Environmental Engineering Reference
In-Depth Information
investment. If an investor and Morocco/ONE comply with the above-mentioned
requirements, there is no doubt that they meet the requirement of risk.
3.7.4 Contribution to the Economic Development of the Host
State
The most widely discussed element of the Salini test is the contribution to the
economic development of the host state. As mentioned above, the liberal approach
often entails three out of four Salini elements, excluding this element. A lot of
tribunals which favor the liberal approach deny the application of the contribution
to the economic development of the host state element, due to its uncertainties and
its complex nature.
3.7.4.1 The Salini Tribunal
The Salini tribunal only briefly addressed the question of contribution to the
economic development of the host state. In its case, the tribunal only assessed the
respective investment, without mentioning any further details concerning the ele-
ment. It pointed out that construction of a highway cannot be contested as not
contributing to the development of the host state.
527
Furthermore, the Salini tribunal
considered the provision of know-how and concluded that the Italian company
shared its knowledge.
528
3.7.4.2 Tribunals Supporting Contribution to the Economic
Development Element
The Salini tribunal insisted on its importance, but assessed it the “contribution to
the economic development element” with a great amount of flexibility.
529
As
referred to earlier, even in cases where the application of the Salini test was denied,
dissenting opinions of arbitrators supported its utilization. There were several
tribunals dealing with this prerequisite and assessing the individual investment.
530
527
ICSID [2001] ARB/00/4, 609 (623) para 57.
528
ICSID [2001] ARB/00/4, 609 (623) para 57.
529
ICSID [2009] ARB/06/5—Award, 33 para 84.
530
Funds, but without a further assessment, in: ICSID [2013] ARB/08/9—Decision on Jurisdiction
and Admissibility, 164 para 487; A highway in Morocco, in: ICSID [2001] ARB/00/4, 609 (623)
para 57; A highway in Pakistan, in: ICSID [2005] ARB/03/29, 6-7 paras 10-12; A legal consulting
firm in Congo, in: ICSID [2006] ARB/99/7—Annulment, 15-16 para 39; A five star hotel in Egypt
as contribution to tourism, in: ICSID [2006] ARB/05/19, 23-24 para 77; A banking infrastructure
contributed in Slovakia, in: ICSID [1999] ARB/97/4—Decision, 251 (252) para 1 and (282) para
