![]() In investment arbitration, the boundary between jurisdiction and admissibility is particularly fluid. Even though the distinction between jurisdiction and admissibility is a longstanding one in international law, the delimitation of the two is not always straightforward, and in addition the terminology is sometimes inconsistent. Whereas jurisdiction typically looks at the dispute as a whole, admissibility is concerned with particular claims. With admissibility, the question is whether the claim is ready for decision at this stage. By contrast, admissibility concerns the power of a tribunal to decide a case at a particular point in time in view of possible temporary or permanent defects of the claim. Jurisdiction refers to the power of a court or judge to entertain an action. Section IV considers two special cases whose investment status is unclear considering these two controversies: first, whether financial instruments qualify as investments and, second, whether commercial arbitration awards, investment awards or judgments by national courts in the host country qualify as investments. ![]() Section III examines possible objective elements of investments. Section II analyses whether “investment” in Article 25 ICSID Convention has an objective meaning, and whether the term “investment” has evolved over time. It focuses on the second feature because the objective elements that may characterise investments have considerable practical relevance for the jurisdictional determinations of ICSID tribunals. Specifically, there has been some controversy as to whether an objective element is that the transaction contributes to the host country’s economic development. These two features are: (i) whether “investment” in Article 25 ICSID Convention has an objective meaning, in addition to the definition of investment in the instrument of consent/the investment treaty (the controversy over the objective versus subjective meaning of investment) and (ii) if “investment” has an objective meaning, which elements ought to be used to objectively determine investments (the controversy about objective, or characteristic elements of investments). ![]() Investment tribunals and the literature have adopted divergent approaches with respect to two specific features of the term “investment”. Article 25 ICSID Convention, the only provision on the subject matter jurisdiction of ICSID tribunals, merely refers to “investment”. As is well known, the ICSID Convention does not define what “investments” are.
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