented, (iii) a sharing of operational risks, and (iv) a contribution to the host State's development,
being understood that these elements may be closely interrelated, should be examined in their totality and
will normally depend on the circumstances of each case'); Toto Costruzioni Generali SpA v. Republic of Lebanon,
ICSID Case No. ARB/07/12, Decision on Jurisdiction, 11 September 2009, para. 69 (The notion of
"investment" under the ICSID system has been clarified by legal scholars and jurisprudence. A number of
legal scholars and some ICSID Tribunals follow the four criteria to be found in Salini Costruttori SpA and
Italstrade SpA v. Kingdom of Morocco to determine whether a transaction qualifies as an "investment" in the
sense of the ICSID Convention. These four criteria, sometimes called the Salini test, comprise (a) duration,
(b) a contribution on the part of the investor, (c) a contribution to the development of the host state, and
(d) some risk taking); Saba Fakes v. Republic of Turkey, ICSID Case No. ARB/07/20, Award, 30 July 2010,
para. 103 ('These criteria, commonly referred to as the Salini test, consist of (i) a contribution, (ii) a certain
duration, (iii) an element of risk, and (iv) a contribution to the host State's economic development'); Ioannis
Kdrdassopoulos v. Georgia, ICSID Case No. ARB/05/18, Decision on Jurisdiction, 6 July 2007, para. 116.
11
GEA Group Aktimgesellschaft v. Ukraine, ICSID Case No. ARB/08/16, Award, 31 March 2011, note 111.
252 Arbitration International, Volume 2 7 Issue 2

of an investment under the ICSID Convention was an objective condition of

jurisdiction in addition to consent, 12 stating the following:

The doctrine generally considers that an investment infers: contributions, a certain duration of
performance of the contract and a participation in the risks of the transaction ... In reading the
Convention's preamble, one may add the contribution to the economic development of the host
State of the investment as an additional condition.

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In reality, these various elements may be interdependent. Thus, the risks of the transaction
may depend on the contributions and the duration of performance of the contract. As a result,
these various criteria should be assessed globally even if, for the sake of reasoning, the Tribunal
considers them individually here. 1 3

As such, in its original form, the four criteria are: (1) a contribution from the
investor; (2) a certain duration of performance of the contract; (3) the existence of
risk; and (4) a contribution to the host State's economic development. These
features are derived from Professor Christoph Schreuer who explicitly stated that
they should not be 'understood as jurisdictional requirements but merely as
typical characteristics of investments under the Convention'. 14
The arbitral tribunal determined that the Italian companies made contributions
in money, in kind, and in industry by, inter alia, using their know-how, providing
the necessary equipment and personnel to accomplish the works and setting up
the production tool on the building site. 15 The arbitral tribunal also determined
that the performance of the contract being extended from 32 to 36 months
complied with the minimal length of time, that there were numerous risks for the
contractor, and finally that the contribution of the contract to die economic
development of Morocco could not seriously be questioned. 16 The arbitral tribunal
concluded that the public works construction contract was an investment within
the meaning of Article 25. 1 7

III. GEA V. UKRAINE: F A C T U A L B A C K G R O U N D

The GEA v. Ukraine dispute arose out of, inter alia, a 200,000 ton naphtha fuel
conversion contract between Oriana, a Ukrainian state-owned entity, and GEA

12
Christoph H. Schreuer, The ICSID Convention: A Commentary (2nd edn, Cambridge University Press, 2009),
p. 129.
13
Salini Costruttori, supra n. 6 at para. 52.
14
Schreuer (1st edn), supra n. 8 at paras. 122123.
15
Salini Costruttori, supra n. 6 at para. 53.
16
Ibid, paras. 54-58.
17
Salini Costruttori, supra n. 6 at para. 58 (in relation to the issue of contribution, the arbitral tribunal stated in
para. 53 that '[t]he contributions made by the Italian companies are set out and assessed in their written
submissions. It is not disputed that they used uieir know-how, that they provided the necessary equipment
and qualified personnel for the accomplishment of the works, that they set up the production tool on the
building site, that they obtained loans enabling them to finance the purchases necessary to carry out the
works and to pay the salaries of the workforce, and finally that they agreed to the issuing of bank guarantees,
in the form of a provisional guarantee fixed at 1.5% of the total sum of the tender, then at the end of the
tender process, in the form of a definite guarantee fixed at 3% of the value of the contract in dispute. The
Italian companies, therefore, made contributions in money, in kind, and in industry').
GEA v. Ukraine and the Battle of Treaty Interpretation Principles Over the Salini Test 253

Group, a company that acquired the rights of a predecessor that entered into the
conversion contract with Oriana. GEA alleged that discrepancies were discovered
between the quantity of raw materials shipped to Oriana and the quantity of
finished products. Moreover, GEA pointed to an audit report in July 1998 that
identified that more than 125,000 metric tons of finished products were missing.18
A setdement agreement was subsequently entered into in which Oriana acknow-
ledged its indebtedness to GEA's predecessor and agreed on the value of the

