Article 1 (6)

“Investment” means every kind of asset, owned or controlled directly or indirectly by an Investor and includes:

  • (a)  tangible and intangible, and movable and immovable, property, and any property rights such as leases, mortgages, liens, and pledges;

  • (b)  a company or business enterprise, or shares, stock, or other forms of equity participation in a company or business enterprise, and bonds and other debt of a company or business enterprise;

  • (c)  claims to money and claims to performance pursuant to contract having an economic value and associated with an Investment;

  • (d)  Intellectual Property;

  • (e)  Returns;

  • (f)  any right conferred by law or contract or by virtue of any licences and permits granted pursuant to law to undertake any Economic Activity in the Energy Sector.

A change in the form in which assets are invested does not affect their character as investments and the term “Investment” includes all investments, whether existing at or made after the later of the date of entry into force of this Treaty for the Contracting Party of the Investor making the investment and that for the Contracting Party in the Area of which the investment is made (hereinafter referred to as the “Effective Date”) provided that the Treaty shall only apply to matters affecting such investments after the Effective Date.

“Investment” refers to any investment associated with an Economic Activity in the Energy Sector and to investments or classes of investments designated by a Contracting Party in its Area as “Charter efficiency projects” and so notified to the Secretariat.

For greater clarity as to whether an Investment made in the Area of one Contracting Party is controlled, directly or indirectly, by an Investor of any other Contracting Party, control of an Investment means control in fact, determined after an examination of the actual circumstances in each situation. In any such examination, all relevant factors should be considered, including the Investor’s

  • (a) financial interest, including equity interest, in the Investment;
  • (b) ability to exercise substantial in influence over the management and operation of the Investment; and
  • (c)  ability to exercise substantial in influence over the selection of members of the board of directors or any other managing body.

Where there is doubt as to whether an Investor controls, directly or indirectly, an Investment, an Investor claiming such control has the burden of proof that such control exists.

The Russian Federation wishes to have reconsidered, in negotiations with regard to the supplementary treaty referred to in Article 10(4), the question of the importance of national legislation with respect to the issue of control as expressed in the Understanding to Article 1(6).

 

 

 

  • From Basic Protocol (20/08/91) to BP 2 (11/09/91): Article 1.1(e) - Definitions
  • From BA 4 (31/10/91) to BA-31 (21/12/92): Article 1.4 - Definitions
  • From BA-35 (09/02/93) to BA-37 (01/03/93): Article 1.5 - Definitions
  • From (Compromise text) ECT 1 [CONF 50] (15/03/93) to ECT 3 [CONF 60] (01/06/93): Article 1.6 + 1.8 - Definitions
  • From ECT 4 [CONF 64] (07/07/93) to ECT 6 [CONF 82] (20/12/93): Article 1.6 - Definitions
  • From ECT 7 [CONF 96] (17/03/94) to Compromise text [CONF 98] (22/04/94): Article 1.6 – Definitions + Ministerial Declaration 3 – To Article 1(6)
  • From Interim Text (20/06/94) to Interim Text (25/06/94): Article 1.6 – Definitions + Understanding 3 – To Article 1(6) + Declaration 1 – To Article 1(6)
  • From CONF 104 (Text for adoption) (14/09/94) to Final Act and ECT as adopted (17/12/94): Article 1.6 – Definitions + Understanding 3 – With respect to Article 1(6) + Declaration 1 – With respect to Article 1(6)
 

AES Corporation and Tau Power B.V. v. Republic of Kazakhstan, ICSID Case No. ARB/10/16

Award, 1 November 2013, paragraph 188

AES Summit Generation Limited and AES-Tisza Erömü Kft v. The Republic of Hungary, ICSID Case No. ARB/07/22

Award, 23 September 2010, paragraphs 6.25; 6.41-6.42

Mohammad Ammar Al-Bahloul v. Republic of Tajikistan, SCC Case No. V064/2008 

Partial Award on Jurisdiction and Liability, 2 September 2009, Paragraph 137-146

Alapli Elektrik B.V. v. Republic of Turkey, ICSID Case No. ARB/08/13

Excerpts of Award, 16 July 2012, paragraphs 390-391; 402-404; 416-417

Dissenting Opinion of Marc Lalonde, 16 July 2012, paragraphs 8-9; 12-25; 30; 37

Limited Liability Company Amto v. Ukraine, SCC Case No. 080/2005

Award, 26 March 2008, paragraph 43

Anatolie Stati, Gabriel Stati, Ascom Group S.A. and Terre Raf Trans Traiding Ltd v. Republic of Kazakhstan, SCC Case No. V116/2010

