Author

Mr Claiton Fyock

PhD Candidate - University of Leicester

Certain Duration

I. Definition

1.

Certain duration is one of the four core criteria of the definition of investment in what is popularly referred to as the Salini test. As conceived originally by Christoph Schreuer,1 a certain duration is a necessary characteristic of an investment operation which is expected to constitute long-term relationship.

II. Travaux préparatoires of Article 25 ICSID Convention

2.

Article 25 of the ICSID Convention does not include a definition of investment. However, the drafting history of this provision confirms that the duration criterion was considered relevant to the determination of the existence of an investment.2 A draft definition of investment referred to the contribution of money or assets “for an indefinite period or, if the period be defined, for not less than five years”.3 Finally, no definition of the term investment was included in the Convention.4

IV. Arbitral practice

4.

Duration has played a role in investment arbitration since before the Salini.7 The first cases in which the definition of investment utilized duration as one of the characteristics described by Schreuer were Fedax v Venezuela8 followed shortly thereafter by Salini v Morocco.9 These cases established certain duration as one of the four characteristics of the ‘Salini Test.’ The criteria are sometimes expanded upon10 and more often subtracted from,11 but certain duration consistently remains a core characteristic of what tribunals consider an ‘investment.’12

Bibliography

Demirkol, B., The Notion of ‘Investment’ in International Investment Law, The Turkish Commercial Law Review, Vol. 1, 2015, pp. 41-50.

Desierto, D.A., Deciding International Investment Agreement Applicability: The Development Argument, in Investment in Baetebs, F. (ed.), Investment Law within International Law: Integrationist Perspectives, Cambridge University Press, 2013, pp. 240-256.

Gaillard, E., Identify or Define? Reflections on the Evolution of the Concept of Investment in ICSID Practice, in Binder, C., Kriebaum, U., Reinisch, A., et al. (eds.), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer, Oxford University Press, 2009, pp. 203-416.

Grabowski, A., The Definition of Investment under the ICSID Convention: A Defense of Salini, Chicago Journal of International Law, Vol. 15, 2014, pp. 287-309.

Hamida, W.B., Two Nebulous ICSID Features: The Notion of Investment and the Scope of Annulment Control, Journal of International Arbitration, Vol. 24, 2007, pp. 287-306.

Mortenson, J.D., The Meaning of Investment: ICSID’s Travaux and the Domain of International Investment Law, Harvard International Law Journal, Vol. 51, 2010, pp. 257-318.

Nakajima, K., Parallel Universes of Investment Protection? A Divergent Finding on the Definition of Investment in the ICSID Arbitration on Greek Sovereign Debts, Law and Practice of International Courts and Tribunals, Vol. 15, 2016, pp. 472-490.

Timmer, L.J.E., The Meaning of ‘Investment’ as a Requirement for Jurisdiction Ratione Materiae of the ICSID Centre, Journal of International Arbitration, Vol. 29, 2012, pp. 363-373.

Vargiu, P., Beyond Hallmarks and Formal Requirements: A “Jurisprudence Constante” on the Notion of Investment in the ICSID Convention, The Journal of World Investment & Trade, Vol. 10, 2009, pp. 753-768.

Williams, D. and Foote, S., Recent Developments in the Approach to Identifying an ‘Investment’ Pursuant to Article 25(1) of the ICSID Convention, in Brown, C., Miles, K. (eds.), Evolution in Investment Treaty Law and Arbitration, Cambridge University Press, 2011, pp. 42-64.

Yala, F., The Notion of “Investment” in ICSID Case Law: A Drifting Jurisdictional Requirement?, Journal of International Arbitration, Vol. 22, 2005, pp. 105-125.

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