Hostname: page-component-78c5997874-xbtfd Total loading time: 0 Render date: 2024-11-15T04:50:38.618Z Has data issue: false hasContentIssue false
  • English
  • Français

Defining Investment Under the ICSID Convention and BITs: Of Ordinary Meaning, Telos, and Beyond

Published online by Cambridge University Press:  05 April 2012

Mavluda SATTOROVA
Mavluda SATTOROVA*
Affiliation:
University of Liverpool, United Kingdom
*
m.sattorova@liverpool.ac.uk
Get access Rights & Permissions [Opens in a new window]

Abstract

A number of commentators, including Michael Hwang and Jennifer Fong who were featured in a recent issue of this journal,1 have contributed to an ongoing debate about the definition of investment by expressing their support for an objectivist theory or the “outer limits” approach as advocated in Salini v. Morocco. However, this article argues that neither the Salini test nor the rival subjectivist theory can offer an internally consistent and viable legal framework for determining the existence of an investment. After critically examining existing approaches to defining investments in arbitral practice, international investment treaties, European Union (EU) law, and international trade law, the article considers the role of ordinary and effective interpretation and a telos behind investment treaty instruments in coining a meaningful definition.

Type
Articles
Information
Asian Journal of International Law , Volume 2 , Issue 2 , July 2012 , pp. 267 - 290
Copyright
Copyright © Asian Journal of International Law 2012

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

*

Lecturer in International Economic Law, University of Liverpool, United Kingdom. I am grateful to Fiona Beveridge and Michael Dougan and to two anonymous reviewers for their comments on an earlier draft of this article. Usual disclaimers apply.

References

1. HWANG, Michael and FONG Lee Cheng, Jennifer, “Definition of ‘Investment’—A Voice from the Eye of the Storm” (2011) 1 Asian Journal of International Law 99Google Scholar .

2. Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, 18 March 1965, 575 U.N.T.S. 159 (entered into force 14 October 1966) [ICSID Convention].

3. The recent report by the European Parliament on the EU investment policy considers the definition of investment as one of the key terms that need clarification. See “EU Investment Policy Needs to Balance Investor Protection and Public Regulation, says International Trade Committee”, European Parliament International Trade Committee Press Release (17 March 2011), online: European Parliament/News 〈www.europarl.europa.eu〉.

4. Salini Construttori S.p.A. and Italstrade S.p.A. v. Kingdom of Morocco, Decision on Jurisdiction of 23 July 2001, ICSID Case No. ARB/00/4 [Salini]. Before Salini, various tribunals indirectly dealt with the notion of investment as part of examining the jurisdiction ratione materiae under Article 25(1) ICSID Convention. See e.g. Kaiser Bauxite Company v. Jamaica, Decision on Jurisdiction and Competence of 6 July 1975, ICSID Case No ARB/74/3 (involving a bauxite mining operation); Société Ouest Africaine des Bétons Industriels v. Sénégal, Decision of 25 February 1988, ICSID Case No ARB/82/1 (involving a construction of low-income housing units). Fedax N.V. v. Republic of Venezuela was the first case involving an objection to jurisdiction of an ICSID tribunal on the ground that the underlying transaction did not qualify as investment (Fedax N.V. v. Republic of Venezuela, Decision on Jurisdiction of 11 July 1997, ICSID Case No. ARB/96/3). Subsequently, the Salini test was elaborated in Joy Mining Machinery Ltd v. Egypt, Award on Jurisdiction, Decision of 30 July 2004, ICSID Case No ARB/03/11) (2004) 19 ICSID Rev. 486, para. 50 [Joy Mining].

5. Salini, supra note 4, para. 52.

6. Ibid., para. 52. The tribunal referred to a decision in Alcoa Minerals of Jamaica, Inc. v. Jamaica, Decision on Jurisdiction and Competence of 6 July 1975, ICSID Case No. ARB/74/2.

7. See the 2008 German Model BIT, online: Investment Treaty Arbitration 〈http://ita.law.uvic.ca/investmenttreaties.htm〉 [German Model BIT].

