Environmental Engineering Reference
In-Depth Information
requirement by the Secretary General and the Preamble of
the ICSID
Convention.
350
The Salini tribunal was the first to assess the BIT and its scope concerning
investment.
351
Afterwards, it proceeded to analyze the requirements originating
from Art. 25(1) of the ICSID Convention.
352
The Salini test was later on also known
as
, which stems from the establishment of a limitation of
ICSID jurisdiction, which is completely distinct from the party
'
double-barrelled test
'
s consent.
353
The
double-barrelled test is performed by primarily assessing the BIT and its definition
and requirements of investment, and afterwards requirements of the ICSID
Convention.
354
The decision was the starting point for the discussion whether there is a notion of
investment within Art. 25(1) of the ICSID Convention. Down to the present day,
three schools of thought have developed. These are the objective, subjective and
liberal approach, which all handle the Salini test differently. In respect of the
Desertec Concept, there might be two difficulties related to the Salini test. First,
there could be problems concerning the risk element, and second concerning the
contribution to the economic development of Morocco. Consequently, a closer
assessment of the Salini test is necessary. In the following paragraphs, the three
approaches are discussed, and this will be followed by an evaluation of the
literature.
'
3.6.3.2 The Objective Approach
First of all, there is the objective approach towards the question of the Salini test.
This is also known as the deductive approach, which tries to give a “true defini-
tion”.
355
Based on the objective theory, there is an objective definition of the term
investment within Art. 25(1) of the ICSID Convention, which does not require the
consent of the parties.
356
The term investment is not found within the scope of the
ICSID Convention, but is an objective requirement.
357
The prevailing idea is that
the parties cannot define anything as an investment for the purpose of ICSID
jurisdiction, because this would turn Art. 25(1) of the ICSID Convention into a
350
ICSID [2001] ARB/00/4, 609 (622) para 52.
351
ICSID [2001] ARB/00/4, 609 (619-621) paras 43-49
352
ICSID [2001] ARB/00/4, 609 (621-623) paras 50-58.
353
ICSID [2007] ARB/05/10—Award, 16 para 55; ICSID [2004] ARB/03/11—Award, 10 paras
42-43 and 11 para 48; Andreeva (
2008
), 161 (165).
354
ICSID [2004] ARB/02/18—Dissenting Opinion (Weil), 245 (250) para 14; ICSID [2001]
ARB/00/4, 609 (619-623) paras 43-58; Andreeva (
2008
), 161 (173); cf Loncle (
2006
),
319 (329-330);
Double-barrelled
test is also known as
double keyhole
approach, in: Schreuer
'
'
'
'
(
2009
), 117 para 124.
355
Gaillard (
2009
), 403 (410).
356
Hamida (
2007
), 287 (290).
357
ICSID [2002] ARB/00/2—Award, 142 (157) para 52.
