Home » Articles » Microinvestment Disputes

Microinvestment Disputes

PDF · Perry S. Bechky · Nov-2-2012 · 45 VAND. J. TRANSNAT’L L. 1043 (2012)

Salini v. Morocco sparked one of the liveliest controversies in the dynamic field of international investment disputes. Salini held that the word “investment” in the Convention establishing the International Centre for Settlement of Investment Disputes (ICSID), although undefined, has an objective meaning that limits the ability of member states to submit disputes to ICSID arbitration. The Salini debate is central to this field because it shapes the nature, purpose, and volume of ICSID arbitration—and also determines who gets to decide those matters. In particular, Salini’s decision to include “a contribution to development” as an element of its objective definition of investment transformed development promotion from a generalized goal of ICSID as an institution into a jurisdictional requirement for each case.

This Article introduces the concept of a microinvestment dispute, which focuses attention on small investments giving rise to ICSID cases. The microinvestment lens reveals the failings of Salini’s contribution-to-development prong. By conditioning ICSID jurisdiction on an individualized showing of such a contribution, this prong disproportionately burdens microinvestors, inhibiting their access to ICSID despite the fact that the drafters of the ICSID Convention specifically rejected a minimum size requirement. In so doing, the development prong also limits ICSID’s value to those who need it most. In the name of promoting development, Salini may well undercut it.

In addition, this Article also offers a “third way” alternative to both Salini’s objectivity and pure subjectivity. This alternative—bounded deference—draws on the principles of autonomy, consent, and good faith to strike a better balance between states and arbitral tribunals.

 




Leave a Reply

ExpressO Top 10 Law Review

ANNOUNCEMENTS

We are pleased to announce the 2013-2014 VJTL New Members

Coming up:

The Vanderbilt Journal of Transnational Law hosted a symposium called “The Role of Non-State Actors in International Law” at Vanderbilt University Law School in February 2013.

The October issue of the Journal will showcase articles by distinguished symposium guests including:

  • Mr. Ian Smillie, “Blood Diamonds and Non-State Actors”
  • Professor Jean d’Aspremont, “Cognitive Conflicts and the Making of International Law from Empirical Concord to Conceptual Discord in Legal Scholarship”
  • Professor Peter J. Spiro, “Constraining Global Corporate Power: A Very Short Introduction”
  • Professor Suzanne Katzenstein
  • Professor Peter Margulies
  • Professor Harlan G. Cohen

 

Explore Other Vanderbilt Law Resources