Winston & Strawn Successfully Defends Romania Before ICSID

On December 7, 2011, the International Centre for Settlement of Investment Disputes (ICSID) issued an award for Winston & Strawn client Romania, in the case Spyridon Roussalis v. Romania. Romania prevailed completely in its defense and was awarded US $8.3 million in legal fees and arbitration costs. The Tribunal, by majority opinion, held that it lacked jurisdiction over Romania's counterclaim. 

Claimant's ICSID claim arose out of his purchase of shares in a large frozen food warehousing facility from the Romanian government's privatization authority AVAS. According to the Share Purchase Agreement, Claimant was to make a $1.4 million post-purchase investment within two years, after which the Romanian government could enforce a share pledge and recover the shares purchased by Claimant. Claimant alleged that the $1.4 million investment was made as required, and that Romania's attempt to enforce the share pledge amounted to an expropriation and a breach of fair and equitable treatment.

Claimant also asserted a "fiscal claim" in which he challenged tax liabilities and penalties levied by the Government, an "interdiction claim" wherein he challenged Romania's enforcement of a law that prevented him from leaving the country for three years while he was under criminal investigation, and a "food safety claim" where he challenged the legality of orders to shut down operations in the facility. In all, Claimant claimed $91 million in compensatory damages and $56 million in moral damages. He was awarded nothing.

Romania asserted a counterclaim seeking a declaration that Claimant did not meet his post-investment obligation and an order that Claimant tender the shares he purchased back to Romania or pay compensation. A majority of the Tribunal denied the counterclaim based on the absence of explicit consent in the Romania-Greece BIT to arbitrate counterclaims. Yale Law Prof. Michael Reisman's dissent sharply criticized the majority opinion given that the ICSID Convention also governed the dispute and the ICSID Convention provides for jurisdiction of counterclaims "arising directly out of the subject-matter of the dispute." Despite Romania's loss on the issue of counterclaim jurisdiction, the Tribunal made findings of fact that were tantamount to the declarations sought from the Tribunal by Romania, namely that Claimant did not comply with the required $1.4 million post-investment obligation.

Winston & Strawn partner Mark Bravin and associate Alex Kaplan, based in the firm's Washington, D.C. office, represent Romania in collaboration with the Bucharest Office of CMS Cameron McKenna.