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shortfall, adding a provision that any disputes arising out of the settlement
agreement would be referred to arbitration under the ICC Rules in Vienna,
Austria. 19 Also, a repayment agreement was entered into between Oriana and
GEA's predecessor. However, the fourth pledge of the repayment agreement
was never fulfilled and the debts remained unpaid, resulting in an ICC arbitra-
tion filed against Oriana. An arbitral award against Oriana was made for
US$30,381,661.44 as primary compensation, plus 3 per cent interest per annum
from 28 December 2000, US$273,000 in arbitration costs and EUR141,689.38
in legal fees and expenses. 20 Despite numerous attempts to collect, the ICC award
remained unpaid and a request for arbitration was filed pursuant to Article 13(2)
of the Agreement between the Federal Republic of Germany and Ukraine on the
Promotion and Mutual Protection of Investments, dated 15 February 1993. 21

IV DETERMINING AN 'INVESTMENT'
(a) Overview
In order to unlock the proverbial doors to the Centre, an investor must gain the
key by convincing the arbitral tribunal that the economic activity constitutes an
investment under both the applicable investment treaty or contract and Article
25(1) of the ICSID Convention. Arbitral tribunals have usually applied the
'double-barrelled test' or the 'double keyhole' approach in determining whether a
particular economic activity constitutes such an 'investment'. 22 In describing this
approach, the distinguished sole arbitrator in Malaysian Historical Salvors stated the
following:

The methodology employed by die tribunals in Salini and in Joy Mining requires a claimant in an
ISCID arbitration to satisfy the tribunal that:

(a) die dispute between the parties concerns an 'investment' within the definition provided
under the relevant bilateral investment treaty; and

(b) the objective criterion of an 'investment' within the meaning of Article 25(1) has been met. 23

18
GEA Group, supra n. 2 at para. 47.
19
Ibid. para. 51.
20
Ibid. para. 62.
21
Ibid. para. 6.
22
Malaysian Historical Salvors, supra n. 8 at para. 55; Schreuer (1st edn), supra n. 8 at p. 123.
23
Ibid. para. 55.
254 Arbitration International, Volume 2 7 Issue 2

Tension arises between the definition of an investment set out in the instru-
ment providing consent to ICSID jurisdiction and the reliance that arbitral
tribunals place on the objective criteria of an investment in relation to Article 25.
As an illustration, it is helpful to look at the explanation by the sole arbitrator in
Malaysian Historical Salvors v. Malaysia:

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[u]nder the double-barrelled test, a finding that the Contract satisfied the definition of
'investment' under the [bilateral investment treaty (BIT)] would not be sufficient for this
Tribunal to assume jurisdiction, if the Contract failed to satisfy die objective criterion of an
'investment' within the meaning of Article 25. 2 4

The arbitral tribunal in Ceskoslovenska Obchodni Banka, AS v. Slovak Republic stated

the following:

A two-fold test must therefore be applied in determining whether this Tribunal has the
competence to consider die merits of die claim: whether die dispute arises out of an investment
widiin die meaning of die Convention and, if so, whedier die dispute relates to an investment as
defined in die Parties' consent to ICSID arbitration, in dieir reference to me BIT and the
pertinent definitions contained in [the applicable BIT]. 2 5

To understand how this tension plays out in relation to the application of the
Salini test in GEA v. Ukraine, it is necessary to consider two opposing principles of
treaty interpretation.

(b) Teleological Approach and Ukraine's Position

A number of arbitral tribunals have required the investor to meet objective
criteria for jurisdiction completely independent of the parties' agreement in the
investment instrument or contract. 26 This method of interpretation is derived
from the teleological approach to treaty interpretation and has been supported by
Ukraine's appointed arbitrator, Professor Brigitte Stern, in a recent publication
and in her experience serving as an arbitrator. 27 For example, Professor Stern
declared in an essay that in her view 'the current trend of setting some limits is
absolutely necessary for mature treaty arbitration in order to monitor the treaty
arbitration mechanism and to deal witfi investment disputes in a balanced way,
taking into account both state sovereignty and the necessity to protect foreign
investment and its continuing flow'.28
Judge Sir Gerald Fitzmaurice described the teleological approach to treaty
interpretation in the following manner:

24
Ibid. para. 55.
25
Ceskoslovenska Obchodni Banka, AS v. Slovak Republic, ICSID Case No. ARB/97/4, Decision on Jurisdiction,
24 May 1999, para. 251.
26
For an analysis of cases see Fellenbaum, supra n. 5.
27
Prof. Brigitte Stern, Are There New Limits on Access to International Arbitration?' in (2010) 25(1) ICSID
Rev. - Foreign Investment LJ 36; Phoenix Action, supra n. 10.
28
Stern, supra n. 27.
GEA v. Ukraine and the Battle of Treaty Interpretation Principles Over the Salini Test 255

This process might well amount in practice to a species of judicial legislation; for, according to
the more extreme form of the approach, it is not only legitimate but necessary - if it will
promote the presumed objects of the convention - that the tribunal should fill in gaps, correct
errors, and even, in effect, amend the test in order to remove undesirable ambiguities or
obscurities. 29

Also, in relation to the teleological approach, Judge Sir Hersch Lauterpacht stated:

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Once an instrument has assumed the form of a treaty, signed and ratified, good faith requires
that, in the absence of compelling reasons to the contrary, it should not be treated as a non-
committal enunciation of principle. T h a t consideration is the reason for such superiority as the
principle of effectiveness as an element of interpretation enjoys over the doctrine of restrictive
interpretation and other rules of construction. 30

