GEA v. Ukraine and the Battle of Treaty Interpretation Principles Over the Salini Test
| Autor: | Joshua Fellenbaum |
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| Rok vydání: | 2011 |
| Předmět: | |
| Zdroj: | Arbitration International. 27:249-266 |
| ISSN: | 1875-8398 0957-0411 |
| DOI: | 10.1093/arbitration/27.2.249 |
| Popis: | In order to unlock the proverbial doors to the International Centre for Settlement of Investment Disputes, an investor must gain the key by convincing the arbitral tribunal that the economic activity constitutes an investment under both the applicable investment treaty or contract and Article 25(1) of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. Pursuant to Article 25, the jurisdiction of the Centre depends upon the existence of a dispute ‘arising directly out of an investment’. The founding fathers of the ICSID Convention did not define the term ‘investment’. Against this backdrop, a trend is discernable, according to which arbitral tribunals have applied a more restrictive approach by importing objective criteria into Article 25, known as the so-called Salini test. Tension arises between the definition of an investment set out in the instrument providing consent to ICSID jurisdiction and the reliance that arbitral tribunals place on the objective criteria of an investment in Article 25. The issue boils down to two opposing principles of treaty interpretation. One view relies on a textual approach to treaty interpretation and the other side relies on the teleological approach to treaty interpretation. Instead of crafting an award that provides guidance on the critical question of interpretation, the high calibre arbitral tribunal in the recent case of GEA Group Aktiengesellschaft v. Ukraine ultimately sidestepped the controversy leading the distinguished arbitral tribunal away from what could have been a legally significant decision on this longstanding debate. |
| Databáze: | OpenAIRE |
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