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108 views21 pagesThe Notion of Investment in ICSID Case Law: A Drifting Jurisdictional Requirement ? Some Un-Conventional Thoughts On Salini, SGS and Mihaly. Farouk Yala
Despite the fact that the term "investment" appears at the heart of both the name of the International Center for the Settlement of Investment Disputes (ICSID) as well as in the title of the Convention on the Settlement of Investment Disputes between States and Nationals of other States (the "Washington Convention"), no definition of this term is provided in the text of the treaty.
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108 views21 pagesThe Notion of Investment in ICSID Case Law: A Drifting Jurisdictional Requirement ? Some Un-Conventional Thoughts On Salini, SGS and Mihaly. Farouk Yala
Despite the fact that the term "investment" appears at the heart of both the name of the International Center for the Settlement of Investment Disputes (ICSID) as well as in the title of the Convention on the Settlement of Investment Disputes between States and Nationals of other States (the "Washington Convention"), no definition of this term is provided in the text of the treaty.
Uploaded by
Farouk YalaCopyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF or read online on Scribd
/ 21
Journal of lnsratna Arbitaton 222}: 105-126, 2015,
{© 205 Klar La Iron, Ped The Nerds
The Notion of “Investment” in ICSID Case Law:
A Drifting Jurisdictional Requirement?
Some “Un-Conventional” Thoughts on Salini, SGS and Mihaly
Farouk Yata*
I. Inrropuction
Despite the fact that the term “investment” appears at the heart both of the name
of the International Centre for the Settlement of Investment Disputes (ICSID) as well as
in the ttle of the Convention on the Settiement of Investment Disputes between States
and Nationals of other States' (“the Washington Convention” or “the Convention”),
no definition of this term is provided in the text of the treaty. Article 25(1) of the
Convention simply provides that:
‘The jurisdiction of the Centre shal extend to any legal dispute arising directly out ofan invest-
sment, between a Contracting State... and a national of another Contracting State.
In their Report, the Executive Directors of the World Bank in charge of carrying on
negotiations between states on 2 final version of the Convention in 1965 tried to justify
this lacuna by declaring that:
no atempe was made to define che term “investment” given the exten requtement of consent
by the partes, and the mechanism through which Contacting States can make known in advance,
if they so desir, the clases of disputes which they would or would not consider submiting tothe
Cenete(Aricle 25(4)?
‘As already demonstrated by one author, this explanation from the World Bank report
is not only misleading but, moreover, does not correspond to the reality of the history of
the treaty’s negotiations.” Indeed, several state delegates who were present in Washington
in 1965 submitted proposals for a definition of the term “investment.” Some delegates
even displayed a strong interest in this issue, which was considered to be of “capital
* DEA Universty Pahon- Aust Pari I CAPA Paris Lectarer athe French Petroleum Insitute: Thi ale
fe baxed on paper tha he author presented atthe conference Nara opments Sane ets ia a
‘natn elf ietisoent rnin, held in Pars on May 3, 2004, under the uspics ofthe Ista des Hates
‘ney ternational Univers of Pnthon-Ases Par I in claborauon with OGEMID and OGE),
*IMarc 8, 1965, LA'S 60, 575 UN. TS 159 [hereinafter "the Wahington Convention”)
2 Rpt of the Eee Dass the Canton the Seement of nese’ Dip Breen Stes ond
[Natal Oe Sats, March 18, 1963, in ICSID Convention, RECULATIONS aN Ruts, Doe. ICSID/15/Res.
10927 44 Ganuary 2003. 7
5 ‘Sesion Marcia Invesnements Granger et arbitrage ene Eas et revortisanes autres Bas: 28 années
(ited Decerber 1,200)
‘Mihi International Carp Democntic Soctae Repub of Lanka, March 15, 02, 1CSHD Case No,
‘ARA/00/2, 17 ICID Rese 142 (No.1, 200041 LEM 867 (2002,
"a Sais Conruton SpA & Iabade SpA. Kizgtlom of Morocco July 23, 2001, 42 LLM. 606 2003)
129 5 Deo tert (coun) 20822}; 12 Rasa DEL Aaragzo 381 200)
Ics ‘A DRIFTING JURISDICTIONAL REQUIREMENT? 107
arising out of the performance of a contract for the consteuction of a highway there,
The two Italian claimants alleged before the tribunal’ that Morocco’ filure to pay certain
invoices allegedly due under the contract amounted to a violation of the Morocco-Italy
bilateral investment treaty (BIT)"* concluded in 1990, including its provisions on fair
and equitable treatment and protection against indirect expropriation. The Kingdom of
‘Morocco raised several objections to the tribunal’ jurisdiction and alleged, inter alia, that
the dispute was not in elation to an “investment” under Article 25(1) of the Washington
Convention and Article 1 of the BIT. For the first time, an ICSID tribunal was explicitly
required to determine whether a construction contract can be considered to be an
investment for purposes of ICSID jurisdiction.
Several ICSID tribunals have in the past had to deal with cases involving construc-
tion contracts. In these cases, however, the construction contracts were part of an overall
project that included other contractual arrangements concluded between the foreign
investors and the host states. These included general understanding agreements, profit~
sharing agreements, establishment conventions, joint-venture contracts for the operation
‘of the industrial plant or infrastructure, management contracts, technical asistance agree-
ments, ec. All of these contracts were part of an “investment puzzle," and contributed
to qualifying the binomial “investor—host state” a a partnership rather than as an ephem=
«eral “vendor-client” relationship. Moreover, from a legal perspective, Prof. Juillard has
already demonstrated that, in these cases, the disputes did not arse solely from the con~
struction contracts or, as French law qualifies them, “contas de louage d’ouonages," but from
the entire contractual relation put into place by the parties for the implementation of
their project. Consequently, these disputes were considered by arbitrators as arising from
an “investment” because the overall project displayed the characteristics of an interna-
tional investment.
