Introduction

In Mihaly v Sri Lanka (2002), an ICSID tribunal considered that business development expenditures (though constituting 2-4 per cent of the total envisaged investment) did not constitute, in this particular case, ‘investment’ protected under the applicable US-Sri Lanka BIT. There were several letters of intent, but no final contract. It relied on the fact that there was no legally binding agreement and that Sri Lanka had never expressly consented to the envisaged investment. The case is of interest as modern investment treaties (bilateral ones and also ...