Environmental Engineering Reference
In-Depth Information
conducted outside of Pakistan territory.
641
Although the investor
s expenditures
were small, the ICSID tribunal concluded that they were in connection with the
territory of Pakistan.
642
Another tribunal in a similar cases mentioned that
'
in
accordance with normal principles of treaty interpretation, investments made out-
side the territory of the Respondent State, however beneficial to it, would not be
covered by the BIT.
'
643
One tribunal also highlighted that nothing prevents an
investment from being connected to the investor
'
s home state, as long as they are
allocated to the project to be carried out abroad.
644
In a case, where an immovable
property is located within the territory of the host state, it is not really controversial
if it is within the territory.
645
Concerning issues of financial business, ICSID
tribunals have a different point of view. In these cases, it is not unusual that the
funds involved are not physically in the host country.
646
'
3.7.9.2 Requirements of the G/M-BIT
It is also important to check the respective BIT concerning the territoriality require-
ment.
647
If a BIT includes such a requirement, the ICSID tribunal lacks jurisdiction
when the investment was done outside of state
s territory.
648
As one tribunal
'
highlighted,
) an injection of funds into the territory of the host State in
connection with an investment will typically satisfy the requirement (
(
...
'
649
Art.
1(1) G/M-BIT also emphasizes this requirement. Otherwise the BIT does not regard
it as an investment.
There is no doubt that an investor plans to build a solar thermal power plant in
the MENA countries. Morocco is the first country to be considered. Unlike the case
of pre-shipment inspection or financial businesses, a power plant is immovable
construction. Consequently, the Desertec Concept fulfils the requirement of phys-
ically being in the territory of the host state.
...
).
'
641
ICSID [2003] ARB/01/13, 307 (310) para 11.
642
cf for pre-shipment inspection in the Philippines, in: ICSID [2004] ARB/02/6, 43 paras 111-
112; ICSID [2003] ARB/01/13, 307 (348) para 136.
643
ICSID [2004] ARB/02/6, 38 para 99.
644
ICSID [2006] ARB/05/3, 17-18 para 73(i).
645
Knahr (
2009
), 42 (52).
646
ICSID [2013] ARB/08/9—Decision on Jurisdiction and Admissibility, 167-171 paras 496-
510; ICSID [2010] ARB/08/8, 56-57 paras 123-124; cf ICSID [1999] ARB/97/4—Decision,
251 (276-277) paras 75-77; ICSID [1997] ARB/96/3, 1378 (1386) para 41.
647
ICSID [2010] ARB/07/16—Award, 97-98 para 279; ICSID [2010] ARB/08/8, 51 para 114;
ICSID [1997] ARB/96/3, 1378 (1386) para 41; Permanent Court of Arbitration [2009] PCA Case
No. AA280, 60-61 para 237.
648
ICSID [2010] ARB/08/8, 54 para 120.
649
ICSID [2010] ARB/08/8, 56 para 123.
