Notion of Investment in ICSID Case Law: A Drifting Jurisdiction Requirement - Some Un-Conventional Thoughts on Salini, SGS and Mihaly, The
![handle is hein.kluwer/jia0022 and id is 117 raw text is: Journal of International Arbitration 22(2): 105-126, 2005.
( 2005 Kuwer Law International. Printed in The Netherlands.
The Notion of Investment in ICSID Case Law:
A Drifting Jurisdictional Requirement?
Some Un-Conventional Thoughts on Salini, SGS and Mihaly
Farouk YALA*
I. INTRODUCTION
Despite the fact that the term investment appears at the heart both of the name
of the International Centre for the Settlement of Investment Disputes (ICSID) as well as
in the title of the Convention on the Settlement of Investment Disputes between States
and Nationals of other States1 (the Washington Convention or the Convention),
no definition of this term is provided in the text of the treaty. Article 25(1) of the
Convention simply provides that:
The jurisdiction of the Centre shall extend to any legal dispute arising directly out of an invest-
ment, between a Contracting State ... and a national of another Contracting State.
In their Report, the Executive Directors of the World Bank in charge of carrying on
negotiations between states on a final version of the Convention in 1965 tried to justify
this lacuna by declaring that:
no attempt was made to define the term investment given the essential requirement of consent
by the parties, and the mechanism through which Contracting States can make known in advance,
if they so desire, the classes of disputes which they would or would not consider submitting to the
Centre (Article 25(4) ).2
As already demonstrated by one author, this explanation from the World Bank report
is not only misleading but, moreover, does not correspond to the reality of the history of
the treaty's negotiations.3 Indeed, several state delegates who were present in Washington
in 1965 submitted proposals for a definition of the term investment. Some delegates
even displayed a strong interest in this issue, which was considered to be of capital
* DEA University Panth~on-Assas Paris II; CAPA Paris; Lecturer at the French Petroleum Institute.This article
is based on a paper that the author presented at the conference Nouveaux diveloppements dans le contentieux arbitral tran-
snational relatifia 'investissement international, held in Paris on May 3, 2004, under the auspices of the Institut des Hautes
Etudes Internationales/University of Panth6on-Assas Paris I1 (in collaboration with OGEMID and OGEL).
March 18, 1965,T.I.A.S. 6090, 575 U.N.T.S.159 [hereinafter the Washington Convention].
2 Report of the Executive Directors on the Convention on the Settlement of Investment Disputes Between States and
Nationals of Other States, March 18, 1965, in ICSID CONVENTION, REGULATIONS AND RULES, Doc. ICSID/15/Rev.
1, 27 at 44 Uanuary 2003).
Sebastien Manciaux, Investissements 6trangers et arbitrage entre Etats et ressortissants d'autres Etats: 25 arm6es
d'activit6 du CIRDI 33-34 (1998) (unpublished thesis, Universit6 Dijon Bourgogne, on file with author).
Copyright ' 2007 by Kluwer Law International. All rights reserved.
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