Environmental Engineering Reference
In-Depth Information
of an investment.
448
The Salini decision and
the test are only
typical features
'
'
is part of the liberal approach.
449
Even one
arbitrator of the Salini tribunal mentioned 4 years later that he did not view the
Salini test as a purely objective test.
450
He pointed out the risks and dangers which
could result from an overly strict application of the Salini test.
451
No single criterion
of the Salini test is truly objective as it can be compensated by other criteria.
452
Hence, it is not necessary for all the criteria to be present to form an investment,
which means that the Salini criteria do not apply to all investments.
453
In almost all cases of arbitration, the will of the party is of great importance.
454
However, investment arbitration is different due to the fact that BIT and the ICSID
Convention are both relevant for a successful arbitration.
455
Both documents belong to
international law and determine the jurisdiction of the ICSID tribunal. All other forms
require “only” one international law document (e.g. the ICC Rules) for their jurisdiction.
therewith the
double-barrelled test
'
'
3.6.4.4 Assessment of ICSID Case Law and the Literature
First and foremost, there is no consistent case law. Up to today, ICSID tribunals still
use all of these approaches, making it difficult for an investor to foresee a possible
outcome. There is no surprise that the Salini test is mostly used by the host state to
argue against ICSID jurisdiction. Vice-versa, investors prefer the subjective
approach, which gives them great freedom. Yet it is interesting that the utilization
of the Salini test was contested by the claimant only in few cases.
456
Based on the interpretation of the ICSID Convention, it is difficult to say
whether the tribunals rightfully apply the Salini test or not. There are some
arguments in favor of the liberal approach as it seems doubtable that the definition
of investment and consequently ICSID jurisdiction solely depends on BITs. In both
cases, in ICSID case law and the literature, the subjective approach seems to be
favored. However, until recently, tribunals decided according to the objective and
liberal approach, making it impossible to predict any outcome. It is advisable to
include a specific clause in the investment contract which states that the project in
question is an investment according to the parties.
457
448
Schobener and Markert (
2006
), 65 (82); No strict requirements, but guidance, in: Schobener
et al. (
2010
), 315, Kap. 4
§
19 para 384; Krishan (
2009
), 1 (13); Mortenson (
2010
), 257 (271-272).
449
Yala (
2005
), 105 (106).
450
Ho (
2010
), 633 (639-640).
451
Ho (
2010
), 633 (639).
452
Ho (
2010
), 633 (638).
453
Ho (
2010
), 633 (638); Grubenmann (
2010
), 271.
454
Yala (
2005
), 105 (106).
455
Yala (
2005
), 105 (106-107).
456
ICSID [2006] ARB/05/19, 21 paras 66-67.
457
Schreuer (
2009
), 119 para 130.
