I. Definition
II. Nationality of Investment v. Nationality of Investor
III. Treaty practice
IV. Territorial nexus
V. Origin of capital
Bibliography

Nationality of Investment

I. Definition

The nationality of an investment is a condition or a set of conditions in some international investment treaties (“IIT”) applied to the determination of the investment’s origin. In particular, such conditions may stipulate that the treaty applies to investments made “in the territory of” the host State (the territorial nexus requirement) or require that the funds used to make the investment originate from a particular source or jurisdiction (the origin of capital requirement).

II. Nationality of Investment v. Nationality of Investor

The conditions stipulated in a particular treaty as applied to the nationality of an investment circumscribe the investment’s ability to qualify for treaty protection and implicate a tribunal’s jurisdiction ratione materiae. By contrast, the nationality of an investor determines whether the investor qualifies for treaty protection and implicates a tribunal’s jurisdiction ratione personae.¹

III. Treaty practice

The territorial nexus requirement may be incorporated in the IIT’s provisions defining “investment”,² provisions dealing with available protections,³ or provisions concerning remedies.⁴ The origin of capital requirement is rarely explicitly mentioned in modern IITs.⁵

Switzerland-Philippines BIT (1997), Art. II (“The present Agreement shall apply to investments in the territory of one Contracting Party made in accordance with its laws and regulations by investors of the other Contracting Party, whether prior to or after the entry into force of the Agreement”); Belgium-Luxembourg Economic Union Model BIT (2019), Art. 4.2 (“Investments made by investors of one Contracting Party in the territory of the other Contracting Party shall at all times be accorded fair and equitable treatment and full protection and security in accordance with paragraphs 3 to 6.”); Germany-Ukraine BIT (1993), Art. 2 (“(1) Jede Vertragspartei wird in ihrem Hoheitsgebiet Kapitalanlagen von Staatsangehörigen oder Gesellschaften der anderen Vertragspartei nach Möglichkeit fördern und diese Kapitalanlagen in Übereinstimmung mit ihren Rechtsvorschriften zulassen. Sie wird Kapitalanlagen in jedem Fall gerecht und billig behandeln. (2) Kapitalanlagen, die in Übereinstimmung mit den Rechtsvorschriften einer Vertragspartei im Anwendungsbereich ihrer Rechtsordnung von Staatsangehörigen oder Gesellschaften der anderen Vertragspartei vorgenommen sind, genießen den vollen Schutz des Vertrags. (3) Eine Vertragspartei wird die Verwaltung, die Verwendung, den Gebrauch oder die Nutzung der Kapitalanlagen von Staatsangehörigen oder Gesellschaften der anderen Vertragspartei in ihrem Hoheitsgebiet in keiner Weise durch willkürliche oder diskriminierende Maßnahmen beeinträchtigen.”), Art. 3 (“(1) Jede Vertragspartei behandelt Kapitalanlagen in ihrem Hoheitsgebiet, die im Eigentum oder unter dem Einfluß von Staatsangehörigen oder Gesellschaften der anderen Vertragspartei stehen und die gemäß Artikel 2 Absatz 2 entsprechend den im Hoheitsgebiet der erstgenannten Vertragspartei geltenden Rechtsvorschriften zugelassen worden sind und getätigt werden, nicht weniger günstig als Kapitalanlagen der eigenen Staatsangehörigen und Gesellschaften oder Kapitalanlagen von Staatsangehörigen und Gesellschaften dritter Staaten. [...]”), Art. 4 (“(1) Kapitalanlagen von Staatsangehörigen oder Gesellschaften einer Vertragspartei genießen im Hoheitsgebiet der anderen Vertragspartei vollen Schutz und volle Sicherheit. […]”).

