A. Functional Perspective: Defining Investment in the Light of Overlapping Objectives of the ICSID Convention and BITs

The clash between the objective and subjective approaches to defining an investment may be regarded as a manifestation of a more systemic tension between competing visions of international investment law which lie beneath much of the current discourse. Just as the first arbitral pronouncements on the scope and meaning of the key investment treaty standards, including umbrella clauses and the fair and equitable treatment standard,Footnote 10 revealed a fundamental disagreement on the role of international investment treaties in reallocating power in investor-state relationships, so too does the competition between the objective and subjective definitions of the term “investment” raise questions on the overarching goals of investment arbitration and the wider implications of ambiguity surrounding some of the principal terms in international investment treaties.

Yet unlike the debates over the meaning and scope of other key treaty provisions, the competing theories of investment cannot be cast into the rigid categories of pro-investor and pro-state or liberal and moderate interpretation. As far as the troublesome category of “claims to money and performance having an economic value” are concerned, both the objective and subjective approaches can yield a definition of investment broad enough to embrace forms of economic activities which many would be reluctant to recognize as such.Footnote 11 It is clear that the Salini criteria of the commitment of resources, duration, a risk, and the contribution to the economic development can be stretched quite significantly, thus enabling arbitrators to push the outer limits of investment arbitration beyond what might have been intended by state signatories to BITs and the ICSID Convention. The subjective approach, too, lacks the capacity to contain the scope of the unwieldy notion of investment as its asset-based definition expressly covers a variety of resource commitments and rights arising thereof.

Leaving aside criticisms already levelled against both approaches in academic literature,Footnote 12 one of the weaknesses of the objective theory is that, by deducing from Article 25 ICSID Convention a definition of investment different from that agreed between state parties in BITs, tribunals and commentators seem to suggest that BITs and the ICSID Convention pursue distinct and even opposing objectives.Footnote 13 A similar inclination to draw a contradistinction between BITs and the ICSID Convention may be discerned in the subjective theory according to which bilateral definitions should control interpretation. However, a more persuasive and feasible approach would be to interpret both the Convention and BITs in the light of their concurring function of protecting foreign business abroad. As far as dispute resolution is concerned, international investment treaties and the ICSID Convention equally pursue the objective of providing foreign investments with an effective means of protection. The fact that a BIT or a regional investment agreement such as the North American Free Trade Agreement (NAFTA) are entered into between only a group of states does not transform their investment-protection objective into something qualitatively different from the objectives pursued by the ICSID Convention. Similarly, the fact that the ICSID Convention establishes a procedural framework—in contrast to BITs, which contain substantive standards of investment protection—does not justify concluding that the former pursues a completely different aim. Both the ICSID Convention and other investment treaty instruments overlap in their function of establishing the legal framework for the protection of foreign investments abroad.Footnote 14

The annulment decision in Malaysian Salvors has highlighted this symbiotic relationship of BITs and the ICSID Convention.Footnote 15 In its determination of whether a salvage contract constituted an investment, the ad hoc committee found that the salvage contract might be treated as “a business concession granted under contract”, and the dispute between the parties as “a claim to money” arising thereof, thus falling within the scope of the BIT definition of investment.Footnote 16 The committee proceeded to emphasize that the United Kingdom-Malaysia BIT did not provide any dispute settlement option other than ICSID. Hence, in the tribunal's view, it was implausible to argue that two states would expressly include contracts and claims arising thereof in the BIT definition of covered investment, knowing that such assets would fall outside the remit of ICSID arbitration, which the BIT designated as an exclusive means of dispute resolution.Footnote 17 Indeed, it is usually a BIT—or, in some instances, an investor-state contract—that provides for an investor's right to arbitration against the state. Without such instruments, investors would be unable to avail themselves of protection under the ICSID Convention. Although somewhat inadequately, BITs describe what constitutes “investment” whilst also providing for arbitration as a means of dispute settlement through which the term is to be construed, applied, and enforced. The emphasis on differences between BITs and the ICSID Convention is likely to distract from the importance of defining the term in the context of shared systemic objectives underlying the mechanism of investment protection.