8. Malaysian Historical Salvors v. Malaysia, Decision on the Application for Annulment of 28 February 2009, ICSID Case No ARB/05/10 at para. 72 [MHS Annulment].

9. Biwater Gauff (Tanzania) Ltd v. United Republic of Tanzania, Award of 24 July 2008, Concurring and Dissenting Opinion of Mr Gary B. Born, ICSID Case No ARB/05/22 at para. 314.

10. For a debate on umbrella clauses, see NEWCOMBE, Andrew and PARADELL, Lluis, Law and Practice of Investment Treaties: Standards of Treatment (Alphen aan den Rijn: Kluwer Law International, 2009) at 438Google Scholar; SCHILL, Stephan, “Enabling Private Ordering: Function, Scope and Effect of Umbrella Clauses in International Investment Treaties” (2009) 18 Minnesota Journal of International Law 1Google Scholar; WONG, Jarrod, “Umbrella Clauses in Bilateral Investment Treaties: Of Breaches of Contract, Treaty Violations, and the Divide Between Developing and Developed Countries in Foreign Investment Disputes” (2006) 14 George Mason Law Review 135Google Scholar; CRAWFORD, James, “Treaty and Contract in Investment Arbitration” (2008) 24 Arbitration International 351Google Scholar . A divide over the scope and meaning of the fair and equitable standard has been captured in McLACHLAN, Campbell, SHORE, Laurence and WEINIGER, Matthew, International Investment Arbitration: Substantive Principles (Oxford: Oxford University Press, 2007) at 210CrossRefGoogle Scholar; SALACUSE, Jeswald, The Law of Investment Treaties (Oxford: Oxford University Press, 2010) at 238CrossRefGoogle Scholar–43; VASCIANNIE, Stephan, “The Fair and Equitable Treatment Standard in International Investment Law and Practice” (1999) 70 British Yearbook International Law 99Google Scholar ; KILL, Theodore, “Don't Cross the Streams: Past and Present Overstatement of Customary International Law in Connection with Conventional Fair and Equitable Treatment Obligations” (2008) 106 Michigan Law Review 853Google Scholar.

11. For example, the application of the test being largely based on the Salini criteria (Salini, supra note 4), the arbitrator in Pantechniki v. Albania concluded that activities under contracts such as for provision of road repair services and sale of equipment may qualify as an investment. See infra note 51 and accompanying text.

12. See, for instance, MANCIAUX, Sébastien, “The Notion of Investment: New Controversies” (2008) 9 Journal of World Investment & Trade 443Google Scholar; VARGIU, Paolo, “Beyond Hallmarks and Formal Requirements: A ‘Jurisprudence Constante’ on the Notion of Investment in the ICSID Convention” (2009) 10 Journal of World Investment & Trade 753Google Scholar; KRISHAN, Devashish, “A Notion of ICSID Investment” (2009) 6 Transnational Dispute Management 1Google Scholar; and DOUGLAS, Zachary, The International Law of Investment Claims (Cambridge: Cambridge University Press, 2009) at 191–202CrossRefGoogle Scholar.

13. Such contradistinction can be discerned in the objectivist approach as expounded by the tribunals in Salini and Joy Mining. See Salini and Joy Mining, supra note 4.

14. See also CABROL, Emmanuelle, “Pren Nreka v. Czech and the Notion of Investment Under Bilateral Investment Treaties” in Karl SAUVANT, ed., Yearbook of International Investment Law and Policy 2009−2010 (Oxford: Oxford University Press, 2010), 217 at 230Google Scholar.

15. The ad hoc committee stressed that:

[i]t is those bilateral and multilateral treaties which today are the engine of ICSID's effective jurisdiction. To ignore or depreciate the importance of the jurisdiction they bestow upon ICSID, and rather embroider upon questionable interpretations of the term “investment” as found in Article 25(1) of the Convention, risks crippling the institution.

See MHS Annulment, supra note 8 at para. 73.