Following this line of thinking, Ukraine argued that '[tjhe definition of the term
"investment" contained in the Treaty cannot extend beyond the requirements of
the ICSID Convention if the Tribunal is to retain jurisdiction. The definition of
"investment" in the Treaty does not provide parties and the Tribunal a carte
blanche to re-write the ICSID Convention'.31 Ukraine also relied on the decision in
Phoenix Action, Ltd v. Czech Republic by arguing that the conversion contract was no
more than a mere sales agreement and was not an investment for the purposes of
Article 1(1) or Article 25 of the ICSID Convention.32 Accordingly, it is necessary
to examine Phoenix Action, Ltd v. Czech Republic.
In Phoenix Action, the arbitral tribunal applied an objective set of criteria, but
also took a flexible approach to their determination. Specifically, the arbitral
tribunal modified the Salini criteria:

T o summarize all the requirements for an investment to benefit from the international
protection of ICSID, the Tribunal considers that the following six elements have to be taken
into account: (1) a contribution in money or other assets; (2) a certain duration; (3) an element of
risk; (4) an operation made in order to develop an economic activity in the host State; (5) assets
invested in accordance with the laws of the host State; (6) assets invested bonafide?A

The arbitral tribunal went on 'to emphasize that an extensive scrutiny of all
these requirements is not always necessary, as they are most often fulfilled on their
face, "overlapping" or implicitly contained in others, and that they must be
analysed with due consideration of all circumstances'.34 In addition, the arbitral
tribunal stated that '[tjhere is nothing like a total discretion, even if the definition
developed by ICSID case law is quite broad and encompassing. There are indeed

29
Judge Sir Gerald Fitzmaurice, 'The Law and Procedure of the International Court of Justice' in (1957) 33
BYIL 208.
30
Judge Sir Hersch Lauterpacht, 'Restrictive Interpretation and the Principle of Effectiveness in the
Interpretation of Treaties' (1949) 26 BYIL 73.
31
GEA Group, supra n. 2 at para. 132.
32
Ibid. para. 131.
33
Phoenix Action, supra n. 10 at para. 114.
34
Ibid. para. 115.
 256 Arbitration International, Volume 2 7 Issue 2

some basic criteria and parties are not free to decide in BITs that anything - like
a sale of goods or a dowry for example is an investment'. 35 The arbitral tribunal
relied on the sixth element of the test to determine that the Claimant's alleged
investment was made solely for the purpose to 'transform a pre-existing domestic
dispute into an international dispute subject to ICSID arbitration under a
bilateral investment treaty' 36 and '[tjhis kind of transaction is not a bona fide
transaction and cannot be a protected investment under the ICSID system'. 37

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In summary, Ukraine argued that:

the Claimant has not made an investment since (a) no contribution of economic value has been
made to Ukraine, (b) no profits or returns have resulted from such a contribution, and (c) the
Claimant assumed no investment risk. These principles underpin the definition of the term
'investment' under both Article 25(1) of the ICSID Convention and Article 1(1) of the [BIT]. 38

(c) Textual Approach and GEA's Position

While a number of arbitral tribunals have imported the Salini criteria into Article 25
of the ICSID Convention, other arbitral tribunals have given more deferential
treatment to the applicable investment instrument or contract providing consent
to ICSID arbitration. This approach aims at focusing on the four corners of the
relevant instrument consenting to ICSID jurisdiction and how the Contracting
States define the term 'investment'. Additional objective requirements are not
necessary or appropriate at the outset for the purposes of determining whether
the economic activity is an investment in accordance with Article 25 of the ICSID
Convention.
In describing the textual approach, Judge Sir Gerald Fitzmaurice stated 'that
texts must be interpreted as they stand, and, prima facie, without reference to
extraneous factors'. 39 Judge Fitzmaurice also explained the 'Court's insistence on
interpreting texts according to what they actually say rather than according to
what might, or, on a certain view, could be read into them be implication'. 40
Consistent with this approach, the Court also stated that it is their 'duty to
interpret the Treaties, not to revise them'. 41
In an assigned one-sided position paper presented at the Fifth Annual Juris
Conference on Investment Treaty Arbitration, the author relied on the textual
approach to treaty interpretation and raised the fundamental question:

35
Ibid. para. 82.
36
Ibid. para. 142.
37
Ibid. para. 142.
38
GEA Group, supra n. 2 at para. 136.
39
Fitzmaurice, supra n. 29 at p. 212.
40
Ibid. p. 212 (emphasis added); see also, Fitzmaurice supra n. 1 at p. 7 ('The intentions or presumed intentions
of the framers cannot be invoked to fill in gaps, or import into the treaty something which is not there, or to
correct or alter words or phrases the meaning of which is apparently plain, or to give them a sense different
from that which they possess according to their normal and natural reading').
41
Interpretation of Peace Treaties (second phase), Advisory Opinion, [1950] ICJ Rep. 221 at 223.
GEA v. Ukraine and the Battle of Treaty Interpretation Principles Over the Salini Test 257

Why do some arbitral tribunals think they can overrule a mutually agreed definition in the
applicable investment treaty or contract and fill the term 'investment' under Article 25 with a
meaning that none of the founding fathers of the ICSID Convention envisioned? Neither the
express wording of the ICSID Convention, nor its travaux preparatories, nor its object or purpose
lends support for arbitral tribunals to apply the so-called Salini test. Arbitral tribunals do not
have the audiority under the Vienna Convention on the Law of the Treaties to revise agreements
consenting to ICSID jurisdiction or the capability to impose on the parties additional
requirements that are not found in the ordinary wording or in the travaux preparatories of the

