Environmental Engineering Reference
In-Depth Information
protect the contribution to the economy of the host state.
393
No national investment
is allowed to be subject to the ICSID convention.
394
Furthermore, the tribunal
emphasized the need for economic activity, in order to prevent an abuse of
investment protection rights by the investor.
395
The BIT must be within the scope
of the ICSID Convention.
396
The tribunal created a new catalog for investment,
which includes (1) a contribution in money or other assets, (2) a certain duration,
(3) an element of risk, (4) an operation made in order to develop an economic
activity in the host State, (5) assets invested in accordance with the laws of the host
State, and (6) assets invested
bona fide
.
397
Nevertheless, the tribunal highlights that
an extensive assessment of these requirements is not always necessary (e.g. some
may overlap) and that all requirements must be analyzed
(
...
) with due consider-
'
398
In 2013 another ICSID tribunal dealt with the liberal approach intensively, by
assessing the
ation of all circumstances.
'
and the respective BIT.
399
For the first time an
ICSID tribunal interpreted the notion of investment according to the drafting
process of the ICSID Convention and the VCLT.
400
Afterwards the concept of
investment was checked according to the VCLT,
401
pertinent case law and doc-
trine.
402
Lastly it also reviewed the Salini test within ICSID case law and accepted
the liberal approach, but only restricted it to the Salini criteria.
403
Down to the present day, a lot of other problems remain within the liberal
approach. One major issue relates to the consideration of the “relationship” of
BIT regulations and Art. 25(1) ICSID Convention within the
double-barrelled test
'
'
double-barrelled
'
404
There is no real decision; however it seems that the emphasis is more on
the ICSID Convention. This might be due to the fact that most BITs include such a
wide definition that there is almost never a problem. The second issue revolves
around the question of which Salini elements should be considered as characteris-
tics of an investment.
405
The element of
test.
'
'
contribution to the local economy
'
is
subject
to a lot of criticism. There are some tribunals highlighting that
the
393
ICSID [2009] ARB/06/5—Award, 35 para 87.
394
ICSID [2009] ARB/06/5—Award, 35-36 para 89.
395
ICSID [2009] ARB/06/5—Award, 37 para 93.
396
ICSID [2009] ARB/06/5—Award, 38 para 96.
397
ICSID [2009] ARB/06/5—Award, 45 para 114.
398
ICSID [2009] ARB/06/5—Award, 45 para 115.
399
ICSID [2013] ARB/08/9—Decision on Jurisdiction and Admissibility, 142-174 paras 435-520.
400
ICSID [2013] ARB/08/9—Decision on Jurisdiction and Admissibility, 144-149 paras 441-454.
401
ICSID [2013] ARB/08/9—Decision on Jurisdiction and Admissibility, 150-155 paras 455-465.
402
ICSID [2013] ARB/08/9—Decision on Jurisdiction and Admissibility, 155-159 paras 466-474.
403
ICSID [2013] ARB/08/9—Decision on Jurisdiction and Admissibility, 159-162 paras 475-482.
404
ICSID [2008] ARB/06/3, 24 para 82.
405
ICSID [2010] ARB/07/20—Award, 35-36 para 110; cf ICSID [2008] ARB/98/2—Award, 76-
77 para 232.
