Following our earlier note on the concept of “investor” in Portugal’s investment treaty practice, we now turn to the definition of investment.
Portuguese bilateral investment treaties generally adopt a broad and inclusive approach. Investment is typically defined as “any kind of assets and rights” invested by an investor of one contracting party in the territory of the other. This definition is usually accompanied by a non-exhaustive list of assets, which may include movable and immovable property, shares, stock, debentures or other equity securities of a company, claims to money or contractual rights with economic value, intellectual property rights, as well as concessions granted by law, contract or administrative decision.
As regards indirectly owned or controlled investments, Portuguese BITs as a general rule do not expressly extend protection to them. Nonetheless, some treaties deviate from this approach. For instance, the Portugal–Ivory Coast BIT (2019) and the Portugal–China BIT (2005) both clarify that directly and indirectly owned or controlled investments fall within the scope of treaty protection.
Most treaties also include provisions addressing changes in the form of an investment, usually establishing that a modification in form does not affect its protected status, provided that the change complies with the host state’s domestic legislation.
Overall, Portugal’s treaty practice reflects an asset-based and flexible understanding of investment, while leaving some variation in the treatment of indirect ownership and control.