Qualification of Contributions as Investments in ICSID Practice: Criteria and Their Application

The article examines approaches to the qualification of contributions as investments for the purpose of establishing the jurisdiction of the International Centre for Settlement of Investment Disputes. It highlights the absence of a treaty definition of “investment” in the Washington Convention and the resulting role of interpretation, legal characterization, and criteria developed in arbitral practice. The article identifies key lines of reasoning used to substantiate the investment nature of a contribution, including the assessment of duration, allocation of risk, expectation of economic return, and the connection between the contribution and the host State’s economy. It is argued that evaluative criteria may enhance coherence in jurisdictional determinations while simultaneously preserving the risk of inconsistent practice and an overly broad inclusion of disputes that are close in nature to commercial disagreements. The article further emphasises the need for a proportionate balance between party consent, the autonomous meaning of “investment” under the Convention, and requirements of legal certainty when delineating public-law and private-law elements within investment relations.