16. Ibid., paras. 59–60.

17. Ibid., para. 62. However, see critical comments in SORNARAJAH, M., The International Law on Foreign Investment (Cambridge: Cambridge University Press, 2010) at 312CrossRefGoogle Scholar–13.

18. See Malaysian Historical Salvors Sdn Bhd v. Malaysia, Award on Jurisdiction of 10 May 2007, ICSID Case No ARB/05/10. While the tribunal found, after applying the Salini test, that a contract for the salvage of historical artefacts was not an investment, the annulment committee found otherwise. The approach adopted by the arbitrator in the annulled award can be compared with the decision in SGS v. Philippines (infra note 57), where a provision of pre-shipment inspection services was found to qualify as an investment, and with the award in Pantechniki v. Albania (infra note 51) where a provision of the road repair services was regarded as a form of investment protected by the applicable BIT.

19. Abaclat and Others (formerly: Giovanna A. Beccara and Others) v. The Argentine Republic, Decision on Jurisdiction and Admissibility, 4 August 2011, ICSID Case No. ARB/07/5 at para. 364. The majority of the tribunal found that sovereign debt instruments constituted an investment (para. 387).

20. Hwang and Fong, supra note 1 at 107.

21. MORTENSON, Julian Davis, “The Meaning of ‘Investment’: ICSID's Travaux and the Domain of International Investment Law” (2010) 51 Harvard International Law Journal 257 at 281Google Scholar–2.

22. Ibid., at 282–5.

23. Ibid. See also at 290 (analyzing the history of negotiations and observing that the solution was based on the United Kingdom proposal which deleted the definition of investment and instead added a subsection for a procedure whereby states would notify other signatories of the categories of dispute they would not consider submitting to arbitration).

24. See BROCHES, Aron, “The Convention on the Settlement of Investment Disputes: Some Observations on Jurisdiction” (1966) Columbia Journal of Transnational Law 261 at 268Google Scholar. The history of the ICSID negotiation reveals that Broches was personally opposed to a definition and insisted that the precise delimitation of the Centre's jurisdiction ought to be left to the parties. See SCHREUER, Christoph et al. . The ICSID Convention: A Commentary, 2nd ed. (Cambridge: Cambridge University Press, 2009) at 113CrossRefGoogle Scholar–15 [Schreuer et al., Commentary]. Following Mr Broches's proposal, the Executive Director's Report stated that “[n]o attempt was made to define the term ‘investment’ given the essential requirement of consent by the parties”. See “The Report of the Executive Directors on the ICSID Convention” (1993) 1 ICSID Reports 28. Although the Report does not fully reflect the reality of negotiations, where attempts to define investment were made but were unsuccessful, it has nevertheless been referred to in some arbitral decisions. For criticism of this, see Schreuer et al., Commentary at 116; Farouq YALA, “The Notion of ‘Investment’ in ICSID Case Law: A Drifting Jurisdictional Requirement? Some ‘Un-Conventional Thoughts on Salini, SGS and Mihaly’ ” (2005) 22 Journal of International Arbitration 105 at 105–6.

25. Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331 (entered into force 27 January 1980).

26. Oxford English Dictionary, 7th ed. (Oxford: Oxford University Press, 2005) 818–19. A more specific, economic definition of investment is equally broad as it embraces the concept of foreign direct investment (FDI) and portfolio, and other investments in the form of various “assets and liabilities”. See IMF Communication to WTO Working Group on the Relationship Between Trade and Investment, WTO Doc. WT/WGTI/W/61 (3 November 1998), cited in Krishan, supra note 12 at 20. See also Mortenson, supra note 21 at 309–10 (noting that investment can plausibly be extended to any economic activity).

27. See Abaclat v. Argentina, supra note 19 (the majority of the tribunal criticized the Salini test and found sovereign debt to constitute a form of investment protected by BITs).

28. Hwang and Fong, supra note 1 at 120.

29. See Cabrol, supra note 14 at 224–5, arguing that conflating investment and assets is at odds with investment treaties which have the objective of promoting economic relationships between contracting parties.

