The Scope of ICSID’s Jurisdiction: The Notion of “Investment” under Article 25(1) of ICSID Convention and Practical Cases
|關鍵字:||國際投資法;國際投資糾紛解決中心（ICSID）;管轄權範圍;「投資」概念;International Investment Law;ICSID;The Scope of Jurisdiction;The Notion of “Investment”|
|摘要:||為促進跨國投資發展，並建立一國際投資爭端解決機制，世界銀行（The World Bank）於1965年設立國際投資糾紛解決中心（The International Centre for Settlement of Investment Disputes，以下簡稱為ICSID）。ICSID作為一專門處理外國投資人（Foreign Investors）與地主國（Host State）間投資糾紛之仲裁機構，應如何判斷其管轄權要件之一「直接因投資行為而衍生之糾紛（disputes arising directly out of an investment）」，以界定其管轄權範圍實屬重要。然而，解決國家與他國之國民間投資糾紛解決公約（Convention on the Settlement of Investment Disputes between States and Nationals of Other States，以下簡稱ICSID公約）第25.1條並未明定何謂「投資」概念，導致後續仲裁庭對於「投資」概念之判斷方式產生分歧，進而影響當事人得否適用ICSID仲裁程序以解決其投資糾紛之權益。
For the purpose of facilitating cross-border investment, creating the mechanism for international investment disputes, the International Centre for Settlement of Investment Disputes (ICSID) was established by the World Bank in 1965. ICSID has served as a key mechanism for adjudicating disputes between individual foreign investors and host states. It is indispensable for ICSID to determine whether a dispute brought before it arises directly out of an investment, as it is one of the requirements of its jurisdiction. However, the notion of “investment” is not explicitly defined under Article 25.1 of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), which has led to the divergent approaches of judging the notion of the investment, further having an impact on parties’ rights to access to ICSID. This thesis accordingly explores the notion of “investment” with regard to the jurisdiction of ICSID. First, I will explore the process of the ICSID Convention’s establishment, figuring out why the definition of investment is not regulated in the ICSID Convention. Second, tribunals have proposed two opposite approaches, a subjective approach and an objective approach, to evaluating the notion of “investment”. I will inspect the reason for the choice between the approaches and further analyze the arbitration awards relate to the issue. Third, I will compare the rules for investment stipulated in International Investment Agreements to the ICSID Convention, making sure there is no contradiction between them. Fourth, as the perspective of empirical study, I will evaluate contents of arbitration awards, synthesize the similarities and differences between each award, indicating the development and trends for evaluating the notion of “investment”. In conclusion, I will propose the most appropriate solution to interpreting the notion of “investment” under Article 25.1 of the ICSID Convention in order to strike the balance between the parties’ interests and maintaining the scope of ICSID’s jurisdiction.
|Appears in Collections:||Thesis|