الهام برزگرنودهی

This thesis tackles the issue regarding the contribution of foreign investments to the economic development of the host state as a jurisdictional requirement under the Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States. The ICSID Convention governs the jurisdiction of the International Center for Settlement of Investment Disputes for the establishment of arbitral proceedings between contracting states and nationals of other contracting states. While the establishment of arbitral proceedings under the ICSID Convention is subject to the consent of the parties to the dispute, the ways of expressing which are quite various, the jurisdiction of the ICSID Center is not unlimited. The dispute referred to the ICSID Center for settlement should also fulfill certain requirements specified in the text of the Convention. One of the main requirements is that the dispute must arise out of an investment. However, the ICSID Convention lacks a definition of investment. In the absence of such definition, the majority of ICSID arbitral tribunals have reached the conclusion that the term "investment" in the ICSID Convention contains an objective notion that cannot be waived by the consent of the parties to the dispute. In other words, the element of investment in the text of the ICSID Convention contains a notion beyond the will of the parties. Consequently, some of the said tribunals stated that making contribution to the economic development of the host state is one of the necessities to define the term investment in the ICSID Convention. Therefore, it should be considered when determining the jurisdiction of the ICSID Center. The tribunals considered t`hat the legal basis for the contribution of foreign investors to the economic development of the host state as an element of investment in the ICSID Convention may be inferred from the wording of the first recitals of the preamble of the ICSID Convention, stating that the ICSID Convention is concluded based on the role of private international investments in the economic development. However, it is argued in this thesis that the decisions of these tribunals were based on a misapplication of the general rule of treaty interpretation of the ۱۹۶۹ Vienna Convention on the Law of Treaties, since they ignore the ordinary meaning of the term investment. The general rule of treaty interpretation of the Vienna Convention has established a method by which the intention of the parties to the treaty plays a relevant and pivotal role. Above and beyond, treaty interpretation must be based on the text of the treaty, which should be interpreted according to the ordinary meaning of its terms. The use of the subject and purpose of the treaty is a second step and it cannot be invoked to contradict the ordinary meaning of the terms used in the treaty and to give a special meaning to them. As a result, considering that the ICSID Convention as a treaty is subject to the general rules of treaty interpretation of Vienna Convention, the term investment described in it does not impose a requirement of contribution to the economic development of the host state.