II. Article 25(1) of the ICSID Convention and the Salini Test
A plethora of investment related disputes are tabled before the ICSID. But in order for an ICSID Tribunal to accept jurisdiction over a dispute, the subject matter must concern ‘investment’, as provided under Article 25(1) of the ICSID Convention. Despite the importance of a dispute concerning an investment, the ICSID Convention does not define the term. The importance of some sort of definition or at least guidelines regarding what constitutes an investment cannot be overemphasized. This is because, whether or not the ICSID tribunal accepts jurisdiction, depends largely upon whether the subject matter tabled before them involves an investment. A test was certainly propounded in the case of Salini Construttori SpA & Italstrade SpA v Morocco, and this has been the basis upon which myriad ICSID Tribunals have based their decisions on jurisdiction. The first part of this section examines the lack of a definition of investment under ICSID, while the second part examines the Salini test.
A. Lack of a Definition under the ICSID Convention
The Washington Convention, which established the International Centre for the Settlement of Investment Disputes, does not provide a definition of foreign investment. This omission is even more significant because Article 25(1) explains the criteria to define the jurisdiction of the ICSID without specifying which economic operations qualify as ‘investments’ relevant to the purposes of ICSID.
A definition of investment was proposed in the preliminary works on the ICSID Convention. Article 30 of the first draft of the Convention defined the term ‘investment’ as, ‘any contribution of money or other assets of economic value for an indefinite period or, if the period is defined, for not less than five years.’ However, some delegates considered this definition too broad in scope and objected to the arbitrary exclusion of economic operations lasting less than five years. Other positions favoured explicitly referencing the relevant categories of investment in the Convention, while leaving the proper definition to the States through bilateral or multilateral agreements, however, these proposals were also rejected.
In practice, the gap in the Convention has been addressed through the intervention of ICSID arbitral panels and bilateral investment treaties (hereinafter BITs). It is worth mentioning that BITs commonly include a thorough explanation of the term “investment.” However, it should be noted that these definitions of investment in BITs are tailored to suit the requirements of the treaty’s participating states. Hence, it is not feasible to establish a unified concept of investment based on the varied definitions found in different BITs, as they are highly diverse.
The International Centre for Settlement of Investment Disputes (ICSID) receives myriad investment disputes. For ICSID to accept jurisdiction over a matter, however, the dispute must concern an ‘investment’ as per Article 25 of the ICSID Convention. The aforementioned provision states that:
The jurisdiction of the Centre shall extend to any legal dispute arising directly out of or in relation to an investment between a Contracting State (or any constituent subdivision or agency of a Contracting State designated to the Centre by that State) and a national of another Contracting State, which the Parties to the dispute consent in writing to submit to the Centre.
The difficulty that arises, however, is that the term ‘investment’ is not defined under the ICSID Convention. From the travaux preparatoires it can be seen that there were attempts to propound a definition of investment, within the ICSID Convention. A potential definition was contained in Article 30 of the draft Convention. It defined investment as, ‘any contribution of money or other assets of economic value for an indefinite period or, if the period be defined, for not less than five years.’ This definition, however, was ultimately discarded because the framers thought it better to leave the term “investment” to be defined by States in their own agreements.
Having either a definition or some sort of guideline regarding what constitutes an investment is imperative. This is owing to the fact whether or not the ICSID Tribunal accepts jurisdiction over a matter rests upon whether the subject matter tabled before them amounts to an investment.
B. The Salini Test
Although there is no definition of what constitutes an investment under the ICSID Convention, it was Schreuer who laid down the basis for the current debate on what an investment ought to be. As such, he proposed that : a qualifying project must show “a certain duration . . . a regularity of profit and return, an assumption of risk . . . [a] commitment [that] is substantial . . . and [an] operation’s significance for the host State’s development.”
The criteria highlighted by Schreuer was first considered in the case of Fedax NV v Venezuela. The criteria was then later considered in the case of Salini Construttori SpA & Italstrade SpA v Morocco. This case involved a dispute between two Italian companies, Salini Construttori and Italstrade, on the one hand and the Kingdom of Morocco on the other. The government of Morocco, through a private company, initiated a bidding process for the construction of a fifty-kilometer highway. The two Italian companies submitted a joint bid and won the contract for the construction of the said highway. Although the two companies completed the highway over a period of thirty-six months, this was four months later than stipulated in their bid. As such, the Moroccan government was unwilling to pay for the highway. Subsequently to going through domestic channels, Salini Construttori and Italstrade initiated arbitral proceedings before ICSID.