Award, 19 December 2013, paragraphs 806-813

Antin Infrastructure Services Luxembourg S.à.r.l. and Antin Energia Termosolar B.V. v. Kingdom of Spain(ICSID Case No. ARB/13/31)

Award, 15 June 2018, paragraphs 262-273

Blusun S.A., Jean-Pierre Lecorcier and Michael Stein v. Italian Republic, ICSID Case No. ARB/14/3

Final Award, 27 December 2016, paragraph 263-271

Eiser Infrastructure Limited and Energia Solar Luxembourg S.à.R.L. v. Kingdom of Spain, ICSID Case No. ARB/13/36 

Award, 4 May 2017, paragraphs 227-231

Electrabel S.A. v. Republic of Hungary, ICSID Case No. ARB/07/19

Decision on Jurisdiction, Applicable law and Admissibility, 30 November 2012, paragraph 5.48-5.59

Energoalians SARL v. Republic of Moldova, UNCITRAL

Award, 23 October 2013, Paragraph 215-217; 225-227; 237-244; 251-252

Dissenting Opinion of Dominic Pellew, 23 October 2013, paragraphs 20-31; 38-48

Decision of the Paris Court of Appeal, 12 April 2016, page 4-6

Decision of the Cour de Cassation, 28 March 2018, page 2

State Enterprise "Energorynok" (Ukraine) v. The Republic of Moldova, SCC Arbitration V 2012/175

Final Award, 29 January 2015, paragraphs 81-89

Eskosol S.p.A. in liquidazione v. Italian Republic, ICSID Case No. ARB/15/50

Decision on Respondent's Application under Rule 41(5), 20 March 2017, paragraphs 101-102

Greentech AS and others v Spain, SCC Arbitration V (2015/150)

Final Award, 14 November 2018, para 425-426

Hulley Enterprises Limited (Cyprus) v. Russian Federation, PCA Case No. AA 226

Interim Award on Jurisdiction and Admissibility, 30 November 2009, paragraphs 430-432

Final Award, 18 July 2014, paragraphs 1349-1351; 1355, 1358-1363

Isolux Netherlands, BV v. Kingdom of Spain, SCC Case V2013/153

Final Award, 17 July 2016, paragraphs 675-690; 834

Ioannis Kardassopoulos v. The Republic of Georgia, ICSID Case No. ARB/05/18

Decision on Jurisdiction, 6 July 2007, paragraph 121-124; 194; 223; 247-248

Khan Resources Inc., Khan Resources B.V. and CAUC Holding Company Ltd. v. Government of Mongolia, UNCITRAL

Decision on Jurisdiction, 25 July 2012, paragraphs 382-385

Libananco Holdings Co. Limited v. Republic of Turkey, ICSID Case No. ARB/06/8

Award, 2 September 2011, paragraphs 530-536

Liman Caspian Oil BV and NCL Dutch Investment BV v. Republic of Kazakhstan, ICSID Case No. ARB/07/14 

Excerpts of Award, 22 June 2010, Paragraphs 181-182; 193-194

Mamidoil Jetoil Greek Petroleum Products Societe S.A. v. Republic of Albania, ICSID Case No. ARB/11/24

Award, 30 March 2015, paragraphs 285-288; 293-294; 372-378; 465

Masdar Solar & Wind Cooperatief U.A. v. Kingdom of Spain, ICSID Case No. ARB/14/1

Award, 16 May 2018, paragraphs 200-201

Nykomb Synergetics Technology Holding AB v. The Republic of Latvia, SCC

Award, 16 December 2003, paragraph 4.3.3(d)

Petrobart Limited v. The Kyrgyz Republic, SCC Case No. 126/2003

Award, 29 March 2005, page 70-72

Plama Consortium Limited v. Republic of Bulgaria, ICSID Case No. ARB/03/24

Decision on Jurisdiction, 8 February 2005, paragraphs 129-130

RREEF Infrastructure (G.P.) Limited and RREEF Pan-European Infrastructure Two Lux S.à r.l. v. Kingdom of Spain, ICSID Case No. ARB/13/30

Decision on Jurisdiction, 6 June 2016, paragraphs 142-147; 156-159

Veteran Petroleum Limited (Cyprus) v. Russian Federation, PCA Case No. AA 228 

Interim Award on Jurisdiction and Admissibility, 30 November 2009, paragraphs 430-432

Final Award, 18 July 2014, paragraphs 1349-1351; 1355, 1358-1363

Yukos Universal Limited (Isle of Man) v. Russian Federation, PCA Case No. AA 227

Interim Award on Jurisdiction and Admissibility, 30 November 2009, paragraphs 430-432

Final Award, 18 July 2014, paragraphs 1349-1351; 1355, 1358-1363