B. Negotiating History and the Ordinary and Effective Interpretation: Investment as “A Commitment of Resources in the Expectation of a Profit”

Although rationalized by what seems to be a valid concern over the scope of dispute settlement under the ICSID Convention, the objectivity of the Salini test—and the ultimate capacity of its four criteria to dispel the ambiguity surrounding the term—is questionable, particularly following the disparate rulings by an arbitrator and an annulment committee in Malaysian Salvors, illustrating the elasticity with which the outer limits of investor-state arbitration may be drawn by different panels.Footnote 18 The recent award and dissenting opinion in Abaclat v. Argentina cast the problematic nature of the Salini test into renewed focus, with the majority finding the hallmarks approach to be capable of frustrating the intention of the parties and the spirit of the ICSID Convention.Footnote 19 The credibility of the objective hallmarks of the test is further undermined by the absence of express provisions on the meaning of “investment” in the ICSID Convention. Indeed, in supporting the objectivist notion of investment, Hwang and Fong argue that “it is difficult to imagine that states had, by signing ICSID, intended to open themselves up to ICSID arbitration on disputes relating to every kind of asset or every kind of investment”.Footnote 20 However, this assumption is largely unsupported: nowhere does the ICSID Convention contain a definition that would set the boundaries to the jurisdiction of an ICSID panel independently of any bilateral or multilateral treaty. As the text of the ICSID Convention fails to explicate the meaning of the term, one is compelled to look at the negotiation history. The findings are illuminating. The first draft of the Convention defined subject-matter jurisdiction by a strikingly broad reference to “any disputes between Contracting States and the nationals of other Contracting States”.Footnote 21 The negotiation history reveals that in discussing the subsequent drafts, the delegates purported to specify the subject-matter jurisdiction by reference to the form of arrangement—such as the existence of a direct contract with a host state—and the nature of the dispute—which excluded purely political and commercial matters.Footnote 22 It is remarkable that the delegates were barely concerned with an objective definition of investment. Instead of defining investment in terms of its objective economic characteristics, the proposals intended to designate the types of disputes signatory states would wish to submit to arbitration.Footnote 23

As the final version of the Convention abandoned any definition of investment,Footnote 24 one is compelled to conclude that an objective meaning of investment is that derived from the ordinary and effective interpretation of the term, as mandated by Article 31 of the Vienna Convention.Footnote 25 According to its ordinary meaning, investment is an act of investing money and also the money that is invested, and the act of investing comprises buying something with the hope of making a profit.Footnote 26 Consequently, the objectivist understanding of investment may result in any commitment of resources with the expectation of a profit being regarded as an investment. Ironically, the same result was reached by tribunals that have dismissed the Salini test and established the existence of investment in a salvage operation, an arbitral award, and more recently and controversially, in sovereign debt instruments.Footnote 27

C. Towards a Process-Oriented Interpretation of Investment: Distinguishing Between an Investment and Rights Arising Thereof

Broad and inherently ambiguous though it may be, the definition of “investment” based on the ordinary meaning of the term does offer a framework for distinguishing between investment and other non-qualifying forms of economic activity and rights arising thereof. The ordinary interpretation performs an important screening function as it militates against including such transactions as buying a metro ticket under the rubric of investment:Footnote 28 clearly, even if the payment for a metro ticket could qualify as a commitment of resources, such transaction involves no expectation of a profit and therefore does not constitute an investment. Beyond its capacity to screen out a wide range of non-qualifying transactions, the ordinary meaning approach implies that investment should be regarded as a process rather than an asset. Only when put to a certain use in the expectation of a commercial return does an asset turn into an investment. The process-oriented view of investment is not only supported by the ordinary meaning of the term but is also preferable because it encompasses various elements of the putative investment activity without losing sight of a core transaction and its economic nature. Thus, it is the acquisition of an asset for the purpose of its commercial exploitation that should be viewed as an investment, and not the asset itself. Similarly, it is not a right to provide water services that forms an investment; rather, an investment comprises the whole operation, including the acquisition of the necessary rights and the deployment of capital, technology, and personnel in exercising those rights.Footnote 29

This process-oriented understanding of investment is very important for both conceptual and practical reasons. The inadequacy of the subjectivist approach to construing investment is that it relies on the definition of the term in BITs, which confusingly embraces both investments per se and rights relating to investments. Indeed, “claims to money and performance having an economic value” cannot be plausibly viewed as a commitment of resources in the expectation of a profit; such claims are not investments per se, but could be regarded as part of an entire investment operation. The fact that claims to money and other cognate rights are listed in the BIT definition of investment does not exempt a putative claimant-investor from establishing that a contract or an operation, which forms the basis of such a claim, constitutes an investment: claims to money are entitled to the protection under the applicable treaty instrument only if they arise from a contract or other undertaking that qualifies as an investment in its ordinary sense.Footnote 30

