Bilateral Investment Treaties

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Dual Nationals in Investment Treaty Arbitration: An Emerging Field of Inconsistent Decisions

July 27, 2023

Introduction Nationality is a crucial marker for protection in international investment law. Only investors that qualify as nationals of a contracting party can access investment treaties. Most investment treaties, however, are premised on broad provisions defining eligible nationals. With respect to individuals, these instruments typically define protected investors as physical persons who hold the nationality of the home state party in accordance with its domestic laws. Investment treaties, in other words, rarely regulate situations where investors seeking protection hold the nationality of both contracting parties. An exception to this broad nationality criterion can be found in the ICSID Convention. Article 25(2)(a) expressly excludes host state nationals from the Centre’s jurisdiction. But what if an investor with dual nationality resorts to other arbitral fora, such as ad hoc arbitration under the UNCITRAL Arbitration Rules? The tribunal in Serafín García Armas and Karina García Gruber v Venezuela was the first to examine a claim by a dual national in a non-ICSID setting (García Armas I, UNCITRAL, 15 November 2014). The tribunal…

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ISDS reform and air guitar: A response to Grant and Kieff

July 19, 2022

In issue 2020(2) of EJIL, we published an empirical study concerning the public perception of investment arbitration. Our article presents the results of four experiments that we conducted to assess which factors mostly affect the public acceptance of investor-State dispute resolution outcomes. In our study we tested a number of possible factors that influence public…

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New Options for Investor Accountability in ISDS

December 22, 2021

ISDS emerged in the twentieth century to empower foreign investors to assert legal claims against host states without the intervention of their home state. But this understanding of international investment law (IIL) – investor rights and host state duties – is now a relic of the past. Yet because of their current asymmetrical nature, ISDS and IIL do…

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Nottebohm Under Attack (Again): Is it Time for Reconciliation?

December 10, 2021

Introduction The Nottebohm judgment has recently come under attack in the context of the European Commission’s position on investment by citizenship (CBI) schemes, also known as “golden passport” programmes. These schemes allow individuals to obtain a second citizenship in a host country in exchange for financial investments or even just a flat fee. On 20…

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Belgium asks European Court of Justice to opine on compatibility of Energy Charter Treaty’s investor-State arbitration provisions with EU law

December 8, 2020

On 3 December 2020, the Government of Belgium announced that it was submitting a request to the Court of Justice of the European Union for an opinion on ‘the compatibility of the intra-European application of the arbitration provisions of the future modernised Energy Charter Treaty with the European Treaties.’ This is major news, potentially sounding the death knell…

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