The Concept of Investment in ICSID Arbitration

This book explores the meaning of 'investment' within the context of International Centre for Settlement of Investment Disputes (ICSID) arbitration. It provides a comprehensive and detailed examination of the various legal issues arising in connection with the jurisdictional requirement of the existence of an investment. It explores, first of all, the fundamental question of whether the term 'investment' in Art. 25 ICSID Convention has - despite not being defined - some objective or independent meaning. Second, it addresses the substance of that meaning, showing that three main approaches (the prevailing Salini test, the permissibility test, and the commercial-transaction test) co-exist in arbitral practice. Third, it analyses the definitions of 'investment' found in investment treaties including the traditional definitional model, typical requirements, and recent developments in practice. Fourth, it provides an overview of definitions contained in domestic investment laws, highlighting commonalities with, and differences from, definitions found in investment treaties. Finally, it examines the investment status of several specific categories of assets and operations. The Concept of Investment in ICSID Arbitration offers not only a detailed analysis of the relevant case law, legislation, and scholarship, but also a critical assessment of existing practices and trends, as well as normative recommendations. It also explores issues that are neglected in the existing literature, such as the question of the nature of investment, recent trends in treaty drafting and arbitral case law, and definitions of 'investment' contained in investment laws. Despite its formal focus on ICSID arbitration, significant portions of the book are also relevant for other forms of investor-state arbitration.

1 - Preliminary Matters
2 - The Question of Whether Art. 25 ICSID Convention Lays Down Independent Requirements for the Existence of an Investment
3 - The Meaning of Investment Under Art 25 ICSID Convention
4 - The Concept of Investment in Investment Treaties: Traditional Definitions and Typical Requirements
5 - Recent Developments in Treaty and Arbitral Practice
6 - Definitions of Investment in Investment Laws
7 - Investment Status of Specific Categories of Assets and Operations

Markus Petsche is an associate professor at the Department of Legal Studies of Central European University (Vienna). His scholarly work, cited extensively in the relevant literature, has notably been referred to by the Supreme Court of Oregon and relied upon in litigation before the US Supreme Court. Prior to embarking on an academic career, Markus Petsche served as a deputy counsel at the Secretariat of the International Court of Arbitration of the International Chamber of Commerce, and practised international arbitration with Gide Loyrette Nouel (both in Paris). He regularly serves as arbitrator and mediator in international business disputes.