Environmental Engineering Reference
In-Depth Information
results in the fact
that
the Report of Executive Directors supports both
interpretations.
Concerning the question of state practice, a closer look at the different BITs is
necessary. After the ratification of the ICSID Convention, states concluded several
BITs to protect their investors. Almost all BITs include a definition of investment.
They are the perfect example of what state practice is. Examining BITs, most of
them define investment very broadly.
318
Consequently, states do not view invest-
ment in an overly restrictive way.
Overall, the wording of Art. 25(1) of the ICSID Convention does not deliver a
completely clear picture, leaving both forms of interpretation. On the one hand,
there might be some requirements within the Preamble; on the other hand invest-
ment remains rather “undefined”. Therefore, a closer look at the preparatory work
of the ICSID Convention is necessary.
3.6.1.2.1 Historical Background of Art. 25(1) of the ICSID Convention
The start of the ICSID Convention is dated back to 1962 and a World Bank working
group completing the first draft of the ICSID Convention.
319
The first draft did not
include any restrictions on the notion of investment.
320
In the years 1963
321
and
1963-1964,
322
further meetings followed and introduced the first restriction of
investment. The 1964 ICSID Convention draft included a notion
323
or restrictions
of the term investment, e.g. a duration of at least 5 years.
324
However, these ideas
and definitions were not supported as many desired that the parties can decide what
falls under ICSID jurisdiction.
325
The word “contribution” and the time element
were subject to particular opposition.
326
The main argument concerning the defi-
nition of investment was between the developed and developing states.
327
At the
end of the negotiation, the contracting states were not able to agree on a definition
318
Krishan (
2009
), 1 (14); Mortenson (
2010
), 257 (311).
319
Working paper in the form of a draft convention (June 5, 1962), in: ICSID (1968) vol II(1), 19.
320
Working paper in the form of a draft convention, art. IV,
§
1 (June 5, 1962), in: ICSID (1968)
vol II(1), 33.
321
Preliminary draft of a convention on the settlement of investment disputes between a state and
nationals of other states, art. II,
§
1 (October 15, 1963), in: ICSID (
1968a
) vol II(1), 202.
322
Consultative meeting of legal experts, addis ababa (April 30, 1964), in: ICSID (
1968a
) vol II
(1), 236 (et seq.).
323
ICSID (
1968b
) vol II(2), 844; ICSID (
1970
) vol I, 116.
324
ICSID (
1968a
) vol II(1), 623.
325
Johannsen (
2009
), 5 (6); Mortenson (
2010
), 257 (287); ICSID (
1968b
) vol II(2), 652, 661,
668, 669, 700, 703 and 707.
326
ICSID (
1968b
) vol II(2), 702, 703, 708, 709 and 710.
327
Mortenson (
2010
), 257 (280) and (284-286); Abraham (
2009
), 206 (209).
