Construction contracts as ‘investments’ for the purposes of investment treaty arbitrations
This chapter addresses the circumstances in which construction contracts may or may not meet the important and crucial jurisdictional threshold of being deemed foreign 'investments' for the purposes of commencing arbitration proceedings based on investment treaties. Investment treaty arbitral proceedings may be conducted according to different arbitral rules. Under most arbitral rules, there will be jurisdiction to bring the relevant arbitral proceedings if the claims are deemed to be relating to an investment within the definition provided by the relevant investment treaty. The biggest contribution to secure a foreign investor's right to bring arbitral proceedings against the foreign state was the entering into effect in 1966 of the Convention on the Settlement of Investment Dispute between States and Nationals of Other State. The travaux preparatoires suggest that this was deliberate and intended to allow the states to determine what specific transactions constituted foreign 'investments'.