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 The Convention, however, does not contain a definition of “investment”. ICSID tribunals thus generally apply the Salini test, or a modified version thereof (see below), 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.5 Other tribunals, however, have rejected the applicability of the Salini test.6
Salini et al. v. Kingdom of Morocco, ICSID Case No. ARB/00/4, Decision on Jurisdiction, 23 July 2001, para. 52 (“The Tribunal notes that there have been almost no cases where the notion of investment within the meaning of Article 25 of the Convention was raised. However, it would be inaccurate to consider that the requirement that a dispute be ‘in direct relation to an investment’ is diluted by the consent of the Contracting Parties. To the contrary, ICSID case law and legal authors agree that the investment requirement must be respected as an objective condition of the jurisdiction of the Centre […] The doctrine generally considers that investment infers: contributions, a certain duration of performance of the contract and a participation in the risks of the transaction […]. In reading the Convention’s preamble, one may add the contribution to the economic development of the host State of the investment as an additional condition.”); Tokios Tokelés v. Ukraine, ICSID Case No. ARB/02/18, Decision on Jurisdiction, 29 April 2004, para. 19 (“The jurisdiction of the Centre depends first and foremost on the consent of the Contracting Parties, who enjoy broad discretion to choose the disputes that they will submit to ICSID. Tribunals shall exercise jurisdiction over all disputes that fall within the scope of the Contracting Parties’ consent as long as the dispute satisfies the objective requirements set forth in Article 25 of the Convention.”); Joy Mining Machinery Limited v. Arab Republic of Egypt, ICSID Case No. ARB/03/11, Award on Jurisdiction, 6 August 2004, para. 50 (“The parties to a dispute cannot by contract or treaty define as investment, for the purpose of ICSID jurisdiction, something which does not satisfy the objective requirements of Article 25 of the Convention. Otherwise Article 25 and its reliance on the concept of investment, even if not specifically defined, would be turned into a meaningless provision.”); Malaysian Historical Salvors Sdn, Bhd v. Government of Malaysia, ICSID Case No. ARB/05/10, Award on Jurisdiction, 17 May 2007, paras. 55 (“The methodology employed by the tribunals in Salini and in Joy Mining requires a claimant in an ISCID arbitration to satisfy the tribunal that: a) the dispute between the parties concerns an ‘investment’ within the definition provided under the relevant bilateral investment treaty; and b) the objective criterion of an ‘investment’ within the meaning of Article 25(1) has been met. Under the double-barrelled test, a finding that the Contract satisfied the definition of ‘investment’ under the BIT would not be sufficient for this Tribunal to assume jurisdiction, if the Contract failed to satisfy the objective criterion of an ‘investment’ within the meaning of Article 25.”), 148 (“Having concluded that the Contract is not an ‘investment’ within the meaning of Article 25(1) of the ICSID Convention, the Tribunal is impelled to find that it lacks jurisdiction in the present case. Accordingly, it is unnecessary to discuss whether the Contract is an ‘investment’ under the BIT.”); Capital Financial Holdings Luxembourg S.A. v. Republic of Cameroon, ICSID Case No. ARB/15/18, Award, 22 June 2017, para. 413 (“In order to establish the jurisdiction of the Court of Arbitration ratione materiae, the Plaintiff must demonstrate that he has made an investment within the meaning of Article 25 of the ICSID Convention and an investment within the meaning of the Treaty […]. As already stated […], the Arbitral Tribunal must decide whether the Plaintiff has made an investment within the meaning of these two texts […], and whether the Applicant’s investment fulfills the legality requirements of the Treaty […].”); Alpha Projektholding GmbH v. Ukraine, ICSID Case No. ARB/07/16, Award, 8 November 2010, para. 314 (“To cite the classic example, a simple contract for the sale of goods, without more, would not constitute an investment within the meaning of Article 25(1), even if a BIT or a contract defined it as one. However, when the State party to a BIT agrees to protect certain kinds of economic activity, and when the BIT provides that disputes between investors and States relating to such activity may be resolved through ICSID arbitration, it is appropriate to interpret the BIT as reflecting the State’s understanding that that activity constitutes an ‘investment’ within the meaning of the ICSID Convention as well. That judgment, by States that are both parties to the BIT and Contracting States to the ICSID Convention, is entitled to great deference. A tribunal would have to have very strong reasons to hold that the States’ mutually agreed definition of investment should be set aside.”); Global Trading Resource Corp. and Globex International, Inc. v. Ukraine, ICSID Case No. ARB/09/11, Award, 1 December 2010, para. 56 (“[…] the Tribunal considers that the purchase and sale contracts entered into by the Claimants were pure commercial transactions and therefore cannot qualify as an investment for the purposes of Article 25 of the Convention.”).
Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. v. Islamic Republic of Pakistan, ICSID Case No. ARB/03/29, Decision on Jurisdiction, 14 November 2005, paras. 130-138 (“Both parties relied upon previous decisions by ICSID Tribunals to define the notion of investment under Article 25 of the ICSID Convention and in particular upon the decision in Salini v. Morocco. The Tribunal in Salini held that the notion of investment presupposes the following elements: (a) a contribution, (b) a certain duration over which the project is implemented, (c) sharing of the operational risks, and (d) a contribution to the host State's development, being understood that these elements may be closely interrelated, should be examined in their totality, and will normally depend on the circumstances of each case.”); Jan de Nul N.V. and Dredging International N.V. v. Arab Republic of Egypt, ICSID Case No. ARB/04/13, Decision on Jurisdiction, 16 June 2006, paras. 91-92 (“The ICSID Convention contains no definition of the term ‘investment’. The Tribunal concurs with ICSID precedents which, subject to minor variations, have relied on the so-called ‘Salini test’. Such test identifies the following elements as indicative of an ‘investment’ for purposes of the ICSID Convention: (i) a contribution, (ii) a certain duration over which the project is implemented, (iii) a sharing of operational risks, and (iv) a contribution to the host State’s development, being understood that these elements may be closely interrelated, should be examined in their totality and will normally depend on the circumstances of each case.”); Joseph Houben v. Republic of Burundi, ICSID Case No. ARB/13/7, Award, 12 January 2016, paras. 112-114 (112. La jurisprudence a cependant développé un ensemble de critères permettant de définir un « investissement » au sens de la Convention de Washington. Selon cette définition, qui a été consacrée dans la décision Salini c. Maroc et reprise par un grand nombre de décisions ultérieures, un investissement implique la présence des éléments suivants : (i) une contribution en argent ou d'autres actifs de valeur économique, (ii) une certaine durée pendant laquelle le projet est mis en œuvre, (iii) un élément de risque, et (iv) une contribution au développement de l'État d'accueil, étant entendu que ces éléments peuvent être étroitement liés et doivent être examinées dans leur totalité. »).
Romak S.A. v. The Republic of Uzbekistan, PCA Case No. 2007-07/AA280, Award, 26 November 2009, paras. 188 (“The term ‘investments’ has an intrinsic meaning, independent of the categories enumerated in Article 1(2). This meaning cannot be ignored.”), 207 (“The Arbitral Tribunal therefore considers that the term ‘investments’ under the BIT has an inherent meaning (irrespective of whether the investor resorts to ICSID or UNCITRAL arbitral proceedings) entailing a contribution that extends over a certain period of time and that involves some risk. The Arbitral Tribunal is further comforted in its analysis by the reasoning adopted by other arbitral tribunals […] which consistently incorporates contribution, duration and risk as hallmarks of an ‘investment.’ By their nature, asset types enumerated in the BIT’s non-exhaustive list may exhibit these hallmarks. But if an asset does not correspond to the inherent definition of ‘investment,’ the fact that it falls within one of the categories listed in Article 1 does not transform it into an ‘investment.’”); Jan Oostergetel and Theodora Laurentius v. The Slovak Republic, Decision on Jurisdiction, 30 April 2010, paras. 161-172 (“Before examining whether the Salini test has been met in the present case, the Tribunal wishes to make two observations. First, it is important to note that the Salini test was developed in the context of Article 25 of the ICSID Convention, while this Tribunal has been constituted under the UNCITRAL Rules. […] Second, as emphasized by the Claimants at the hearing, the Salini test has recently come under a fair amount of scrutiny both in the doctrine and the jurisprudence […] With these two caveats in mind, the Tribunal will now proceed to briefly examine the Salini conditions as applied to the circumstances of the present case.”); Isolux Infrastructure Netherlands, BV v. Kingdom of Spain, SCC Case No. V2013/153, Award, 12 July 2016, paras. 683-685 (“El Tribunal Arbitral no comparte la posición de la Demandante según la cual la definición del concepto de inversión en el TCE es autosuficiente. […] El Tribunal Arbitral comparte la posición del Reino de España cuando sostiene que esta definición adicional debe ser objetiva, en la ausencia de una definición subjetiva en el TCE. […]No le convence la tesis de la Demandante según la cual sería inaplicable la definición objetiva que desarrollaron muchos otros tribunales confrontados con la ausencia de una definición en otros tratados bilaterales o multilaterales, en particular, pero no únicamente, dentro del arbitraje CIADI. […] Como lo nota la Demandante, la fuente de esta definición es el laudo de 2001 en el caso Salini Construttori Spa and Italstrade Spa c. Reino de Marruecos donde el tribunal consideró que una inversión ‘supone aportes, una cierta duración de ejecución del mercado y una participación a los riesgos de la operación’ (traducción libre). Añadió la condición de ‘contribución al desarrollo económico del Estado receptor de la inversión’(traducción libre). Con la evolución de la jurisprudencia arbitral, la definición objetiva de la noción de inversión, ahora incluye solamente :(i) una contribución, (ii) la percepción de rendimientos y (iii) la asunción de riesgos.”).