Although the need to regard investment as an entire operation—the so-called general unity of an investment operation—has already been acknowledged in a number of cases,Footnote 31 arbitral practice has not been consistent in distinguishing between an investment and related rights that could possibly arise. The Saipem v. Bangladesh tribunal was among the first panels to stress the difference between an overall investment operation and its individual components, including claims arising from a relevant contract.Footnote 32 This case concerned a refusal by national courts to recognize and enforce the award rendered by an International Chamber of Commerce (ICC) tribunal in a contractual arbitration. The tribunal held that the right accruing to the claimant under the ICC award arose only indirectly from the investment. Thus, it was not prepared to consider the ICC award itself as constituting an investment.Footnote 33 Having correctly emphasized that the notion of investment must be understood as covering all elements of the operation,Footnote 34 the tribunal held that both the contract and the construction project itself were the elements of the investment operation, and considered the ICC award as a crystallization of the rights and obligations under the contract.Footnote 35

In contrast, the earlier award in Joy Mining provides an example of a failure to distinguish between an investment and investor rights arising by virtue of such an investment. The case concerned a release of bank guarantees under a contract for the provision and technical installation of equipment for a phosphate-mining project.Footnote 36 Instead of examining whether an underlying contract qualified as an investment, the tribunal preferred to scrutinize only the status of the bank guarantees, thus confusing the putative investment operation with a claim to payment under the letters of guarantee.Footnote 37 The tribunal's failure to separate the analysis of the underlying investment operation (the provision and technical installation of the equipment) from the examination of the claim to money (the entitlement to the release of bank guarantees) manifests the shortcomings of the Salini test which was expressly endorsed by the tribunal and informed its reasoning. Just like bilateral definitions of investment, the objectivist approach is liable to conflate investment and other incidental rights, thus failing to offer a reliable analytical framework for interpreting “investment” and understanding its role in defining the contours of international investment law.

The simultaneous inclusion of various forms of investment as well as rights arising thereof under a single rubric in the texts of BITs, and the frequently ensuing failure to draw a line between an investment as a process and claims to money and performance as its derivatives, are also problematic due to the doubtful practices they seem to perpetuate. The most notable example drawn from the recent arbitral jurisprudence is the award in ATA Construction v. Jordan, where an ICSID tribunal was faced with the question of whether a claim arising from the annulment of an arbitral award rendered in a contractual arbitration fell within its jurisdiction under the Turkey-Jordan BIT.Footnote 38 A dispute arose in connection with a contract for the construction of a dyke concluded between the claimant and the Arab Potash Company (APC). A contractual arbitration was initiated by APC after a section of the dyke had collapsed during the process of filling it with water. A tribunal constituted in accordance with the contract had not only dismissed APC's claims but also awarded the investor's counter-claim for compensation. Subsequently, the Jordanian Court of Appeal decided to set aside the award on the ground that it contained an error of law, namely, the misapplication of Article 789 of the Civil Code. As a result, the arbitration agreement became a nullity: in accordance with the 2001 Jordanian Arbitration Law, the nullification of the award led to extinguishing the underlying arbitration agreement. After an unsuccessful attempt to reverse the judgment in the Court of Cassation, the contractor instigated arbitral proceedings against Jordan before an ICSID tribunal, contending that the Jordanian courts committed a denial of justice in violation of the Turkey-Jordan BIT of 2006.Footnote 39