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ICSID Convention.
An arbitral tribunal that requires an investor to meet the Salini criteria is not only essentially
writing new provisions into the applicable investment instrument or contract, but is also writing
new provisions that go beyond the express language and travaux preparatories of the ICSID
Convention itself.
Further, the applicable BIT is the governing law as lex specialis between the Contracting States
and there is no reason for an undefined term in me ICSID Convention to have precedence over a
defined term in the consenting instrument.42

Relying on the textual approach to treaty interpretation, GEA argued that

there is no need for a double keyhole approach 'because where a BIT providing
only for ICSID arbitration gives a definition of "investment", mere is no occasion
for an arbitral tribunal to apply a different definition of the term'. 4 3 GEA further
submitted that, in any event, the conversion contract, the setdement agreement
together with the repayment agreement, and the ICC award constituted an
investment both under the applicable treaty and Article 25 of the ICSID
Convention. 44

(d) The Tribunal's Initial Analysis

At the outset of its determination, the arbitral tribunal in GEA v. Ukraine set out
the notion that, as mentioned above, arbitral tribunals have taken two approaches
to determining whether an economic activity constitutes an investment under
Article 25 of the ICSID Convention. T h e arbitral tribunal began by focusing on
cases where the arbitral tribunal used the teleological approach to treaty
interpretation by importing objective criteria into Article 25.
The arbitral tribunal cited Mitchell v. Congo where the property of Mitchell &
Associates, the claimant's law firm, was seized during the intervention by military
forces on 5 March 1999. 45 The arbitral tribunal concluded the following:

In addition to movable property, Claimant transferred into Congo money and other assets
which constituted the foundations for his professional activities which came to an end the day of
the seizure of his firm or soon thereafter. Togeuier with the returns on the initial investments,
which also qualify as investments (see Article 1(c) of the BIT), these activities and the economic

42
Fellenbaum, supra n. 5 (citations omitted).
43
GEA Group, supra n. 2 at para. 127.
44
Ibid. para. 145.
45
Patrick Mitchell v. Democratic Republic of the Congo, ICSID Case No. ARB/99/7, Decision on the Application for
Annulment of the Award, 1 November 2006, citing para. 55 of the Award, 9 February 2004 (not publically
available).
258 Arbitration International, Volume 2 7 Issue 2

value associated therewith qualify as an investment within the meaning of the BIT and the
ICSID Convention.* 6
The Tribunal concludes, accordingly, mat Mr. Mitchell's property detained in the Offices of
Mitchell & Associates and the resources and activities related to this firm qualify as an
investment within the meaning of the ICSID Convention and the BIT. Therefore, the Tribunal
decides that this dispute is witflin die jurisdiction of ICSID and the competence of this
Tribunal. 4 7

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Subsequendy, Congo filed for an annulment of die award. The application for
annulment was based on die grounds mat the arbitral tribunal manifesdy
exceeded dieir powers widi regards to jurisdiction and failure to state the reasons
of their award. Relying on die Salini criteria, the annulment committee decided
diat the law firm was not an 'investment' in accordance with Article 25:

Indeed, in the Salini case, the contribution to the economic development of the host State was
explicitly set as a 'criterion' for an investment which was subsequently taken into account in
respect of me construction of a highway, which led to the conclusion mat the highway was
clearly of public interest. 48

The annulment committee stated die following:

the elements identified by the Award for purposes of affirming the existence of an investment fall
well within the scope of application of the Treaty as they are 'included' in the term 'investment'
pursuant to Article 1(c) of the Treaty. But do diese elements, absent furdier discussion, make it
possible to affirm the existence of an investment widiin die meaning of the Washington
Convention? 49
The parties to an agreement and die States which conclude an investment treaty cannot
open the jurisdiction of the Centre to any operation they might arbitrarily qualify as an
investment. It is thus repeated diat, before ICSID arbitral tribunals, the Washington
Convention has supremacy over an agreement between die parties or a BIT. 5 0

Based on die Salini requirements, the annulment committee concluded diat die
law firm did not contribute to the economic development, or at least die interests,
of die State.51
The arbitral tribunal dien turned to cases that applied die subjective approach
focusing on the applicable language in the treaty or contract under textual
mediods of treaty interpretation.

46
Ibid. para. 48 of the Award.
47
Ibid. para. 57 of the Award.
48
Ibid. Decision on the Application for Annulment of the Award, para. 30.
49
Ibid. para. 36.
50
Ibid. para. 31.
51
Ibid, paras. 33 and 39 ('The ad hoc Committee wishes nevertheless to specify that, in its view, the existence
of a contribution to the economic development of the host State as an essential - although not sufficient -
characteristic or unquestionable criterion of die investment, does not mean that this contribution must
always be sizable or successful; and, of course, ICSID tribunals do not have to evaluate the real contribution
of the operation in question. It suffices for the operation to contribute in one way or another to the
economic development of the host State, and this concept of economic development is, in any event,
extremely broad but also variable depending on the case').
GEA v. Ukraine and the Battle of Treaty Interpretation Principles Over the Salini Test 259

