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Article
Salini's Nature: Arbitrators' Duty of Jurisdictional Policing
Journal of Law and Practice of International Courts and Tribunals (2018)
  • Perry S. Bechky
Abstract
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.
Keywords
  • ICSID,
  • Salini,
  • jurisdiction,
  • ISDS,
  • investment arbitration,
  • investor-state arbitration
Publication Date
July, 2018
Publisher Statement
With permission of the publisher, the version available here is the draft as submitted for publication on 9 Oct. 2017. The draft does not reflect peer review or editing. Please cite to the final version, which is available at  http://booksandjournals.brillonline.com/content/journals/10.1163/15718034-12341373.
Citation Information
Perry S. Bechky. "Salini's Nature: Arbitrators' Duty of Jurisdictional Policing" Journal of Law and Practice of International Courts and Tribunals Vol. 17 Iss. 1 (2018) p. 145 - 159 ISSN: 1569-1853
Available at: http://works.bepress.com/perry_bechky/23/