Defining Investment Under the ICSID Convention and Bits: Of Ordinary Meaning, Telos, and Beyond

Abstract

A number of commentators have contributed to an ongoing debate about the definition of investment by expressing their support for an objectivist theory or the ‘‘outer limits’’ approach as advocated in Salini v. Morocco. However, this article argues that neither the Salini test nor the rival subjectivist theory can offer an internally consistent and viable legal framework for determining the existence of an investment. After critically examining existing approaches to defining investments in arbitral practice, international investment treaties, European Union (EU) law, and international trade law, the article considers the role of ordinary and effective interpretation and a telos behind investment treaty instruments in coining a meaningful definition.

Keywords: Bilateral investment treaties, ICSID, investment arbitration, protection of foreign investment