The tribunal in the case of Salini, introduced a clear four-pronged test in determining whether Salini Construttori and Italstrade had actually made an investment, for the purposes of ICSID arbitration. Under the test, the following four elements were required:
The doctrine generally considers that investment infers: contributions, certain duration of performance of the contract and a participation in the risks of the transaction . . . In reading the Convention’s Preamble, one may add the contribution to the economic development of the host State of the investment as an additional condition.
In reality, these various elements may be interdependent. Thus, the risks of the transaction may depend on the contributions and the duration of the performance of the contract. As a result, these various criteria should be assessed globally even if, for the sake of reasoning, the Tribunal considers them individually here.
1. Contribution
According to this criterion, an investor is required to provide certain resources for an investment. Following this perspective, if an investor is found to have not contributed anything to a project or transaction, a tribunal may determine that no investment has been made. Consequently, in cases where shares were acquired through unpaid loans, it has been argued that such share acquisition does not meet the criteria of being considered an investment.
Some examples of situations where the requirement of a contribution has been met include the contribution of funds, equipment, personnel, and expertise in infrastructure projects. Additionally, the investment of funds to upgrade and operate a hotel, the contribution of funds, expertise, and knowledge in the performance of a salvage operation of an old shipwreck, and the establishment and financing of a mobile phone network.
When multiple investors participate in a project, a tribunal will consider their combined investments to determine if the group as a whole has made an investment. This is particularly relevant in cases involving insolvent businesses, where a business may be sold for a nominal price, such as one United States Dollar. In such situations, tribunals have held that the payment of a nominal price does not prevent meeting the requirement of a contribution as long as the investor has a genuine intention to engage in economic activities through the investment. Generally, this criterion has not posed any challenges.
2. Duration
When considering this criterion an investment should be held for a medium to long-term duration, although there is no specific minimum period that is agreed upon by tribunals. Tribunal decisions provide guidance in this matter. On the low end, a duration of eighteen months was rejected and it seems that medium to long-term investments are preferred. Various tribunals have deemed a duration of two to three years as acceptable. On the higher end, investment periods of twenty-six and twenty years were found to be sufficient. The time required for tendering a contract, work interruption, contract negotiations, and their extensions are taken into account when determining the duration of an investment.
3. Assumption of Risk
In order to qualify as an investment, the activity concerned must also have a measure of risk. This is to be distinguished from an ordinary commercial risk, which will not suffice. Falling within the realm of ‘ordinary commercial risk,’’ for example, would be mere instances of non-performance by the other contractual party. There are circumstances where the risk involved was found to be acceptable, and an example is where an equity investment has been made and there is a risk that the value of such equity may depreciate. Tribunals have also considered the following to be types of risks that distinguish investments: “changes in production costs, . . . a work stoppage, and posting guarantee money.”
4. Benefit to the Host State
In terms of this criterion, an investment should make a notable contribution to the economy of the host state. The tribunal in Fedax was among the first to embrace this requirement. Subsequent cases have also adopted this requirement, with different levels of importance placed on the magnitude of the economic contribution to the host state, which can be observed in the analysis of tribunal decisions carried out in Malaysian Historical Salvors.
III. Conflicting Approaches to the Salini Test
Attempts have been made by ICSID tribunals to interpret the term investment. Arbitral tribunals are generally agreed on the fact that whether an activity classifies as an investment depends on the four criteria established in Salini. But the disagreement among tribunals, appears to lie in whether or not all four elements ought to be contemporaneously present. In Malaysian Historical Salvors Sdn Bhd (MHS) v. Malaysia (MHS), the tribunal identified the two main categories adopted by arbitral tribunals, in determining what activity amounts to an investment. These are referred to as the ‘jurisdictional approach’ on one hand and the ‘typical characteristics’ approach on the other. Under the former approach, the arbitral tribunal will invariably deny jurisdiction, if the four elements identified under Salini are not all conjunctively present. Proponents of the typical characteristics approach, on the other hand, adopt a more flexible approach, and state that all four elements need not be present at the same time. The aim of this section is to discuss both approaches in turn.
