Several 2009 awards have tackled the difficult issue of what is meant by an "investment" in the context of establishing ICSID jurisdiction. In general, tribunals have tended to move away from a strict or mechanical application of the well-known Salini criteria in favour of a more flexible approach. This has been accompanied by a re-assertion of the importance of the terms of the individual parties' consent to arbitration (usually evidenced by the terms of the relevant BIT): see, for example, Malaysian Historical Salvors SDN BHD v Malaysia (ICSID Case No ARB/05/10), Decision on the Application for Annulment, discussed in Legal update, Salvage contract was an "investment"; and Pantechniki v Albania (ICSID Case No ARB/07/21), discussed in Legal update, "Fork in the road" provision applied . Note, further, that in Phoenix Action Ltd v The Czech Republic (ICSID Case No ARB/06/5), the tribunal held that a transaction could not qualify as an "investment" if it had been entered in bad faith and for the ulterior motive of treaty-shopping. (For further discussion, see Legal update, Bad faith transaction is not an "investment".)

More recently, similar issues arose, and a similar approach was adopted, in a non-ICSID case (see Legal update, Commercial transaction was not an investment).

In Saipem v Bangladesh, ICSID Case No ARB/05/7, an ICSID tribunal held that a Bangladeshi court's interference in an ICC arbitration amounted to expropriation in the claimant's contractual rights in relation to that arbitration. The decision is important as it confirms that a right to arbitrate and the benefit of an award can qualify as property that can be expropriated. It also recognises that the abuse by state courts of their supervisory jurisdiction over an arbitration process can amount to a breach of state obligations under international law. For further discussion, see Legal update, ICSID tribunal holds that national courts' interference with arbitration was expropriation.

In Elektroprivreda DD v The Republic of Slovenia (ICSID Case No ARB/05/24) the tribunal considered the proper approach to interpretation of bilateral investment treaties. The decision is of particular interest because of the strong dissenting opinion of Jan Paulsson and his criticisms of the teleological method adopted by the majority. For further discussion, see Legal update, ICSID tribunal differs in approach to treaty interpretation.