The Path Towards Defining “Investment” in ICSID Investor-State Arbitrations: The Open-Ended Approach


Article 25 of the International Convention on the Settlement of Investment Disputes left the notion of “investment” intentionally undefined, thus leaving its interpretation in the hands of arbitration tribunals, which has led to inconsistencies, confusion and debate regarding the true essence of what may appear as a routine concept. This article tries to explain that the proper meaning of “investment” under the Convention must be clarified not only by discussing the drafting history of the Convention, but by also examining doctrinal tendencies, key aspects of corresponding arbitration awards and customary international law and argues that arbitration tribunals should show strong deference to states’ interpretations on the question of what constitutes an “investment,” as it is what the drafters’ intended and that is what suggests a careful analysis of the convention’s object and purpose

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This paper was published in Pepperdine Digital Commons.

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