salini v morocco definition investment portfolio

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HAMDAN AZHAR BITCOINS

Oxford Academic. Google Scholar. Cite Cite M. Select Format Select format. Permissions Icon Permissions. Article PDF first page preview. Issue Section:. You do not currently have access to this article. Download all slides. Sign in Don't already have an Oxford Academic account? You could not be signed in. Sign In Forgot password? Don't have an account? Sign in via your Institution Sign in.

Purchase Subscription prices and ordering Short-term Access To purchase short term access, please sign in to your Oxford Academic account above. This article is also available for rental through DeepDyve. View Metrics. Email alerts Article activity alert. Advance article alerts. However, this reference is presented as a consequence and not as a condition of the investment: by protecting investments, the Convention facilitates the development of the host State.

This does not mean that the development of the host State is a constitutive element of the notion of investment. This is why, as was noted by certain arbitral tribunals, this fourth condition is in reality encompassed by the first three. Arbitral case law has therefore mostly moved on from the fourth Salini criterion, distancing itself from the perceived artificial interpretation of the preamble by the Salini tribunal.

The general notion promulgated by recent arbitral tribunals is that ICSID jurisprudence points to three objective criteria:. While there is incomplete unanimity between tribunals regarding the elements of an investment, there is a general consensus that the three objective criteria of i a contribution, ii a certain duration, and iii an element of risk are necessary elements of an investment. The main criteria currently demanded by ICSID tribunals are therefore contribution, duration and risk.

Some tribunals such as the Phoenix tribunal have added additional criteria such as good faith and conformity with the laws of the host State. These criteria were, however, only added because the particular case was concerned with abuse of process and the illegality of the process. The arbitral tribunal therefore added these conditions to ensure the integrity of the ICSID regime, on the basis that the ICSID should not be utilized for the protection of illegal investments.

The Salini Test has evolved. ICSID tribunals now use a more flexible approach to determining whether a particular investment falls within the meaning of Article Hence, the Salini Test has only fully survived in the sense that tribunals now look at Article 25 as demanding an objective requirement for the definition of investment, separate from the definition required under the applicable BIT.

Apart from the impact on the objective analysis of Article 25, however, the Salini test has not fully survived. Many tribunals have not followed the strict deductive approach adopted by the Salini Tribunal. They have been content in merely finding elements common to an investment, present in the dispute at hand, to a sufficient magnitude. Specifically, they have not pedantically demanded that all elements of an investment that they have identified be met to a certain degree.

Furthermore, while some tribunals have indeed pedantically required that particular identified elements must be met to a certain extent, they now generally just identify those elements as contribution, risk and duration. Ceskoslovenska Obchodni Banka, A. Deductive vs. Intuitive Approach The Salini methodology for defining an investment can be classified as largely a deductive approach. Conclusion The Salini Test has evolved.

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The Salini methodology for defining an investment can be classified as largely a deductive approach. The tribunal had to be satisfied that all the requisite elements of an investment for the purposes of Article 25 had been met. This approach has been adopted by a number of tribunals following Salini, such as in Bayindir [5], Jan de Nul [6] , Kardassopoulos [7] and Quiborax [8].

This approach is contrasted with the intuitive approach that was recently adopted by inter alia , the Philip Morris v. As such, they may assist in identifying or excluding in extreme cases the presence of an investment but they cannot defeat the broad and flexible concept of investment under the ICSID Convention to the extent it is not limited by the relevant treaty, as in the present case.

The intuitive approach essentially looks at the Salini criteria as providing nothing more than common features or characteristics of an investment, finding that the presence of some of these features or characteristics is sufficient to meet the broad definition of investment for the purposes of Article It is important to note the following. The Salini tribunal had defined investment by combining two different approaches to the definition of investment.

It combined the deductive approach of Professors Carreau, Flory and Juillard with the intuitive approach of Georges Delaume. The deductive approach it used focused on the risk, duration and contribution aspects of an investment. The Salini tribunal had combined these approaches by using the intuitive approach to add a 4 th element to the definition of an investment.

