Environmental Engineering Reference
In-Depth Information
tribunal did not apply the Salini test as it categorized the investment as a
readily
'
564
—a concept introduced during the draft of the Execu-
recognizable investment
'
Report.
565
However, another tribunal incidentally applied the Salini
test on the
PSEG
case to assess its own case. The total investment sum of 804.8
million USD satisfies the criterion of contribution.
566
Concerning risk, the tribunal
concluded that despite an adjustment article in the concession contract, the investor
bears the risk that the request of adjustment is denied by the state.
567
It also
approved the requirement duration, as the project was planned for 38 years.
568
Concerning the element of contribution to the economic development of the host
state, it briefly stated that the construction of a power plant is sufficient.
569
tive Directors
'
3.7.4.5 The Literature
s Opinion
'
Without a doubt, the definition of contribution to the economic development is of
high relevance as it can be the deciding factor of the Salini test.
570
Nevertheless,
some authors oppose this criterion.
571
The criterion is a purpose of the investment
and not a prerequisite, and the ICSID Convention
s Preamble does not offer a
different interpretation.
572
In addition, it is impossible to illustrate how the invest-
ment actually contributes to the local economy.
573
By definition,
'
the economic
'
transaction constituting an investment (
...
) contribute(s) to the economic develop-
574
The Salini test disregards the fact that a contribution to the development
of the host state can happen years later.
575
There are several problems connected to
contribution to the economic development. Taking the wording of ICSID tribunal
ment.
'
s
decision into account, by implication this means that all forms of development,
except economic development, are excluded to define investment.
576
The proposal
that a tribunal should ignore every political and cultural benefit is quite problematic
because it the ICSID tribunal to predict future economic developments.
577
Further-
more, ICSID tribunals do not seem to consider tax payments as a contribution to the
'
564
ICSID [2007] ARB/05/10—Award, 40-41 para 119.
565
ICSID [2007] ARB/05/10—Award, 40-41 para 119.
566
ICSID [2007] ARB/05/10—Award, 41 para 120a).
567
ICSID [2007] ARB/05/10—Award, 41-42 para 120b).
568
ICSID [2007] ARB/05/10—Award, 42 para 120c).
569
ICSID [2007] ARB/05/10—Award, 42 para 120d).
570
Hamida (
2007
), 287 (295).
571
Grubenmann (
2010
), 123.
572
Krishan (
2009
), 1 (15); With further references, in: Grubenmann (
2010
), 123.
573
Krishan (
2009
), 1 (15); cf Loncle (
2006
), 319 (328).
574
Krishan (
2009
), 1 (15).
575
Krishan (
2009
), 1 (21).
576
Hamida (
2007
), 287 (296).
577
Johannsen (
2009
), 5 (20).