A. The Jurisdictional Approach
The jurisdictional approach was certainly adopted in Salini Construttori SpA v. Morocco. In observing that the ICSID Convention was silent on the definition of investment, identified the four criteria that need to be present. The tribunal further observed that the elements identified may be interdependent. For example, the level of the risk undertaken may be contingent on the amount of money contributed and the duration of the contract. Given this fact, the tribunal contended that the criteria should be assessed conjunctively rather than disjunctively. As such, in order for the subject matter to amount to an investment, all four elements must be present concurrently. Moreover, the tribunal opined that the risk undertaken by the investor should not be a mere economic risk but a qualified risk. The difficulty with approach this is that the tribunal did not define what amounts to a “qualified risk.” Thus, it is difficult to be persuaded of the arbitral tribunal’s reasoning.
Another case that adopted the jurisdictional approach is that of Joy Mining Machinery Ltd. v. Egypt. The tribunal preferred the jurisdictional approach because, in their view, any other interpretation would have turned Article 25 of the ICSID Convention into “a meaningless provision.” In this particular case, the arbitral tribunal considered the activity in question as merely commercial because “the production and supply of the kind of equipment involved in this case is a normal activity of the Company, not having required a particular development of production that could be assimilated to an investment.”
In addition to this, the arbitral tribunal observed that in the contract, “there was neither mention of foreign investment, nor was there any express intention on the part of the investor to activate Egypt’s authorization procedures for foreign investment.” Moreover, the tribunal contended that because the total price of the supply had actually been paid at the beginning of the contract, this negated any possibility of gaining regular profits and returns. They also found that the activities of the company did not involve a qualified risk. Instead, they merely constituted a commercial risk. Once again they did not deign to define what amounted to a qualified risk. Consequently, the tribunal denied jurisdiction, notwithstanding their concession that the operation did contribute to the economic development of the host State.
Yet another case adopting the jurisdictional approach was the subsequent case of Patrick Mitchell v. Democratic Republic of Congo, where the importance of economic contribution was also highlighted. The arbitral tribunal held that because economic contribution to the host State was an “obvious and unquestioned” effect of an investment it was therefore an objective requirement. But this position was brought into doubt by the two LESI cases. In these cases, the arbitral tribunals downplayed the importance of economic contribution. In LESI-Dipenta v. Algeria for example the arbitral tribunal said that for an activity to constitute an investment it should only fulfill three conditions: “a) the contracting party has made contributions in the host country; b) those contributions had a certain duration; and c) they involved some risks for the contributor.” Economic development of a country was not an essential requirement because it is “something that is difficult to ascertain and that is implicitly covered by the other three criteria.” The arbitral tribunal in LESI Sp.A. and ASTALDI v. Algeria adopted a similar if not identical position. Both tribunals accepted jurisdiction. The same position also taken in the case of Pey Casado v. Chile, where the tribunal observed that:
It is this Tribunal’s view that the definition does not, however, comprise more than three elements. The requirement of contribution to the economic development of the host State, as difficult to establish as it is, relates not to the jurisdiction of the Centre but rather to the substance of the dispute. An investment could prove useful – or not – for a country without it losing its quality [as an investment]. It is true that the Preamble to the ICSID Convention mentions contribution to the economic development of the host State. However, this reference is presented as a consequence and not as a condition of the investment: by protecting investments, the Convention facilitates the development of the host State. This does not mean that the development of the host State becomes a constitutive element of the concept of investment. That is why, as was noted by some arbitral tribunals, this fourth condition is in fact encompassed by the first three.
From the foregoing, it can be seen that the tribunal in Pey Casado v. Chile did adopt a jurisdictional approach. But as in the LESI cases, the tribunal disregarded the importance of the investor’s contribution to the development of the host State. As far as the tribunal was concerned, “economic development” is an integral part of the other three requirements anyway. Furthermore, the tribunal stated that criteria should be viewed as requirements rather than hallmarks. To do otherwise as was stated in Joy Mining, would render Article 25 of the ICSID Convention meaningless.
In the subsequent case of Bayindir v. Pakistan, however, the tribunal accepted jurisdiction but based on the Salini test. The tribunal held inter alia that “to qualify as an investment, the project must represent a significant contribution to the host State’s development.” The tribunal in Helnan v. Egypt adopted an even more restrictive definition of investment when they said that, “to be characterized as an investment a project must show a certain duration, a regularity of profit and return, an element of risk, a substantial commitment, and a significant contribution to the host State’s development.”
