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Nationality is an objective jurisdiction requirement which a tribunal must make sure that it is satisfied
To meet the requirement of a dispute within the meaning of Article 25 ICSID Convention, it is not necessary to address the existence of actual harm at the jurisdictional stage
Article 15 of the Universal Declaration of Human Rights is relevant for the determination of nationality
The State conferring nationality enjoys a margin of discretion in determining the criteria of nationality
In case of a single nationality, considerations of effectiveness regarding the opposability of that nationality do not arise under Article 25 ICSID Convention
While it is a general principle that is for each state to decide in accordance with its law who is its national it is also well established that the acquisition of nationality must not be inconsistent with international law, i.e. based on fraud or material error
Companies incorporated in the host state or having their head office there can still be investors if the treaty provides for control as a relevant test
The required consent can be provided for within an ITT
The IIT may provide that the critical date is the date when the dispute arose rather than the date when the events or actions that may have given rise to the dispute took place
- International Investment Treaties (IITs) > Protection of Investors under IITs > Applicability of IITs > Ratione Temporis – Application in Time
- Vienna Convention on the Law of Treaties > Article 28 - Non-retroactivity of treaties
The State conferring nationality enjoys a margin of appreciation in determining the criteria of nationality
While it is a general principle that it is for each state to decide in accordance with its law who is its national, it is also well established that the acquisition of nationality must not be inconsistent with international law, i.e. based on fraud or material error
In determining nationality, one must be mindful of Article 15 of the Universal Declaration of Human Rights
Prerequisites of ICSID competence have to be addressed by a tribunal
Restitution can be claimed in ICSID proceedings
The burden of proving that nationality was acquired in a manner inconsistent with international law lies with the party challenging the nationality
- International Investment Treaties (IITs) > Protection of Investors under IITs > Applicability of IITs > Ratione Personae – Protected Investors > Natural Persons > Burden of Proof / Evidence of Nationality
- ICSID Convention > Jurisdiction of the Centre (Articles 25-27) > Article 25 > Jurisdiction Ratione Personae > Natural Persons > Burden of Proof
In interpreting IITs, any relevant rules of international law may be taken into account according to Articles 31 (3)(c) of the VCLT
- International Investment Treaties (IITs) > International Law Rules Applicable to IITs > Law of Treaties > Rules of Interpretation > Interpretation Rules of the Vienna Convention on the Law of Treaties (VCLT) as Reflecting Customary International Law
- Vienna Convention on the Law of Treaties > Article 31 - General rule of interpretation > Context > Article 31(3) a-c
In case of a single nationality, considerations of effectiveness regarding the opposability of that nationality do not arise regarding the definition of nationality under an IIT
While the jurisdictional stage is not the appropriate time to enter the merits of the case, certain factual determinations may be required, such as those regarding a tribunal’s jurisdiction ratione personae
Objections relating to requirements contained in the document on which consent is based concern the tribunal’s jurisdiction. Such requirements must be met, otherwise the tribunal may not examine the case. Contrary to this, objections relating to admissibility are capable of being removed.
A tribunal has a duty to determine its jurisdiction sua sponte
International Law Rules Applicable to IITs
Law of Treaties
Rules of Interpretation
Interpretation Rules of the Vienna Convention on the Law of Treaties (VCLT) as Reflecting Customary International Law
In interpreting IITs, any relevant rules of international law may be taken into account according to Articles 31 (3)(c) of the VCLT
Law of State Responsibility
Restitution and Compensation
Restitution can be claimed in ICSID proceedings
Protection of Investors under IITs
Applicability of IITs
Ratione Personae – Protected Investors
Natural Persons
Decisive Factors of Nationality
The State conferring nationality enjoys a margin of appreciation in determining the criteria of nationality
While it is a general principle that it is for each state to decide in accordance with its law who is its national, it is also well established that the acquisition of nationality must not be inconsistent with international law, i.e. based on fraud or material error
In determining nationality, one must be mindful of Article 15 of the Universal Declaration of Human Rights
In case of a single nationality, considerations of effectiveness regarding the opposability of that nationality do not arise regarding the definition of nationality under an IIT
Burden of Proof / Evidence of Nationality
The burden of proving that nationality was acquired in a manner inconsistent with international law lies with the party challenging the nationality
Juridical Persons
Companies incorporated in the host state or having their head office there can still be investors if the treaty provides for control as a relevant test
Ratione Temporis – Application in Time
The IIT may provide that the critical date is the date when the dispute arose rather than the date when the events or actions that may have given rise to the dispute took place
Distinction Between Jurisdiction and Admissibility
Objections relating to requirements contained in the document on which consent is based concern the tribunal’s jurisdiction. Such requirements must be met, otherwise the tribunal may not examine the case. Contrary to this, objections relating to admissibility are capable of being removed.
Jurisdiction
The Tribunal's Rights and Duties
A tribunal has a duty to determine its jurisdiction sua sponte
Admissibility
Prima Facie Case
While the jurisdictional stage is not the appropriate time to enter the merits of the case, certain factual determinations may be required, such as those regarding a tribunal’s jurisdiction ratione personae
Article 28 - Non-retroactivity of treaties
The IIT may provide that the critical date is the date when the dispute arose rather than the date when the events or actions that may have given rise to the dispute took place
Article 31 - General rule of interpretation
Context
Article 31(3) a-c
In interpreting IITs, any relevant rules of international law may be taken into account according to Articles 31 (3)(c) of the VCLT
Jurisdiction of the Centre (Articles 25-27)
Article 25
Ex Officio Examination of Jurisdiction
Prerequisites of ICSID competence have to be addressed by a tribunal
Jurisdiction Ratione Materiae
Legal Dispute
To meet the requirement of a dispute within the meaning of Article 25 ICSID Convention, it is not necessary to address the existence of actual harm at the jurisdictional stage
Jurisdiction Ratione Personae
Natural Persons
Burden of Proof
The burden of proving that nationality was acquired in a manner inconsistent with international law lies with the party challenging the nationality
Defining Nationality According to National Law and International Law
The State conferring nationality enjoys a margin of discretion in determining the criteria of nationality
In case of a single nationality, considerations of effectiveness regarding the opposability of that nationality do not arise under Article 25 ICSID Convention
While it is a general principle that is for each state to decide in accordance with its law who is its national it is also well established that the acquisition of nationality must not be inconsistent with international law, i.e. based on fraud or material error
Relevance of Human Rights in Determining Nationality
Article 15 of the Universal Declaration of Human Rights is relevant for the determination of nationality
Juridical Persons
Nationality Based on Control, Article 25 II b 2. Alt. ICSID Convention
The required consent can be provided for within an ITT
Further Problems
Nationality is an objective jurisdiction requirement which a tribunal must make sure that it is satisfied