Environmental Engineering Reference
In-Depth Information
Nevertheless, some authors favor a so-called
outer limit
of investment. If a BIT
'
'
s concept, there will be no ICSID jurisdiction.
416
Even in cases where ICSID tribunals expressively declined the application of the
Salini test, tribunals pointed out that there are limits concerning the definition of
investments.
417
The drafting history of the ICSID Convention supports these
definition goes beyond the ICSID
'
'
outer
limits of definition
because the missing notion of investments does not mean that
ICSID parties were incapable to define it, but unable.
418
The fact that the ICSID
Secretary-General does not register an arbitration request is sometimes understood
as proof that Art. 25(1) of the ICSID Convention has an unchangeable core, which
always applies.
419
Consequently, these “core” elements of investment imply that
there is an outer limit of the investment, which must be met at all times.
There is also the risk that investments which are in accordance with the ICSID
Convention are excluded due to the Salini test.
420
Thus, application of the Salini test
defines investment and makes it less interesting for states, to seek ICSID jurisdic-
tion, if they disagree with the definition.
421
Investment is a fluid concept which
should not be frozen in a certain notion.
422
Due to the application of the Salini test,
the requirement of investment almost merges into the requirement of consent of
jurisdiction.
423
Aaron Broches said
'
it was always up to the parties to give or
'
withhold consent (
) in other words, it should be the terms of consent that
ultimately define the Centre
...
424
Therefore, ICSID tribunals should not limit the convention
s jurisdiction.
'
'
s scope because this
'
of the ICSID Convention.
425
By ignoring BITs
and just taking the ICSID Convention into account concerning investment, the
tribunals
is against the objective and purpose
'
raise(s) concerns about the completeness of the (ICSID tribunals) anal-
'
426
ysis.
Imposing an objective definition of
investment violates the state
'
416
Schreuer (
2009
), 124 para 144; However most BIT definitions are in accordance with ICSID in:
Schreuer (
2009
), 124 para 145; No real definition of commercial dispute, which makes it into a
“slippery slope” for the exclusion of investments, in: Mortenson (
2010
), 257 (298-299); Hobe and
M
¨
ller (
2009
), 65 (69); cf Yala (
2005
), 105 (117).
417
ICSID [2009] ARB/05/10—Annulment—Dissenting Opinion (Shahabuddeen), 38 (40-42)
paras 9-13.
418
ICSID [2009] ARB/05/10—Annulment—Dissenting Opinion (Shahabuddeen), 38 (41) paras
10-11; cf Schobener and Markert (
2006
), 65 (82-83).
419
Ho (
2010
), 633 (642).
420
Krishan (
2009
), 1 (11).
421
Krishan (
2009
), 1 (8).
422
Krishan (
2009
), 1 (9).
423
Hobe and M¨ ller (
2009
), 65 (68); Broches (
1966
), 263 (268).
424
Grubenmann (
2010
), 72.
425
L
orcher (
2005
), 11 (13); Hobe and M¨ ller (
2009
), 65 (69); This also includes a prohibition to
enlarge ICSID jurisdiction to every possible case, in: Nathan (
1995
), 413, 27 (50); Loncle (
2006
),
319 (319-320); Wrong belief that there are objective criteria, in: Ho (
2010
), 633 (646); Mortenson
(
2010
), 257 (311-312).
426
Andreeva (
2008
), 161 (169).
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