Environmental Engineering Reference
In-Depth Information
328
This was due to a British
proposal which omitted any definition of the term investment.
329
This proposal was
adopted unmodified in the final ICSID version of 1965.
330
Hence, considerable
importance should be attached to the consent of the parties in respect of the
assessment of ICSID jurisdiction.
331
Chairman Broches mentioned that the failure of the proposed definition was
closely connected to the individual fitting of restrictions by the proposing country
and was not an overall notion for the legal framework of international invest-
ment.
332
Some say that the wide definition of investment was an intentional deal
of the developed states in exchange for opt-out possibilities for developing
states.
333
The main idea of the ICSID Convention was to offer states a new way
to promote economic development and to protect transnational investors.
334
Legal
author often argue that the
ex ante
perception of states was to set up an umbrella for
foreign investors.
335
It is also frequently proposed that one of major benefits is that
the ICSID Convention is more flexible and can be applied appropriately to every
individual case.
336
Furthermore, an overly restrict approach could impede transna-
tional investments and therefore would be contrary towards ICSID founding idea.
337
The preparatory work supports the assumption that investment is deliberately
undefined within the ICSID Convention. The definition is mostly up to the parties,
which have chosen, so far, to use a broad understanding. Even countries which
opposed the broad definition include wide investments definitions in their BITs today.
of the term investment and thus left the term
open.
'
'
3.6.1.2.2 The Different Languages of Art. 25(1) of the ICSID Convention
To summarize the interpretation, a brief overview of the official languages of the
ICSID Convention is necessary, due to the ambivalent results. The ICSID Conven-
tion contains several arbitrational languages, namely English, French and Span-
ish.
338
Assessing all the documents, there is no difference in the meaning of Art. 25
328
Gaillard (
2009
), 403 (403); Yala (
2005
), 105 (106); Hamida (
2007
), 287 (288-289); Andreeva
(
2008
), 161 (168); cf Hobe and M
ยจ
ller (
2009
), 65 (68); Johannsen (
2009
), 5 (6); cf Delaume
(
1966
), 64 (70); Broches (
1966
), 263 (268).
329
ICSID (
1968b
) vol II(2), 821 and 826.
330
Mortenson (
2010
), 257 (292).
331
Mortenson (
2010
), 257 (290); Broches (
1966
), 263 (268).
332
Summary of proceedings of the legal committee meeting (November 27, 1964), in: ICSID
(
1968b
) vol II(2), 707.
333
Mortenson (
2010
), 257 (280); Most of the Salini requirements were considered and rejected, in:
Mortenson (
2010
), 257 (281).
334
Nmehielle (
2001
), 21 (23); Mortenson (
2010
), 257 (304) and (311).
335
Mortenson (
2010
), 257 (311).
336
Nmehielle (
2001
), 21 (26); Mortenson (
2010
), 257 (311).
337
Mortenson (
2010
), 257 (311).
338
Reed et al. (
2004
), 21.
