Scope And Definition Unctad Series On Issues In International Investment Agreements Ii

In addition, some contracts exclude certain types of assets from their definition of investment, the most common commercial transactions,13 public debts14 and/or portfolio investments15. 25 The Executive Directors` report on the ICSID Convention confirms that “[n]o has been attempted to define the concept of `investment`, given that it is imperative that the parties give their consent and that States Parties may, if they so wish, communicate in advance the litigation clusters that they would or would not submit to the Centre”.26 Almost 80% of investment laws contain an asset or an enterprise. Definition of investments. Some of them reflect the type of definitions typically found in investment agreements16, but most of them deviate from this model and the structure, the degree of detail of the provisions and the scope of the transactions covered vary considerably. The concept of investment (see investment ownership, pre-investment expenditure) typically determines the range of economic transactions to which a number of heterogeneous instruments apply.1 These include foreign investment laws, investment protection agreements and multilateral contracts as diverse as ICSID2, MIGA3 and TRIMS.4 clauses defining investments should not be confused. undue with those defined by the provisions of the ICSID2 Convention, the MIGA3 Convention and TRIMS.4. contain a definition of “investor” or clauses specifying whether an investment is “covered” by a given contract (e.g. .B. Clauses that require that an investment be made “in accordance with the laws of the host State”28 and/or “in the territory” of that State and/or that it be “owned”/” by a qualified investor. Not all assets from a broader activity should be qualified as investments alone as long as the underlying transaction as a whole is qualified as such.27 More than 98% of investment protection agreements contain a definition of investment.8 The vast majority of them (more than 90%) define investments by a non-exhaustive list of protected “assets” (wealth-based definition). including movable and immovable property, shares, intellectual property rights, pecuniary claims, etc.

Other contracts require that an asset be linked to an “enterprise” in order to benefit from protection (enterprise-based definition)10 or, more rarely, contain an exhaustive list of protected assets.11 In the context of the general language of the contract, many investment courts have recognized an objective meaning to the concept of “investment” in order to distinguish it from ordinary commercial activities and have requested: that it has certain intrinsic characteristics. A list of the necessary characteristics that a project must have in order to be considered an investment was first formulated in the ICSID Salini vs. Maroc20 case and is now called the Salini test. The relevance of certain characteristics, their specific contours and the legal nature of the test remain controversial21, including whether the Salini test should only be used as part of the ICSID procedure.22 Three of Salini`s initial characteristics can be considered key elements of the test currently in use: (i) duration; (ii) risk-taking; And (iii) a capital injection.23 The courts have sometimes requested an operation aimed at contributing significantly to the development of the host State.24 In addition, the notion of investment also limits the jurisdiction of the ICTY courts. Under the ICSID Convention, the courts are competent to rule on disputes resulting “directly from an investment”17 and the term is not defined (see other substantive jurisdiction). Most ICN courts require that alleged investments meet the requirements of the investment control agreement and the ICSID agreement (two-key approach).18 They have also interpreted “investments” under the agreement as autonomous from the contract definitions.19 See Salini test. . . .