From Thinning the Salini Criteria to the Relationship between Regulatory Powers and Indirect Expropriation as well as FET–ICSID Arbitration in 2016
In 2016, the jurisprudence of ICSID tribunals and ad hoc committees largely followed established lines. However, two jurisdictional decisions evidenced that the Salini test seems to have been almost eviscerated. The use of the GATS MFN clause to access investment arbitration was rejected in Menzies and forged documents led to the inadmissibility of investment claims in Churchill Mining. The Philip Morris case addressed core issues of host state regulatory measures and investment protection standards. Several cases clarified the role of compensation as a legality requirement for expropriation, while others made the due diligence standard states owe under full protection and security more precise and one tribunal held that an investor could not even import more favourable substantive standards under the applicable MFN clause. Two annulment committees ruled on the impartiality and independence of arbitrators and the issue of “surprise arguments.”
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