Flemingo DutyFree Shop Private Limited v. Republic of Poland, PCA, Award, 12 August 2016, para. 298 (“Article 9 of the Treaty, and not Article 25 of the ICSID Convention, is the jurisdictional basis of the present arbitration. Consequently, jurisdictional restrictions deriving from the notion of 'investment' in Article 25 of the ICSID Convention, as emphasised by various ICSID tribunals such as the Salini panel, do not apply to the present arbitration. Moreover, the present Tribunal is convened under the UNCITRAL Arbitration Rules, which merely refer to any ‘dispute’, without any further qualification.”); Anglia Auto Accessories Ltd. v. Czech Republic, SCC Case No. V2014/181, Final Award, 10 March 2017, para. 150 (“As a preliminary matter, the Tribunal does not deem it necessary to inquire into the question whether the requirements of a contribution, certain duration and an element of risk are met in this instance, given that this arbitration was brought under the SCC Arbitration Rules, not the ICSID Arbitration Rules under which the so-called Salini test has been developed in arbitral case law in relation to Article 25 of the 1965 ICSID Convention.”); Clorox Spain S.L. v. Bolivarian Republic of Venezuela, PCA Case No. 2015-30, Award, 20 May 2019, para. 819 (“[E]l Tribunal quiere subrayar que considera algo estéril el debate entre las Partes sobre la aplicabilidad del test de Salini. El Tribunal no necesita referirse a una jurisprudencia arbitral desarrollada dentro del marco del arbitraje CIADI y que evolucionó con poca coherencia, para interpretar el término inversión según el Tratado. Las directivas de la Convención de Viena ya mencionada son suficientes al respecto.”); (“Indeed in the context of BITs the notion of an autonomous investment requirement would be of a different nature than the ‘legal dispute’ and ‘Contracting States’ requirement. It would deny Contracting States the right to refer legal disputes to ICSID if they have defined investments too broadly. One may wonder about the purpose of such a denial. If the words of the Convention nevertheless said so that would of course be decisive. But there is no such express limitation. The drafters of the Convention decided not to define ‘investments’.”); Inmaris Perestroika Sailing Maritime Services GmbH and others v. Ukraine, ICSID Case No. ARB/08/8, Decision on Jurisdiction, 8 March 2010, paras. 129 - 130 (“Respondent relies instead on a definition ‘established in the ICSID case law’ that is sometimes referred to as the ‘Salini test’. Various tribunals have adopted some or all of the typical characteristics of an investment identified by the tribunal in Salini v. Morocco, and have applied them as a compulsory, limiting definition of investment under the ICSID Convention. However, this Tribunal is not persuaded that it is appropriate to impose such a mandatory definition through case law where the Contracting States to the ICSID Convention chose not to specify one. […] Rather, in most cases—including, in the Tribunal’s view, this one—it will be appropriate to defer to the State parties’ articulation in the instrument of consent (e.g. the BIT) of what constitutes an investment. The State parties to a BIT agree to protect certain kinds of economic activity, and when they provide that disputes between investors and States relating to that activity may be resolved through, inter alia, ICSID arbitration, that means that they believe that that activity constitutes an ‘investment’ within the meaning of the ICSID Convention as well. That judgment, by States that are both Parties to the BIT and Contracting States to the ICSID Convention, should be given considerable weight and deference. A tribunal would have to have compelling reasons to disregard such a mutually agreed definition of investment.”); Alpha Projektholding GmbH v. Ukraine, ICSID Case No. ARB/07/16, Award, 8 November 2010, paras. 311 – 312 (“As noted, the ICSID Convention does not define the term ‘investment.’ Given the absence of a definition, both parties refer to illustrative criteria developed in various arbitration awards, most notably the award in Salini v. Morocco. However, the elements of the so-called Salini test, which some tribunals have applied mandatorily and cumulatively […], are not found in Article 25(1) of the ICSID Convention. […] This Tribunal will not follow that approach and will not impose additional requirements beyond those expressed on the face of Article 25(1) of the ICSID Convention and the UABIT.”).