30. Romak S.A. (Switzerland) v. Republic of Uzbekistan, Decision of 26 November 2009, PCA Case No. AA280, para. 211 [Romak v. Uzbekistan].

31. This is what other commentators have described as “the general unity of an investment operation”. See Schreuer et al., Commentary, supra note 24 at 108–12.

32. Saipem S.p.A. v. People's Republic of Bangladesh, Decision on Jurisdiction of 21 March 2007, ICSID Case No ARB/05/7.

33. Ibid., para. 113.

34. Ibid., para. 114.

35. Ibid., para. 127. A similar approach features in Romak v. Uzbekistan, supra note 30 at para. 211, where the tribunal stressed that “if the underlying transaction is not an investment within the meaning of the BIT, the mere embodiment or crystallization of rights arising thereunder in an arbitral award cannot transform it into an investment”.

36. Joy Mining, supra note 4.

37. Ibid., paras. 45, 61. For critical comments, see Schreuer et al., Commentary, supra note 24 at 111–12. See also SCHREUER, Christoph and KRIEBAUM, Ursula, “The Concept of Property in Human Rights Law and International Investment Law” in Stephan BREITENMOSER et al., eds., Human Rights, Democracy and the Rule of Law: Liber Amicorum Luzius Wildhaber (Dike: Nomos, 2007) at 760Google Scholar–1 (criticizing the awards in Joy Mining) (see supra note 4) and Eureko B.V. v. Republic of Poland for a failure to recognize the general unity of the investment operation. In Eureko, the tribunal failed to distinguish between an investment in shares of a privatized enterprise and corporate governance rights arising from the possession of those shares. It held that corporate governance rights constituted an investment. Eureko B.V. v. Republic of Poland, Partial Award of 19 August 2005, Dissenting Opinion of Jerzy Rajski at para. 144.

38. ATA Construction, Industrial and Trading Company v. Jordan, Award of 12 May 2010, ICSID Case No. ARB/08/2 [ATA v. Jordan].

39. Ibid., paras. 73–4.

40. Ibid., para. 116.

41. See supra notes 32–4 and accompanying text.

42. As the right to arbitration was extinguished only upon the decision of the Court of Cassation delivered in January 2007, it was found to be within the temporal scope of application of the Turkey-Jordan BIT See supra note 38, para. 117.

43. Ibid., para. 117.

44. See the objection raised by the respondent in ATA v. Jordan, supra note 38 at para. 63. However, a recent award in White Industries Australia Limited v. Republic of India has adopted a similar approach to ATA v. Jordan. White Industries Australia Limited v. Republic of India, Final Award, 30 November 2011, para. 7.6, online: 〈http://italaw.com〉.

45. GEA Group AktienGesellschaft v. Ukraine, Award of 31 March 2011, ICSID Case No ARB/08/16 at paras. 161–2.

46. See the German Model BIT, supra note 7.

47. See the Canada Model FIPA, available online: Investment Treaty Arbitration 〈http://ita.law.uvic.ca/documents/Canadian2004-FIPA-model-en.pdf〉 [Canada Model FIPA].

48. See Cabrol, supra note 14 at 225–7, noting that BITs do not contain a definition of investment but merely describe what forms an investment may take.

49. See MONTT, Santiago, State Liability in Investment Treaty Arbitration: Global Constitutional and Administrative Law in the BIT Generation (Oxford: Hart Publishing, 2009) at 252Google Scholar .

50. Hwang and Fong, supra note 1 at 122.

51. Pantechniki SA Contractors and Engineers v. Albania, Award of 28 July 2009, ICSID Case No. ARB/07/21 at para. 44 [Pantechniki].