IV. Territorial nexus

Certain types of investments (e.g., in tangible property) demonstrate a more clear-cut territorial nexus with the host State. Others (e.g., in financial instruments and contractual rights) need not always be physically located in or involve a flow of capital into the host State. In the latter case, tribunals have had to determine whether the investment in question satisfies the territorial nexus condition.⁶ The answer depends on the type of investment at issue, the applicable IIT’s text and the tribunal’s interpretation of the purpose of investment protection.⁸

1) Investments in financial instruments

In relation to investments in financial instruments, tribunals have adopted a broad interpretation of the territorial nexus requirement, eliminating the need for an actual transfer of investment funds into the host State’s territory; they have considered the requirement satisfied as long as the funds ultimately benefit the host State, for example, by creating value or aiding in financing its economy.¹⁰ Some learned arbitrators have expressed a different position.¹¹

2) Investments in contractual rights

Initially, tribunals examining investments in contract rights differed from tribunals assessing financial instruments, holding that investments made outside the territory of the host State, however beneficial, would not satisfy the territorial nexus requirement.¹² Subsequent cases have diverged, holding that the location of the beneficial activity matters for ascertaining the existence of territorial nexus, not the flow of funds.¹³

CSOB v. Slovak Republic, ICSID Case No. ARB/97/4, Decision of the Tribunal on Objections to Jurisdiction, 24 May 1999, para. 76 (“The Slovak Republic submits that loans as such do not qualify as investments under Article 25(1) of the Convention, nor under Article 1 of the BIT. It contends further that the loan in the instant case is not an investment because it did not involve a transfer of resources in the territory of the Slovak Republic.”); SGS Société Générale de Surveillance S.A. v. Republic of the Philippines, ICSID Case No. ARB/02/6, Decision of the Tribunal on Objections to Jurisdiction, 29 January 2004, para. 33 (“It is not disputed that SGS is potentially an investor of the other Contracting Party under the BIT: no issue of SGS’s nationality or effective control is raised. Furthermore it is not denied by the Respondent that the services provided by SGS, itself or through its wholly-owned Swiss affiliates, and the resulting rights to payment are capable of constituting an investment. Under Article 1(2) of the BIT, the term ‘investments’ is defined to include ‘every kind of asset’ including ‘(c) claims to money or to any performance having an economic value’. But the Respondent denies that SGS made any investment in the territory of the Philippines, on the basis that all or substantially all the services for which SGS now claims payment were performed abroad, and were indeed stipulated to have been so performed in the CISS Agreement.”); Abaclat and others v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, 4 August 2011, para. 341 (“No investment ‘made within the territory of Argentina’: Respondent contends that even if Claimants’ security entitlements were to be considered investments, they are not made within the territory of Argentina as required by Article 1 BIT. According to Respondent, these security entitlements do not show a sufficiently significant physical and legal connection to Argentina because (i) they did not cause any transfer of money into the territory of Argentina, (ii) they are located outside of Argentina and are beyond the latter’s scope of territorial jurisdiction based on the foreign law and forum selection clauses contained in the relevant bond documents, and (iii) the indirect holding systems of these entitlements implicates a cut-off point beyond which claims are not permissible because they have only a remote connection with the investment.”); Ambiente Ufficio S.p.A. v. Argentine Republic, ICSID Case No. ARB/08/9, Decision on Jurisdiction and Admissibility, 8 February 2013, para. 374 (“Respondent states that, in the light of Art. 1 of the Argentina-Italy BIT, investments made outside the territory of the host State, i.e. Argentina, fall outside the scope of protection of the BIT (R I § 209). Respondent insists that the Claimants’ security entitlements are not physically located in the territory of Argentina. This conclusion is reinforced by the fact that the Claimants’ security entitlements were purchased and registered outside Argentine territory, that they are governed by foreign law and that they are enforceable in foreign jurisdictions. In this respect, Respondent contends that it did not, and could not, exercise any sovereign right in respect of Claimants’ alleged ‘investments’ since they were subject to foreign laws and jurisdictions (RI § 215).”).

