INTRODUCTORY NOTE

Abstract

This chapter discusses the 2018 jurisprudence of the International Centre for Settlement of Investment Disputes (ICSID) tribunals and ad hoc committees, which addressed among others the notion of “investment” under Article 25 ICSID Convention, illegality in the making of an investment, and the jurisdictional or admissibility nature of waiting periods qualifying host state consent to investor-state arbitration. They also dealt with direct and indirect expropriation and broadly affirmed the Methanex/Saluka doctrine. In this respect, arbitral tribunals emphasized their limited power of review, stressing that it was not their task to sit in judgment over difficult political and policy decisions made by states. In regard to fair and equitable treatment, tribunals have emphasised that investors’ due diligence plays a crucial role in measuring the legitimacy and reasonableness of their expectations and that proportionality as well as reasonableness are important considerations when assessing the scope of a state’s police powers. ICSID jurisprudence has also firmly adopted the three-step test developed by NAFTA tribunals in order to determine possible violations of the non-discrimination standard of national treatment: (i) to identify the relevant subjects for comparison; (ii) to consider the treatment each comparator receives; and (iii) to consider any factors that justify any differential treatment. Furthermore, ICSID ad hoc committees continued to apply a very restrictive standard of review under Article 52 ICSID Convention.