By Giacomo Becattini; Marco Bellandi; Lisa De Propris
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Additional resources for A Handbook o Industrial Districts
However, and to some extent in contradiction with the analytical approach used in their decision, the FEDAX arbitrators took an important step that could be further developed by future arbitral tribunals. For the first time, and in a subtle way, they made reference to certain objective criteria to define the term "investment" for the purposes of the ICSID Convention. e. "volatile capital". The basic features of an investment have been described as involving a certain duration, a certain regularity of profit and return, assumption of risk, a substantial commitment and a signzficance for the host State development.
Of special concern is the possibility that the investor may submit a dispute to the domestic courts of the host country and simultaneously or subsequently submit the same dispute to international arbitration. Two approaches have been used in IIAs to deal with this issue. Some agreements force the investor to decide, ab initio, whether the dispute shall be adjudicated in domestic tribunals or through international arbitration. Once the dispute is submitted to either forum, the election shall be definitive.
Trends in International Investment Rulemaking: Arbitration Practice 27 out1'of an investment has led to the question whether such language provides arbitration tribunals with jurisdiction to hear a claim based solely on an alleged breach of a contract - and not on a violation of the treaty itself. The ISDS jurisprudence over the last decade on this matter has not been uniform. Some arbitration tribunals have provided that the dispute resolution clause is drafted in sufficiently broad language to extend to "any" or to "all" disputes assumed jurisdiction over mere contractual claims, including when the dispute relates to the performance of a contract.