Environmental Engineering Reference
In-Depth Information
important to strengthen investments by making ICSID tribunal decisions more
predictable and defining the term investment.
439
The mere definition according to
a BIT would set the ICSID framework and its credibility at risk.
440
Rule 2 of the Institution Rules also supports an objective meaning of investment
as it mentions in Rule 2(1)(e) of the Institution Rules that a request for arbitration or
conciliation must
...
) contain information concerning the issues in dispute indi-
cating that there is, between the parties, a legal dispute arising directly out of an
investment (
'
(
, beside the consent of the parties (Rule 2(1)(c) of the Institution
Rule).
441
Another argument against the subjective view is that there is no definition
of investment. The contracting states were not able to agree on a common notion, so
not defining the term was an expedient.
442
In addition, the option of Art. 25(4) of the
ICSID Convention to previously exclude subjects from ICSID jurisdiction does not
support the subjective approach, as it would be meaningless if state parties deter-
mined ICSID jurisdiction solely through BITs.
443
Art. 2(b) of the Rules Governing
the Additional Facility for the Administration of Proceedings by the Secretariat of
the International Centre for the Settlement of Investment Disputes (Additional
Facility Rules) stipulates that the Secretariat of the Centre is able to administer
disputes between a state and a national in cases of arbitration which lacks the
requirement of
...
)
'
A tribunal also explicitly
mentioned that this provision encompasses the question of the notion of investment
and its coverage.
444
Thus, protection for investors exists, even if the term invest-
ment is defined in a narrow way, thus arguing against the subjective theory.
445
arise directly out of an investment.
'
'
3.6.4.3 The Validity of the Liberal Approach
Some authors argue that the Salini criteria (as an expression of the ICSID Conven-
tion) should be used as guiding factors in addition to the BIT.
446
They highlight that
ICSID tribunals champion the liberal approach.
447
ICSID tribunals frequently
misunderstand the Salini test as an objective requirement; however, the criteria of
439
Diehl (
2007
), 268 (269).
440
Yala (
2005
), 105 (117).
441
Schreuer (
2009
), 117 para 123.
442
Johannsen (
2009
), 5 (6).
443
Mortenson (
2010
), 257 (259-260) and (293); Johannsen (
2009
), 5 (6-7).
444
ICSID [1997] ARB/96/3, 1378 (1384) para 28.
445
Johannsen (
2009
), 5 (7).
446
Borris and Hennecke (
2008
), 49 (55); Happ (
2008
), 19 (24); Idea mentioned, in: Gaillard
(
2009
), 403 (409-410); Difficult to interpret what the author means, since there is no distinction
between the liberal and objective approach, but there seems to be a favor for the liberal approach,
in: Grubenmann (
2010
), 106 and 271.
447
Yala (
2005
), 105 (106).
