Microinvestment Disputes

Abstract

Salini v. Morocco sparked one of the liveliest controversies in the dynamic field of international investment disputes. Salini held that the word investment in the ICSID Convention, although undefined, has an objective meaning that limits the ability of member states to submit disputes to ICSID arbitration. The Salini debate is central to this field, because it shapes the nature, purpose, and volume of ICSID arbitration – and also determines who gets to decide those matters. In particular, Salini’s decision to include “a contribution to development” within its objective definition of investment transformed development-promotion from a generalized goal of ICSID as an institution into a jurisdictional requirement for each case.

This article introduces the concept of a microinvestment dispute, which focuses attention on small investments giving rise to ICSID cases. The microinvestment lens reveals the failings of Salini’s contribution-to-development prong. By conditioning ICSID jurisdiction on an individualized showing of such a contribution, this prong disproportionately burdens microinvestors, inhibiting their access to ICSID despite the fact that the drafters of the ICSID Convention specifically rejected a minimum-size requirement. In so doing, the development prong also limits ICSID’s value to those who need it most. In the name of promoting development, Salini may well undercut it.

In addition, this article also offers a 'third way' alternative to both Salini’s objectivity and pure subjectivity. This alternative – bounded deference – draws on the principles of autonomy, consent, and good faith to strike a better balance between states and arbitral tribunals.

Keywords: microinvestment, investment disputes, ICSID, Salini, jurisdiction, development, small business, SME, bilateral investment treaty, BIT, international investment law, investment arbitration, investor-state arbitration, investment treaty arbitration, Mitchell, Malaysian Historical Salvors