TDM Call for Papers: The Notion of Investment – In Search of an Acceptable Definition

Transnational Dispute Management (TDM) is announcing a special issue dedicated to the notion of investment. The theme of the issue is: « The notion of investment: in search of an acceptable definition« . Contributions are invited from prospected authors with unpublished or previously published articles, conference papers, research papers, case studies.

The recent arbitration awards where the notion of investment was determinative on the findings of jurisdiction call for new and wider reflections on the topic. The current practical importance of this topic also dictates the need to collect opinions already expressed, making access to them easier. The possible, though not conclusive areas of contributions to this special might include:

Interpretation of the notion of investment under:

• the ICSID Convention
• the ECT
• the BITs
• NAFTA
• national laws on foreign investment protection.

The special issue on the notion of investment will be prepared by Loreta Saltinyte (Lecturer of International and European law at Mykolas Romeris University, Lithuania) and Dr. Sébastien Manciaux (University of Bourgogne, CREDIMI)

Overview

As recently noted by one eminent scholar, it is difficult to identify the moment when protection of foreign nationals and their property transformed into protection of foreign investments. Perhaps this had to do with the attempt to introduce a new international economic order. At least the decade of NIEO coincided with the adoption of the International Center for Settlement of Investment Disputes Convention and marked the start of an era of Bilateral Investment Treaties. As these instruments protect only foreign investment, how the notion of investment should be understood is of both practical and theoretical importance.

Despite this, investment is not defined in the ICSID Convention, allegedly because no attempt was made to define it. This explanation prompted an approach that the absence of a treaty definition of investment does not exclude a possibility of developing one in practice. As the current ICSID jurisprudence stands, the opinion that there is an objective notion of investment with a specific list of criteria as identified in the Salini case appears to prevail. So far the number of cases where ICSID jurisdiction had been refused for lack of satisfaction of the requirement of investment is not large. The most prominent include Mihaly, Zhinvali, Joy Mining, Mitchell and the Malaysia Historical Salvours (2007) cases. Nevertheless, with the ‘objective’ notion of investment gaining in prominence, especially the requirement that the investment needs to contribute to the economical development of a state, whether the Convention indeed includes a similar restriction is a matter which calls for a more extensive debate, since, arguably, this trend might prompt the foreigners to vote with their feet and choose some alternative forum which does not require to satisfy the hurdle of the ICSID notion of investment.

Even if the investors attempted to avoid ICSID, if their case were brought to arbitration on the basis of a BIT, it is likely that the tribunal would still need to consider whether the claim satisfies the BIT notion of investment. A large number of BITs define investment as every kind of asset providing a non-exhaustive exemplary list of transactions that should qualify as investments. Yet, this clearly does not liberate from the need to interpret this definition further. For example, a Nagel v. Czech Republic arbitral tribunal found that a determinative criterion of such a definition was whether the claim related to rights or claims which had a financial value.

The Energy Charter Treaty follows a similar pattern, defining investment as every kind of asset, owned or controlled directly or indirectly by an investor. Similarly to a number of BITs, it also provides for a non-exhaustive list of transactions that would qualify as investments. For example, the Petrobart case appears to suggest that the notion of investment under the ECT is interpreted in a wider manner than it is under other foreign investment instruments.

NAFTA takes a different approach from the BITs and the ECT, identifying both a positive and a negative list of instances which either qualify or not as investments.

This variety of approaches to the notion of investment further invites for a comparative analysis of the instruments and poses a question what influence, if any, they had on others.

If you would like to contribute or have any questions contact the editors.