In Satin, the parties had concluded a single construction contract. The tribunal was
faced with a dispute arising ftom a stand-alone civil engineering contract with no other
contractual arrangements concluded by the partes for the operation or maintenance of
the purported highway. In a preliminary decision rendered on July 23, 2001, the eribunal
unanimously rejected Morocco’ objection to jurisdiction. It held that che contract for the
construction of the highway was an investment both under Article 25 of the Washington
Convention and the Morocco-Italy BIT. From a methodological perspective this
© rine Preiden), Creside and Fadl
+ Trent Promesion sd Prsecton Tray July 18, 990, 1a-Moroeco
® Sieg ley lone SA ad tbs Mone, ICSID Case NAR 72/; Armco Ain Corp. ad oes
x: Repu of Indoneta ICSID Case No ARB/SI/1 24 LL.M 1029 (985) Adiano Gant SpA Coc
Urvore,ICSID Case No-ARB/?4/1, 1 ICSID Rep 285 (1993) KicknerIndseie-Anlagen GubH tad othe ©
ted Republi of Cameroon and Sociét Camerounsne ds Engras 1CSID Cae No ABBY, 1 Isr Aa
145 (984) 114 LR. 157 (1999) Sore Ouew Afticne des Boos ni» Seep 1CSID Cat No. ARDY
12/1, 17¥33. Cow. Amn. 42 (1992): Asopita Concesonada de Venere, -A-x Boltaran Kepubic of Venere
TCS) ise No ARH/O0/5, 6 1CSID Ra. fo No 3 200)
M tsene Kl Le element de igs et Ea ct peso pie range: approche cq de
Comgaton de Wangan 125 (051) (np eas, Unies Europe, ofc wi aon
patrick Jlrs Choe de a neal 30 ANNUAIRE RANGA DU DROW ITETION, 77, 7B
(0589, 108 JOURNAL OF INTERNATIONAL ARBITRATION
decision appears to be quite rigorous, inasmuch as the tribunal implemented a “double
test” for the qualification of the claimant’ rights under the ICSID Convention and the
BIT, From a practical standpoint, however, it remains in line with the liberal movement,
favourable to an extension of the jurisdiction of ICSID tribunals to every kind of economic
rights, even those that do not completely fulfil the objective characteristics of an investment.
A. RUGoROUS METHODOLOGY FOR THE QUALIFICATION OF THE CLAIM AND THE
[ESTABLISHMENT OF FORMAL CRITERIA FOR THE INVESTMENT.
‘The methodological concern of the Salni tribunal is well illustrated by the fact that
i made a particular point of considering whether a construction contract qualifies as an
investment within the meaning of both Article 1 of the BIT (which provides for a defini-
tion of protected investments) and Article 25(1) of the Washington Convention, as inter-
preted by previous arbitral eribunals and authors. The arbitrators held that:
insofar as the option of jurisdiction has been exercised in favor of ICSID, the rights in disputes
:must consttae an investment purant to Article 25 ofthe Washington Convention, The Arbital
‘Tribunal, therefore is f the opinion thts juridction depends upon che existence ofan ineest-
tent within the meaning ofthe Bilateral Treaty as wells that ofthe Convention, in accordance
swith dhe ease aw."
‘The tribunal thus came down on the side of the objectivist view of the notion of
investment, defended by certain authors who consider that the requirement of an “invest-
‘ment” provided in the Washington Convention is an autonomous requirement that cannot
be “diluted” by the will ofthe partis.”
Some authors consider this differentiated qualification of claimants’ rights —
under the BIT and the ICSID Convention — to be perfectly well founded.” In
traditional international commercial arbitration, administered by private institutions such as
the International Chamber of Commerce International Court of Arbitration (ICC),
the London Court of International Arbitration (LCIA) or the Arbitration Institute of the
Stockholm Chamber of Commerce, and even more so in ad hoe proceedings, the juris-
dictional power of an arbitral tribunal stands entirely on the consent of the partes, who
can ficely choose to submit their disputes to arbitrators, subject to some residual rules of
public policy relating to arbitrabilty. In arbitration proceedings conducted under the
‘Washington Convention, as Prof. Kahn has observed, one cannot ignore the fict that
“ICSID jurisdiction is limited by the nature of the operation at hand:”" This necessity
Sin ae note 12,2844.
aa 7 Fort dco on bm ofS” or"eemson“of he ns ofiesmet Manca ae
Sat.
© Seg, Emmanuel Gail, 130 | Daort ty. (Cues) 210 2019); Robert Kor, La comple di
CURDL in besossunatrs Enmascras er Auarrce Peres Eras rr Prssones Paves La CONVENTION BIRD
2U I8 Mass 1965, Clloque CREDIMI Dijon 25,34 (169); Noah usin, The Not of ese, fe ARB
Ise Igvasnuenr Disruas 289 (Hor ed, 2008)
S"Dinippe Kaha, Loui dele oon imeem in Las IWUISHSEMINTS FRANCAIS Das Ut THES
Monon IIIs 4 (Bourne ed, 989) [A DRIFTING JURISDICTIONAL REQUIREMENT? 109
implies that “if ICSID is chosen, the claimant must show evidence of the existence of an
investment not only within the meaning of the investment treaty or legislation providing.
for the consent of the State but also within the sense of the Washington Convention.”
ICSID tribunals derive their jurisdictional authority in the first place from the Washington
Convention, which is a muitilateral treaty and only secondarily ffom the consent of the
parties.” As Dr. Nathan observed, “jurisdiction of ICSID tribunals is not an inter partes
‘matter. In all cases where a claim is brought before the Centre on the basis of a treaty
‘or a national law, arbitral tribunals should apply this rule of differentiated qualification
established in the Fedax and CSOB cases.* This is precisely what the Salni tribunal did
in the case at hand.
With respect to the qualification of the claimants’ rights under the BIT, the tribunal
held that the construction contract had created a “contractual benefit having an economic
value” for the two Italian companies, and that they benefited from a “right of economic
nature conferred ... by contract.” These categories of claims being explicitly included in
Article 1(c) and 1(@) of the BIT, the tribunal came to the conclusion that the transaction
‘was an investment “within the meaning of the BIT”
With respect to the qualification of the claimants’ rights under the ICSID Conven-
tion, the tribunal relied on ICSID case law and some scholarly writings to conclude that
an investment infers four interdependent elements: “contributions”; “a certain duration
of performance of the contract”; “a participation in the risks of the transaction”; and “a
contribution to the economic development of the host state of the investment.”
‘These criteria are not entirely new,as illustrated by the debates that occurred during,
the tramec prépanaoires of the Washington Convention mentioned above. Some tribunals
had already tried to identify some common characteristics of economic operations from
‘which investment disputes arise. None of these tribunals took a clear position on the
respective relevance of each criterion, however. In Fedax, the tribunal held that
the basic features of an investment have been described as involving a certain duration, a certain
regularity of profit and ren, ssumpdion of rit, a substantial commitment anda significance for
the host State's development.”
