Certain Duration

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.

1. Jurisdiction ratione materiae
2. Definition of investment
3. Salini test and its components (Contribution of money or assets, Risk, Contribution to the development of the host State)
4. Double barrelled/Two-fold test

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, leaving the decision up to State parties.⁴

States have included time or certain duration as a component of the definition of investment in their investment treaties.⁵ Duration framed as a “characteristic” similar to what is seen in the Salini test is also included in treaties.⁶

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 (see further Salini test, Section IV) but certain duration consistently remains a core characteristic of what ICSID¹² and non-ICSID¹³ tribunals consider an "investment."

At least one tribunal has however criticized the subjectivity of requiring a certain or sufficient duration,¹⁴ similar to what is often said about the debated requirement of contribution to the development of the host State.

Substantively, in the absence of specific treaty provisions, tribunals have held that duration is a flexible term that could range from months to years and that the requirement is to be considered holistically.¹⁵ Many tribunals have determined to this extent that a period of two to five years meets the requirement of certain duration,¹⁶ thus excluding ordinary or one-time commercial transactions.¹⁷ This period can include relevant extending factors that fall outside of the activity’s primary execution time.¹⁸ Tribunals have further noted that it is the intended or expected duration that should be considered.¹⁹

Demirkol, B., The Notion of ‘Investment’ in International Investment Law, The Turkish Commercial Law Review, 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, 2013, pp. 240-256.

Gaillard, E., Identify or Define? Reflections on the Evolution of the Concept of Investment in ICSID Practice, in Binder, C., and Others (eds.), International Investment Law for the 21^st Century: Essays in Honour of Christoph Schreuer, 2009, pp. 203-416.

Grabowski, A., The Definition of Investment under the ICSID Convention: A Defense of Salini, Chicago Journal of International Law, 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, 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, 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, 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, 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, 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., and Miles, K. (eds.), Evolution in Investment Treaty Law and Arbitration, 2011, pp. 42-64.

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