Environmental Engineering Reference
In-Depth Information
one tribunal dealt with this issue while applying the Salini test and pointed out that
it
) the commitment of the investor (is important) and not whether he positively
contributed to the economic and social development of the host state
(
...
'
.
554
Overall, the contribution to the economic development should be handled in a
flexible, not too strict way. Especially since the last tribunal using Salini elements in
2009 also preferred a more flexible approach. It is difficult to argue that there is no
contribution to the economic development of the host state if all three elements are
present. Based on the different opinions, to assess the commitment of the investor
seems to be the best solution, if the contribution to the economic development of the
host state should be regarded as a binding requirement. Therefore, there is a lot of
evidence that the liberal approach is more advisable.
'
3.7.4.4 Case Law Analysis
Even ICSID tribunals admit that the contribution to the economic development of
the host state element is the most widely discussed element of the Salini test.
555
Since no tribunal has been able to deliver a definition, it is necessary to review the
case law concerning the application of this element.
One tribunal said that monetary magnitude can never be a prerequisite of an
investment.
556
Another tribunal viewed a dedication of over a half million Euro
before the actual start of the contract as
557
Some tribunals
concluded that infrastructure projects or the service of general interest frequently
constitute a contribution to the local economy.
558
In one case of a BOT/Concession
power plant, the ICSID tribunal just mentioned that the project contributes to the
development of the host state.
559
However, one tribunal underlined that monetary
profit for the host state was not enough because the investor must prove
financially meaningful.
'
'
'
the spread
560
Only one ICSID tribunal faced a case involving a power plant set up as a BOT.
The
PSEG case
dealt with a BOT/concession concerning a power plant.
561
The
tribunal assessed the concession contract and if it is valid.
562
With the existence of
the contract, the tribunal decided that there is an investment.
563
Consequently, the
of knowledge.
'
554
ICSID [2012] ARB/09/2—Award, 62 paras 306-307.
555
ICSID [2009] ARB/06/5—Award, 33-34 para 84.
556
ICSID [2009] ARB/07/21—Award, 11 para 45.
557
ICSID [2010] ARB/08/8, 61 para 133.
558
ICSID [2005] ARB/03/29, 37 para 137; Verifying the decision of ICSID [2001] ARB/00/4, in:
ICSID [2004] ARB/03/11—Award, 15 para 62; ICSID [2001] ARB/00/4, 609 (623) para 57.
559
ICSID [2008] ARB/05/12, 40 para 132.
560
ICSID [2006] ARB/99/7—Annulment, 15-16 para 39.
561
ICSID [2004] ARB/02/5—Decision, 8-9 paras 18-20.
562
ICSID [2004] ARB/02/5—Decision, 25-31 paras 79-104.
563
ICSID [2004] ARB/02/5—Decision, 31 para 104.
