Development as an International Right: Investment in the new Trade-Based IIAs
Abstract
This article explores the international right of development, as expressed in the design of new trade-based international investment agreements (IIAs). The article shows that, hitherto, development has figured mostly in investment arbitration primarily through “jurisdictional gatekeeping” (what is designated to refer to issues involving access to dispute resolution procedures under the ICSID Convention). As this article shows in Parts I and II of this article, recent investment arbitrations in the past decade have turned on the issue of how to reconcile and interpret the meaning of “investment” within Article 25 of the ICSID Convention with the effect of the pro-development language in the Preamble to the ICSID Convention. While the Salini test will remain a much-debated approach in international investment interpretation, the main subjective difficulty in elevating development to a condition or criterion for investment treaty coverage is that the international right of development is itself a dynamic concept, with equally divergent methods for assessing “contributions to economic development”. The inherent fluidity of the concept of development, coupled with the absence of any language within Article 25 of the ICSID on the international right to development, further supports the view that the Convention did not intend to impose development contributions as a strict condition or mandatory criterion before gaining access to ICSID jurisdiction.
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ISSN: 0976-2329 | eISSN: 0975-3346 | © 2009 Trade, Law and Development | open access

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