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Tribunal upheld jurisdiction over the claims, provided that they related to treaty breaches
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The contract between the claimants and ADM was also a protected investment under the ICSID Convention
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Tribunal set out objective criteria to define protected investments under the ICSID Convention
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Contract between the claimants and ADM was a protected investment under the BIT
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Notion of protected investment must be assessed under both the BIT and the ICSID Convention
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ADM’s actions were attributed to Morocco
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Arbitrators saw no waiver of ICSID jurisdiction in participation in local proceedings, noting that consent to ICSID jurisdiction “shall prevail”
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Claimants complied with negotiation requirements set out in Article 8.2 of the BIT
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Negotiation request did not have to be “complete or detailed”
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Background: Italian constructors brought ICSID claims against Morocco over unpaid costs incurred in highway construction works
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Insufficient reasoning is not the same as lack of reasoning
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Costs are split as claims were not “manifestly unfounded”
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Finality of awards more important than correctness of results
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Contractual claims are not within the tribunal’s jurisdiction
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Legality requirement does not mean domestic law defines investments
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Tribunal lays down Salini test before Salini
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Dispute resolution clause under local law cannot bar ICSID jurisdiction
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Cooling-off period complied with
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No expropriation absent measures taken as sovereign
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BIT protections do not entail obligation to protect contract against lack of performance
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Fair and equitable treatment only triggered by sovereign conduct
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No discrimination in treatment based on objective difference
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No denial of justice in not answering the investor’s claims
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War clause does not cover weather events
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