An award issued in 2008, to which GEA's appointed arbitrator, Mr. Toby

Landau, QC, was a member, provided numerous reasons why the Salini criteria
should not be strictly relied upon to determine an investment in accordance with
Article 25 of the ICSID Convention. The arbitral tribunal in Biwater Gauff
(Tanzania) Ltd v. United Republic of Tanzania took the view that there is no basis for
an overly strict application of the five Salini criteria in every case; and that these
criteria are not fixed or mandatory as a matter of law.52 Similar to the argument

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set forth above, the arbitral tribunal went on to state that the ICSID Convention
was not drafted with a strict, objective, definition of 'investment' in mind and it is
doubtful that arbitral tribunals sitting in individual cases should impose one such
definition which would be applicable in all cases and for all purposes.53 Moreover,
the arbitral tribunal observed the following:

Further, the Salini Test itself is problematic if, as some tribunals have found, the 'typical
characteristics' of an investment as identified in that decision are elevated into a fixed and
inflexible test, and if transactions are to be presumed excluded from the ICSID Convention
unless each of the five criteria are satisfied. This risks the arbitrary exclusion of certain types of
transaction from the scope of the Convention. It also leads to a definition that may contradict
individual agreements (as here), as well as a developing consensus in parts of the world as to the
meaning of 'investment' (as expressed, e.g., in bilateral investment treaties). If very substantial
numbers of BITs across the world express the definition of 'investment' more broadly than the
Salini Test, and if this constitutes any type of international consensus, it is difficult to see why the
ICSID Convention ought to be read more narrowly.54
The Arbitral Tribunal therefore considers that a more flexible and pragmatic approach to
the meaning of 'investment' is appropriate, which takes into account the features identified in
Salini, but along with all the circumstances of the case, including the nature of the instrument
containing the relevant consent to ICSID.55
The Arbitral Tribunal notes in this regard that, over the years, many tribunals have
approached the issue of the meaning of 'investment' by reference to the parties' agreement,
rather than imposing a strict autonomous definition, as per the Salini Test.56

As indicated by the awards in both Phoenix and Biwater, the two approaches are
strikingly different and were prime to be resolved in GEA v. Ukraine.

V ARBITRAL TRIBUNAL'S DETERMINATION:

A MUTUAL RETREAT
(a) Conversion Contract
The arbitral tribunal took a cautious approach apparendy aiming to blend
together various aspects offlexibility,illustrated by the arbitral tribunals in Phoenix
and Biwater}1 After determining that the conversion contract was deemed an

52
Biwater Gauff, supra n. 9 at para. 310.
53
Ibid. para. 312.
54
Ibid. para. 314.
55
Ibid. para. 316.
56
Ibid. para. 317.
57
Tom Toulson, 'Tribunal Skirts the Salini Test' in Global Arbitration Review, 14 April 2011.
 260 Arbitration International, Volume 2 7 Issue 2

investment in accordance with Article 1(1 )(e) of the applicable investment treaty
because it conferred 'rights to the exercise of an economic activity', the arbitral
tribunal then turned to the question of whether it constitutes an investment in
accordance with Article 25 of the ICSID Convention. 58
The author respectfully posits that this is where the two approaches should
have been resolved. Under the textual approach, a 'double-barrelled test' 59 is not

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necessary because arbitral tribunals cannot rely on the intentions or presumed
intentions of the framers to fill in gaps or import into the treaty something which
is not there. 60 As such, any economic activity falling within the definition of an
investment under the applicable treaty or contract should also qualify as an
investment under Article 25. 61 However, the proponent(s) of the textual school of
thought on the arbitral tribunal retreated and followed the ideological approach
by importing some of the Salini criteria into Article 25. Specifically, the arbitral
tribunal stated the following:

in deference to the view of some, outlined above, that Article 25 places a limit on the State
Parties' ability to define 'investment' in their BIT for the purposes of ICSID jurisdiction, the
Tribunal has no doubt that the Conversion Contract also meets this test. In particular, it satisfies
all the elements of the 'objective definition' that are commonly applied under Article 25: the Claimant
has provided some contribution to Ukraine, during a certain period of time, while assuming the
risks of the economic operation it was performing. 62

Interestingly, the two additional factors imported by the arbitral tribunal in

Phoenix Action Ltd v. Czech Republic were not included in this list, along with the
crucial factor in Mitchell v. Congo, namely that contributions must contribute to the
economic development of the host State to be deemed as an investment under
Article 25. The arbitral tribunal followed the same criteria set forth in the recent
case Saba Fakes v. Republic of Turkey.&i
Therefore, it is necessary to examine die dispute in Saba Fakes v. Republic of Turkey.
The dispute was related to a number of lawsuits and investigations that had been
brought against a prominent family in Turkey, the Uzans, who controlled a
number of businesses in various sectors. The lawsuits and investigations ultimately
resulted in the freezing and subsequent sale by the Turkish authorities of various
assets held directly or indirectly by the Uzans. 64
The respondent alleged that the holding of shares in Telsim Mobil Teleko-
munikayson Hizmetleri AS, a leading Turkish telecommunications company, did