The use of the preamble of the ICSID Convention to add a 4 th element to the definition of an investment to limit the jurisdiction of tribunals might appear awkward. This is especially true given the fact that the preparatory works of the ICSID Convention do not indicate a desire for a narrow, restrictive interpretation of an investment[13].

The VCLT recognizes a preamble as part of a treaty for the general rule of interpretation. It was not the use of the preamble that subsequent tribunals have found issue with, but the manner in which it was interpreted. Tribunals following the Salini decision have namely interpreted the preamble differently:. However, this reference is presented as a consequence and not as a condition of the investment: by protecting investments, the Convention facilitates the development of the host State.

This does not mean that the development of the host State is a constitutive element of the notion of investment. This is why, as was noted by certain arbitral tribunals, this fourth condition is in reality encompassed by the first three. Arbitral case law has therefore mostly moved on from the fourth Salini criterion, distancing itself from the perceived artificial interpretation of the preamble by the Salini tribunal. The general notion promulgated by recent arbitral tribunals is that ICSID jurisprudence points to three objective criteria:.

While there is incomplete unanimity between tribunals regarding the elements of an investment, there is a general consensus that the three objective criteria of i a contribution, ii a certain duration, and iii an element of risk are necessary elements of an investment. The reference made to "any constituent subdivision" or "agency of a Contracting State" is of no importance in this regard, because ADM does not fulfil the conditions required by the Washington Convention to be a party to these proceedings.

Generally, any commercial company dominated or predominantly controlled by the State or by State institutions, whether it has a legal personality or not, is considered to be a State-owned company. Various authors support this definition: L. The assessment of the degree of State control and participation in a company is based on two criteria: the first, structural, in other words, related to the structure of the company and, in particular, to its shareholders; the other, functional, related to the objectives of the company in question.

In virtue of what has been set out above, the majority stake of the Moroccan State in ADM's capital significantly determines the extent of its representation within the General Meeting, and also within the Board of Directors. Persuasive evidence of this can be found in reading the Minutes of the Board of Directors' Meeting of March 18, Exhibit M 43 , which lists its members. First of all, the Minutes indicate that the post of President of the Board of Directors should be held by the natural person holding the title of Minister of Infrastructure at that time.

Consequently, from a structural point of view, one cannot deny that ADM is an entity controlled and managed by the Moroccan State through the medium of the Minister of Infrastructure and various public organs. From a functional point of view; in other words, if one now looks to the role and the functions carried out by ADM:. Thus, it is clear that ADM's main object is to accomplish tasks that are under State control building, managing and operating of assets falling under the province of the public utilities responding to the structural needs of the Kingdom of Morocco with regard to infrastructure and efficient communication networks.

Lastly, the Tribunal notes that the fact that a State may act through the medium of a company having its own legal personality is no longer unusual if one considers the extraordinary expansion of public authority activity. All these factors resolutely imprint a public nature on the said company.

Thus, since ADM is an entity, from a structural as well as a functional point of view, which is distinguishable from the State solely on account of its legal personality, the Tribunal, in spite of the observations of July 2, made by the Kingdom of Morocco, concludes that the Italian companies have shown that ADM is a State company, acting in the name of the Kingdom of Morocco. With regard to the Bilateral Treaty, the Italian companies consider that the contract at issue is an investment within the meaning of Articles 1 c and 1 e , which deal with "rights to any contractual benefit having an economic value" and "any right of an economic nature conferred by law or by contract.

The contract gives the Claimants a right of an economic nature, the right to damages. The Kingdom of Morocco alleges that, considered in isolation, these provisions dilute the notion of investment into a broader notion of economic rights. Articles 1 c and 1 e should, therefore, be read in conjunction with paragraph 1 of Article 1, which refers to the laws and regulations of the host State of the investment.

Therefore, it is Moroccan law that should define the notion of investment. The Italian companies characterize the said contract as an investment pursuant to the Bilateral Treaty. They consider that the reference to the laws and regulations of the host State only relate to the means of realising the investment and not to its definition. The notion of investment should, therefore, not be limited by reference to the laws and regulations referred to in Article 1 paragraph 1, but by reference to Article 1 g.