52. MHS Annulment, supra note 8 at para. 72. For a similar approach, see Joy Mining, supra note 4 at paras. 55–8.

53. Joy Mining, supra note 4, para. 58.

54. See the Agreement Between the Government of Australia and the Government of the United Mexican States and on the Promotion and Reciprocal Protection of Investments, 23 August 2005, online: Organization of American States 〈www.sice.oas.org/Investment/BITSbyCountry/BITs/MEX_Australia_e.asp〉 [2005 Australia-Mexico BIT] and the Agreement Between the Czech Republic and the United Mexican States and on the Promotion and Reciprocal Protection of Investments, 4 April 2002, online: Organization of American States 〈www.sice.oas.org/Investment/BITSbyCountry/BITs/MEX_Czech_Rep_e.asp〉 [2002 Mexico-Czech Republic BIT].

55. For example, a recent model BIT of Germany does not expressly exclude sales. See the German Model BIT, supra note 7.

56. The abovementioned German Model BIT was adopted after Mexican BITs set a trend for excluding sale of goods from the scope of protected investment. See ibid.

57. See SGS Société Générale de Surveillance SA v. Philippines, Decision on Objections to Jurisdiction of 29 January 2004, Separate Declaration of Antonio Crivellaro, ICSID Case No. ARB/02/6.

58. See Pantechniki, supra note 51.

59. See supra notes 51–3 and accompanying text.

60. The fact that the customary international minimum standard draws principal support from an international decision unrelated to investment or property is illustrative. The Neer Claim, which serves as an authority for the standard of minimum protection, concerned Mexico's failure to act upon the killing of a US citizen. L.F.H. Neer & Pauline Neer (U.S.A.) v. United Mexican States, [1926] 4 R.I.A.A. 60. For more details, see ROTH, A.H., The Minimum Standard of International Law Applied to Aliens (Leiden: A. W. Sijthoff, 1949)Google Scholar .

61. AMERASINGHE, C.F., State Responsibility for Injuries to Aliens (Oxford: Clarendon Press, 1967)Google Scholar ; also SCHWARZENBERGER, Georg, “The Protection of Human Rights in British State Practice” (1948) 10 The Review of Politics at 174CrossRefGoogle Scholar . The 1929 Draft Convention on the Treatment of Foreigners, prepared by the League of Nations and the International Chamber of Commerce (ICC), extended protection not only to economic rights but also to civil and legal rights. See KUHN, A.K., “The International Conference on the Treatment of Foreigners” (1930) 24 American Journal of International Law 570 at 571CrossRefGoogle Scholar; VAN HARTEN, Gus, Investment Treaty Arbitration and Public Law (Oxford: Oxford University Press, 2007) at 19Google Scholar .

62. WILSON, Robert, “Property-Protection Provisions in United States Commercial Treaties” (1951) 45 American Journal of International Law 83 at 98CrossRefGoogle Scholar, 102 (referring to the 1949 Treaty of Friendship, Commerce, and Economic Development with Uruguay containing the provision guaranteeing the protection for the “persons, rights and property”).

63. DOMAN, Nicholas, “Postwar Nationalization of Foreign Property in Europe” (1948) 48 Columbia Law Review 1125Google Scholar ; see also DOMKE, M., “American Protection Against Foreign Expropriation in the Light of the Suez Canal Crisis” (1956−57) 105 University of Pennsylvania Law Review 1033 at 1038Google Scholar (noting that a revision of the existing instruments was proposed to the effect that the definition of property should cover all types of property).

64. See SCHWARZENBERGER, Georg, “The Abs-Shawcross Draft Convention: On Investments Abroad: A Critical Commentary” (1960) 9 Journal of Public Law 147 at 152Google Scholar .

65. VANDEVELDE, Kenneth, U.S. International Investment Agreements (Oxford: Oxford University Press, 2009)Google Scholar at 114 (shedding light on the position of the US government in negotiating its earlier BITs). The history of the ICSID Convention, too, supports the view that the negotiating committee and its chairperson favoured an open-ended approach (see supra notes 21–2).

66. See POIRIER, Marc, “The NAFTA Chapter 11 Expropriation Debate Through the Eyes of the Property Theorist” (2003) 33Google Scholar Environmental Law 851 at 876, observing that:

like medieval merchants who developed the law merchant and the law of insurance to facilitate commercial relations … foreign investors have an interest in developing a property rule around regulatory takings that is (1) clear, (2) portable to different cultures worldwide, (3) protective of their investments to the maximum extent possible.