Bayview Irrigation District and others v. United Mexican States, ICSID Case No. ARB(AF)/05/1, Final Award, 19 June 2007, paras. 103 (“In the opinion of the Tribunal, it is quite plain that NAFTA Chapter Eleven was not intended to provide substantive protections or rights of action to investors whose investments are wholly confined to their own national States, in circumstances where those investments may be affected by measures taken by another NAFTA State Party. The NAFTA should not be interpreted so as to bring about this unintended result.”), 104 (“In this case the Tribunal does not consider that the Claimants were ‘foreign investors’ in Mexico. Rather, they were domestic investors in Texas. The economic dependence of an enterprise upon supplies of goods - in this case, water - from another State is not sufficient to make the dependent enterprise an ‘investor’ in that other State.”); Cases Regarding the Border Closure due to BSE Concerns v. United States of America, Award on Jurisdiction, 28 January 2008, paras. 127 (“Thus, the ‘gateway’ to Chapter Eleven - Article 1101 - is properly read, in this Tribunal’s view, to render Chapter Eleven applicable only to investors of one NAFTA Party who seek to make, are making, or have made, an investment in another NAFTA Party. Absent those conditions, both the substantive protections of Section A, and the remedies provided by Section B, of Chapter Eleven, are unavailable to an investor.”), 233 (“Taking into account all of the above considerations, therefore, this Tribunal concludes that the question raised by what the Parties have defined as the Preliminary Issue must be answered in the negative : This Tribunal does not have jurisdiction to consider claims under NAFTA Article 1116 for an alleged breach of NAFTA Article 1102(1) where all of the Claimants’ investments at issue are located in the Canadian portion of the North American Free Trade Area and the Claimants do not seek to make, are not making and have not made any investments in the territory of the United States of America.”); Margaret C. Ryan, “Is there a “Nationality” of Investment? Origin of Funds and Territorial Link to the Host State”, in Y. Banifatemi (ed), Jurisdiction in Investment Treaty Arbitration, IAI Series on International Arbitration No.8 (2018), pp. 113.

