"Investment" under the ICSID Convention: Have We Moved beyond Salini? - Panel Discussion - Chapter 7 - Investment Treaty Arbitration and International Law - Volume 5
Joshua Fellenbaum Mannheimer Swartling
Sungjin Kang Cleary, Gottlieb, Steen & Hamilton
Michael Nolan Milbank, Tweed, Hadley & McCloy
Stanimir Alexandrov Sidley Austin
Federico Ortino King’s College London
Miriam Harwood Curtis, Mallet-Prevost, Colt & Mosle
But Tom Johnson is particularly qualified. Tom was the Claimant's counsel in one of the leading and most important recent cases dealing with the issue, Phoenix, which is a case you'll probably hear about on this Panel.
I won't take the time to introduce either our panelists or our authors because you have some biographical information already, and there's an awful lot to talk about on the topic of investment. If you have taken the time to read these papers, the topic itself doesn't need any introduction because the papers are really truly excellent. Both of them are terrific, very rigorous, very extensive pieces of work.
I thought I would provide a very brief sketch of the topic and then proceed by allowing the authors to present their papers a little bit more specifically. After that, Federico will comment on the papers and the other panelists will make some topical observations about investment. "Investment" is a good place to begin. The question is what is a protected investment? Because if an investment is the subject of investment protection arbitration, that which isn't an "investment" can't be. That's the jurisdictional issue that arises in investment protection arbitration relating to the definition of "investment."
Very briefly, to make sure that we're all on common ground, let me read to you from a couple of sources to frame the topic. The first of these is Article 25 of the Washington Convention of 1966, the ICSID Convention. Article 25 says: "The jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment, between a Contracting State" and then there's some parenthetical information "and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre." Each and every word of this Article has been the subject of all sorts of detailed learned proceedings. But what we're going to focus on in particular is the requirement that, "the jurisdiction of the Centre shall extend to an investment."
That is the starting point for our discussion. It is interesting right away because of what the ICSID Convention does not say about the investment that is the subject matter of ICSID proceedings. It's commonly said that no definition of "investment" is given by the Convention.