67. See e.g. Article 1(a)(iii) of the Netherlands Model BIT (1997), reprinted in Douglas, supra note 12 at 547.

68. See e.g. Article 1(6)(e) of the Energy Charter Treaty, December 1994, 2080 U.N.T.S. 100 (entered into force April 1998) [1994 Energy Charter Treaty]. See further Article 1(2) of the Japan-Korea BIT, whereby investments include “the amounts yielded by an investment, in particular, profit, interest, capital gains, dividends, royalties and fees”. Agreement Between the Government of Japan and the Government of the Republic of Korea for the Liberalization, Promotion, and Protection of Investment, 22 March 2002, online: UNCTAD 〈www.unctad.org/sections/dite/iia/docs/bits/korea_japan.pdf〉.

69. See e.g. Article I(xi)(i) of the 2005 Australia-Mexico BIT (supra note 54) providing that investment does not include claims to money that arise solely from commercial contracts for the sale of goods or services by a national or enterprise in the territory of a contracting party to a national or enterprise in the territory of another contracting party. A similar provision is contained in the 2002 Mexico-Czech Republic BIT (supra note 52). See also SALACUSE, Jeswald, The Law of Investment Treaties (Oxford: Oxford University Presss, 2010)CrossRefGoogle Scholar at 162 (concluding that “by extending the treaty's application to ‘any kind of assets’ the definitions are designed to protect as wide a range of investment forms as possible”).

70. CULBERTSON, William, “Foreign Interests in Mexico” (1938) 17 International Affairs 769Google Scholar .

71. See Vandevelde, supra note 65 at 21; also SUBEDI, Surya P., International Investment Law: Reconciling Policy and Principle (Oxford: Hart Publishing, 2008) at 114Google Scholar–15 .

72. Vandevelde, supra note 65 at 21.

73. See, for example, the case of the UK, as explained in Douglas, supra note 12 at 559–67, and German Model BITs (see supra note 7).

74. The primary purpose of FCNs was to establish closer commercial and political relations between the contracting parties. See WALKER, Herman Jr., “Treaties for Encouragement and Protection of Foreign Investment: Present United States Practice” (1956) 5 American Journal of Comparative Law 229 at 231CrossRefGoogle Scholar; VANDEVELDE, Kenneth, “A Brief History of International Investment Agreements” (2005) 12 University of California Davis Journal of International Law & Policy 157 at 158Google Scholar .

75. Walker, supra note 74, at 231.

76. Ibid., at 232.

77. SACERDOTI, Giorgio, “Bilateral Treaties and Multilateral Instruments on Investment Protection” (1998) 269 Recueil des Cours de l'Académie de Droit International 251 (n.74) 265Google Scholar; MUCHLINSKI, Peter, “The Rise and Fall of the Multilateral Agreement on Investment: Where Now?” (2000) 34 International Lawyer 1033 at 1038Google Scholar; ECHANDI, Robert, “Bilateral Investment Treaties and Investment Provisions in Regional Trade Agreements: Recent Developments in Investment Rulemaking” in Katia YANNACA-SMALL, ed., Arbitration Under International Investment Agreements: A Guide to the Key Issues (Oxford: Oxford University Press, 2010)Google Scholar, 1 at 8 (noting that “greater market access through market presence, and not just protection for private property, is gradually becoming part of the main interest of international investors when seeking the application of an IIA”). The fact that investment protection chapters are increasingly included in FTAs is also illustrative.

78. GOMEZ-PALACIO, Ignacio and MUCHLINSKI, Peter, “Admission and Establishment” in Peter MUCHLINSKI, Federico ORTINO, and Christoph SCHREUER, eds., The Oxford Handbook on International Investment Law (Oxford: Oxford University Press, 2008)Google Scholar 229 at 232 (noting that a right of admission ensures access to cross-border provision of goods and/or services and this represents the case of not so much investment but trade).