The Salini test, established by the tribunal in Salini v. Morocco, requires that the alleged investment satisfy four criteria to be considered an “investment” under Article 25(1) : (1) a contribution; (2) a certain duration; (3) a risk; and (4) a contribution to the economic development of the host State.7 The Salini tribunal held that these four criteria may be “interdependent” and thus “should be assessed globally”.8 Other tribunals have held that the four criteria should not be applied as independent requirements, but rather as factors to be taken into account in determining whether the alleged investment is an “investment” under Article 25(1).9
The Salini tribunal employed slightly different wording; Salini et al. v. Kingdom of Morocco, ICSID Case No. ARB/00/4, Decision on Jurisdiction, 23 July 2001, para. 52 (“The doctrine generally considers that investment infers: contributions, a certain duration of performance of the contract and a participation in the risks of the transaction. In reading the Convention's preamble, one may add the contribution to the economic development of the host State of the investment as an additional condition.”).
Salini et al. v. Kingdom of Morocco, ICSID Case No. ARB/00/4, Decision on Jurisdiction, 23 July 2001, para. 52 (“The Tribunal notes that there have been almost no cases where the notion of investment within the meaning of Article 25 of the Convention was raised. […] The doctrine generally considers that investment infers: contributions, a certain duration of performance of the contract and a participation in the risks of the transaction […]. In reading the Convention’s preamble, one may add the contribution to the economic development of the host State of the investment as an additional condition. […] [T]hese various elements may be interdependent. Thus, the risks of the transaction may depend on the contributions and the duration of performance of the contract. As a result, these various criteria should be assessed globally even if, for the sake of reasoning, the Tribunal considers them individually here.”).
Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Award, 24 July 2008, paras. 316-318 (“The Arbitral Tribunal therefore considers that a more flexible and pragmatic approach to the meaning of ‘investment’ is appropriate, which takes into account the features identified in Salini, but along with all the circumstances of the case, including the nature of the instrument containing the relevant consent to ICSID. […] [M]any tribunals have approached the issue of the meaning of ‘investment’ by reference to the parties’ agreement, rather than imposing a strict autonomous definition, as per the Salini Test. […] To this end, even if the Republic could demonstrate that any, or all, of the Salini criteria are not satisfied in this case, this would not necessarily be sufficient – in and of itself - to deny jurisdiction.”); Malaysian Historical Salvors Sdn, Bhd v. Government of Malaysia, ICSID Case No. ARB/05/10, Award on Jurisdiction, 17 May 2007, para. 106 (“Furthermore, ICSID tribunals tend to adopt an empirical rather than a doctrinaire approach in determining whether there is an ‘investment’ within Article 25(1). […] a) Where the facts are strongly in favour of a finding in each of the relevant hallmarks of ‘investment,’ a tribunal can confirm its jurisdiction in strong terms emphasizing that the requirements of ‘investment’ are clearly fulfilled. Such strong language may be interpreted in support of a Jurisdictional Approach. However, it may simply indicate the tribunal’s views on the weakness of a respondent’s jurisdictional challenge in that each of the relevant hallmarks of ‘investment’ has clearly been satisfied by the claimant. […]. b) Where the facts clearly show that one or more of the relevant hallmarks of ‘investment’ are missing, a tribunal may uphold the jurisdictional challenge of a respondent in strong terms by using language in support of a Jurisdictional Approach in order to demonstrate more clearly why the tribunal is rejecting jurisdiction. […]. c) Where the facts are not as clear-cut as in the scenarios envisaged in a) and b) above, a tribunal will have to consider whether there is any evidence in support of each of the relevant hallmarks of ‘investment.’ Where there is some marginal evidence in support of one of the relevant hallmarks of ‘investment,’ but more conclusive evidence in support the presence of the other relevant hallmarks of ‘investment,’ the tribunal may choose to discount the weakness of the claimant's case in one of the relevant hallmarks of ‘investment’ by stating that the issue of ‘investment’ should be approached on a holistic basis. Put another way, while it is still necessary to fulfill the formal requirements of ‘investment’ by demonstrating that the facts meet all the established hallmarks of ‘investment,’ weak or superficial compliance with one of the hallmarks of ‘investment’ may be compensated by more compelling evidence in the other hallmarks of ‘investment’ so that, in the global assessment of the various factual elements, a tribunal may still conclude that there is an ‘investment’ because these hallmarks of ‘investment’ are (in the language of Salini) interdependent. In this situation, a tribunal is likely to use language that may be interpreted as advocating a Typical Characteristics Approach. […]. d) Alternatively, in the scenario described in c) above, a tribunal may also rely on a Jurisdictional Approach but, in examining whether each of the relevant hallmarks of ‘investment’ is satisfied, the tribunal may take a broad approach, requiring only relatively marginal evidence to establish a positive finding in favour of assuming ICSID jurisdiction. The tribunal may also state, in its overall assessment of the factual elements that, notwithstanding compliance with all the hallmarks of ‘investment,’ the qualitative manner in which these hallmarks are satisfied are insufficient to satisfy the overall test of ‘investment.’ In other words, the hallmarks, although essential, are not sufficient to ensure that a contract is an ‘investment.’ […] e) The classical Salini hallmarks are not a punch list of items which, if completely checked off, will automatically lead to a conclusion that there is an ‘investment.’ If any of these hallmarks are absent, the tribunal will hesitate (and probably decline) to make a finding of ‘investment.’ However, even if they are all present, a tribunal will still examine the nature and degree of their presence in order to determine whether, on a holistic assessment, it is satisfied that there is an ICSID ‘investment.’ The ad hoc Committee’s remarks in Patrick Mitchell quoted in Paragraph 94 above (essential but insufficient characteristic or criterion of investment) can reasonably apply, not merely to the requirement of contribution to the host State's economic development, but to all the Salini hallmarks.”).
Although some tribunals apply the Salini test directly, others have applied a modified version of the test, in particular by modifying, removing, and/or adding one or more criteria. For example, in Malaysian Historical Salvors v. Malaysia, the tribunal modified the criterion of contribution to the economic development of the host State such that the contribution must be “significant”.10 As another example, in Quiborax v. Bolivia, the tribunal removed the criterion that the investment must contribute to the economic development of the host State.11 And as a final example, in Phoenix Action v. Czech Republic, the tribunal added the criteria that the assets must be invested in accordance with the laws of the host State and that the assets must be invested bona fide.12
Malaysian Historical Salvors Sdn, Bhd v. Government of Malaysia, ICSID Case No. ARB/05/10, Award on Jurisdiction, 17 May 2007, para. 123 (“The Tribunal considers that the weight of the authorities cited above swings in favour of requiring a significant contribution to be made to the host State’s economy. Were there not the requirement of significance, any contract which enhances the Gross Domestic Product of an economy by any amount, however small, would qualify as an ‘investment.’ It also bears noting that in Joy Mining, the value of the bank guarantee had a value of GBP 9.6 million and yet did not qualify as a contribution to the economy of Egypt. Taking into account the entire factual matrix of the case, this feature may be of considerable, even decisive, importance. This is due in part to the Tribunal’s findings that the other features of ‘investment,’ such as risk and duration of contract, only appear to be superficially satisfied on the facts of this case, and not in the qualitative sense envisaged under ICSID practice and jurisprudence. The Tribunal is therefore left only with the contributions made by the Claimant, and has to determine whether these contributions would represent a significant contribution to the host State’s economic development.”); Joy Mining Machinery Limited v. Arab Republic of Egypt, ICSID Case No. ARB/03/11, Award on Jurisdiction, 6 August 2004, para. 53 (“Summarizing the elements that an activity must have in order to qualify as an investment, both the ICSID decisions mentioned above and the commentators thereon have indicated that the project in question should have a certain duration, a regularity of profit and return, an element of risk, a substantial commitment and that it should constitute a significant contribution to the host State's development. To what extent these criteria are met is of course specific to each particular case as they will normally depend on the circumstances of each case.”); Alps Finance and Trade AG v. The Slovak Republic, Award, 5 March 2011, para. 243 (“One of the most recent cases has further contributed to clarify that a transaction undertaken "with the sole purpose of taking advantage of the rights contained in such instruments, without any significant economic activity, does not satisfy the basic pre-requisite of any investment worth of being protected by international treaties". The same decision further clarified that an investment treaty concluded between two States "cannot contradict" the above principle. This ruling was given in an ICSID dispute, but this Tribunal is of the view that the same rationale may be transposed to an investment dispute different from an ICSID arbitration, the feature of which is of being based on a purely speculative transaction deprived of any significant economic activity in the host country. This is precisely the case of the dispute at stake. The Respondent did indeed rely also on such precedent, and rightly so.”).
