Investment treaty cases arising out of construction disputes – threshold issues and recent case law
Investment treaty cases arising out of construction disputes – threshold issues and recent case law

Summary/Abstract: This article explores the intersection between international investment law and construction disputes, focusing on the threshold issues that determine whether a dispute in the construction sector qualifies as an investment treaty case, and how these issues have developed in recent case law. The article firstly examines the meaning and conditions of the notions of “qualifying investor” and “qualifying investment”, drawing on the language of bilateral and multilateral investment treaties, as well as the ICSID Convention. Regarding each of the two notions, the article delves into more specific issues that have been commonly raised in previous construction investment treaty cases, such as incorporation in the host state or state-ownership, as well as the applicability of the ICSID-specific “double-barreled test” or the Salini test. The focus then shifts to the imperative that the case be against a state or entity whose conduct is attributable to the state, before addressing the fourth and final threshold issue, the nature of the claim. With respect to the nature of the claim, the article details the principal protections enshrined in the majority of the investment treaties, as well as umbrella clauses and their effects. The conclusion reflects on the current trends, the impact of ISDS backlash, and the future of investment protection in large-scale construction projects, particularly in light of recent developments in intra-EU arbitration and the reform of investment treaties.

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