Environmental Engineering Reference
In-Depth Information
One highly valued opinion must also be taken into account. Back in 2001,
Christoph H. Schreuer mentioned duration, regularity of profit and return, risk, a
substantial commitment and significance for the host state
s development as typical
'
features of an investment.
458
In his commentary, these features were under the
459
section
'
characteristics of an investment.
'
Interestingly, shortly after this, the
Salini tribunal picked out Schreuer
s ideas and concluded the famous Salini deci-
sion, starting the discussion of investment definition all over again. In 2009,
Christoph H. Schreuer released his second edition of the ICSID commentary. His
remarks concerning the typical features of investment remained the same in the new
edition.
460
However, he dropped the section
'
s name
'
characteristics of an invest-
ment
'
461
Later on in
the same edition, Schreuer points out that it was not his intention to set up a
mandatory test for investment.
462
Similar to the Salini tribunal, Schreuer did not
understand the features as
and renamed it
A Test for the Existence of an Investment?.
'
'
'
(
...
) distinct jurisdictional requirements each of which
'
463
Schreuer also points out that the features must be
applied in conjunction to assess if there is an investment.
464
An isolated examina-
tion of each criterion does not help to strengthen ICSID tribunal
must be met separately.
'
s predictability.
465
Consequently, Schreuer seems to favor the liberal approach. Other legal author
point out that the uncertainty concerning the notion of investment may lead to a
reluctance of application of the ICSID Convention by investors.
466
Since there is a risk that an ICSID tribunal might apply the objective approach,
the project would be safe if it fulfilled the “strictest” requirements. Therefore, it is
necessary to apply the objective approach to the Desertec Concept to find out
whether the project constitutes an investment under all circumstances.
'
3.7 The Desertec Concept as an ICSID Investment
According to Salini
As mentioned above, the Salini case relates to a dispute between
Salini Costruttori
S.P.A. and Italstrade S.P.A. v the Kingdom of Morocco
. Since Morocco argued that
the respective project was not an investment, there is an undeniable risk that this
might happen again. Civil construction and infrastructure projects in particular have
458
Schreuer (
2001
), 140 para 122.
459
Schreuer (
2001
), 138.
460
Schreuer (
2009
), 128 para 153.
461
Schreuer (
2009
), 128 para 153.
462
Schreuer (
2009
), 133 para 171.
463
Schreuer (
2009
), 133 para 171.
464
Schreuer (
2009
), 133 para 171.
465
Schreuer (
2009
), 133-134 para 172.
466
Reinisch (
2014
), 111 (145-146).