79. The fact that the notion of investment is parasitic on various forms of business activities is evidenced in Sacerdoti's work on Bilateral Treaties and Multilateral Instruments. See Sacerdoti, supra note 77. When dealing with different aspects of foreign investment, the author has considered BITs as well as European Community (EC) treaty provisions on establishment and free movement of capital. See also YANNACA-SMALL, Katia, “Definition of ‘Investment’: An Open-Ended Search for a Balanced Solution” in Yannaca-Small, ed., Arbitration Under International Investment Agreements: A Guide to the Key Issues (Oxford: Oxford University Press, 2010)Google Scholar at 244 (noting that a definition of investment depends on the objective pursued by a certain investment treaty instrument, and indicating that liberalization of capital movements has been one of the reasons for the replacement of the static notion of property by the dynamic notion of investment). See further HINDELANG, Steffen, The Free Movement of Capital and Foreign Direct Investment: The Scope of Protection in EU Law (Oxford: Oxford University Press, 2009)CrossRefGoogle Scholar (analyzing the protection of foreign investment under the EU regime of free movement of capital).

80. See, for instance, Article 1 of the 1994 Energy Charter Treaty where an investment is defined by reference to economic activity in the energy sector, including “trade, marketing, or sale of Energy Products and Materials” (emphasis added). See supra note 66. See GAILLARD, Emmanuel, “Investment and Investors Covered by the Energy Charter Treat”’ in Clarisse RIBEIRO, ed., Investment Arbitration and the Energy Charter Treaty (JurisNet, 2006) at 64–5Google Scholar .

81. See Vandevelde, supra note 65.

82. See Van Harten, supra note 61 at 80.

83. See DIMASCIO, Nicholas and PAUWELYN, Joost, “Non-discrimination in Trade and Investment Treaties: World Apart or Two Sides of the Same Coin” (2008) 102 American Journal of International Law 48Google Scholar .

84. Ibid., at 53–8.

85. See Subedi, supra note 71 at 37–8. Investment, along with other “Singapore Issues”—including transparency, competition, and transparency in government procurement—were dropped from the negotiation agenda after derailing the WTO's September 2003 Cancún Ministerial Meeting. For discussion, see SAUVÊ´, Pierre, “Multilateral Rules on Investment: Is Forward Movement Possible?” (2006) 9 Journal of International Economic Law 325Google Scholar, and BEVERIDGE, Fiona, “Foreign Investment in the WTO” (2006) 57 Northern Ireland Legal Quarterly 513 at 529Google Scholar–34 .

86. General Agreement on Trade in Services, 15 April 1994, 1869 U.N.T.S. 183 (entered into force on 1 January 1995) [GATS].

87. The other two modes of supply are consumption abroad and cross-border supply. See ibid.

88. Free Trade Agreement Between The EFTA States and The United Mexican States, 27 November 2000, online: Organization of American States 〈www.sice.oas.org/Trade/mexefta/MX_FTA.pdf〉. See also DOLZER, Rudolph, “The Notion of Investment in Recent Practice” in Steve CHARNOVITZ, Debra P. STEGER, and Peter VAN DEN BOSSCHE, eds., Law in the Service of Human Dignity: Essays in Honour of Florentino Feliciano (Cambridge: Cambridge University Press, 2005), 261 at 265Google Scholar. This definition is indeed exceptional as it not only defines investment, which is something the majority of BITs fail to do, but also does so in sufficiently precise terms by indicating the form of investment, and its legal and temporal characteristics. The fact that only a minority of BITs contain more narrowly defined investment provisions only accentuates the breadth of the term “investment” under the ICSID Convention and a great many BITs.

89. See Gebhard v. Consiglio dell'Ordine degli Avvocati v. Procuratori di Milano (Case C-55/94), [1995] ECR I-4165 at para. 25, stating that:

the concept of establishment within the meaning of the Treaty is … a very broad one, allowing a Community national to participate, on a stable and continuous basis, in the economic life of a Member State other than his State of origin and to profit therefrom. (emphasis added)

90. Council Directive 88/361/EEC (now repealed).

91. It is interesting that such an approach had been advocated in academic literature—see Yala, supra note 24—but failed to receive any significant attention.