As part of establishing its jurisdiction over the dispute, the ICSID tribunal ruled that a right to arbitration under a construction contract constituted an investment.Footnote 40 This is not the first time an arbitral award was examined against the jurisdictional requirement of Article 25(1) ICSID Convention. As mentioned above, faced with a somewhat similar jurisdictional issue, the Saipem v. Bangladesh tribunal had earlier concluded that an arbitral award could fall within the jurisdiction of a treaty-based tribunal, but only if it constituted part of an entire investment operation which qualified as an investment.Footnote 41 The dispute having arisen in connection with a contract for the construction of a pipeline, the Saipem tribunal was satisfied that the rights embodied in the disputed contractual arbitration did not arise from the award but were created by the underlying contract which itself constituted an investment.Footnote 42 However, this route to establishing jurisdiction was not available to the ATA v. Jordan tribunal due to the temporal dimensions of the claim. The underlying contract for the construction of a dyke was concluded in 1998, and the contractual arbitration took place in 2003—prior to the entry into force of the Turkey-Jordan BIT in January 2006. If the ATA tribunal were to follow the Saipem approach and consider the disputed contractual arbitration as part of an entire investment operation, it would have to dismiss the claim as falling outside the jurisdiction ratione temporis because both the conclusion of the contract, the dispute over the collapsed dyke, and the contractual arbitration took place prior to the coming into effect of the applicable BIT. In order to avoid this temporal barrier, the ATA tribunal did not elaborate on whether the contractual arbitration was part of an investment operation but instead opted to focus exclusively on the claimant's right to arbitration. It held that the right to arbitration itself was a distinct investment because it fell under the rubric of “claims to legitimate performance having a financial value related to an investment” protected by the BIT.Footnote 43 The result defies the ordinary meaning of investment: it indeed stretches language beyond breaking point to conclude that, divorced from an underlying business operation, a right to arbitrate as such constitutes a distinct investment.Footnote 44 A more recent award in GEA v. Ukraine makes this point strongly: as a legal instrument that provides for the disposition of rights and obligations arising from a certain agreement, an arbitral award cannot in itself constitute an investment where it involves no contribution to, or relevant economic activity in, the host state.Footnote 45

Regrettably, neither the objectivist Salini test nor the subjectivist reliance on BIT definitions offers a suitable platform for dealing with claims to money and other cognate entitlements. It would seem that the process-oriented concept of investment—derived from the ordinary and effective interpretation of the term—can provide a more credible and coherent methodology for establishing the existence of a qualifying investment, without confusing the latter with various incidental claims. Still, it should be acknowledged that the pervasive ambiguity of the term “investment” is such as to defy a single interpretive solution. Whilst yielding much-needed clarity in distinguishing between an investment and rights arising thereof, the process-oriented approach does not provide clear-cut guidance in determining the scope of investment, and in particular the extent to which sale and services come within the protective scope of the ICSID and BITs.

A. Is a Sale an Investment? Between Investment and Ordinary Commercial Transactions

The focus on the unity of an investment and an underlying investment operation being crucial in distinguishing between investment disputes and other non-qualifying claims, the question that inevitably arises at this point is how to ascertain which business operations are eligible and covered by the term “investment”. Does this term encompass a commitment of resources in sale and service operations? The ICSID Convention is silent on this matter, and reading new criteria into Article 25 may only exacerbate the existing lack of consistency. As for BITs, their traditional asset-based definitions do refer to certain forms of investment operations, such as “concessions to search for, extract or exploit natural resources”Footnote 46 and “an interest in an enterprise that entitles the owner to share in income or profits of the enterprise”.Footnote 47 Yet, just like the ICSID Convention, BIT definitions are neither exhaustive nor inclusive of an overarching formula which could help identify which business operations are protected as investments.Footnote 48 Instead, the traditional asset-based formula merely performs a patterning functionFootnote 49 by pointing out some of the forms an investment may take as well as the entitlements which may arise from such an investment. While a claim to money and performance “having an economic value” and arising from, for example, an oil and gas concession would be more readily recognized as falling under the rubric of investment, claims arising from a service contract—such as a contract for the salvage of historical artefacts and for the technical installation of equipment—and from a sale-of-goods contract are more problematic because the underlying transactions do not lend themselves so easily to being classified as investments.