Prof Juilard has shed light on the character of investment contracts, underlining that
these contracts always entail a contribution fom the foreign investor to the benefit ofthe
hhost state and a sufficient duration that, in turn, entails a participation of the foreign
‘W. Ben Hanids, Larbieage casnstionl uniter: Réfexions sur ne procedure séerege 3 Viniaswe
Bune penonne privée conte une percane publgue 525 (2003) (unpublished thes, Uaverty Pantheon Ass
Part
2 George Vervenis, Aral Seroent of exe Dips: Gone Cones om ICSID Aion, 50
‘Rwug Hestosrque ne Duo erenmariona 153,156 (19),
SENSI Nama, Tir [CSID Convistios 130 (200).
2 Sq CSOB ane 738968 whee the tribunal lighted dhe need to inplement 2 "wold tt see
io lap vote 62 21 and 3.
Sin us noe 130 989.
careces
% Fa rap noes 6,269 48, 110 JOURNAL OF INTERNATIONAL ARBITRATION
investor in the risks of the operation, in other words, a participation of both partners in
the operating costs and profits of the project.”
By clearly emphasizing four theoretical criteria, he Salini tribunal took a formalise
approach that is quite innovative in ICSID case law. Distinguished authors have come to
the conclusion that the Salini tibunals definition of investment is “relatively demand
ing"*” However, the practical implementation of the above-mentioned criteria by arbi
trators reveals a great deal of liberalism.
1B. LIBERAL IMPLEMENTATION OF FORMALISTIC CRITERIA OF THE NOTION OF INVESTMENT.
‘The arbitrators’ conclusions on two particular issues in Salini, namely the foreign
investor's “contribution” and the “participation on the risks” of the project, well illastrate
the arbitrators liberalism. With respect to the requirement that the foreign investor “con-
tribute” the tribunal observed that the ewo Italian companies had “used” their know-how
for the construction of the highway ordered by the Moroccan authorities. The arbitrators
did not mention, however, that the claimants had “transferred” or “transmitted” any
know-how or technology to their client. This common-sense conclusion implies that the
tribunal itself admitted that claimants had not contributed to the project by transferring
any intellectual property rights oF knowledge. Commentators have long observed that, to
achieve an efficient transfer of technology, parties generally conclude a variety of con-
tracts for the acquisition of techniques or manufacturing processes. They underline that
these contracts should be carried out over a sufficiently extended period of time to per-
mit an effective transfer of the foreign technology to local agents and an efficient assimi~
lation of the know-how by local personnel.” As one author observed, ‘there cannot be
a ‘transfer’ of technology in the sense of a once-for-all phenomenon, and there cannot be
an elimination of the transfer process within a foreseeable period of industrial develop-
ment.” The mere presence of equipment ora plant, which do contain some elements of
technology, or the commitment of a highly specialized workforce in the territory of a
host country, even for several years, is hardly sufficient to permit the efficient transfer of
technology considering the learning process involved for the host state authorities or local
personnel." In the context of economic development, as Prof. Kahn has said, “what is
really significant is not the geographical localization of a technique, but its political and
‘material mastery” The transfer of technology or know-how generally requires technical
Pack Jolla, Comat Ea estcmont in CONTRATS ISTERNATIONALX Ft Pats ak DEVELORPEMENT,
189, 172.425 (H. Casan ed, 198).
ely Gaile sp te at 211,
2 ‘Sal sup note 12,0453,
© Shim, £1 Conmesct eeanariona 6 14 Trenouo
— Armocaeejonmigque 364 (1985), Sao
Joner, Pa Kats A.C. Kis & | Touscon, Tear Tecwsocoote et Distant (1977; Bene WH
{Cxsiy, Dnotr Ivranariona ob Devesorneneer (9),
STAI The ate Som ad the Ter of Tay to Les Delped Co, 10 J. Wont Tasos L 1.4
57g.
Phippe Kal, Tpoag des sna de mone de nso, inTaansenr pu Trcuotocte rr DEVELORN-
1) dee, Kan, Kis Tosco ed, 197
wa [A DRIFTING JURISDICTIONAL REQUIREMENT? a
assistance, training programmes benefiting host tate employees and providing for scheduled
courses or seminars, and a periodic, if not permanent, consultation with the local authorities
in change of operational aspects of the project. As Prof, Jchl underlined with respect to
technology investment, “itis not sufficient to establish that the foreign company brings in
some technical experience and we don't know exactly how all this works. One could not
be satisfied with diffuse and poorly understood technology:”” It is regrettable that the
Salini tribunal could not shed more light on this specific issue.
‘The ambiguity of the Sali’ award is deepened by the arbitrators statement that
claimants had sent “qualified personnel for the accomplishment of che works"™ in
Morocco. The tribunal thus confirmed that the wo Italian companies had retained fall
strategic control of the highway project. Unfortunately. it appeats from the tribunal’ own
findings that there was lite efficient transfer of “know-how” in the case and, if there was,
it seemed limited to the sending of afew qualified engineers for technical aspects of the
project, whereas local employees were restricted to more basic tasks. In certain respect,
‘one might even go so far as to pose the question formulated by Prof. Destanne de Berns
and Byé, namely, whether the project at hand could have contributed to the host country’s
“dependence through engineering services!”
‘With respect to the foreign investors contribution “in kind” to the investment
project (“apport en nature"), the Salini tribunal indicated that the ewo Italian companies
had “provided the necessary equipment” and that they had “set up the production tool
on the building site." This finding, however, is not entirely convincing, insofar as
the tribunal did not provide any information on the composition of the said “production
tool” or on the accounting assessment and value of the equipment, No answer is given
to the question of their possible repatriation to the investors’ home country once the
‘work was done. When one considers, as does Dr. Nathan, that “at the end of the contract
[the foreign investor] repatriates his plant and foreign personnel and his profits”! one
might wonder how this same foreign investor could be considered to have made any
“contribution” at all in the project or to the benefit of his state partner.
‘When a bricklayer comes to your home, builds a wall, and you pay him for his
work, do you consider that he has made a “contribution” to your benefit — that he has
“vested” in your garden, your kitchen or your living room? The answer to this question
is far from certain and, in this regard, the Sali’ tribunals findings provide litle reliable
guidance.