92. For criticism of arbitral approaches to the requirement that an investment contribute to economic development, see Manciaux, supra note 12 at 458; HISCOCK, Mary, “The Emerging Legal Concept of Investment” (2009) 27 Penn State International Law Review 765 at 778Google Scholar–9, citing JEZEWSKY, Marek, “There is No Freedom Without Solidarity: Towards New Definition of Investment in International Economic Law”, Paper given at Society of International Economic Law (SIEL) Inaugural Conference 2008 (arguing that the criterion of benefiting the host state should not be limited to economic benefit alone but should include contribution to areas of social policy and human rights)Google Scholar. See also VADI, Valentina, “Investing in Culture: Underwater Cultural Heritage and International Investment Law” (2009) 42 Vanderbilt Journal of Transnational Law 853 (examining the development criterion in operations involving the protection of historical artefacts)Google Scholar, and HAMIDA, Walid Ben, “Two Nebulous ICSID Features: The Notion of Investment and the Scope of Annulment Control” (2007) 24 Journal of International Arbitration 287 at 294Google Scholar (criticizing the annulment decision in Patrick Mitchell for the failure to give precise meaning to the economic development criterion). The contribution to the economic development criterion has been tersely rejected in the recent case of Fakes v. Turkey, Award of 12 July 2010, ICSID Case No. ARB/07/20 at para. 111.

93. At the moment, some BITs concluded by EU Member States protect portfolio investment. See e.g. the Agreement for the Promotion and Protection of Investments (with Exchange of Letters) Between the Belgo-Luxembourg Economic Union and Bangladesh, 22 May 1981, online: International Institute for Sustainable Development 〈www.iisd.org/pdf/2006/investment_bangladesh_Belgium.pdf〉. However, in its recent report, the European Parliament insisted on excluding speculative investments from the scope of treaty protection. International Trade Committee of the European Parliament, Report on the Future European International Investment Policy, 22 March 2011 (2010/2203(INI)).

94. For a teleological interpretation, see ARNULL, Antony, The European Union and Its Court of Justice, 2nd ed. (Oxford: Oxford University Press, 2006)Google Scholar, and FITZMAURICE, Gerald Gray, “The Law and Procedure of the International Court of Justice: Treaty Interpretation and Certain Other Treaty Points” (1951) 28 British Yearbook of International Law 1 at 3Google Scholar–5. For a critique of the teleological interpretation, see ORAKHELASHVILI, Alexander, The Interpretation of Acts and Rules in Public International Law (Oxford: Oxford University Press, 2008) at 302CrossRefGoogle Scholar–12. It is important to stress that a dynamic method should be used alongside the analysis of the text of the treaty and its ordinary and effective meaning, and not in lieu of the latter.

95. Fitzmaurice, supra note 94, at 8.

96. See supra note 83, for the analysis of the national treatment standard in international trade and investment instruments.

97. See supra note 19. The involvement of purely financial instruments, including sovereign bonds, in the social and economic fabric of host states is questionable, thus suggesting the possibility of such instruments being expressly excluded from the scope of protected investment.

98. See VAN AAKEN, Anne, “Perils of Success? The Case of International Investment Protection” (2008) 9 European Business Organization Law Review 1Google Scholar; KAUSHAL, Asha, “Revisiting History: How the Past Matters for the Present Backlash Against the Foreign Investment Regime” (2009) 50 Harvard International Law Journal 491Google Scholar. It is also noteworthy that Australia has recently announced that it will not pursue provisions on investor-state arbitration in its international agreements. See PETERSON, Luke, “In Policy Switch, Australia Disavows Need for Investor-State Arbitration Provisions in Trade and Investment Agreements”, Investment Arbitration Reporter (14 April 2011)Google Scholar, online: 〈www.iareporter.com/articles/20110414〉.