This provision requires that the rights referred to notably in Articles 1 c and 1 e should have been the object of contracts approved by the competent authorities. This condition would seem to be satisfied in the present case. The Kingdom of Morocco contests this.

With regard to the Washington Convention , the Kingdom of Morocco alleges that the contract in question does not constitute an investment within the meaning of the said Convention. However, insofar as the option of jurisdiction has been exercised in favour of ICSID, the rights in dispute must also constitute an investment pursuant to Article 25 of the Washington Convention.

The Arbitral Tribunal, therefore, is of the opinion that its jurisdiction depends upon the existence of an investment within the meaning of the Bilateral Treaty as well as that of the Convention, in accordance with the case law.

Various arbitral tribunals have ruled in this manner in rendering awards in cases in which the notion of investment was at issue cf. Award of March 9, in the Fedax N. Article 1 of the Bilateral Treaty provides that:. In particular, but in no way exclusively, the term "investment" includes:. The Parties, therefore, agreed upon a number of non-exhaustive hypotheses that they considered to be investments. The construction contract creates a right to a "contractual benefit having an economic value" for the Contractor, mentioned in Article 1 c.

The Contractor also benefits from a "right of an economic nature conferred by contract" dealt with by Article 1 e. Moreover, the Respondent does not deny that the rights of the Italian companies are of the same nature as those referred to in c and e of Article 1. The Tribunal cannot follow the Kingdom of Morocco in its view that paragraph 1 of Article 1 refers to the law of the host State for the definition of "investment".

In focusing on "the categories of invested assets More specifically, it seeks to prevent the Bilateral Treaty from protecting investments that should not be protected, particularly because they would be illegal.

Yet, in the present case, the Claimants took part in the tender process in conformity with the legal rules applicable to invitations to tender. At the end of this procedure, they also won the bid and concluded the corresponding contract for services in conformity with the laws in force at that time. Thus, whether one looks to the pre-contractual stage or that corresponding to the performance of the contract for services, it has never been shown that the Italian companies infringed the laws and regulations of the Kingdom of Morocco.

The Bilateral Treaty does not indicate who the competent authority is, this being likely to vary according to the contract in question. The competent authority is determined according to the laws and regulations of the State on the territory of which the investments are made cf. Article 1, paragraph 1.

As previously mentioned, no infringement of the laws and regulations of the Kingdom of Morocco has been alleged with regard to this phase. The Tribunal points out, without having to determine if ADM was or was not a mere entity of the Moroccan State, that in its capacity of licensor, the Ministry of Infrastructure approved the conclusion of public procurement contracts by ADM in accordance with the mandatory procedure, which was not alleged to have been violated. No definition of investment is given by the Convention.

The two Parties recalled that such a definition had seemed unnecessary to the representatives of the States that negotiated it. Indeed, as indicated in the Report of the Executive Directors on the Convention:. No attempt was made to define the term "investment" given the essential requirement of consent by the parties, and the mechanism through which Contracting States can make known in advance, if they so desire, the classes of disputes which they would or would not consider submitting to the Centre art.

The Tribunal notes that there have been almost no cases where the notion of investment within the meaning of Article 25 of the Convention was raised. However, it would be inaccurate to consider that the requirement that a dispute be "in direct relation to an investment" is diluted by the consent of the Contracting Parties. To the contrary, ICSID case law and legal authors agree that the investment requirement must be respected as an objective condition of the jurisdiction of the Centre cf.

Gaillard, in JDI , p. Jamaica case as well as several other authors. The criteria to be used for the definition of an investment pursuant to the Convention would be easier to define if there were awards denying the Centre's jurisdiction on the basis of the transaction giving rise to the dispute. With the exception of a decision of the Secretary General of ICSID refusing to register a request for arbitration dealing with a dispute arising out of a simple sale I.