‘With respect to the financing of the highway project, the tribunal outlined that the
Italian investors had “obtained loans enabling them to finance the purchases necesary to
wow wr Divatoresenr 467
‘Mamoud Salem, Ler cots dain thi, n Tansee 04
(Unde, Ka. Kis Toucor de 1977).
5 ‘Selim fh La noon dinttixement tcl mr es cots, n Teasent oa TecoLoG er Dive
coma, 422 (ee Kahn, Kise & Toco et 1977
eal noe 1.38
2G Dastaont oe Busou & M. Bur, Rexarons Ecoxowngus Iyrasarionstes 94 (1977),
‘Sl pa noe 1220933,
* Karhipuat VSI Nathan, 8
of the Comet, 1) PE Aa
ison: te Irtionl Ce fo Selene of ment Dips in Bro
(Ne, 1995). 112 JOURNAL OF INTERNATIONAL ARBITRATION
carry out the works and to pay the salaries of the workforce” and that, moreover, they
had “finally agreed to the issuing of bank guarantees, in the form of a provisional guar-
antec ... then, at the end of the tender process in the form of a definitive guarantee fixed
at 3 per cent of the value of the contract in dispute”
‘The question remains whether the simple issue of a bank guaranty fixed at only
three per cent of the value of a contract can be considered to be a contribution compa-
rable to the “substantial amounts” invested in Kaiser Bauxite Co. . Government of Jamaica
(Kaisey the “extensive amounts” stressed in Liberian Eastem Timber Corp. (LETCO) 1
Government of the Republic of Liberia (LETCO),§ or the “substantial resources” observed in
Autopista Concesionada de Venezuela C.A. x Bolivarian Republic of Venezuela (AUCOVEN).®
‘With regard to the criterion of the “risk” that, in principle, foreign investors incur
‘when they participate in an investment project, the arbitrators displayed a similar level of
“liberalism.” First, they pointed out that the risks incurred by the Italian companies
flowed “from the nature of the contract at issue?™* Second, they indicated that these risks
included.
the rk asocated with the prerogatives ofthe Owner permitting him to prematurely put an end
to the contact, to impose vanatons within cen limits. the ek consisting ofthe potential
incese ofthe cot of bor fore in ease of modification of Moroccan lw; any accent or dam
age caused to propery daring the performance ofthe works; those rks relating to problems of
‘co-ordination posiby arin from the simultancous performance of ether projects any unfore-
Secable incident that could not be considered as fre majewe .., and finally those risks related to
the absence of any compensation in case of increase or decrease in volume ofthe work loa.”
However, far from being specific to the construction contract at issue, the risks
underlined by the tribunal exist in the majority of international long-term contracts con-
cluded with sate parties. For example, the risk of detrimental modification of a host
state’ laws or regulations exists in. most of the contracts concluded with underdeveloped
countries, whether concession agreements oF contracts for the sale of goods or services,
Specific contractual tools exist to neutralize these risks such as stabilization clauses." By
including such day-to-day risks in the category of “risks” indicating an “investment” for
purposes of ICSID jurisdiction, the Salini tribunal interpreted this criterion in a manner
‘which might be considered somewhat permissive.”
‘The arbitrators “liberalism” in Salini on the issue of risks is further illustrated by
their complementary (but no less important) finding that “it does not matter that the
Stn supa noe 12,2. $53.
{© Kahr usore Cab Government of jamaica, fly 6, 978,417, ICSID Rep. 296 (19),
“ Liberian Eatern Tinber Corp (LEYCO) « Government of the Repub of Libera, Marc 31, 1986, 2
ICSI Rep 346, 389 (1994)
2 "Autopies Conceionads de Venenuels,C.A «Bolivarian Republic ofVeneruela, September 27, 20019101,
16 1CsI) Re 469, 503 (No.2 2001,
eS apnote 124 § 85.
a]
© Thomas Wilde & Georges Ne, Stabicing Ieraoallnesmont Comino Ierasional La Vesus Con
nat Inert, 31 Texas er EL) 213 (1998).
1 Re Pr Gallas salir Seman in commentary om Feds, x noe 6 where he indicated that the
tubal yelled sof weauonang® 125]. Drom fr (Cane) 293 (199). [A DRIFTING JURISDICTIONAL REQUIREMENT? 113
remuneration of the Contractor was not linked to the exploitation of the completed
work” With this finding, the tribunal clearly rejected the traditional understanding of
risk as based upon the investor’ remuneration. Indeed, for a number of commentator,
both economists and jurists the distinction between a mere turn-key sale of an industrial
plant or equipment and an investment consists in the fact that the seller receives funds
from the delivery of the plant or good, while the investor derives most of his revenues
from the operation of the delivered work. This is what leads the investor to incur the risks
of the project, along with his state partner.