In the subsequent case of MHS v. Malaysia the sole arbitrator ostensibly took the jurisdiction approach. But it was suggested a certain activity could still constitute an investment despite the absence of certain requirements. This resulted in what has been described as a confused decision. The arbitrator firstly noted that there was an “absence of regularity of profits and returns.” But in his opinion this element was immaterial because the criterion is not always decisive and because it had “not been held to be an essential characteristic or criterion in any other case cited in this Award.” In addition, the arbitrator noted although the investor had made a commitment by expending his own funds, “the size of the contributions were in no way comparable to those found in Salini, Bayindir, and Joy Mining.”
The arbitrator held further that the operation was not for the requisite time frame of two to five years as stipulated in Salini. Although the project itself ran for a period of two years the contract itself was meant to be completed within eighteen months. Given this fact, the actual duration of the project was merely incidental. The arbitrator relied more on the timeframe that was contractually anticipated by the two parties as “[t]he nature of the project meant that the Claimant could have completed it within a shorter period than two years and was in fact contractually required to do so within 18 months.” The arbitrator further opined that:
although the Claimant satisfies the duration characteristic or criterion in the quantitative sense, it fails to do so in the qualitative sense. However, such failure does not, by itself, mean that the project was not an “investment” within the meaning of Article 25(1) since a holistic assessment of all the hallmarks still needs to be made.
Moreover, the arbitrator further noted that the risk involved was a typical business risk and not a qualified risk. Once again, what amounted to a qualified risk remained undefined. The arbitrator ultimately denied jurisdiction because the activity in question did not contribute to the economic development of the host State.. The arbitrator said that this particular hallmark was the most important because “the other typical hallmarks of ‘investment’ are either not decisive or appear only to be superficially satisfied.” This decision was eventually annulled, which shows the inadequacy of the jurisdictional approach. The annulment committee opined that the constrictive approach adopted by the arbitrator ignored “the bilateral and multilateral treaties which today are the engine of ICSID’s effective jurisdiction.” The ad hoc committee favoured the typical characteristics approach because it was more congruous with the intentions of the draftsmen of the ICSID Convention.
B. The Typical Characteristics Approach
The typical characteristics approach is more flexible than the jurisdictional approach. Therefore, an arbitral tribunal may still accept jurisdiction, despite the fact that all the four elements identified in Salini are not present at the same time. The ICSID Convention deliberately excluded a definition of investment, to ensure that Article 25 remained adaptable to the transient nature of international investment. As such, the typical characteristics approach appears to be more consistent with this intention than the jurisdictional approach.
The tribunal in CSOB v. Slovakia was the first to adopt the typical characteristics approach. Here the tribunal opined that although the activity involved in this case did not all the criteria identified in the Salini case, it did nonetheless involve a significant contribution to the economic development of the host State. Thus, it did involve an investment under the ICSID Convention, and the tribunal accordingly accepted jurisdiction. The tribunal justified its overdependence on economic development by stating that, “these elements of the suggested definition, while they tend as a rule to be present in most investments, are not a formal prerequisite for the finding that a transaction constitutes an investment as that concept is understood under the Convention.” Thus, the four elements propounded in Salini need not all be present, in the tribunals opinion. Therefore, by extension, a project could classify as an investment under Article 25 of the ICSID Convention despite some of those elements not being present. The CSOB tribunal placed a lot of emphasis on the commentary of the Executive Directors of the World Bank on the absence of a definition of investment. As such the Tribunal observed that:
This statement also indicates that investment as a concept should be interpreted broadly because the drafters of the Convention did not impose any restrictions on its meaning. Support for a liberal interpretation of the question whether a particular transaction constitutes an investment is also found in the first paragraph of the Preamble to the Convention, which declares that “the Contracting States [are] considering the need for international cooperation for economic development, and the role of private international investment therein.” This language permits an inference that an international transaction which contributes to cooperation designed to promote the economic development of a Contracting State may be deemed to be an investment as that term is understood in the Convention.