58
GEA Group, supra n. 2 at para. 150.
59
Malaysian Historical Salvors, supra n. 8 at para. 55; Schreuer (1st edn), supra n. 8 at p. 123.
60
Fitzmaurice, supra n. 29 at p. 212; see also, Fitzmaurice, supra n. 1 at p. 7.
61
In the one-sided position paper, the author stated that 'any economic activity falling within the definition of
an investment under the applicable treaty or contract should also qualify as an investment under Article 25,
unless the economic activity is readily recognizable to be deemed a simple one-off commercial contract and
is not expressly listed in the instrument providing recourse to ICSID'.
62
GEA Group, supra n. 2 at para. 151 (emphasis added).
63
Saba Fakes, supra n. 10.
64
Ibid. para. 28.
 GEA v. Ukraine and the Battle of Treaty Interpretation Principles Over the Salini Test 261

not constitute an investment in accordance with Article 25 of the ICSID Convention

or under the applicable investment treaty. 65 The respondent invited the arbitral
tribunal to follow the so-called Salini test when examining whether there is an
investment within the meaning of Article 25(1) of the ICSID Convention, namely
the fulfilment of the following four requirements: (1) a contribution; (2) a certain
duration; (3) an element of risk; and (4) a contribution to the host State's
economic development or, at the very minimum, a contribution to the economy

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of the host State. 66
In addition, the respondent sought to advance the additional elements set out
in Phoenix Action Ltd v. Czech Republic,67 arguing that the operation was made in
violation of the principle of good faith and, as such, cannot qualify as an
'investment' protected under the ICSID Convention. The claimant alleged that
the holding of the shares constituted an 'investment' in accordance with Article 25
of the ICSID Convention and the relevant BIT because the definition expressly
agreed upon by the parties should prevail over the interpretation of the ICSID
Convention in circumstances where the Convention's drafters have explicidy left
the term 'investment' to be defined further by the Contracting Parties in their
respective BITs. 68
In determining whether the claimant made an investment in Turkey, the
arbitral tribunal believed that there was an objective element to the notion of
investment and that the economic activity could not be simply defined by the
parties as an 'investment' in accordance with Article 25 of the ICSID
Convention. The arbitral tribunal considered three objective criteria, including
(i) a contribution; (ii) a certain duration; and (iii) an element of risk, 69 stating that
'[n] either the text, nor the object and purpose of the Convention commands that
any other criteria be read into this definition'. 70 It dismissed the need for
economic development in the host State as being excessive.71
Relying on these three objective criteria set out in Saba Fakes v. Turkey, the
arbitral tribunal in GEA v. Ukraine determined that the conversion contract met
this objective test by stating the following:

The Conversion Contract entailed a contribution in kind, in the form of over one million metric
tons of diesel and naphtha, catalysts and other materials, delivered to Ukraine as part of a broad
economic operation, as well as the contribution of the Claimant's know-how on logistics,
marketing, and the mobilisation of repairs and other services. This was clearly a complex
relationship going far beyond a simple sale of raw materials. The relationship extended over a
certain duration (a three year period if one considers only the time period when the Claimant
was involved). Further, it is unquestionable diat the foreign investor, as it has itself emphasised

65
Ibid, paras. 2 and 82.
<* Ibid. para. 83.
67
Phoenix Action, supra n. 10 at para. 106.
68
Saba Fakes, supra n. 10 at para. 87.
69
Ibid. pan. 110.
70
Ibid. para. 121.
71
Ibid. para. 113.
262 Arbitration International, Volume 27 Issue 2

in its own Memorial, undertook multiple risks, in the form of market risk, credit risk and political
risk, in particular since Oriana was supplied with diesel without advance payment.72

However, the relevant holding was when the arbitral tribunal stated the
following:

The Tribunal therefore concludes that, with respect to the Conversion Contract and the

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Products, the Claimant made an 'investment' in Ukraine, both within the meaning of
Articles l(l)(e) and l(l)(a) of the BIT and (if needed) Article 25 of the ICSID Convention.73

This raises the question whether a 'double keyhole' approach is necessary or

appropriate and apparendy contradicts the arbitral tribunal's analysis above. The
two approaches, teleological and textual, do not coincide or meld into one single
approach when it comes to the application of the Salini test. A tribunal may either
determine to set aside the Contracting States' mutually agreed definition of an
investment in the applicable instrument granting consent to ICSID and import
objective criteria into Article 25, or it may grant great deference to the defined
term agreed upon by the Contracting States.
As an illustration of this point, it is helpful to look at various cases applying
each method of treaty interpretation. In Inmaris Perestroika Sailing Maritime Services
GmbH and others v. Ukraine, the dispute concerned a contract to renovate and
repair a windjammer sail training ship, the Khersones. In determining whether
the economic activity was an investment, the arbitral tribunal rejected applying
the Salini test because they were not persuaded that it is appropriate to impose such
a mandatory definition through case law where the Contracting States to the
ICSID Convention chose not to specify one.74 Moreover, the arbitral tribunal
went on to discuss the topic further in depth:

Rather, in most cases - including, in the Tribunal's view, this one - it will be appropriate to defer to
the State parties' articulation in the instrument of consent (e.g., the BIT) of what constitutes an investment. The
State parties to a BIT agree to protect certain kinds of economic activity, and when they provide
that disputes between investors and States relating to that activity may be resolved through, inter
alia, ICSID arbitration, that means mat they believe that that activity constitutes an 'investment'
within the meaning of the ICSID Convention as well. That judgment, by States that are both
Parties to the BIT and Contracting States to the ICSID Convention, should be given
considerable weight and deference. A tribunal would have to have compelling reasons to disregard such a
mutually agreed definition of investment.75

On the other hand, and taking the opposite approach, in Joy Machinery Ltd v.
Arab Republic of Egypt,76 the arbitral tribunal stated, '[i]t is an accepted fact that the

