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Part III Guide to Key Jurisdictional Issues, 11 The Meaning of ‘Investment’ in Investment Treaty Arbitration

Katia Yannaca-Small, Dimitrios Katsikis

From: Arbitration Under International Investment Agreements: A Guide to the Key Issues (2nd Edition)

Edited By: Katia Yannaca-Small

From: Investment Claims (http://oxia.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. date: 01 October 2023

Jurisdiction — Host state law

Despite the growing number of investor-state arbitrations and resulting jurisprudence, there is still no consensus on the criteria of investment. This chapter first examines the way ‘investment’ is ‘defined’ in bilateral investment treaties and other international investment agreements, as well as the meaning of investment in the International Centre for Settlement of Investment Dispute (ICSID) Convention. It then considers aspects of the arbitral jurisprudence on certain types of assets constituting an investment; the ‘objective’ and ‘subjective’ approach to interpreting definitions of ‘investment’; the characteristics that have been considered to be criteria of an investment; and the requirements that, to be protected, an ‘investment’ must be (i) made in accordance with the host State’s law and (ii) in the territory of the host State.

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