In Saba Fakes v Republic of Turkey (ICSID Case No ARB/07/20) the tribunal considered whether it had jurisdiction over a US$19 billion claim by a Dutch-Jordanian national under the Turkey-Netherlands bilateral investment treaty (BIT). The claimant alleged that he became the legal owner of 67% of the shares in Telsim, a mobile phone operator, when he paid an advance of US$3,800 and acquired legal title to the shares. He claimed that this investment was expropriated when Telsim was put into receivership and sold to a third party by the Turkish national authorities. The tribunal concluded that it did not have jurisdiction over the claim. Although the claimant had met the nationality requirement under the ICSID Convention, he had not made an investment.

In considering whether the alleged shareholding in Telsim constituted a protected investment, the tribunal considered a number of earlier decisions on this issue, commenting that the existing case law presents inconsistent, if not conflicting, solutions to the question. (For further discussion of this issue, see Practice note, The definition of investment in international investment law.) The two distinct approaches are either to:

With the second approach, it is not clear whether three, four or five objective criteria must be satisfied. This divergence has led an increasing number of tribunals to revert to the "initial spirit" of the ICSID Convention and view the notion of an investment by reference to the parties' consent to ICSID arbitration. Here, the tribunal rejected a definition of investment by reference to the parties' consent, which is a distinct condition for ICSID jurisdiction. Furthermore, the tribunal went on to identify the three criteria which it considered need to be satisfied, namely: a contribution, which was of certain duration, and which had an element of risk. A contribution to the economic development of the host state (which some tribunals have required, by drawing on the preamble to the Convention) is not necessary.

As regards the nationality requirement, the tribunal followed previous decisions in rejecting the application of the "effective nationality" test, although they made it clear that such an approach should not be ruled out in ICSID proceedings, for example, where the investor has adopted a "nationality of convenience" .