In MCI v. Ecuador the tribunal stated that the hallmarks identified by previous arbitral tribunals, were to be regarded as mere examples as to elements that determine the existence of an investment. The Tribunal further observed that:
The Tribunal states that the requirements that were taken into account in some arbitral precedents for purposes of denoting the existence of an investment protected by a treaty (such as the duration and risk of the alleged investment) must be considered as mere examples and not necessarily as elements that are required for its existence. Nevertheless, the Tribunal considers that the very elements of the project [giving rise to the dispute] and the consequences thereof fall within the characteristics required in order to determine the existence of protected investments.
The tribunal in Biwater v. Tanzania also chose not to adopt the rigid Salini test. Instead they called for, “a more flexible and pragmatic approach . . . which takes into account the factors identified in Salini, but along with all the circumstances of the case.” The tribunal observed that there was no justification for the constrictive approach adopted in Salini. This was owing to the fact that the criteria adopted neither appeared in the ICSID Convention, nor were they fixed and mandatory according to the law. The arbitral tribunal ultimately said that “it is doubtful that arbitral tribunals sitting in individual cases should impose one such definition which would be applicable in all cases and for all purposes.”
The Tribunal in Biwater further observed that the Salini test is in itself problematic. This is because the criteria identified therein is elevated into a “fixed and inflexible test, which excludes certain transactions from constituting an investment unless all elements are satisfied. The risk this entails is an “arbitrary exclusion of certain types of transaction from the scope of the Convention.” Furthermore, it would also lead to a definition that may possibly contradict individual agreements, as it did in this case, and a developing consensus in parts of the world as to what amounts to an “investment,” as expressed for example in Bilateral Investment Treaties. Indeed, the tribunal found it difficult to see why the ICSID Convention ought to be read narrowly, if a large number of BITs across the world contain definitions of investment that are broader than that provided under the Salini test.
IV. Jurisprudence Constante on the Term Investment
Difficulties clearly arise with this dichotomy in approaches towards defining the term investment. This is because it leads to uncertainty. The jurisdictional approach is particularly objectionable for three reasons. Firstly, it is incongruous with the rationale behind having no definition of investment in the first place. Secondly, arbitral tribunals adopting the jurisdictional approach tend have a propensity for ignoring the definitions of investments contained in Bilateral Investment Treaties, shown in the MHS proceeds, and in the case of Romak v. Uzbekistan.
Although Romak was not an ICSID case, it underscores this point. Romak, which was a Swiss based firm, had entered into a contract for the supply of wheat to Uzbekistan. When Romak ran into difficulties receiving payment, they initiated arbitral proceedings against Uzbekistan. The question of whether the activity therein constituted an investment was raised. Article 1(2) of the Bilateral Investment Treaty between Switzerland and Uzbekistan, rendered a very broad definition of investment to include “every kind of asset” which had some economic value. It was asserted by Romak, that this is the definition that ought to be followed. But the arbitral tribunal rejected this subjective definition and refused to interpret the Bilateral Investment Treaty in a way which would “render meaningless the distinction between investments, on the one hand, and purely commercial transactions on the other.” The tribunal further disagreed with the contention that the definition of “investment” in UNCITRAL proceedings (i.e. under the BIT alone) is wider than in ICSID Arbitration. In the tribunal’s view, such a suggestion would widen or narrow the substantive protections offered under the Bilateral Investment Treaty and thus lead to unreasonable results. The tribunal saw no basis for utilizing a definition of “investment,” that was disconsonant with that adopted by ICSID Tribunals. For this reason, they adopted the objective criteria outlined in Salini, as opposed to the definition contained in the Bilateral Investment Treaty. They concluded that the contract for the supply of wheat was a one-off commercial transaction and therefore did not fall under the definition of ‘investment’ as per the Salini test. As such, this is an example of the manner in which some arbitral tribunals have a propensity for ignoring the definitions contained in Bilateral Investment Treaties, in favour of the jurisdictional approach highlighted above.
The third reason the jurisdictional approach is objectionable is that it has its inner contradictions. One the one hand it attempts to create a formal definition of investment by identifying certain elements. But on the other hand, there is no consistency in the case law, with regards to which requirements are applicable and which ones are not. The tribunal in Salini, required four criteria to be present, whereas the LESI cases only required three. As such, it can be seen that even tribunals that purportedly adopt a jurisdictional approach, tend not to fully agree on whether all elements need to present, to constitute an investment. Which is yet another reason why the jurisdictional approach is inadequate.
