Environmental Engineering Reference
In-Depth Information
local economy, as one tribunal pointed out that besides not contributing anything to
the local economy, the investor also removed his income from the tax system.
578
There is also the problem that this term is so undefined that almost every investment
of a certain size fulfills the requirement.
579
Thus, there is the claim that the
contribution to development criterion should be abandoned.
580
The objective or
liberal approach to narrow down investment might lower the attractiveness of the
whole ICSID system.
581
Nevertheless, some authors propose different solutions to the problem. To assess
if an investment contributes to the economic development, there should be a double
test, including an
'
economic test
'
and a
'
development test.
'
582
The
'
economic test
'
assesses whether the investment is more likely to lead to an increase in the real per
capita income of the host country, and the
assesses whether the
project is likely to contribute to public goods (e.g. better education, better health
standards, less poverty, and a cleaner environment).
583
Others propose that the only
analysis should be if the project is according to the local laws, because ICSID
tribunals are not able to fully assess the presumable economic development.
584
Finally, there is Schreuer, who proposes a completely different approach. The
Convention
development test
'
'
s development. How-
ever, if an international transaction is designed to promote development, it can be
viewed as an investment.
585
It would be wrong to look at it from the other way and
claim that an international transaction which does not obviously contribute is
automatically excluded from ICSID Convention
s object and purpose is to support the host state
'
'
s protection.
586
Schreuer mentions
'
that:
[I]t should not be restricted to measureable contribution to GDP but should include
development of human potential, political and social development and the protection of
the local and global environment.
587
Overall, the literature is as diverse on this topic as the ICSID tribunals. The only
well established similarity is that the element of contribution to the economic
development of the host state is difficult to handle. The best recommendation
concerning the presumption is offered by Schreuer. Nevertheless, the fact remains
that some tribunals still use this Salini element. Hence, there is a risk that the
Desertec Concept will face this criterion. Therefore, the next section offers a
578
ICSID [2006] ARB/99/7—Annulment, 17 para 44.
579
Grubenmann (
2010
), 123.
580
Loncle (
2006
), 319 (328).
581
Hamida (
2007
), 287 (304).
582
Hamida (
2007
), 287 (297).
583
Hamida (
2007
), 287 (297).
584
Hamida (
2007
), 287 (297).
585
Schreuer (
2009
), 134 para 173.
586
Schreuer (
2009
), 134 para 173.
587
Schreuer (
2009
), 134 para 174.
