About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

29 J. Int'l Arb. 363 (2012)
The Meaning of 'Investment' as a Requirement for Jurisdiction Ratione Materiae of the ICSID Centre

handle is hein.kluwer/jia0029 and id is 371 raw text is: The Meaning of 'Investment' as a Requirement for Jurisdiction Ratione Materiae of the ICSID Centre Laurens J.E. TIMMER* It follows from Article 25 of the ICSID Convention that the ICSID Centre has jurisdiction only if the dispute arises from an 'investment'. Despite the importance of this term, there is a fundamental lack of consensus on its meaning. Although the general view appears to be that the term 'investment' under Article 25 of the ICSID Convention has some objective meaning that is not at the disposition of the parties, not every tribunal has explicitly accepted the existence of these outer limits to the Centre's jurisdiction. The tribunals that do accept these outer limits are divided on the relevant characteristics that can be used to identify the term 'investment' and the nature and meaning of these characteristics. A divide has been recognized by tribunals and legal commentators between the jurisdictional' and a 'typical characteristics' approaches when considering abstract criteria relevant for 'defining' or 'identifying' the existence of an investment under Article 25 of the Convention. After considering recent case law, this article proposes that a hybrid between these two approaches can be identified. On the one hand, the concept of using abstract criteria as mandatory requirements to test the existence of an investment is consistently rejected. On the other hand, exception has been made by several tribunals which have required that the claimed investment should at a minimum be suitable to contribute to the economic development of the host State. The author of this article considers this to be a reasonable approach and in line with the purpose of the ICSID Convention. 1 INTRODUCTION It follows from Article 25 of the ICSID Convention that one of the prerequisites for jurisdiction of the ICSID Centre is that the legal dispute arises directly out of an 'investment'. The meaning of the term 'investment' is therefore essential to establish jurisdiction ratione materiae of the Centre and key in defining the types of disputes that can be settled by ICSID tribunals.' Despite - and because of - the importance of the term, it has not been given a definition by the Herren der LL.B., LL.M. (University of Groningen); LL.M. Candidate at the University of Edinburgh. The author would like to express his gratitude to Dr. James Harrison at the University of Edinburgh Law School for his feedback. R. Dolzer & C.H. Schreuer, Principles of International Investment Law 60 (Oxford University Press 2008). Timmer, Laurens J.E.. 'The Meaning of'Investment' as a Requirement for Jurisdiction Ratione Materiae of the ICSID Centre'. Journal of International Arbitration 29, no. 4 (2012): 363-374. O 2012 Kluwer Law International BV, The Netherlands

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most