Fedax N.V v. Republic of Venezuela, ICSID Case No. ARB/96/3, Decision of the Tribunal on Objections to Jurisdiction, 11 July 1997, para. 41 (“Like a number of other bilateral investment treaties and multilateral arrangements, the Agreement contains several references to investments made ‘in the territory’ of the Contracting Parties. In this context, the Republic of Venezuela has argued that Fedax N.V. does not qualify as an investor because it has not made any investment ‘in the territory’ of Venezuela. While it is true that in some kinds of investments listed under Article 1(a) of the Agreement, such as the acquisition of interests in immovable property, companies and the like, a transfer of funds or value will be made into the territory of the host country, this does not necessarily happen in a number of other types of investments, particularly those of a financial nature. It is a standard feature of many international financial transactions that the funds involved are not physically transferred to the territory of the beneficiary, but put at its disposal elsewhere. In fact, many loans and credits do not leave the country of origin at all, but are made available to suppliers or other entities. The same is true of many important offshore financial operations relating to exports and other kinds of business. And of course, promissory notes are frequently employed in such arrangements. The important question is whether the funds made available are utilized by the beneficiary of the credit, as in the case of the Republic of Venezuela, so as to finance its various governmental needs. It is not disputed in this case that the Republic of Venezuela, by means of the promissory notes, received an amount of credit that was put to work during a period of time for its financial needs.”); Abaclat & others. v. Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility, 4 August 2011, para. 358 (“The question now is whether the connection between the security entitlements and the bonds could be seen as so remote as to consider that the dispute is not ‘directly’ related to an investment, since the dispute related primarily to the rights arising from Claimants’ security entitlements. The Tribunal sees no valid reason that would support such conclusion: - The bonds at stake were always meant to be divided into smaller negotiable economic values, i.e., securities. It has been sufficiently demonstrated by Claimants that the underwriters would not have subscribed to any of the bonds, without having previously ensured that the bonds were re-sellable to the Intermediaries and their end customers; - The security entitlements are the result of the distribution process of the bonds through their division into a multitude of smaller securities representing each a part of the value of the relevant bond. The security entitlements have no value per se, i.e., independently of the bond; - The fact that the distribution process happens electronically, without the physical transfer of any title, does not change anything to the fact that rights effectively passed on to acquirers of security entitlements in the bonds.”); Ambiente Ufficio S.p.A. v. Argentine Republic, ICSID Case No. ARB/08/9, Decision on Jurisdiction and Admissibility, 8 February 2013, paras. 499-501 (“The Tribunal is convinced that, in order to identify in which State’s territory an investment was made, one has to determine first which State benefits from this investment. Most observers will agree that the one criterion which may be taken from the ICSID Convention itself when it comes to determining the nature of an investment under this Convention, is that of a contribution ‘for economic development’, as referred to in the first preambular paragraph of the ICSID Convention. Accordingly, to assess where an investment was made, the criterion must be to whose economic development an investment contributed. The present Tribunal thus cannot come to any other conclusion than identifying the Respondent as the beneficiary of the investment at stake in the present proceedings. It would like to recall, in this context, the importance to conceive of the investment in question as a unified economic operation. The whole bond issuing process, notably including the circulation of security entitlements on the secondary market, was devised -and specifically intended by the Respondent itself - to raise money for the budgetary needs of Argentina and thus to further the development of that State. Hence, the Tribunal cannot endorse the argument made by the Respondent that, while the issuance of the bonds might have benefitted Argentina and might have allowed it to refinance part of its foreign debt, the proceeds of Claimants’ purchases of security entitlements did not accrue to the Respondent (R II § 357), since such an approach ignores the realities of the bond issuing process and negates the very reasons for which the Respondent undertook to issue the bonds in question with the underwriters.”); Deutsche Bank AG v. Sri Lanka, ICSID Case No. ARB/09/2, Award, 31 October 2012, paras. 291-292 (“It is the Arbitral Tribunal’s opinion that the territorial nexus condition is fulfilled in the present case. The reality of today’s banking business is that major banks operate all over the world. The fact that one particular subsidiary or branch does the paperwork does not mean that the financial instrument is located in the country concerned. Here, the preliminary engagement took place in Sri Lanka and it is there too that the investment had its impact. The fact that various Deutsche Bank branches all over the world, including Singapore, participated in the preparation and finalization of the investment, does not alter this conclusion. Nor does the fact that the parties selected English law and English jurisdictions in their agreement. It is a reality of modern banking that London is the world’s first financial place. Its courts have great experience in financial transactions and its law in that area offers great security to bankers and investors. It is the reason why, notwithstanding the territory where the investment takes place, parties to financial transactions often select English law and the English courts in their agreements. In the present case, it is undisputed that the funds paid by Deutsche Bank in execution of the Hedging Agreement were made available to Sri Lanka, were linked to an activity taking place in Sri Lanka and served to finance its economy which is oil dependent. The Tribunal therefore decides that the condition of a territorial nexus with Sri Lanka is satisfied.”); Margaret C. Ryan, “Is there a “Nationality” of Investment? Origin of Funds and Territorial Link to the Host State”, in Y. Banifatemi (ed), Jurisdiction in Investment Treaty Arbitration, IAI Series on International Arbitration No.8 (2018), pp. 116 ff.

