Salini’s Nature: Arbitrators’ Duty of Jurisdictional Policing

In: The Law & Practice of International Courts and Tribunals
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  • 1 Partner, Berliner Corcoran & Rowe LLPVisiting Scholar, Seattle University School of Law
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This article examines the duty of jurisdictional policing that Salini v. Morocco inferred from the ICSID Convention. According to Salini, ICSID arbitrators must determine whether a dispute arises from an “investment” that satisfies an objective definition of that term, regardless of the subjective definition used by the parties to a case. Salini thus suggests that this duty cannot be waived or varied by the parties. Its proponents claim that Salini’s duty serves ICSID’s vital institutional interests. Moreover, ICSID can enforce Salini’s duty. Taken together, these considerations signal that Salini’s duty is owed not only to the parties to the case, but also to ICSID itself as an institution. As Salini migrates beyond ICSID to other investor-state tribunals, however, the nature of this duty may be revealed as not only institutional but systemic – a duty inherent in the investor-state arbitrators’ function that serves the interests of the investor-state dispute system.

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