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The Global Community Yearbook of International Law and Jurisprudence 2017$
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Giuliana Ziccardi Capaldo

Print publication date: 2018

Print ISBN-13: 9780190923846

Published to Oxford Scholarship Online: November 2018

DOI: 10.1093/oso/9780190923846.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2019. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 20 November 2019

Introductory Note

Introductory Note

From Thinning the Salini Criteria to the Relationship between Regulatory Powers and Indirect Expropriation as well as FET–ICSID Arbitration in 2016

Chapter:
(p.705) IX.1 Introductory Note
Source:
The Global Community Yearbook of International Law and Jurisprudence 2017
Author(s):

August Reinisch

Publisher:
Oxford University Press
DOI:10.1093/oso/9780190923846.003.0031

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.”

Keywords:   admissibility, annulment, indirect expropriation, jurisdiction ratione materiae, fair and equitable treatment, legality of expropriation, MFN clauses

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