‘As Prof. Oman has explained, “if the principal reason for the foreign company to
participate isto sell some resources in connection with the project (for example, equip-
‘ment, technology, etc), and not to obtain for itself a part of the profits generated by the
exploitation of the project... then, fom the company perspective, the operation isa sale,
and not an investment.”* According to Dr. Bouhacene, “the title of investor’ should only
be bestowed upon economic agents who incur or share the industrial risk arising from
the setting-up oF operation of the investment. The clasification of an industrial plant
seller as an investor is ill-founded." Sharing the same views, Prof. Manciaux objected
that" is dificult to admit that the mere sale ofa turn-key factory constitutes an investment
“operation,” and asked: "if an international sale of equipment, with immediate payment,
benefits the buying State, and contributes to its economic development, shall we qualify
this sale as an ‘investment’? Certainly not!”*
For a number of observers, the proper criteria for distinguishing a sale ftom an
investment lie in the fact that while a seller obtains remuneration from the delivery of a
good o service, an investor is paid from the profits generated by the commercial exploi-
tation of the delivered good. Therein lies the distinction between price and profits. With
respect to new forms of investment (“NFI”), in which capital contribution could be of
secondary importance, Prof. Basile, for example, has pointed out that the decisive factor
is the “investor’ sharing of profits, risks and liabilities, in side with the host State." As
Prof. Michalet explained, “profits derive from the value added of the project or the
company. They depend on the budget results. Here lies the central distinction that pre~
vents a shift in meaning between the form of an investment and a sale”"* Finally, to recall
the words of distinguished Profi. Carreau and Juillant:
‘operations for he sale of equipment cannot qualify a investment operations if dhe investor's
remuneration isthe mere payment of a price, even when this price isnot definite, but determina
‘le, and even when its payment is not instantaneous, but spread out over a certain period. These
% Seng note 12, 38956
® Guanisy” Ouas, Lis Nouveas Fomus p'iwesnsenesr pas (48 INDUSTRES BES Paws &X YORE DE
Dévrgonmne 11 (198)
*P Manroup Bouck, Dsorr Ivtsisanonas 6:14 Cooetariox Isposrsss 130 (1986)
2 Manciauy, spe note 3a 6
oid
© ovo Basle, Ler nowllsfames dinetiseman: (NED Difinion, conn e pepectis, 98. Rewer
'Bogwoue Pourgut 275,276 (1988),
BN Chade Albert Miche, Ler now car del option indurile,i Les INVESRSSEMENS PRs
pass ue Titns Mone 59,68 j Bourinet ed, 198), 114 JOURNAL OF INTERNATIONAL ARBITRATION,
‘operations could qualify as invesanens only when the investor's remuneration consis, for one
Partin the payment ofa price, and for another par, in itwllmens calculate according ro the
ficial dg esas of he projet. te nvesor sould no olive, but he shoud ako
commit hinsel”
While rigorous in its methodological approach to the claimants rights and the
theoretical definition of the term “investment,” the Salin decision displayed a great deal
of fiberatism in the implementation of objective criteria of investment, in particular those
of “contribution” and “risk.” This decision remains in line with the trend of case law
favourable to an extension of ICSID jurisdiction to neatly all economic operations, even
when they do not correspond to the traditional characteristics of an investment. Several
cases involving construction projects are pending before ICSID.® The proper value of the
Salini decision as “precedent” in ICSID case law will be more easily asessed in light of
the decisions rendered in these cases
UL. Istamasap ap Mawita UNDER Ctost SunvEnLLANce: CONTRACTS FOR THE
SALE OF SERVICES INTRUDE IN ICSID’s RestnicteD PROTECTION AREA
‘The disputes in both SGS « Pakistan” and SGS 1 Philippines arose out of the nor
payment (by Pakistan and the Philippines, respectively) of invoices allegedly due to S
a Swiss company, under contracts for the provision of pre-shipment inspection and
certification services. In both contracts, the activity of the foreign company was the same.
SGS was to verify that importers’ declarations complied with clasifications and import
regulations in foree, and deliver pre-shipment certificates authorizing the entry of goods,
These services were complemented by the implementation of a programme for the
training of local customs authorities and the establishment of “liaison offices” in various
ports and cities (Lahore, Karachi, Manila, etc). In both cases, the contracts at issue were
performed partly in the territory of Pakistan and the Philippines, and partly in the terri-
tory of the countries of origin of the imported goods. After several years of performance,
SGS faced payment defaults from its state clients. Therefore, the company decided to
bring two claims before ICSID, relying upon the BITs concluded by Switzerland with the
Republic of Pakistan, on the one hand, and with the Republic of Philippines, on the other.
Before the tribunals," the defending states objected to ICSID jurisdiction. In
particular, each claimed that SGS had not made any investment in its territory as required
% D.Casmsau & PJouiaee,Duoretsresnariona, Boososnaue 387.4 1117 (2003)
® ‘Salmi Consrutori SpA. tnd Tabtade Sp. v. Hashemite Kingom of Jord, [CSID Case No. ARB/2/
13; Consortium Groupement LESL-DIPENTA v. Alger, ICSID Case No. ARB/(/8; Fare AG Frankfurt
Arpoct Services Wodwide epic of she Phiippnes ICSID Case No. ARB/I3/25; Bay Inst Tun
Tiere Ve Sanayi AS. v.amie Republic of Paka, ICSID Case No, ARB/03/23
'SGS Soci Gentle de Survelance SA. lnc Republe of Pkisan, ICSID Cate No.ARB 01/13, 18,
CSIP Ray, 307 (No.1, 200-42 LLM. 1290 209), 131(1) J Dorr I (CuoNe 258 (204)
" 'SGS Socal Gintnle de Surwilance » Repubic of te Philippines, Jnoary 29, 2004, ICSID Case No.
|ARBY/O2/6, anal t (ted December 14,2009)
{ea rae Fu nd Thoma SS w an ERs (edo an Cra
in SGS ¥ Phppines [A DRIFTING JURISDICTIONAL REQUIREMENT? 15
by both BITs. In two decisions, rendered on August 6, 2003 and January 29, 2004, the
arbitrators rejected this objection. In each case, the tribunal considered that SGS had
made an investment protected by the BIT at issue and the ICSID Convention. Despite
some slight differences in their drafting and reasons, these decisions present strong, sub
stantive similarities. In the frst place, they illustrate a common methodological approach
on the qualification of the claimant’ rights. Secondly, they display a similar liberalism in
the treatment of certain characteristics of the investment, in particular, its international
dimension.
A, QUALIFICATION OF CLAIMANT'S RIGHTS AS INVESTMENT LIMITED TO THE BIT
From a methodological perspective, both decisions adopted the same reasoning,
verifying that the claimant’ rights fall within the categories of “assets” and “rights”
indicated in the BITS under the tile “investment"”The arbitrators attributed litle importance
to verifying whether the operation complied with the objective criteria of investment
identified by previous ICSID tribunals and commentators. This approach differs radically
from that adopted in Salini:The tribunals provided limited reasoning, perhaps because the
respondent states did not seem to contest the existence of an investment within the
meaning of Article 25(1) of the ICSID Convention so much as the “territoriality”
requirement established in both BITs. Nevertheless some critical comment is appropriate
‘with regard to the tribunals’ analysis.
In SGS w Pakistan, the arbitrators underlined that the definition of investment in the
BIT was “broad” and that it included: “claims to money or to any performance having
an economic value (art. 1(0))”; “concessions under public law”; as well as “other rights
given by law, by contract or by decision of the authority in accordance with the law
(art. 1)" The tribunal went on to consider whether the inspection and certification
contract had given rise to such rights for SGS. The tribunal then concluded that the
“expenditures” the Swiss company had made pursuant to its contracts constituted an
“investment” within the meaning of the BIT. In passing, the arbitrators pointed out that
Pakistan had entrusted SGS with certain powers normally reserved to states in the exercise
of their public powers levying taxes and customs duties). Consequently, they came to the
conclusion that the contract at issue differed from a simple “commercial” contract
performed for the account of a host state.