Abaclat & others. v. Argentine Republic, ICSID Case No. ARB/07/5, Dissenting Opinion of Prof. Georges Abi-Saab, 28 October 2011, paras. 57-58 (“Such widely dispersed off-the shelf financial products, with their high velocity of circulation and their remoteness, the same as their holders, from the State in whose territory the investment is supposed to take place (being traded within seconds at the touch of a button in capital markets, with no involvement or knowledge of the borrowing country, nor passage through the territory or the legal system of that State), seem at first blush to be worlds apart from the direct foreign investment model, which is usually long negotiated and extensively embedded in the legal environment of the host State. This raises acutely the question of the conformity of these financial products with the requirements of article 25 and evokes a kind of informal presumption that, because of their intrinsic characteristics described above, they are excluded per se, i.e. automatically, from the protected or covered investments under the Convention.”); Ambiente Ufficio S.p.A. v. Argentine Republic, ICSID Case No. ARB/08/9, Dissenting Opinion of Santiago Torres Bernárdez, 8 February 2013, paras. 300-301 (“Looking for one alternative to the territoriality requirement as defined in Article 1(1) and (4) of the Argentina-Italy BIT, the Majority Decision finds that in the case of the pertinent sovereign bonds and security entitlements it suffices that ‘funds were made available to the Respondent that were at its disposal to foster its economic development, and this notably suffices to qualify the investment at stake as one made ‘in the territory’ of Argentina’, rejecting that the funds in question can be traced to a specific project, enterprise or activity in the host State territory. In support of this conclusion, the majority invokes the first paragraph of the Preamble of the ICSID Convention, although in fact it seems to follow Abaclat’s reasoning that the relevant question ‘is where the invested funds ultimately made available to the host State and did they support the latter's economic development’. All this is reminiscent of the most extremist subjectivist views mentioned in connection with the interpretation of the concept of ‘investment’ in Article 25(1) of the ICSID Convention, in particular of Delaume and Manciaux. As to the substance of the argument, one may find in the case-law pronouncements to the effect that the contribution of an international investment to the development of the host State is impossible to ascertain - the more so as there are highly diverging views on what constitutes ‘development’ (see Phoenix Action award, para. 85). In whatever hypothesis, this alternative criterion or criteria are imported by the Majority Decision from the general discussion on the concept of ‘investment’ in Article 25(1) of the ICSID Convention, a discussion alien to the text of the definitions in Article 1(1) and (4) of the Argentina-Italy BIT. As such, it has no role to play in an interpretation of the wording of these definitions. Furthermore, that wording of Article 1(1) is crystal clear (contribution or asset invested or reinvested ‘in the territory’ of the other Contracting Party) and, further, it is not in need of an interpretation because as indicated the term ‘territory’ is in turn defined also in Article 1(4) of the same BIT. In such a situation, the task of an international arbitrator is to give effect, to applied, the two said definitions of the BIT as formulated in the text of this conventional bilateral instrument and not to do otherwise, namely to revising or amending motu propio the text of Article 1(1) and (4) of the Argentina-Italy BIT. I regret indeed to put on record that the Majority Decision has invoked the Argentina-Italy BIT against an objective concept of ‘investment’ in Article 25(1) of the ICSID Convention and, in the present context, a given subjective concept that Convention's term against the ordinary meaning of the terms ‘investment’ and "territory" as respectively defined by the text of the Argentina-Italy BIT. A further shortcoming of the position of the Majority Decision in the matter is that it follows that the terms ‘in the territory’ would have different meanings depending on the nature of the case or claim. Then, there is nothing in the text of the 1990 Argentina-Italy BIT manifesting such a common intention of the Contracting Parties when concluding the BIT.”); Deutsche Bank AG v. Sri Lanka, ICSID Case No. ARB/09/2, Dissenting Opinion of Makhdoom Ali Khan, 23 October 2012, para. 17 (“I am of the view that the two Contracting States, having the latitude and authority to restrict the meaning of the term ‘investment’ in the Treaty, decided to exclude certain economic activities from its scope. They made it clear that a claim for money which has not been ‘used to create an economic value’ or lacks the essential connecting feature of being ‘associated with an investment’ will fall outside the Treaty’s definition of ‘investment’. The use of restrictive language by the two State Parties to the Treaty was intentional. These words, therefore, have to be given due weight. They cannot be stripped of their ordinary meaning.”).

