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The Contracting State is the correct defendant even where the violations were committed by a state entity
Certain investments need specific approval
The right to ICSID arbitration under the Treaty cannot be waived by way of a contractual clause providing for administrative courts which cannot be opted for
Investments imply contributions, a certain duration of performance of the contract, participation in the risk of transaction, and contribution to economic development (so called Salini Test)
A construction contract of 32-month duration fulfils the requirement of an investment
In defining “investment” according to Article 25 ICSID Convention, it would be inaccurate to consider that the requirement that a dispute be “in direct relation to an investment” is diluted by the consent of the contracting parties
“Investment” does not need to be interpreted according to national law
- International Investment Treaties (IITs) > International Law Rules Applicable to IITs > Relationship of IITs to Domestic Law > Applicability of Domestic Law / Renvoi
- International Investment Treaties (IITs) > Protection of Investors under IITs > Applicability of IITs > Ratione Materiae – Definition of Investment > The Concept of "Investment" > General Remarks
Based on a functional/structural test, the actions of private juridical persons can in principle be attributed to a state
While contracts can fall within the applicable scope of a wide dispute settlement clause, the state, must be a named party
Wide dispute settlement clauses cannot be interpreted so as to exclude claims arising outside of the IIT
The right to ICSID arbitration under the Treaty cannot be waived through a contractual clause providing for mandatory administrative courts
The requirements for a request of amicable settlement should include the existence of grounds for complaint and the desire to resolve these matters out-of-court. It need not be complete or detailed.
The state must conclude the contract; the state has to be the named party
International Law Rules Applicable to IITs
Relationship of IITs to Domestic Law
Applicability of Domestic Law / Renvoi
“Investment” does not need to be interpreted according to national law
Law of State Responsibility
Attribution of Acts
Attribution of Acts by State Entities
Based on a functional/structural test, the actions of private juridical persons can in principle be attributed to a state
Protection of Investors under IITs
Applicability of IITs
Ratione Materiae – Definition of Investment
The Concept of "Investment"
General Remarks
“Investment” does not need to be interpreted according to national law
Approval of the Investment
Certain investments need specific approval
Expropriation and Standards of Protection
Umbrella Clause
Umbrella Clauses and Questions of Attribution of Contracts
The state must conclude the contract; the state has to be the named party
Dispute Settlement Clauses
Waiting Clauses / Duty to Attempt Settlement Before Arbitration
Starting Date and Formal Requirements Triggering the Waiting Period
The requirements for a request of amicable settlement should include the existence of grounds for complaint and the desire to resolve these matters out-of-court. It need not be complete or detailed.
Wide Dispute Settlement Clauses
While contracts can fall within the applicable scope of a wide dispute settlement clause, the state, must be a named party
Wide dispute settlement clauses cannot be interpreted so as to exclude claims arising outside of the IIT
Waiver of Rights Under an IIT
The right to ICSID arbitration under the Treaty cannot be waived through a contractual clause providing for mandatory administrative courts
Jurisdiction of the Centre (Articles 25-27)
Article 25
Consent
Waiver of Consent
The right to ICSID arbitration under the Treaty cannot be waived by way of a contractual clause providing for administrative courts which cannot be opted for
Jurisdiction Ratione Materiae
Investment
The Parties’ Consent and “Investment” / Two-Part Test of Investment
In defining “investment” according to Article 25 ICSID Convention, it would be inaccurate to consider that the requirement that a dispute be “in direct relation to an investment” is diluted by the consent of the contracting parties
Contracts as Investments
A construction contract of 32-month duration fulfils the requirement of an investment
"Salini" Criteria
Investments imply contributions, a certain duration of performance of the contract, participation in the risk of transaction, and contribution to economic development (so called Salini Test)
Jurisdiction Ratione Personae
Party Status of the Contracting State, Subdivisions or Agencies
The Contracting State is the correct defendant even where the violations were committed by a state entity