Abstract

The International Centre for Settlement of Investment Disputes (ICSID) is an Investor-State Dispute Settlement (ISDS) arbitration tribunal. The subject-matter jurisdiction of this arbitration tribunal called (the tribunal) requires that the dispute must be arisen out of the investment, though the Convention of ICSID (the ICSID convention) does not define ‘investment”. According to the ICSID convention and its rules, the definition agreed by the parties found in the investment treaty or investment agreement covers jurisdictional requirement and ICSID tribunal has followed this approach traditionally. Despite such traditional approach, the tribunal in the ICSID case of Salini Costruttori SPA vs. the Kingdom of Morocco (Salini Case) prescribed four characteristics of an investment in defining investment to satisfy the jurisdiction under article 25 of the ICSID convention in 2001. This development of investment definition is known as Salini approach. Post-Salini, some of ICSID tribunals and Non-ICSID tribunals have shifted from the traditional legal position and developed the definition independently. Though the ICSID jurisprudence on the definition has been heterogeneous, the development plays a significant role on the jurisdiction in the subsequent ICSID tribunals. The autonomous development of jurisprudence in international investment law by the post-Salini international arbitral tribunal is remarkable.