Application of the Salini test in determining investments in the practice of the International Center for Settlement of Investment Disputes

The article analyzes the subject jurisdiction of ICSID in relation to investments. The determination of the existence of an investment in a particular dispute belongs to the exclusive competence of the arbitration itself, since the concept of "investment" is not disclosed in the text of the Washington Convention. The authors analyze in detail the criteria of the Salini test, which determine the subject jurisdiction of ICSID in relation to investments. The authors evaluate the main features of investment activity used by arbitrators in the qualification of certain transactions for their compliance with the requirements of Article 25 of the Washington Convention. The article presents an analysis of ICSID decisions, starting with the Fedex case, where for the first time the need to use objective criteria to determine jurisdiction was noted, and the Salini case, where the arbitrators disclosed the content of these criteria, as well as the subsequent ICSID practice. The application of the Salini test is carried out by different arbitration structures in different ways. Despite the fact that the arbitrators using the Salini criteria differ in their number, content and method of determining the criteria (intuitive and deductive), the basis of the Salini Test (conditions of contribution, duration, presence of risks, contribution to the economy of the host state) remains unchanged. The authors pay special attention to the methodology of applying these criteria, noting that in each of the criteria, the arbitrators identify their own structure. The authors come to the conclusion that the Salini test, without having a regulatory character, allows to objectively distinguish investments protected at the level of international agreements from ordinary commercial transactions, provides potential investors with the opportunity to assess risks even before the start of investment activity on the territory of a foreign state, as well as to protect the parties to the investment legal relationship from abuse by the other party.