72
GEA Group, supra n. 2 at para. 151 (citations omitted).
73
Ibid. para. 153 (emphasis added).
74
Inmaris Perestroika Sailing Maritime Services GmbH and others v. Ukraine, ICSID Case No. ARB/08/8, Decision
Jurisdiction, 8 March 2010, para. 129.
75
Ibid. para. 130 (emphasis added).
76
Joy Mining, supra n. 9.
GEA v. Ukraine and the Battle of Treaty Interpretation Principles Over the Salini Test 263

ICSID Convention did not define an investment and mat this was left to die
consent of the parties, expressed by means of contracts, national legislation or
bilateral investment treaties, among other features'.77 However, the arbitral
tribunal, after setting form the conclusions of previous tribunals, determined that
it lacked jurisdiction to consider the dispute and stated:

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Summarizing the elements that an activity must have in order to qualify as an investment, both
the ICSID decisions mentioned above and the commentators thereon have indicated that the
project in question should have a certain duration, a regularity of profit and return, an element
of risk, a substantial commitment and that it should constitute a significant contribution to the
host State's development. 78

In Victor Pey Casado and President Allende Foundation v. Republic of Chile,19 the
arbitral tribunal held the following:

the shares were protected by the Chile-Spain B I T because they were expressly included in its
definition of investment. However, the tribunal accepted that not every investment protected by a bilateral
investment treaty will also be protected by the ICSID Convention - investments that do not make a
contribution of certain duration and involve risk will not be protected by the ICSID
Convention, regardless of whether they are protected by a bilateral investment treaty. 80

As illustrated above, the two mediods of treaty interpretation do not blend

together as one single approach when it comes to the application of the Salini test.

(b) Repayment Agreement and Settlement Agreement

The arbitral tribunal men moved on to determine mat the setdement agreement
and repayment agreement were not considered investments in eimer the
applicable treaty or under Article 25 of the ICSID Convention. The tribunal
determined mat '[a]s legal acts diey are not the same as the investment in
Ukraine itself'.81 Specifically, the tribunal concluded, inter alia, mat the setdement
agreement 'merely established an inventory of undelivered goods and recorded
the debt'82 and the repayment agreement 'merely established a means for
repayment' of the debts.83 Therefore, they were not investments.

77
Ibid. para. 42.
78
Ibid. para. 53.
79
Victor Pey Casado and President Allende Foundation v. Republic of Chile, ICSID Case No. ARB/98/2, Award, 8 May
2008.
80
Ibid, (emphasis added); quoted from Katia Yannaca-Small, 'Definition of "Investment": an Open-ended
Search for a Balanced Approach' in Katia Yannaca-Small (ed.), Arbitration under International Investment
Agreements: A Guide to the Key Issues (2010), p. 259.
81
GEA Group, supra n. 2 at para. 157.
82
Ibid. para. 157.
83
Ibid. para. 157.
264 Arbitration International, Volume 2 7 Issue 2

(c) ICC Award

The tribunal took a similar approach to the ICC award and determined that it
could not constitute an investment under either the applicable BIT or the ICSID
Convention. Specifically, the tribunal stated:

Even if - arguendo - the Settlement Agreement and Repayment Agreement could somehow be

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characterised as 'investments', or the I C C Award could be characterised as direcdy arising out
of the Conversion Contract or the Products, the Tribunal considers that the fact that the Award
rules upon rights and obligations arising out of an investment does not equate the Award widi
the investment itself. In the Tribunal's view, the two remain analytically distinct, and die Award
itself involves no contribution to, or relevant economic activity within, Ukraine such as to fall -
itself - within the scope of Article 1(1) of the BIT or (if needed) Article 25 of the ICSID
Convention. 84

In essence, the arbitral tribunal separated the ICC award from the conversion
contract to determine that it did not constitute an investment. As noted by the
tribunal in GEA v. Ukraine, this was a fundamentally different approach than the
tribunal took in Saipem v. People's Republic of Bangladesh.85
In Saipem v. People's Republic of Bangladesh, the dispute concerned a contract
entered into on 14 February 1990 by the claimant and the Bangladesh Oil Gas
and Mineral Corporation, a state entity, for the construction of a pipeline to carry
condensate and gas. 86 The contract was governed by the laws of Bangladesh and
contained an ICC arbitration clause with the venue in Dhaka, Bangladesh. 87
Problems occurred with the contract due to delays and a dispute subsequendy
arose between the parties with respect to the state entity's failure to pay, inter alia,
'the additional costs allegedly agreed, together with the extension of time as well
as other compensations'. 88 As a result, the claimant submitted its request for ICC
arbitration on 7 June 1993. O n 9 May 2003, after a series of procedural
applications, the ICC tribunal determined that the state entity 'had breached its
contractual obligations by not paying the compensation for time extension and
additional works' 89 and ordered the state entity to pay a specified amount.
Subsequently, the state entity filed an application with the High Court Division
of the Supreme Court of Bangladesh to set aside the ICC award. The High
Court denied the application to set aside the ICC award because it was
'misconceived and incompetent inasmuch as there is no Award in the eye of the
law, which can be set aside'. 90 Accordingly, the claimant brought an ICSID claim
under the Agreement between the Government of the Republic of Italy and the

