The Concept of Investment Under The ICSID Convention
Abstract
In this article, the concept of "investment" has been examined in accordance with the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID). The objective of the Center established by the ICSID Convention is to resolve the "investment" disputes between the Parties and foreign investors of the other State Party through conciliation or arbitration. The concept of "investment", which determines the borders of the jurisdiction of the center, is not defined in the Convention. For this reason, in practice, it has seen that the concept of investment in referee decisions is defined in different forms. In arbitration decisions, the methods used to define the concept of investment also differ. In this article, these different methods and the different conclusions reached are examined, taking into account the opinions of the doctrine. In addition to not forming the basis of our work, a brief evaluation has been made on the view that the concept of investment is not deliberately defined and its content is left to the state parties. According to this view, the scope of the investment concept will be determined within the framework of the bilateral investment treaties. Today, the most commonly accepted solution in doctrine and practice is that there must be an investment under Article 25 of the Convention, so that a dispute can be seen at the ICSID arbitration center, and the parties should regard this dispute as an investment dispute.
Keywords
References
- AKINCI, Ziya; Milletlerarası Tahkim, güncellenmiş ve genişletilmiş 4. Baskı, Vedat Kitapçılık, İstanbul, 2016.
- ANDREEVA, Yulia; “The Tribunal in Malaysian Historical Salvors v. Malaysia Adopts a Restrictive Interpretation of the Term Investment”, Journal of International Arbitration, Vol 25, No 4, 2008, s. 503-506.
- ATAMAN FİGANMEŞE, İnci; “Manufacturing Consent to Investment Treaty Arbitration By Means of the Notion of ‘Arbitration Without Privity’”, Annales de la Faculté de Droit d’Istanbul, C 43, S 60, 2011, sy. 187-201. (Arbitration Without Privity)
- ATAMAN FİGANMEŞE, İnci; “Milletlerarası Ticari Tahkim ile Yatırım Tahkimi Arasındaki Farklar”, MHB, C 31, S 1, 2011, sy. 91-152. (Ticari Tahkim Yatırım Tahkimi Farkları)
- ATAMAN FİGANMEŞE, İnci; “Son On Yıl İçinde Türkiye’nin Muhatap Olduğu ICSID Davaları”, Uluslararası Tahkim Kongresi, 22-24 Mayıs 2012, İstanbul, sy. 18-35. (ICSID Davaları)
- AYDOĞMUŞ, Ayşe Yasemin; “İki Taraflı Yatırım Anlaşmalarındaki En Ziyade Müsaadeye Mazhar Millet Kaydına İstinaden ICSID’e Başvuru İmkanı”, MHB, C. 29, S. 1-2, 2009, sy. 21-84.
- BANİFATEMİ, Yas; “Unresolved Issues in Investment Arbitration”, Modern Law for Global Commerca, Congress to celebrate the fortieth annual session of UNCITRAL Vienna, 9-12 July 2007, s. 1-14.
- Bilateral Investment Treaties 1995-2006: Trends In Investment Rulemaking, United Nations Publication, New York and Geneva, 2007.
Details
Primary Language
English
Subjects
Law in Context
Journal Section
Decision Review
Authors
Melis Avşar
Türkiye
Publication Date
December 15, 2017
Submission Date
October 31, 2017
Acceptance Date
December 28, 2017
Published in Issue
Year 2017 Volume: 37 Number: 2