Environmental Engineering Reference
In-Depth Information
sovereignty of all the ICSID Convention member states.
427
ICSID tribunals are not
empowered to create a general applicable objective requirement of investment.
428
They can only decide on a case by case evaluation, if an investment exists.
429
The
great variety of different BITs and state opinions highlights that there is no state
practice to rely on.
430
The problem of comparing investment cases lies in the fact
that all cases do have a different factual background, e.g. different BITs.
431
The
way the ICSID tribunal proceeded in the Salini case might be a departure from an
interpretation according to Art. 31 of the VCLT.
432
3.6.4.2 The Validity of the Objective Approach
There are also some authors in favor of the objective approach. They point out that
today an objective restriction of the investment term is recognized.
433
The ICSID
Convention is a special legal framework within the World Bank which deals with
issues of the investment. The definition of investment encompasses the basic ideas
of the World Bank, which includes a development aspect for less developed
countries.
434
Furthermore, the argument of Art. 41(1) of the ICSID Convention
(stipulating that ICSID tribunals decide
ex officio
concerning their jurisdiction) is
put forward.
435
Today, BITs have a wide definition of investment.
436
Although most BITs have
similar definitions of the term investment, this does not necessarily reflect the
ICSID Convention
s concept of investment.
437
Customary international law has a
more narrow definition, “which historically limited the protection of foreign-owned
property to assets that are tangible and directly owned”.
438
Thus, limitations of
investment are nothing new within the history of investment protection. It is
'
427
Krishan (
2009
), 1 (9-10); cf Mortenson (
2010
), 257 (305); cf Ho (
2010
), 633 (646-647);
Violation of party autonomy, in: Krishan (
2009
), 1 (11) and (14).
428
Krishan (
2009
), 1 (10); Mortenson (
2010
), 257 (306); cf Ho (
2010
), 633 (646-647).
429
Krishan (
2009
), 1 (10).
430
Mortenson (
2010
), 257 (312).
431
Andreeva (
2008
), 161 (171).
432
Andreeva (
2008
), 161 (170).
433
Hunter (
2007
), 165 (169); Lorcher (
2005
), 11 (12); Diehl (
2007
), 268 (269); cf Johannsen
(
2009
), 5 (8); cf Grubenmann (
2007
), 3 and 4-5; Metje (
2008
), 162; Highlighting that the mere
party consent is not sufficient, in: Hobe and M
¨
ller (
2009
), 65 (69).
434
Johannsen (
2009
), 5 (9).
435
Johannsen (
2009
), 5 (9); Nathan (
1995
), 413, 27 (39-41).
436
States define investment to their own advantage, in: Mortenson (
2010
), 257 (261); Zampetti and
Sauv´ (
2007
), 211 (217); Harten (
2007
), 75; Including FDIs and portfolio investments, in:
Zampetti and Sauv´ (
2007
), 211 (217); Including FDIs and portfolio investments, in: Harten
(
2007
), 78.
437
Schreuer (
2009
), 124 para 144.
438
Harten (
2007
), 77.
