The Concept of “Investment”: Treaty Definitions and Arbitration Interpretations

• Autores: Wenhua Shan, Lu Wang
• Localización: Handbook of International Investment Law and Policy / Julien Chaisse (aut.), Leïla Choukroune (aut.), Sufian Jusoh (aut.), 2021, ISBN 9811336148, págs. 23-44
• Idioma: español
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• Dialnet Métricas: 1 Cita
• Resumen

  • The concept of “investment” as a prerequisite for investor-State arbitration has caused many difficulties and controversies in ISDS practice. In particular, the silence on the term “investment” under the ICSID Convention has given rise to divided interpretations in arbitral decisions on whether the tribunal should appreciate and apply the “ordinary, objective or inherent” meaning of the term “investment” to establish the ICSID jurisdiction. In response to such controversy and uncertainty, many States have used various approaches to narrow and clarify the scope of investment for the avoidance of exposure to ISDS claims, such as the inclusion of the characteristics of investment, the explicit exclusion of certain assets, and the requirement of in accordance with host State’s laws. Nonetheless, the effect of such newer investment treaties remains to be tested in arbitral cases. It is submitted that a “double door” theory may be useful to address the relationship between the Article 25 of the ICSID Convention and the definition of “investment” clause under applicable investment treaties. For the ICSID jurisdiction, the “objective and inherent meaning” of the term “investment” should be appreciated and applied in accordance with Article 31 (1) of the VCLT, which include only the minimum core of the concept. The same ordinary meaning might also be applied in non-ICSID arbitrations only if the governing substantive treaty does not clearly define what constitutes an “investment”. In this regard, the definition of investment clause under investment treaties is likely to subject to greater scrutiny when tribunals apply the “ordinary meaning” of investment in case the substantive investment treaty failed to provide a “special meaning” under Article 31(4) of the VCLT.