The concept of investment most debated in practice is to rewrite the scope of investment contracts and the jurisdiction of investment arbitration tribunals5. Investments by a non-exhaustive list of protected “assets” (heritage-based definition), including personal property and real estate, shares, intellectual property rights, monetary property rights, etc.9 other contracts require an asset to be linked to an “entity” in order to be eligible for protection (company-based definition)10 or, less often, a comprehensive list of protected assets.11 Some recent contracts also require that assets have certain characteristics; 12 investment clauses should not be confused with clauses containing an investor definition or with clauses that determine whether an investment is “covered” by a given contract (for example. (B) clauses requiring an investment to be “in accordance with the laws of the host state”). 28 and/or “on the territory” of that state and/or that it is “owned”/” obtained by a legitimate investor. Not all assets in a larger project should be considered investments for themselves as long as the underlying transaction could be considered such.27 On the contrary, some courts consider the language of the investment contract to be the only appropriate source of definition of investment. 25 The Executive Directors` report on the ICSID convention confirms that “[d] attempt has been made to define the concept of investment in light of the essential requirement for the parties` approval and the mechanism by which States Parties can pre-announce dispute settlement classes that they would or would not submit to the Centre.” 26 In the context of a broad contractual language, many investment tribunals have given objective meaning to the concept of investment in order to distinguish it from ordinary activities and require that it have certain intrinsic characteristics. A list of the characteristics necessary for an operation to qualify as an investment was first formulated in the case of ICSID Salini/Morocco20 and is now called the Salini test. The relevance of the different characteristics, their specific contours and the legal nature of the test remain controversial (21), including whether the Salini test should be used only as part of the ICSID22 method. (ii) risk management; 23 Courts have sometimes demanded an operation that must make a substantial contribution to the development of the host state.24 In addition, the concept of investment also describes the jurisdiction of icSID courts. Under the ICSID agreement, the courts have jurisdiction to decide disputes “directly arising from an investment”17 and the term is not defined (see later the case law ratione materiae).

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Last Modified: dezembro 16, 2020