Salini Costruttori SpA and Italstrade SpA v. Kingdom of Morocco

Abstract

Jurisdiction — Consent — Contractual submission to local jurisdiction — Whether ousting jurisdiction under bilateral investment treaty — Local jurisdiction not susceptible to prorogation whether consent given — icsid Convention, Article 25(1)

Jurisdiction — Jurisdiction ratione personae — National motorway company with majority State ownership — Whether “agency” of State — icsid Convention, Article 25(1)

Jurisdiction — Jurisdiction ratione materiae — “Investment” — Particular relevance of State law in determining existence of an investment — Dual requirements of bit and icsid Convention, Article 25(1) — Whether satisfied

Jurisdiction — Jurisdiction ratione materiae — Claim of breach of bit — Not excluded because also based on contract — Onus of proof on Claimant to establish breach of bit attributable to the State — Relation of responsibility under treaty to contractual liability

Admissibility — bit requiring notification to host State requesting amicable settlement — Notification to Minister also holding office as President of local contracting company — Whether sufficient notification

State responsibility — Organ of the State — Structural and functional criteria — Acts of a State corporation attributable to the State — Relation to contractual claim