نوع مقاله : مقاله پژوهشی
نویسندگان
گروه حقوق، واحد خمینی شهر، دانشگاه آزاد اسلامی، خمینی شهر، ایران
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
The existence of an “investment” constitutes one of the most fundamental jurisdictional requirements (jurisdiction ratione materiae) for an investor to have access to arbitration before the International Centre for Settlement of Investment Disputes (ICSID). In this respect, two principal approaches have emerged in the doctrine and jurisprudence of international investment arbitration concerning the determination of the investment requirement under Article 25: the objective approach and the subjective approach. In this respect with to considering the absence of an express definition of “investment” in the ICSID Convention, this study—conducted through a doctrinal, library-based research method—seeks to address the key question of the legal foundations underlying each approach and the reasons why arbitral tribunals have, in practice, adhered to one theory rather than the other. In this regard, it appears that proponents of the objective approach, relying on landmark awards such as Salini, argue—contrary to advocates of the subjective approach, who prioritize the consent of the parties as reflected in their investment agreements—that Article 25(1) of the ICSID Convention implicitly circumscribes the jurisdiction of ICSID tribunals by imposing objective, external criteria on the notion of investment, commonly referred to as the Salini test.
کلیدواژهها [English]
