Abstract: A contractual claim to money is typically listed in the modern investment protection treaties under the categories of assets included in the definitions of an “investment.” However, arbitral tribunals take different views on whether particular claims to money may be ranked as an investment. This article examines the recent Energy Charter Treaty (ECT) cases with respect to three basic issues: (a) whether a logical problem with a circular definition in the ECT Article 1(6)(c) may be resolved by reference to Article 1(6)(f); (b) what happens to a claim to money ranked as an investment, if acquired by a new owner as a “debt” in the course of legal succession; and (c) does a domestic court judgment play a role  in the qualification of a claim to money as a protected investment? The author acted as counsel in three of the ECT cases examined in this article.

 

A contractual claim to money is typically listed in the modern investment protection treaties under the categories of assets included in the definitions of an “investment.”  However, arbitral tribunals take different views on whether particular claims to money may be ranked as an investment. Some of them characterize contractual claims to money as protected investments,  while others consider that contract rights based on one-off transactions or ordinary commercial transactions do not qualify as investments.  

 

A greater level of uniformity on this issue was shown in three cases under the Energy Charter Treaty (ECT), Petrobart v. Kyrgyzstan,  Remington v. Ukraine  and Energoalians v. Moldova,  in which the tribunals recognized contractual claims to money as protected investments.

 

The award made in the 2015 ECT case of Energorynok v. Moldova  somewhat differs from the above three cases in this respect and raises a conceptual question: is it sufficient for an investor to only “own or control” such a claim to money, originally based on a specific agreement and subsequently confirmed by a court decision, or is something more required?  For example, should the investor also have a role or level of control with regard to the economic activity carried out pursuant to the underlying agreement on the transmission of electric energy to the host state?