Environmental Engineering Reference
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Also, as there is no specific case law concerning the requirements of Art. 25(1) of
the ICSID Convention, it is possible that the same rule applies.
3.6.3
ICSID Case Law and Art. 25(1) of the ICSID
Convention
ICSID tribunal ' s case law is also important concerning the application of invest-
ment. As Art. 41(1) of the ICSID Convention mentions, an ICSID tribunal can
decide on its own competence. Furthermore, Art. 42(2) of the ICSID Convention
offers ICSID tribunals the possibility to “close” legal loopholes within substantive
rules. According to Art. 44 sentence 2 of the ICSID Convention, ICSID tribunals
can also decide subsidiary procedural questions. As a result, ICSID tribunals remain
influential concerning admittance to ICSID arbitration. As mentioned above, there
is no stare decisis within ICSID case law, but a de facto stare decisis leads to a
certain equal treatment, which makes it necessary to examine ICSID case law in
detail.
3.6.3.1 Salini Costruttori S.P.A. and Italstrade S.P.A. v. Kingdom
of Morocco
In 2001, the investment arbitration world was shaken up when one ICSID tribunal
defined the term investment. This happened in the case Salini Costruttori S.P.A. and
Italstrade S.P.A. v Kingdom of Morocco . Until today, the Salini test remains one of
the most diversely discussed topics of international investment arbitration. The
Salini decision established four criteria to meet the investment notion of Art. 25
(1) of the ICSID Convention, namely (1) a contribution (in cash, in kind or in labor),
(2) certain duration of performance, (3) participation in the risks of the transaction,
and (4) a contribution to the economic development of the host state. 345 These
elements of investments may be independent, but they normally require a global
assessment. 346 Furthermore, the tribunal highlighted that these elements are char-
acteristics of an investment. 347 The tribunal noted that there is no definition within
the ICSID Convention. 348 However, there are no doubts that the notion of invest-
ment is not solely up to the discretion of the parties. 349 The criteria stem from the
different opinions in the literature, from different ICSID cases, the registration
345 ICSID [2001] ARB/00/4, 609 (622) para 52.
346 ICSID [2001] ARB/00/4, 609 (622) para 52.
347 ICSID [2001] ARB/00/4, 609 (622) para 52.
348 ICSID [2001] ARB/00/4, 609 (622) para 51.
349 ICSID [2001] ARB/00/4, 609 (622) para 52.
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