In SGS x: Philippines, the arbitrators began by pointing out that under Article 1(2) of
the BIT, the term investment encompasses “every kind of asset.” including “claims to
money or to any performance having an economic value.”° They then came to the
conclusion that since it was a"“cost” to SGS to provide services pursuant to the contract,
1 SGS Pakistan, sip note 59,209 134
8 ag ta
4 9.
© SSO Philipines, pra note 60,24 33, 116 JOURNAL OF INTERNATIONAL ARBITRATION
this was sufficient to amount fo an investment in the Philippines within the meaning of
the BIT!
In both cases, the arbitral tribunals limited themselves to ensuring that the claimant’
rights and activities fit within the broad definitions of the term “investment” provided in
the BITS. They did not examine in detail whether the autonomous requirement of an
investment contained in Article 25(1) of the Washington Convention was met.
‘One reason may be found to justify this limited approach. Ie lies in the fact that,
curiously, in both cases, neither Pakistan nor the Philippines explicidy contested the
existence of an investment within the meaning of the Washington Convention by relying
on the above-mentioned objective criteria. In the Pakistan case, it appears from the
tribunal’ reasoning that, in the course of the proceedings, the defendant limited itself
to objecting that the claimant’ investment was not entiely performed in its territory, and
therefore did nor fulfil the BIT's territoriality requirement. By doing so, a the claimant
rightly observed, and as restated by the tribunal: “[SGS] notes that Pakistan did not
contest that this dispute arises directly out of an investment within the meaning of
Article 25(1) of the ICSID Convention.” In the Philippines case the situation was quite
different in the first place insofar as the defending state seems to have put forward a more
detailed objection with respect to the existence of an investment issue. Indeed, as the
arbitrators noted, the Philippines were objecting that “in order to establish ICSID juris-
diction, SGS must establish the existence of an investment both under the BIT and
Article 25 of the ICSID Convention.” The tribunal did not respond directly to the
objection, however, and held that “itis not denied by the Respondent that the services
provided by SGS, itself or through its wholly-owned Swiss affiliates, and the resulting.
rights to payment are capable of constituting an investment”® Finally the tribunal came
to the conclusion that "moreover the present dispute concerns the service so provided and
arises direcdy out of i, within the meaning of Article 25(1) ofthe ICSID Convention”
By abandoning the autonomous conditions for an “investment” within the meaning
of Article 25(1) of the Washington Convention, and by giving precedence to the very
broad definitions provided in the BITs upon which the claims were based, the SGS
decisions implicitly rejected the method described above for differentiating the qualification
of the claimant’ rights. Furthermore, these decisions establish the arbitrators’ preference
for the subjective view of the notion of investment, according to which the will of the
partes isthe controlling criterion for purposes of ICSID jurisdiction. In the past, when
the future of the Centre was still uncertain and its caseload limited, the General Secretary
of ICSID might have defended this trend of thought.”! However, without returning to
ia arg 108,
$68 Paksan, sre note 59,2123.
“SCS x Philippine sup note 60, 1459.
ag
> Wh fit
Georges Delaoms ICSID Ariat Posing 4 Ier-TAx & Bs. Lak 218 (1986);Aron Broches, Ar
tation Under he ICSID Convention, iv Avo Broce Sexsctep Foss: Wont Dax, ICSID ax On SUMS
(rPenuie axp Puvare Intmaional Law £36 (1998). CF Ameringhe, The Jason of th neta Comte
For the Semen of beset puter, 19 Iba FNC L166, 180 (199), [A DRIFTING JURISDICTIONAL REQUIREMENT? 117
previous comments made in the context of the Salini case (see above), it bears mention
that a majority of authors rejects this approach. Among others, former Secretary-General
Parra himself pointed out that, where a dispute is brought before ICSID on the basis of
an investment treaty, “this entails a double review of the criteria for coverage of the partes
and the dispute, first from the viewpoint of the ICSID Convention, and then from the
viewpoint of the investment treaty’”” A decisive reason underpins a rejection of the
subjectivist theory of investment. As the late Prof. Goldman observed in connection
«with the nationality requirement contained in Article 25(2)b) of the Convention (but the
“observation is equally relevant to the “investment” requirement):
according to a general principle, the Centte is bound by jurisdictional rules provided in the
Convention. Consequently, its not sufcient that partes, may be arbitrary, ora a consequence
of presures mounted on the hos State by a company, ora prominent international group, admit
that this company or group corresponds to what is demanded in the Convention.”
From a theoretical perspective, there are serious problems with admitting an
operation within the ambit of ICSID jurisdiction simply because it falls under a category
of investments protected by a BIT containing an ICSID clause. In certain respects, one
could submit that this amounts to a violation of the ICSID Convention. Should the Centre
lend its imprimatur to an award rendered in breach of the Convention in this way, it
stands to reason that its responsibility could be engaged. Furthermore, defending states
‘may be tempted to oppose the enforcement of such an award on the basis that it was
rendered in violation of the treaty: In certain circumstances, respondents might even
bring an action before the International Court of Justice (ICJ) against those contracting,
states that permit or support enforcement of an award so rendered in violation of the
ICSID Convention, In such a scenario, the credibility of the Centre would be put a risk,
to the detriment of all partes.
1B, FLEXIBLE APPRECIATION OF THE INTERNATIONAL CHARACTER OF THE INVESTMENT
In both SGS cases, the entire discussion concentrated on the territoriality require-
‘ment provided in the BITS at issue. Ths territoriality requirement is found in a similar
form in both the Switzerland-Pakistan and Switzerland-Philippines BITs: “the present
‘Agreement shall apply to investment in the territory of one Contracting Party” In both
cases, the defending states objected to the international dimension of SGS$ investment.
Pakistan submitted, in substance, that the essential part of claimant’ activity consisted of
providing services in the port of origin of goods, i., outside its territory. It claimed that,
even though the claimant had committed a certain amount of money to the establishment
and functioning of local offices in Karachi and Lahore, these were simple “liaison offices”
charged with the collection and transmission of data forwarded by claimant’ subsidiaries
7 Antonio Para The Insiuton of ICSID Aiton Preis 20 News reost ICSID 13 2003.
> erhold Goldman, Okan im Kerasisiies EEANCERS EY AROITRACH eNTHE ExAls Er PERSONS
Puvins en Convenion BIRD BU 18 Mass 195, Colloque CREDIME Dion 35 (196). 18 JOURNAL OF INTERNATIONAL ARBITRATION
located in other parts of the world. According to the respondent, “there was no revenuie~
generating activity in Pakistan.” The Philippines submitted an almost identical argu-
ment, It added that the claimant’ services, primarily raining courses, modernization and
the computerization of customs administration facilities, were simply “peripheral or
negligible in comparison to the main obligation, which consisted in pre-shipments
inspections made outside the Philippines.”® It further submitted that “under the ICSID
Convention, technical assistance or consultancy contracts, supplies’ credits and peripheral
training programs cannot be relied on by SGS as satisfying the ‘investment’ requirement.”