Although it could be argued that the vehicle of ambiguity and silence were intended to moderate the scope of investment, the examination of the recent arbitral practice illustrates that the open-ended definition can be exploited by advocates of expansive interpretation, thus reinforcing concerns about lack of clarity as well as raising questions about the overall design of the existing system. In an attempt to confine the notion of investment to only certain categories of economic activity, it is often argued that “the contracting states clearly did not intend ordinary commercial transactions to be protected”.Footnote 50 However, not only is the line between ordinary transactions and ordinary investment blurred, but the assumption that ordinary commercial transactions were deliberately excluded also lacks basis in treaty texts and is not supported by the history of investment arbitration or otherwise uniformly shared in arbitral practice. For instance, a sole arbitrator in Pantechniki v. Albania held that while the sale of a single tractor could not be labelled an “investment”, investment treaty protection ought not to be denied to a transaction involving the delivery of a large number of machines and envisaging a deferral of payments for a substantial period.Footnote 51 In contrast, the annulment committee in Malaysian Historical Salvors held that the outer limits of an investment were defined by “the fundamental assumption that the investment does not mean sale”.Footnote 52 Likewise, the Joy Mining tribunal refused to characterize a contract for the delivery and installation of mining equipment as a form of investment, with the tribunal's reasoning in the relevant part of the award, however, falling short of a principled analysis. The only explanation it proffered for excluding the sale of goods from the ambit of “investment” was the availability of the United Nations Convention on Contracts for the International Sale of Goods as an instrument governing sale contracts, and of international commercial arbitration as an appropriate avenue for dispute settlement.Footnote 53 Unconvincing on its merits, the tribunal's reasoning is also untenable if applied to a commitment of resources under a service contract: the fact that certain services fall within the scope of the General Agreement on Trade in Services (GATS) and under the freedom to provide services, in the EU, can hardly serve as a justification for denying protection under an applicable investment treaty instrument to a commitment of resources in the services sector.

International investment treaties also militate against an outright exclusion of sale and services transactions from the scope of treaty protection. Some international investment agreements expressly provide that the term investment

However, this approach could be contrasted with other BITs that are conspicuously silent on the possibility of sales being recognized as a form of investment.Footnote 55 The fact that what seems to be a majority of BITs, including the recently concluded treaties, do not expressly strike out sale of goods—even after some states have set a precedent—may serve as an indication that treaty drafters deliberately continue to leave the door open for any economic activities to be included in the term. This argument could be particularly potent in relation to investment treaties and models that were drafted and adopted more recently, after a number of states had restricted the scope of their treaties by expressly providing that neither sale of goods nor claims arising thereof would be covered as protected investments.Footnote 56 Besides, since tribunals seem to be less hesitant to regard service contracts—such as contracts for pre-shipment servicesFootnote 57 and constructionFootnote 58—as falling within the rubric of investment, in the absence of a “sale exception” in the applicable BIT, sale of goods could just as plausibly be categorized as an investment. The co-existence of two different trends—one for the exclusion of sale and services and the other for keeping the definition of investment broad and open-ended—exposes the potential for a very broad interpretation, which in turn may have significant implications for the functioning of the entire mechanism of treaty protection, and in particular for its acceptance by host states. The modification by arbitral tribunals of the scope of the latter category of treaties may be contrary to the drafters’ intention and lead to case-law riddled by internal inconsistency. Since tribunals have already exhibited their differing preferences for the inclusion of sale and certain services in the scope of protected investment,Footnote 59 a brief excursion into the history of investment treaty protection will be undertaken so as to explain the breadth and ambiguity of the term “investment” in relation to various forms of economic activity, including trade in goods and services, and to facilitate identifying alternative interpretative solutions.

B. Bilateral Definitions in a Historical Perspective

Analyzed in a historical perspective, the inherently open-ended nature of the term “investment” can be seen both as a drafting solution for which treaty negotiators deliberately opted and a by-product of the evolution of the international system for the protection of foreign business interests. Before the rise of BITs, the remit of customary international law was not limited to the protection of foreign property but included standards of treatment of aliens as regards their life, security, and property more generally.Footnote 60 It formed part of the law on state responsibility for injuries to aliens.Footnote 61 Early Friendship, Commerce, and Navigation (FCN) treaties similarly envisaged the protection of the property and persons of foreign nationals.Footnote 62 Subsequently, the wave of nationalizations in the first half of the twentieth century, including sweeping repudiations of concession contracts, spurred the adoption of international treaty instruments containing a broader definition of property and the extension of international protection to contractual undertakings.Footnote 63 A prominent example is the Abs-Shawcross Draft Convention, which championed the extension of international treaty protection to contractual undertakings with aliens, in addition to safeguarding their property, rights, and interests.Footnote 64

The emergence of BITs and the creation of the ICSID as special vehicles of investment protection changed the semantics of international law on the protection of foreigners abroad. Foreign property, rights, and interests—including those arising from contract—have been lumped together under the rubric of “investment”. It is noteworthy that negotiators of early US BITs faced the choice of not defining “investment” at all, primarily due to the concern that new forms of investment might be excluded from the definition if the drafters failed to anticipate them.Footnote 65 The breadth of the BIT definition of “investment” and the fact that treaty negotiators left the term open to arbitral interpretation may serve as evidence of the ambitious objective of casting an all-encompassing net over the international protection of foreign businesses abroad.Footnote 66 It could be argued that the inclusion of “claims to money and to performance having an economic value”Footnote 67 and “investment returns”Footnote 68 in the definition of investment indicates that BITs have been designed to ensure that international protection is available to the widest range of foreign business interests at different stages of their operation abroad—from the commitment of capital to the repatriation of its yields.

