Relevant Date

The investor’s nationality is relevant for jurisdictional purposes (see further jurisdiction ratione personae and jurisdiction ratione materiae)¹ as well as for the question of standing (Standing, Section III. g.). Most investment treaties require investors to be a national of a Contracting State in order to establish the jurisdiction of an arbitral tribunal, and forbid the investors to have the nationality of the host State.²

Regardless of the applicable criteria to ascertain the nationality of the investor, the relevant date to determine the investor’s nationality is an important issue, since it could change over time and have an impact on the jurisdiction of the arbitral tribunal.

The ICSID Convention expressly specifies the relevant date at which the nationality of the investor needs to be determined. The ICSID Convention states that nationality needs to be analysed at the date on which the parties consented to submit the dispute to the Centre’s jurisdiction and, also, on the date the Centre registered the request for arbitration.³ Some ICSID tribunals have also looked at the nationality of the investor at the date at which the dispute arose.⁴

The consequences of a change in the investor’s nationality after the date of consent have been debated.⁵ Most tribunals have ruled that jurisdiction, once established, could not be withdrawn.⁶ (See further Continuous Nationality Rule). However, the solution appears less clear where jurisdiction is established through foreign control.⁷

In case of succession of States, the relevant date to establish jurisdiction ratione personae regarding predecessors and successors is the institution of the proceedings.⁸

Where the relevant investment treaty is silent, arbitral tribunals have adopted different approaches to the date when the Tribunal’s jurisdiction needs to be established (which determines the date at which the nationality of the investor needs to be analysed).

In investments disputes, the consent to arbitrate the dispute is typically perfected when the investor submits the request for arbitration, accepting the unilateral offer made by the host State, commonly in a BIT.

Accordingly, most arbitral tribunals have recognised that the critical dates to determine the nationality of the investor are both: (i) the date at which the alleged violation of the treaty occurred; and (ii) the date at which the parties consented to arbitrate the dispute.⁹

In contrast, some arbitral tribunals have settled this issue by considering the date at which the investment was made as the critical date to determine the nationality of the investor.¹⁰