Investor Presentaiton

51 accordance with the law of the host State; non-compliance with this requirement precludes an investor's protection by the treaty and its access to ISDS. The definition of investment thus delineates the range of assets protected under the treaty, including those protected through the ISDS mechanism. 38 Exclusion of certain policy areas from treaty scope. IIAs apply to an extremely broad range of State conduct encompassing practically any action or inaction of any governmental body. Some treaties, however, remove particular policy areas from the treaty's coverage. Frequently excluded areas are taxation, government procurement and subsidies. A treaty may also exclude specific sectors or industries (e.g., essential social services such as healthcare or education, or industries deemed sensitive such as cultural industries, fisheries, nuclear energy and so forth). Government conduct falling within those policy areas or applicable to the excluded industries is thus not subject to arbitral review under the IIA. Pre-establishment V. post-establishment. As briefly mentioned above, 39 some IIAs start applying once an investment is established in the host country ("post-establishment" IIAs), while others contain obligations relating to acquisition and establishment 38 A claim brought under the ICSID Convention must additionally satisfy the jurisdictional limitations of the Convention. In particular, the transaction/assets concerned must qualify as an "investment” under the Convention. Tribunals have offered different interpretations as to what constitutes an investment under the Convention. Some tribunals find it sufficient when an investment satisfies the definition in the applicable IIA; others would add additional requirements, including: a requirement that the investment contribute to the economic development of the host State, last a certain duration, require an investor to undertake a certain amount of risk, generate regular profit and return, and encompass a substantial commitment of capital. For details, see UNCTAD, 2011d, pp. 48-65. See section II.B.2.iii. 39 UNCTAD Series on International Investment Agreements II

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