In practice, however, the breadth of bilaterally agreed definitions of investment is such that it blurs the boundaries of investor-state arbitration because a dispute arising from virtually any economic transaction could potentially qualify as an investment claim and be brought directly against the host state—a privilege that is unavailable in other areas of international economic law. Due to their broad compass, investment treaty instruments could be deployed to protect resource commitment in sale of goods and services, unless an express provision to the contrary is made, as is the case with selected BITs and Free Trade Agreements (FTAs).Footnote 69 Again, the history of BITs helps to explain the troublesome breadth of the notion of investment as regards the forms of economic activities it embraces. Early international instruments on the protection of foreign interests abroad did not differentiate between goods, services, and foreign direct investment (FDI). The first model BITs were negotiated and drafted before the dawn of economic liberalization and large-scale privatizations, at a time when foreign investment was limited primarily to concessions in natural resources and long-term utilities.Footnote 70 Access to concessions, protection against expropriation, and restrictions on the repatriation of returns were among the predominant concerns in the drafting of model clauses.Footnote 71 These concerns are mirrored in a typical BIT definition of investment, which invariably refers to investor rights, investor property, and investment returns, without, however, defining the types of transactions or forms of activities entitled to protection. Treaty drafters—at least in some cases—intentionally left the definition open to allow its flexible interpretation, fearing that precision in the wording of the relevant provisions might prevent future investors from committing resources in areas not covered by a treaty.Footnote 72 Although some of the contemporary model BITs—such as the US 2004 Model BIT—evidence a move towards a more elaborate and specified definition of investment, other states seem to favour the traditional open-ended approach.Footnote 73

It is also interesting that as predecessors of modern BITs, FCNs were originally intended to promote international commerce,Footnote 74 and only following the emergence of bilateral trade agreements and the General Agreement on Tariffs and Trade (GATT) were they “retooled to fit the newly crystallized investment need”.Footnote 75 The range of activities covered by FCNs cut across commerce and industry generally.Footnote 76 The subsequent spread of liberalization and privatization processes opened up foreign markets to a larger category of foreign business actors who could benefit from the existing protection standards. A new generation of investment treaty instruments, including the failed Multilateral Agreement on Investment, pursued not only the aim of the protection of foreign investment but also that of liberalization and improving access to markets.Footnote 77 This, in turn, points to a partial overlap in the material scope of BITs, trade agreements, and regional economic integration instruments.Footnote 78 Consequently, the notion of investment emerges as a poorly defined conglomerate of rights relating to the protection of foreign property abroad and the promotion of the liberalized movement of capital, services, and goods.Footnote 79 The growing tendency to extend the benefits of investment-protection instruments to service contracts and, in certain industry sectors, to sale contracts,Footnote 80 exposes the problem with the original drafting, which was driven by a preoccupation with the protection of foreign interests engaged in a wide range of economic activity.Footnote 81 While the international regulation of trade in goods and services has developed into a separate area of international economic law, the open-ended definition of investment in BITs may be deployed in regulating “the exercise of sovereign authority over international business in general”.Footnote 82 The fact that the term “investment” is open to a very broad interpretation can be regarded as a reflection of the current stage in the historical transformation of international law where the protection of the property of aliens has been superseded by a set of multilevel economic objectives, leading to the emergence of different international mechanisms and institutions with distinct but at times overlapping agenda. The overlap can be seen not only in the material scope of international trade and investment protection but also on the level of key provisions, the most apposite example being the national treatment standard guaranteed by both investment treaty instruments and international trade agreements.Footnote 83 A focus on the convergence and divergence of the international trade and investment fieldsFootnote 84 not only explains the breadth and ambiguity of the term “investment” but also offers a useful analytical framework for identifying interpretative methodologies that can potentially alleviate existing inconsistency and disagreement in arbitral practice.