From Uncertainty About the Ratione Personae Requirements for Jurisdiction to the Friction Between Regulatory Measures and Investment Obligations—ICSID Arbitration in 2017
In 2017, the jurisprudence of ICSID tribunals and ad hoc committees largely followed established lines. The jurisdictional decisions in Koch v. Venezuela and Bridgestone v. Panama evidenced that in spite of the lowered standards under the Salini-light test investment tribunals are still concerned about including normal sales transactions under the scope of investment agreements. They have similarly grappled with avoiding to fully open up their ratione personae jurisdiction to state-owned companies. On substantive issues, the tribunal in Bear Creek Mining v. Peru found an indirect (and unlawful) expropriation, whereas the tribunal in Eiser v. Spain held that the fundamental change of the regulatory regime in renewable energy violated the host state’s obligations under the Energy Charter Treaty’s fair and equitable treatment obligation. Various ICSID tribunals in the renewable energy cases against the Czech Republic, Italy and Spain, dealt with the stability and predictability obligations of host states under the FET standard in light of regulatory changes. The annulment committee in Suez v. Argentina (II) confirmed its limited power of reviewing ICSID awards.
Keywords: annulment, fair and equitable treatment, full protection and security, indirect expropriation, jurisdiction ratione materiae, jurisdiction ratione personae, legality requirements of expropriation, MFN clauses
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