Inmaris Perestroika Sailing Maritime Services GmbH and others v. Ukraine, ICSID Case No. ARB/08/8, Decision on Jurisdiction, 8 March 2010, paras 122-125 (“[…] In the Tribunal’s view, an investment may be made in the territory of a host State without a direct transfer of funds there, particularly if the transaction accrues to the benefit of the State itself. Here, the benefits of Claimants’ investments, considered as an integrated whole, were received by Respondent. It is undisputed that KMTI, a Ukrainian state entity, now owns a substantially renovated sailing vessel for the training of its cadets, which also offers the prospect of revenues from tourist operations. Respondent does not dispute that the funds for such a renovation would otherwise have had to come from the State’s coffers, or that the State lacked the financial resources to undertake the renovation. Claimants’ expenditures in connection with the Khersones created value in Ukraine, on the basis of contractual relationships with a Ukrainian state entity. Accordingly, the Tribunal has little difficulty in concluding that the Claimants’ investments are investments in the territory of Ukraine. In reaching this conclusion, the Tribunal is mindful of, but not persuaded by, Respondent’s contention that each individual claimed investment of each Claimant company must be separately examined to determine whether it was undertaken in the territory of Ukraine. As already discussed, the Tribunal views the various inter-Inmaris relationships as merely the means by which Claimants implemented their collective investment in the rights to operate and market the renovated Khersones under the Bareboat Charter Contract. The division of labor among the Claimants does not affect the nature of the integrated investment in which they participated. Likewise, it does not affect the fact that the investment as a whole was ultimately undertaken in relation to property belonging to the Ukrainian state, and thus sufficiently in the territory of Ukraine. It is not necessary to parse the territorial nexus of each and every component of the Claimants’ investment; it is the investment as a whole that has that nexus.”); Alpha Projektholding GmbH v. Ukraine, ICSID Case No. ARB/07/16, Award, 8 November 2010, para. 279 (“The Tribunal agrees with Claimant that, for purposes of the UABIT, it is the ‘activity’ that must take place ‘in the territory’ of Ukraine and not necessarily the flow of funds that allows that ‘activity’ to take place. In the words of the SGS v. Philippines tribunal, the location of the project in question constitutes the ‘center of gravity’ and the ‘focal point’ insofar as the territorial dimension of an ‘investment’ is concerned.”).

V. Origin of capital

The issue of the origin of capital has arisen due to host States objecting to the tribunals’ jurisdiction on grounds that (i) the funds used to make the investment are not the investor’s own funds;¹⁴ and/or (ii) the funds are “domestic” because they originate within the host State.¹⁵ However, arbitral tribunals, by and large, have found the origin of capital requirement to be immaterial for determining jurisdiction,¹⁶ with certain exceptions.¹⁷

The travaux préparatoires reveal that the authors of the ICSID Convention considered the proposal to incorporate an “origin of capital” requirement in the Convention but abandoned it.¹⁸ With rare exceptions,¹⁹ tribunals have largely confirmed that neither the ICSID Convention, nor the ECT contain an origin of capital requirement.²⁰ Furthermore, tribunals interpreting BITs have held that the language of the BIT is decisive. Thus, absent an express origin of funds stipulation in a BIT, investments made using capital sourced in the host State²¹ or funds that are not the investor’s own capital,²² are also protected under the applicable IIT.

