Author

Mr Peter Tzeng

Attorney at Law - /

Risk as a Criterion For the Existence of an "Investment"

I. Definition

1.

Risk is one of the universally accepted objective criteria for determining the existence of an investment.

II. Background

2.

Article 25(1) of the ICSID Convention provides that “[t]he jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment”.1 Most ICSID tribunals have held that this provision establishes an independent requirement for their jurisdiction under the ICSID Convention: in particular, the alleged investment must constitute an “investment” under Article 25(1).2 3 The Convention, however, does not contain a definition of “investment”. ICSID tribunals thus generally apply the Salini test, or a modified version thereof, to determine whether an alleged investment constitutes an “investment” under Article 25(1) of the ICSID Convention.4 Some non-ICSID tribunals have also applied the Salini test, or a modified version thereof, to determine whether an alleged investment constitutes an “investment” under the applicable investment treaty.... [...]

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