Finally the Philippines raised a complementary but important objection, arguing that
SGS' activites could not qualify 26 an investment because the company was guaranteed
to “always receive a fee dependant on the relevant invoice value or by virtue of the
tminimum fee provisions, even on shipments of no value” According to the respondent,
SGS was not incurring any risk in the “ordinary meaning” of the concept, and “the term
of ‘investment’ excludes the delivery of an offzhore service in exchange for a fee."
Curiously the tribunal did not directly address this objection, which was related more to
the isue of the objective elements of the notion of investment — especially the element
of risk — than to the requirement of territoriality In the arbitrators’ views, the only issue
raised in connection with the existence of an investment was “whether a contract for
provision of services performed mostly (but not wholly) outside the territory of the host
‘State may nonetheless constitute an investment in its territory for the purposes of Article
I of the BIT." The SGS 1. Pukistan tribunal came to the same conclusion in holding that
‘the question at hand was simply:“Has the Claimant made an investment in the territory
of the Respondent.””
the SGS 1. Pakistan tribunal displayed a certain paucity of reasoning in concluding
that SGS had fulfilled the territoriality requirement in the case at hand. Affer pointing out
that the Swiss company had made certain expenditures in the territory of the host state,
and admitting that these expenditures were relatively small, the arbitrators came to the
conclusion that the claimant's activities nevertheless involved an “injection of funds” into
the territory of Pakistan.” The Philippine tribunal reached the same conclusion, but with
far more developed reasoning, First, it underlined that delivery of pre-shipment certfi-
cates was an essential part of SGS%s activity, which, the tribunal further noted, enabled the
‘entry of goods into the country and customs duties and taxes to be applied. Second, it
considered that the liaison office in Manila played a central role in SGS% activities,
‘emphasizing that this office was “substantial” and that it employed “a significant number
of people.” According to the arbitrators, these elements taken together were “sufficient”
% SG x Pakisan, sy note 59,2977
SG x Philipines: note 60a 57,
acd 32
i.
id
> Meg 132
SGS ¢Pakisan, ses note 89,38 136 [A DRIFTING JURISDICTIONAL REQUIREMENT? 119.
to qualify the service as one provided in the Philippines." In their view, it did not matter
that“the bulk of the cost of providing the service was incurred outside the Philippines.”
[Nor was it decisive that payment of invoices was made to the parent company, by bank
‘transfer, in Switzerland,”
Several remarks are in order in connection with the SGS tribunals’ reasoning, First,
it is interesting to note that the arbitrators limited themselves to the qualification of the
cchimant’s rights under the BIT, without seeking to analyze the operation using the
“objective criteria established in previous cases (Fedax, CSOB, Sani). Had the tribunals
done so, they might have discussed the possibility of considering the claimant’ activity as
‘2 combination of contributions in capital, in kind and in industry. As discussed above
with regard to the Salini case, stand-alone contracts for the sale of services should not
qualify as an investment for purposes of the ICSID jurisdiction. However, when theses
contracts entail a form of capital commitment asociated with a transfer of technology,
know-how, or manufacturing processes, they could be considered to constitute invest-
ments, provided that other criteria are fulfilled Guch as duration or risk). In both SGS
cases the parties had concluded contracts containing clauses providing for the transfer of.
know-how. Counsels for the claimants understood perfectly the relevance of the argu
‘ment, During the proceedings, they insisted that their client was carrying out a number
of activities that included “conducting training courses and seminars for the purpose of
transferring customs-related knowledge to local customs personnel .. [and] undertaking
a variety of consultancy project, for the purpose of transferring customs-related knowl-
‘edge."™ A proper performance of these contractual obligations could have suificed to
establish a transfer of knowledge to the host states. However, the arbitrators preferred to
‘underline that the essential part of SGS’s activity was to “deliver” inspection certificates
into the territory of host states. Unfortunately, their finding established only that the
claimant acted as a seller of certificates, and not as an investor. With respect to the arbi-
trators’ ruling that SGS had “injected” fands into the territory of the host states, one
‘might well ask what exactly this formula covers. I tis a quantitative criterion? A qualitative
criterion? Or is it both? According to which elements should a future tribunal evaluate
the existence of funds “injected” in the territory of a host site?
Second, one might wonder why the SGS tribunals declined to discuss the nature of
the claimants remuneration. As explained above, the respondent states, at least in the
Philippines case, explicitly raised the objection that the Swiss company did not incur any
risk in the operation, since it was guaranteed always to receive a minimum fee for every
inspection performed. In certain respects, SGS was a mere “seller of certificates,” not
directly dependent on the success or failure of the overall operation. True, it participated
in the raising of public funds by gathering customs duties and taxes alongside the local
authorities. But from the text ofthe decison, itis not entirely clear whether the arbitrators
SG « Philipines, ps note 6, a 103.
S Thaeg 106
© kag 10s
Sag 120 JOURNAL OF INTERNATIONAL ARBITRATION
considered the claimant to be participating in the success or filure of the project. From
a theoretical perspective, developed findings on these issues would certainly have been
welcome.
‘Third, it is questionable whether the investment territoriality requirement discussed
by the arbitrators is limited to the BIT provisions at issue. The Washington Convention,
which forms the foundation for any ICSID tribunal’ jurisdictional authority, could ao
be interpreted as requiring an “international dimension” of the investment. The often
quoted Report of the Executive Directors explicitly underlines that the creation of
ICSID was seen by the World Bank itself as a major step toward “stimulating a larger flow
‘of private international capital into those countries which wish to attract it Ie expresses
the Bank’ betief tha private capital will continue to “flow to counties offering a favorable
climate for attractive and sound investments" In order to convince state delegates to
adhere to the ICSID treaty in 1965, the World Bank indicated in this report that “adherence
to the Convention by a country would provide additional inducement and stimulate a
langer flow of private international investment into its territories”? The international
institution added that this stimulation of capital flows into the territory of host states is
“the primary purpose of the Convention” and highlighted that “the broad objective of
the Convention is to encourage a larger flow of private international investment’
Nowhere does the report speak of a so-called “focal point” for the investor’ activities or
‘ofa “value added” deriving from services performed abroad or of the “economic effect”
cof a contract, which could “fll within a host State territory” or “an overall service”
‘which has its “focus” in a host country, all terms and expressions employed in the SGS x
Philippines decision. To the contrary, the drafcrs of the Washington Convention emphasized
the need to encourage and protect “flows of capital” into the territories of contracting
states, It would have been desirable had the SGS tribunals elaborated further their reasons
on this issue, and provided some answer to the question whether the Convention itself
includes a territoriality requirement for investments to benefit from its protection.”
