Environmental Engineering Reference
In-Depth Information
differentiate between legal and illegal, good faith or not concerning an invest-
ment.
634
There is no answer to this requirement because no investment has taken
place so far. Therefore, it is impossible to say whether the investment is in done
bona fide
.
3.7.8 Regularity of Profit and Return
Lastly, there is the requirement of regulatory of profit and return, introduced by the
ICSID tribunal in the case
Joy Mining v Egypt
.
635
The Salini decision did not
mention this element within its decision. However, another ICSID tribunal pointed
out that this criterion is not essential in every case.
636
Another tribunal also checked
it in its decision.
637
One tribunal explicitly rejected this criterion, although it
applied the liberal approach.
638
The contractual setup as a BOT enables the investor to get regular profits and
returns because he can charge an appropriate tariff.
639
Since no investment has
taken place so far, it is impossible to check if regularity of profit and return exist.
Based on the amount of money and the intention of an investor, it can be expected
that this requirement is met. In addition, the contractual setup of the Desertec
Concept, as proposed above, also supports the existence of regular profits and returns.
3.7.9
In the Territory of the Host State
Although
is not mentioned as a requirement of an
investment according to Art. 25(1) of the ICSID Convention, it is an important
requirement of investment. The basic logic of investment says that the investment
must be within the territory of the host state.
'
territory of the host state
'
3.7.9.1 Case Law Concerning Territory Requirement
In the case of pre-shipment inspections, Pakistan claimed that the investment did
not take place in its territory.
640
These pre-shipment inspections were partly
634
ICSID [2010] ARB/07/20—Award, 36 para 112.
635
ICSID [2004] ARB/03/11—Award, 12 para 53.
636
ICSID [2007] ARB/05/10—Award, 35-36 para 108.
637
ICSID [2010] ARB/08/20, 28-29 para 80.
638
ICSID [2012] ARB/09/2—Award, 62 para 305.
639
ICSID [2007] ARB/05/10—Award, 42 para 120 e).
640
ICSID [2003] ARB/01/13, 307 (321-322) para 46.
