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the date of consent have been debated.5 Most tribunals have ruled that jurisdiction, once established, could not be withdrawn.6 (See further Continuous Nationality Rule).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 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.
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