A more cogent approach is the typical characteristics approach. This is because it affords arbitral tribunals the flexibility needed in determining whether an activity amounts to an investment on a case-by-case basis. This approach does not necessarily lead to more certainty in the law. But it does at least widen the scope of which activities do in fact constitute an investment. In addition to this, it enables arbitral tribunals to take into account BITs, which invariably contain within them, their own definitions of investment. The only difficulty with this approach, of course, is that it is so open-ended that may still be just as hard for parties to determine whether their activity falls within the realm of an investment. But this is advantageous because it gives tribunals the opportunity to capture as many disputes as possible, thus allowing them to decide the matter on its merits, rather than dismissing it on a mere technicality.
To address the problem of having two divergent approaches to the definition of investment, it is advanced that tribunals ought to progressively establish a jurisprudence constante, through the accumulation of a continuing line of cases. No doctrine of precedence actually exists under international investment law. But what is referred to as a jurisprudence constante, can still be established, by adopting a continuing line of cases, which then have precedential effect.
As such, successive ICSID tribunals would have a range of decisions that constantly reaffirm the same approach of the term investment. This in turn, would progressively make a general rule out of that interpretation. It does not become precedent per se, but rather it will become one that will have a persuasive effect on subsequent arbitral tribunals. As Vargiu notes:
For the establishment of a jurisprudence constante on the notion of investment however, a step back would be needed from the advocates of both approaches. Supporters of the “jurisdictional” approach should recognise that there is nothing in the ICSID Convention that requires a project to satisfy formal requirements in order to be qualified as an investment. On the other hand, some more formalism should be adopted by the advocates of the “typical characteristics” approach, in order to define with more certainty what those “typical characteristics” are in practice.
A jurisprudence constante would certainly ensure some form of predictability in the law, in the same way that the common law does. Furthermore, with the flexibility that it entails, having a jurisprudence constante perhaps makes it more likely that a certain activity will indeed classify as an investment. This would especially be the case, if the jurisprudence constante established leans more in favour of a typical characteristics approach. This is because it is wide and leaves open the possibility of examining definitions promulgated in the BITs, from which the arbitrators draw their jurisdiction. Moreover, as noted above, the typical characteristics approach is more congruous with the intention of those that drafted the ICSID Convention.
V. Conclusion
It could thus be concluded that ICSID was created as a body to resolve disputes between investors and host states, in matters pertaining to investments. Despite this fact, the framers of the ICSID Convention did not define the term ‘investment.’ Instead, this was left to the arbitral tribunals to decide and indeed a test on what constituted investment was propounded in the Salini case. It provided that in order for an activity to constitute an investment, it must be for a certain duration, must show a regular profit and return, there must be an element of risk and it must contribute to the economic development of the host State.
Subsequent ICSID arbitral tribunals have based their assessment of whether a certain activity constitutes an investment, on the Salini criteria. But there is disagreement as to whether all the criteria therein ought to be present conjunctively or should be seen as mere characteristics. Proponents of the former view take what is called the jurisdictional approach, whereas proponents of the latter view take what is referred to as the typical characteristics approach.
The difficulty with this dichotomy in approaches is that it leads to uncertainty. The jurisdictional approach is certainly problematic. Firstly, having such a rigid approach, is inconsistent with the rationale behind having no definition at all, which is flexibility. Secondly, arbitral tribunals adopting such a rigid approach, typically ignore the definitions of investment contained in Bilateral Investment Treaties, as illustrated above. Thirdly, proponents of the jurisdictional approach cannot seem to agree on which elements are to be present. Some require all four, others propose more, while others expect only some to be present, when determining whether an activity amounts to an investment.
The typical characteristics approach gives tribunals flexibility when determining their jurisdiction. The flexibility of this approach allows tribunals to take BITs into account and also captures as many investment activities as possible. This enables a tribunal to decide a matter on its merits, rather than dismissing it on a mere technicality. Thus, this article proposes that tribunals progressively establish a jurisprudence constante and as such have a range of decisions affirming the same interpretation of investment, adopted under the typical characteristics approach. This in turn, will ensure some form of predictability in the law, in the same way that common law does. Furthermore, the flexibility that this approach entails, makes it more likely that an activity will classify as an investment. It is also congruous with the intention of the framers of the ICSID Convention.
