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What Constitutes An Investment And Who Decides?

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Chapter Summary

Like most complex legal instruments, BITs and multilateral treaties or chapters in Free Trade Agreements regulating investment usually include provisions setting out agreed definitions of key terms. A number of related questions are bundled in this chapter. One of the questions is whether there is a core meaning to investment or, put differently, whether there is an objective difference or a compelling general policy or, short of that, some institutional reason for distinguishing between "trade" and "investment," such that only "investment" disputes are arbitrable in ICSID. The word "investment" is there and where legislators insert an undefined term, it is reasonable to infer that they were delegating to the designated appliers ICSID tribunals, a mandate to define it. So the question is not whether some test is called for but whether the Salini test, as elaborated in its remarkably inconsistent jurisprudence, serves the object and purpose of the Washington Convention.

Keywords: BITs; Free Trade Agreements; ICSID tribunals; investment; Salini test; trade; Washington Convention



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