Bu calismada, Devletler ve Diger Devletlerin Vatandaslari Arasindaki Yatirim Uyusmazliklarinin Cozumlenmesi Hakkinda Konvansiyon (ICSID) uyarinca “yatirim” kavrami incelenmistir. ICSID Konvansiyonu ile kurulan Merkezin amaci, taraf devletler ile diger taraf devlet vatandasi yabanci yatirimcilar arasinda cikan “yatirim” uyusmazliklarini uzlastirma veya tahkim yolu ile cozmektir. Merkezin, yargi yetkisinin sinirlarini belirleyen “yatirim” kavrami, Konvansiyonda tanimlanmamistir. Bu sebeple, uygulamada hakem kararlarinda yatirim kavraminin farkli sekillerde tanimlandigi gorulmektedir. Hakem kararlarinda, yatirim kavraminin tanimlanmasinda kullanilan metotlar da farklilik arz etmektedir. Calismada, bu farkli metotlar ve varilan farkli sonuclar, doktrindeki gorusler de dikkate alinarak incelenmistir. Calismamizin esasini olusturmamakla birlikte, yatirim kavraminin bilincli olarak tanimlanmadigi ve kapsaminin belirlenmesinin taraf devletlere birakildigi gorusu hakkinda da kisa bir degerlendirme yapilmaya calisilmistir. Bu goruse gore yatirim kavraminin kapsami, yatirimci devletin vatandasi oldugu devlet ile ev sahibi devlet arasinda akdedilen iki tarafli yatirimin karsilikli korunmasi ve tesviki anlasmalari cercevesinde belirlenecektir. Bugun, doktrin ve uygulamada cogunlukla kabul edilen cozum ise, bir uyusmazligin ICSID tahkim merkezinde gorulebilmesi icin, hem Konvansiyonun 25. maddesi kapsaminda bir yatirim olmalidir, hem de taraflar da bu uyusmazligi bir yatirim uyusmazligi olarak gormelidir.

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The Concept of Investment Under The ICSID Convention

Investment treaty arbitration: an effective tool for the enforcement of private arbitration awards?


 Determination of the existence of subject-matter jurisdiction is of practical importance for the entire dispute settlement process by the International Center for Settlement of Investment Disputes (ICSID), which was created for protection of the rights of foreign investors. The subject-matter jurisdiction of ICSID is conditioned by existence of an “investment”. Determination of existence of an investment in each particular dispute is attributed to the exclusive competence of the arbitral tribunal itself, since the concept of “investment” is not disclosed in the text of the Washington Convention. The authors assess the key features of the activity that is recognized as investment, used by the arbitrators conducting qualification of one or another transaction to establish whether or not they fall under requirements of the Article 25 of the Washington Convention. Special attention is turned to the methodology and practice of application of the aforementioned criteria. It is noted that in each criteria, the arbitrators determine their own structure. Detailed analysis is carried out on the issues of subject-matter jurisdiction in the decisions of ICSID , beginning with the Fedex case, in which the need to use objective criteria in determination of ICSID jurisdiction without their interpretation is pointed for the first time; and Salini case, in which the arbitrators disclosed the content of these criteria, as well as subsequent decisions that illustrated different approaches of the arbitrators towards interpreting the Salini test. The conclusion is made that despite the fact that the criteria used in modern arbitration practice developed in the Salini case do not possess regulatory characteristics, their presence allows making objective distinction between the investments protected on the level of international agreements and regular commercial transactions. The Salini test provides potential investors with the opportunity to assess risks prior to starting investment activity on the territory of a foreign country, as well as protect the parties to the investment relations from abuse.


Применение теста Салини при определении инвестиций в практике Международного центра по урегулированию инвестиционных споров

The Salini test, established in the Salini case, is composed of four conditions for identifying what constitutes an investment under Article 25(1) of the ICSID Convention. This test, however, is among the most controversial topics in investor-State arbitration, as it has been accepted by many tribunals, whilst, at the same time, has been widely criticised by many other tribunals. Among the four conditions, the most criticised is the fourth; namely, the contribution of a transaction to the economic development of the host State. Post-Salini tribunals have been divided into two camps: one, which accepts the Salini test per se, and another, which criticises, modifies, or outright rejects any such economic development condition. So far, these two trends in the arbitral jurisprudence have yet to be reconciled and, thus, it would be premature to identify a definitive conclusion as to whether the Salini test holds as it is, or has been modified or entirely rejected by post-Salini tribunals. That said, the Salini test, particularly the development condition, presents a precious opportunity to reconsider the relationship between investment and development, both of which, at varying degrees, represent key aspects of the international legal system pertaining to the resolution of investment disputes. At the same time, through the prism of this relationship, there is scope to introduce variations to the notion of development, namely, that of sustainable development. This contribution aims at outlining the principal contours of the argumentation that seeks to introduce this notion in international investment law and arbitration.

Must Investments Contribute to the Development of the Host State? The Salini Test Scrutinised

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Commercial awards protected as investments under international investment treaties : a challenge for ISDS arbitration

The judicially created Salini test, commonly used to define investment under Article 25 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), has received both support and opposition during the decade since its creation This article argues that new kinds of economic activities may be less likely to qualify as investments under a strict application of the Salini test and that an industry-specific analysis to determine Article 25 jurisdiction is more appropriate While the industrial side to foreign investment remains relevant in the information age, the power of social media allows for investments focused on intangible values that may not pass a strict application of the Salini test Korean entertainment companies investing abroad serve as examples of new kinds of activities that meet ICSID’s development goals but nonetheless may be denied access to ICSID unless new ways to apply the Salini test are found

Should ICSID Go Gangnam Style in Light of Non-Traditional Foreign Investments Including Those Spurred on by Social Media? Applying an Industry-Specific Lens to the Salini Test to Determine Article 25 Jurisdiction

The judicially created Salini test, commonly used to define investment under Article 25 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), has received both support and opposition during the decade since its creation. This article argues that new kinds of economic activities may be less likely to qualify as investments under a strict application of the Salini test and that an industry-specific analysis to determine Article 25 jurisdiction is more appropriate. While the industrial side to foreign investment remains relevant in the information age, the power of social media allows for investments focused on intangible values that may not pass a strict application of the Salini test. Korean entertainment companies investing abroad serve as examples of new kinds of activities that meet ICSID’s development goals but nonetheless may be denied access to ICSID unless new ways to apply the Salini test are found.

Helena Jung Engfeldt

Papers

Should ICSID Go Gangnam Style in Light of Non-Traditional Foreign Investments Including Those Spurred on by Social Media? Applying an Industry-Specific Lens to the Salini Test to Determine Article 25 Jurisdiction

Should ICSID Go Gangnam Style in Light of Non-Traditional Foreign Investments Including Those Spurred on by Social Media? Applying an Industry-Specific Lens to the Salini Test to Determine Article 25 Jurisdiction