84
/to/para. 162 (original emphasis).
85
Saipem SpA v. People's Republic of Bangladesh, ICSID Case No. ARB/05/07, Decision on Jurisdiction and
Recommendation on Provisional Measures, 21 March 2007.
86
Ibid. para. 6; see also, Ruth Teitelbaum, 'Case Report on Saipem v. Bangladesh? in (2010) 26(2) Arbitration
International, pp. 313-321
87
Ibid. para. 10.
88
Ibid. para. 17.
89
Ibid. para. 34.
90
Ibid. para. 36.
GEA v. Ukraine and the Battle of Treaty Interpretation Principles Over the Salini Test 265

Government of the People's Republic of Bangladesh on the Promotion and

Protection of Investments, relying on the expropriation provision set forth in
Article 5. 91
In determining whether the ICC award was an investment in accordance with
Article 25 of the ICSID Convention, the arbitral tribunal initially 'agreed with
Bangladesh that the rights arising out of the ICC Award arise only indirectly from
the investment', 92 but went on to conclude:

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the notion of investment pursuant to Article 25 of the ICSID [Convention] must be understood
as covering all the elements of the operation, that is not only the ICC Arbitration, but also inter
alia the Contract, the construction itself and the Retention Money ... Hence, in accordance with
previous case law, the Tribunal holds that the present dispute arises directly out of the overall
investment. 93

The arbitral tribunal in GEA v. Ukraine took issue with the conclusion above
and stated:

the Tribunal [in Saipem v. People's Republic of Bangladesh] made statements that are difficult to
reconcile, i.e., that the ICC arbitration is part of the investment (under the heading: 'Has
Saipem made an investment under Article 25 of the ICSID Convention?'); that the ICC award
is not part of the investment (under the heading 'Does the dispute arise direcdy out of the
Investment?'); and that it is unnecessary to decide whether the ICC award is part of the
investment (under the heading 'Jurisdictional objections under the BIT'). 94

Unlike in GEA v. Ukraine, where the arbitral tribunal determined that the ICC
award 'in and of itself'95 did not constitute an investment, the arbitral tribunal in
Saipem v. People's Republic of Bangladesh considered the 'entire operation' 96 and
determined that the ICC award was connected, albeit indirecdy, with the overall
investment. Similarly, the arbitral tribunal in Frontier Petroleum Services Ltd v. Czech
Republic^1 determined that 'by refusing to recognise and enforce the Final Award
in its entirety, the Tribunal accepts that Respondent could be said to have affected
the management, use, enjoyment, or disposal by Claimant of what remained of its
original investment'?& As opposed to GEA v. Ukraine, in both Saipem v. People's Republic
of Bangladesh and Frontier Petroleum Services Ltd v. Czech Republic, the rights arising out
of the arbitral awards were linked to the original economic operation and were
deemed as 'investments'.

91
Ibid, paras. 4 0 - 4 1 .
9
2 Ibid. para. 113.
93
Ibid. para. 114 (footnotes omitted).
94
Ibid. para. 163 (footnotes omitted).
95
GEA Group, supra n. 2 at para. 161.
96
Saipem SpA, supra n. 85 at para. 110.
97
Frontier Petroleum Services Ltd v. Czech Republic, Final Award, P C A - U N C I T R A L Arbitration Rules; [2010] IIC
465.
98
Ibid. para. 231 (emphasis added).
266 Arbitration International, Volume 2 7 Issue 2

VI. CONCLUSION
The arbitral tribunal in GEA v. Ukraine insisted that the controversy over these two
methods of treaty interpretation 'need not be resolved' in the circumstances of the
case." However, and with the utmost respect, the two methods of treaty
interpretation take fundamentally different approaches, and therefore, it is
appropriate to conduct a final analysis using one method or the other.

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As discussed, one approach allows an arbitral tribunal to fill in gaps, while the
other approach prohibits the 'intentions or presumed intentions of the framers
[from being] invoked to fill in gaps, or import into the treaty something which is
not there, or to correct or alter words or phrases the meaning of which is
apparently plain, or to give them a sense different from that which they possess
according to their normal and natural reading'. 100 Further, a noted scholar
described the opposing methods when he stated that 'an objective of treaty
interpretation is to produce an outcome that advances the aims of the treaty, a
notion which is obviously dependent on identifying the object and purpose of the
treaty. It must be noted, however, that this element of the rule is not one allowing
the general purpose of a treaty to override its text. 101
In a prior publication, Mr. Toby Landau, Q C , wrote 'there is a real possibility
in many cases that all members of the tribunal will be able to agree on the end
result, but not on the reasons. In such cases, unanimity may well be more
important than a detailed award, and the drafting will then have to be cut back in
such a way as to sustain the consensus'. 102 This appears to be what occurred in
GEA v. Ukraine, leading the distinguished arbitral tribunal away from what could
have been a legally significant decision on this long-standing debate.

99
GEA Group, supra n. 2 at para. 143.
100
Fitzmaurice, supra n. 29 at p. 212; see also, Fitzmaurice, supra n. 1 at p. 7.
101
Richard K. Gardiner, Treaty Interpretation (Oxford University Press, New York, 2008), p. 190 (emphasis
added).
102
Toby Landau, QC, 'Reasons for Reasons: the Duty of Arbitrators in Investor-State Arbitration', paper
presented at the ICCA Congress in Dublin, June 2008 (published by Kluwer as No. 14 in ICCA Congress
Series (2009), p. 204.