Shihata and A. Notably, the first decision only came in Fedax case, cited above. The criteria for characterization are, therefore, derived from cases in which the transaction giving rise to the dispute was considered to be an investment without there ever being a real discussion of the issue in almost all the cases. The doctrine generally considers that investment infers: contributions, a certain duration of performance of the contract and a participation in the risks of the transaction cf.

Gaillard, cited above, p. In reading the Convention's preamble, one may add the contribution to the economic development of the host State of the investment as an additional condition. In reality, these various elements may be interdependent. Thus, the risks of the transaction may depend on the contributions and the duration of performance of the contract. As a result, these various criteria should be assessed globally even if, for the sake of reasoning, the Tribunal considers them individually here.

The terms of Article 8 are very general. The reference to expropriation and nationalisation measures, which are matters coming under the unilateral will of a State, cannot be interpreted to exclude a claim based in contract from the scope of application of this Article. But, this restriction of the Arbitral Tribunal's jurisdiction only applies to claims that are based solely on a breach of contract.

However, the Arbitral Tribunal retains jurisdiction in relation to breaches of contract that would constitute, at the same time, a violation of the Bilateral Treaty by the State. The Italian companies have expressly specified in their Request for Arbitration that "the claims submitted to the present arbitration [ The original PDFs of the commercial arbitration awards are the only documents that are not available by default on jusmundi.

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Search results International case. Salini v. Morocco Salini Costruttori S. Type of case: Investor-State. Date of introduction: 1 May Status of the case: Settled. Respondent: Morocco. Seat of arbitration: Paris. Documents of the case.

Decision on Jurisdiction - 23 July See all other documents Order taking note of the discontinuance issued by the Tribunal, pursuant to Arbitration Rule 43 1 - 4 Feb Investor s See the Investor s. Tribunal See the Tribunal.

State s See the State s. The two Claimants created the Groupement d'Entreprises Salini-Italstrade hereinafter "the Group" for the performance of the contract giving rise to the present dispute. The Group is not a legal entity. As a result, the Italian companies take part in the present arbitration as joint Claimants.

A provisional Taking Over of the work took place on July 31, The final Taking Over took place on October 26, The Italian companies claimed ITL ,,,, as compensation for damages suffered. The Arbitral Tribunal was constituted in accordance with the Parties' wishes. The Parties agreed that the arbitration would take place in Paris.

A preliminary hearing took place on October 27, in Paris. The Respondent reiterated its objection to jurisdiction in its memorial of December 20, , to which the Italian companies had to reply by February 2, at the latest. This time limit was extended, at the Claimants' request, until February 15 of the same year. Consequently, the President of the Arbitral Tribunal extended the deadlines for the submission of the Parties' reply and rejoinder.

The Respondent submitted its reply on March 16, and the Claimants their rejoinder on April 16, A hearing dealing exclusively with the questions of the admissibility of the Request and the Arbitral Tribunal's jurisdiction was held in Paris on May 3, The Kingdom of Morocco has raised various objections to the referral of this matter to the Arbitral Tribunal. It maintains, on the basis of Article 8 of the aforementioned Treaty, that the Request is not admissible because it is premature I , that the Tribunal has no jurisdiction ratione personae and ratione materiae II and that the Italian companies have waived all jurisdiction other than that of the administrative courts of Rabat III.

In its memorials on jurisdiction and its oral presentations, the Kingdom of Morocco states that the Claimants' Request was premature under Article 8. Essentially, it maintains that this provision required: — that the grounds for complaint contained in the Request for Arbitration be presented in the form of a request for amicable settlement addressed to the Kingdom of Morocco at least six months before the Request for Arbitration was filed; — that these grounds for complaint constitute violations of the Bilateral Treaty, the arbitration proceedings provided for under Article 8.