Quiborax S.A. v. Plurinational State of Bolivia, ICSID Case No. ARB/06/2, Decision on Jurisdiction, 27 September 2012, paras. 218-227 (“In line with this trend, the Tribunal considers that a contribution to the economic development of the host State or an operation made in order to develop an economic activity in the host State is not an element of the objective definition of investment.”); Saba Fakes v. Republic of Turkey, ICSID Case No. ARB/07/20, Award, 14 July 2010, para. 111 (“The Tribunal is not convinced, on the other hand, that a contribution to the host State’s economic development constitutes a criterion of an investment within the framework of the ICSID Convention.”); LESI, S.p.A. and Astaldi, S.p.A. v. People's Democratic Republic of Algeria, ICSID Case No. ARB/05/3, Decision on Jurisdiction, 12 July 2006, para. 72. (« (iv) Or, il paraît conforme à l’objectif auquel répond la Convention qu’un contrat, pour constituer un investissement au sens de la disposition, remplisse les trois conditions suivantes ; il faut a) que le contractant ait effectué un apport dans le pays concerné, b) que cet apport porte sur une certaine durée, et c) qu’il comporte pour celui qui le fait un certain risque. Il ne paraît en revanche pas nécessaire qu’il réponde en plus spécialement à la promotion économique du pays, une condition de toute façon difficile à établir et implicitement couverte par les trois éléments retenus. ») ;Victor Pey Casado and President Allende Foundation v. Republic of Chile, ICSID Case No. ARB/98/2, Award, 8 May 2008, para. 232 (“Una inversión puede resultar o no útil para el Estado receptor sin dejar por ello de ser una inversión. Es cierto que el preámbulo del Convenio CIADI menciona la contribución al desarrollo económico del Estado receptor. Sin embargo, dicha referencia se presenta como una consecuencia, no como un requisito de la inversión: al proteger las inversiones, el Convenio favorece el desarrollo del Estado receptor. Ello no significa que el desarrollo del Estado receptor sea un elemento constitutivo de la noción de inversión. Es por esta razón, como han señalado algunos tribunales de arbitraje, que este cuarto elemento está en realidad englobado en los tres primeros.”).
Phoenix Action, Ltd. v. Czech Republic, ICSID Case No. ARB/06/5, Award, 15 April 2009, para. 114 (“To summarize all the requirements for an investment to benefit from the international protection of ICSID, the Tribunal considers that the following six elements have to be taken into account: 1 - a contribution in money or other assets; 2 - a certain duration; 3 - an element of risk; 4 - an operation made in order to develop an economic activity in the host State; 5 - assets invested in accordance with the laws of the host State; 6 - assets invested bona fide.”).
Roberto Castro de Figueiros, “Chapter 3: The Notion of Investment and Economic Development under the ICSID Convention”, in Crina Baltag, ICSID Convention after 50 years: Unsettled Issues, Kluwer (2016).
Emmanuel Gaillard, Identify or Define? Reflections on the Evolution of the Concept of Investment in ICSID Practice, in Christina Binder et al. (eds.), International Investment Law for the 21st Century 403 (2009).
Emmanuel Gaillard, Reconnaître ou définir ? Réflexions sur l’évolution de la notion d'investissement dans la jurisprudence du CIRDI, in Le droit international économique à l'aube du XXIe siècle. En Hommage aux professeurs Dominique Carreau et Patrick Juillard, Textes Réunies par Jean-Marc Sorel 18, Pédone (2009).
Emmanuel Gaillard and Yas Banifatemi, “The Long March towards a Jurisprudence Constance on the Notion of Investment”, in Meg Kinnear (ed.), Building International Investment Law, The First 50 Years of ICSID, Wolters Kluwer, 2015.
Omar E. Garcia-Bolivar, Chester Brown, Kate Miles, Evolution in Investment Treaty Law and Arbitration, Cambridge University Press (2011).