IV. Cotompo on THE Thalt oF A Missin Project: THE EXCUUSION OF PRE-INVESTMENT
EXPENDITURES FROM ICSID'S ScoPE oF PROTECTION
In Mihaly 1: Sri Lanka,” the tribunal was seized with a claim brought against the
State of Sri Lanka by a US. company, Mihaly International Corporation. This company
hhad won a bid for the construction and operation of a power plant under the acgis of a
build own transfer (“BOT”) contract. With several “intention letters” in hand from the
Repos esp note 2,39,
deg 18
peti
8 ay
eg 13
For an award rejecting any trricrialty requirement in the ICSID Convention, se Philippe Gratin
‘Maly, November 27, 2000.4 1.2.5 ICSID Rep. 483,492 (213).
3 MialyInerntional Corp Democratic Sole Repub of Sri Lanka, Match 15,2002, ICSID Case No,
|ARH/00/2. 17 IESID Ra 182 (No.1 20041 LEM 867 20), [A DRIFTING JURISDICTIONAL REQUIREMENT? 121
Sri Lankan state, which grant an exclusive negotiation period and fixed general principles
for the discussions, the US. investor incurred expenses to adjust its financial and technical
offer to specific host state requirements. However, after several months of negotiations,
no contract was concluded, and Mihaly was definitively excluded from the project.
‘Before the tribunal, the claimant submitted that the host state’ conduct amounted to a
violation of the Sri Lanka-United States BIT. Among other things, the US. company
demanded reimbursement of the expenditures it had made during the negotiation
phase of the BOT project. For the first time, an ICSID tribunal was called upon to
rule whether pre-investment expenditures qualify as an investment protected by the
‘Convention. In an award rendered on March 15, 2002, the tribunal found that it had no
jurisdiction, One arbitrator submitted an “Individual Concurring Opinion.”
A. EXCLUSION OF PRE-CONTRACTUAL EXPENDITURES FORM THE
(CATEGORY OF PROTECTED INVESTMENTS
In excluding pre-investment expenditures ffom the scope of protection of both the
BIT and the Washington Convention, the arbitrators declined to examine the objective
criteria for investment established by ICSID case law (contribution, duration, risk, et).
Nor did they examine the character ofthe expenditures a issue, in particular their inter
national dimension. The territoriality requirement of investment could have been of,
some relevance in this case as well, insofar as the US. company claimed it had lost certain
sums incurred during the preparation of the project, but did not try ¢o prove that it had
invested these funds “into the territory” of Sri Lanka or, o borrow the SGS 1 Pakistan
tribunal’ expression, that it had “injected” funds there, Rather, the arbitrators preferred
to examine the documents the parties had exchanged in the course of their negotiations
to draw two main findings.
First, the arbitrators considered that, simply by dint of the exclusivity and intention
letters it had granted, Sri Lanka never consented to qualify Mihaly’ unilaterally incurred
expenditures as an “investment.” From an accounting and financial perspective, this find~
ing seems appropriate; as the tribunal held, “itis [not possible] to accept as a valid denom-
{nation of investment’ the unilateral or internal characterization of certain expenditures
by the Claimant in preparation for the project of investment.” Before the arbitrators, the
discussion revolved in part around whether the U.S. company’s expenditures could be
32 Pad Opin apn 18 :
= Rath Ny en: Peace Exe «Bf CSI tin, 2
Iivr't Ans 189 (No. 2, 2003). : [A DRIFTING JURISDICTIONAL REQUIREMENT? 125
V. Coxewsion
‘Twenty years ago, Prof. Jullard expressed his worry that the notion of investment
‘would “demean itself" which would weaken the entire protection system put in place by
BITs, Observing the proliferation of ICSID clauses in BITs providing broad definitions
of investment, the eminent professor noted that:
“The interweaving beeween [CSID jurisdiction and BITs has became so close that one day, bythe
interplay of the incision of ICSID clases in these treaties .. the Cente wil be in a poston t0
examin el due etn foreign sess which do not pent any ink, any so
Is this prediction becoming reality? Or has it already become a reality about which,
commentators remain unaware or sil
The review of ICSID case law that we have undertaken could lead us to fear the
answer: loans, construction contracts, contracts for the sale of services, claims to money,
claims to performance having an economic value, pre-investment expenditures, legiti-
mate expectations, rights of all kinds granted by instruments of all kinds (BITS, laws,
authorizations, etc) ..
Is it possible, as Prof. Bencheneb suggests, that the notion of investment has lost its
sour"!
‘Whatever the case may be, if the liberal trend promoting an extension of ICSID
Jurisdiction to any kind of economic operation, even those without any connection to
“authentic” investment, continues to grow, ICSID may well become just another arbitra-
tion institution, competing with a range of others (ICC, LCIA, AISCC, etc.) In this
case, the important renouncements of sovereignty that contracting states accepted when
signing the Washington Convention (applicability of international law (Article 42),
recourse against awards limited to an ad hoc committe, etc.) could be jeopardized, and
lose their raison d'etre.
‘When contracting states met to negotiate and sign the Washington Convention, they
probably had in mind the creation of a tool that would protect foreign investment to
encourage and stimulate the flow of foreign private capital into their territory. I they had
been told in 1965 that, thirty years later, the notion of investment would become a
“riffing” concept, it is far from certain that contracting states would have so easily
accepted to embark on the voyage the World Bank was proposing.
1 Patrick Jill 30 Anata Feancats ne Daorr lemnariona 773,781,424 (1984)
™ Ah Beacheneb, Sur Moulton de lr nation d'imeecement, n SoUvERAINITE BUATIQUE RY Mancuts
lvremaaionatx A 14 Ps DU 208M Sitar 177,196 (Ch, Leben & E Login eds, 2000),