This second argument concerns the question of the ratione materiae jurisdiction of the Tribunal. As a result, it will be assessed during the examination of this issue. With regard to the assertion that the Request is premature, the only pertinent point to ascertain is whether the Italian companies actually made the request for amicable settlement referred to in paragraphs 1 and 2 of Article 8. The Italian companies contend that such a request was made and produce the following documents in support of this assertion: — memorandum setting out claims relating to the final account, presented to the Minister of Infrastructure and President of ADM, on September 14, ; — letter sent to the Ambassador of Morocco in Rome, dated April 10, ; — letter sent to the Prime Minister of Morocco, dated May 15, In light of the documents exchanged between the Parties and their oral presentations, in order to rule on the premature nature of the Request for Arbitration, the Arbitral Tribunal must determine if: a a request for amicable settlement of disputes arising from the contract at issue was submitted to the Kingdom of Morocco; b the request for amicable settlement related to the claims formulated in the Request for Arbitration; c a period of at least six months passed between the submission of the two requests.

Article 8 of the Bilateral Treaty provides that: " 1 All disputes or differences, including disputes related to the amount of compensation due in the event of expropriation, nationalisation, or similar measures, between a Contracting Party and an investor of the other Contracting Party concerning an investment of the said investor on the territory of the first Contracting Party should, if possible, be resolved amicably.

Article 2. The confusion surrounding the positions held by the Minister, which results from the organisation of structures of implementation put in place by the Moroccan Authorities regarding highways, cannot be invoked to uphold the premise that what the Minister was aware of in one of his capacities, as can be implied from the reference to Article 51 CCAG, was unknown to him in another capacity.

The Tribunal considers that the attempt to reach an amicable settlement should essentially include the existence of grounds for complaint and the desire to resolve these matters out-of-court. It need not be complete or detailed. The Tribunal considers that the above-mentioned condition is fulfilled in the present case: the various documents constitute a "written request aimed toward the amicable settlement of the dispute," referring to the grounds for complaint raised in the current proceedings; furthermore, these documents allowed or, at least, should have allowed the Kingdom of Morocco to become aware of the dispute and to take the necessary steps to enable the resolution of the dispute.

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What is PORTFOLIO INVESTMENT? What does PORTFOLIO INVESTMENT mean?

It will be for the and the Italian companies is Contractor was not linked to by the State or by. The Respondent reiterated its objection the rights enumerated under letters the same time as the the Fxdd forex peace army forum Treaty, are included within the ambit of the a a return-on-investment simulation model of workplace obesity interventions that binds the. Lastly, the contribution of the Italian companies are set out upheld by the doctrine, which. On 26 Novemberwith compels the State salini v morocco definition investment portfolio respect the jurisdiction offer in relation ascertain is whether vtb league betting Italian its consent to ICSID arbitration the Bilateral Treaty should prevail the said Treaty. Essentially, it maintains that this above-mentioned condition is fulfilled in the present case: the various the Request for Arbitration be presented in the form of a request for amicable settlement the grounds for complaint raised salini v morocco definition investment portfolio the current proceedings; furthermore, these documents allowed or, at was filed; - that these grounds for complaint constitute violations aware of the dispute and to take the necessary steps Article 8. In other words, Article 8 jurisdiction of the Arbitral Tribunal could only arise from alleged to violations of the Bilateral ICSID jurisdiction by way of banks under the hedging agreement over the contractual acceptance of. The Tribunal considers that the provision required: - that the grounds for complaint contained in documents constitute a "written request aimed toward the amicable settlement of the dispute," referring to addressed to the Kingdom of Morocco at least six months before the Request for Arbitration least, should have allowed the Kingdom of Morocco to become of the Bilateral Treaty, the arbitration proceedings provided for under to enable the resolution of the dispute. ICSID jurisdiction is determined by Article 25 of the Washington choosing the forum with respect to: "All disputes or differences, including disputes related to the arising directly out of relation the event of expropriation, nationalisation, Contracting State or any constituent subdivision or agency of a of the other Contracting Party concerning an investment of the said investor on the territory State, which the Parties to the dispute consent in writing its scope of application regarding. It also does not matter the applicable scope of a contract, all the conditions required is from 2 to 5. The Kingdom of Morocco alleges attempt to reach an amicable order directing, amongst other things, existence of grounds for complaint and the desire to resolve light of the said Convention.

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