Contractual Rights as Protected Investments in International Investment Law

Abstract

This paper is focused on issues regarding contractual rights as investments in international investment law. The text is divided into three main parts. The first part examines the existing definitions of investments, stemming from various sources of investment law, and the role of contractual rights in those definitions. Following that, the author sets out a classification of issues concerning contractual rights into three groups – investor-State contracts, contracts usually recognized as investments, and sales contracts. This creates the structure for the discussion in further text. A short overview of these groups is then given. The second part is focused on examining the most important contemporary issues regarding each of the three groups in more detail and suggesting possible solutions for certain problems. These issues mostly concern the treaty versus contract claims problems, the scope of umbrella clauses, the search for criteria for recognizing investments, and the status of sales contracts in international investment law. A special emphasis is put on suggesting the model for recognizing investments under the ICSID Convention which should promote predictability in recognizing contractual rights and also on arguing that sales contracts existing in the context of an overall recognized investment should be given investment protection themselves. The final part of the paper contains concluding remarks regarding the topics dealt with in the work and also proposed guidelines for the future.