Eiser Infrastructure Limited and Energía Solar Luxembourg S.à r.l. v. Kingdom of Spain, ICSID Case No. ARB/13/36, Award, 4 May 2017, para. 193 (“The Tribunal also finds unconvincing Respondent’s contention that Claimants cannot invoke arbitration under ECT Article 26 because they, like Spain, are located within the geographical confines of the European Union, which is itself party to the ECT. In Respondent’s submission, this means that ‘Claimants are not from the territory of another contracting party as the United Kingdom and the Netherlands [sic], like the Kingdom of Spain, are member States of the European Union.”); Caratube International Oil Company LLP. v. Republic of Kazakhstan, ICSID Case No. ARB/08/12, Award, 5 June 2012, para 355, fn. 25 (“The capital can come from the investor’s own funds located in any country, from its subsidiaries or affiliates located in any country, from loan, credit or other arrangements.”); Saipem S.p.A. v. People's Republic of Bangladesh, ICSID Case No. ARB/05/7, Decision on Jurisdiction and Recommendation on Provisional Measures, 21 March 2007, paras. 103 (“As a further line of argument, Bangladesh mainly disputed the existence of an investment on the ground that throughout the project Saipem never ‘was a net creditor vis-à-vis Petrobangla in respect of the Pipeline Contract having actually put its own money into the project’ (C-Mem., p. 61). At the hearing, Bangladesh relied upon the following dictum of the Tribunal in Soabi v. Senegal. The Tribunal observes finally that the object of the general undertaking was limited to construction of a building to be paid for by the client as work progressed and could thus not be said to be an agreement concerning investments. Disputes arising thereunder could therefore not be investment disputes, as required by Article 25 of the ICSID Convention.”), 106 (“With respect to the first one, it is true that the host State may impose a requirement that an amount of capital in foreign currency be imported into the country. However, in the absence of such a requirement, investments made by foreign investors from local funds or from loans raised in the host State are treated in the same manner as investments funded with imported capital. In other words, the origin of the funds is irrelevant. This results from the drafting history of the ICSID Convention and is confirmed by several arbitral decisions relating to BITs.”).

ICW Europe Investments Limited v. Government of the Czech Republic, PCA Case No. 2014-22, Award, 15 May 2019, paras 210-211 (“As to Article 1(a) of the BIT, the Tribunal is not persuaded that this provision imposes a requirement that the funds of an investment be foreign in their origin. In particular, the Tribunal notes that paragraph (a) refers to ‘every kind of asset’, regardless of the origin of the funds utilised for its acquisition. The only restriction imposed in paragraph (a) is that the asset in question is one ‘belonging to an investor’. In this vein, the Tribunal considers that whether an investment belongs to an investor is independent of the question of the origin of the funds employed by an investor to acquire such investment. Furthermore, the nationality requirement set out in the part of the clause following ‘belonging’ is confined to that of the investor, and thus, it does not support the proposition that funds must originate in either Contracting Party. These considerations are at least in part confirmed by the final sentence in Article 1(a) of the BIT, which emphasises that ‘all investments’ which fall within the provision’s scope of application are covered, regardless of the time of making of the respective investment. Nor is the Tribunal persuaded that Article 1(6) of the ECT establishes a requirement as to the foreign origin of the funds of an investment. In particular, the Tribunal notes that Article 1(6) also refers to ‘every kind of asset’, regardless of the origin of the funds for its acquisition. The only restriction is that the asset in question is ‘owned or controlled directly or indirectly by an Investor’. Once again, the Tribunal considers that the question whether an investment is owned by an investor is a matter independent of the question of origin of the funds employed by an investor to acquire such investment. Furthermore, where the investor needs to be a national of another Contracting Party, the ECT does not require that the funds also come from another Contracting Party.”); Bernard von Pezold & Others v. Republic of Zimbabwe, ICSID Case No. ARB/10/15, Award, 28 July 2015, para. 243 (“The Respondent submits that, because funding for the alleged investments came from Zimbabwe and remained in Zimbabwe, no foreign investments are at stake (see ibid., paras. 939, 941, 942 and 985). The Respondent adds that the Claimants’ investments were ‘self sufficient’, in particular after 2005, referring to the following statement in the Claimants’ Memorial (see ibid., para. 941, quoting Mem. at para. 83): However, prior to their Zimbabwean businesses being affected by the Land Reform and Resettlement Programme, there was by and large enough cash generated by the businesses for them to be self-financing.”); Tokios Tokelés v. Ukraine, ICSID Case No. ARB/02/18, Decision on Jurisdiction, 29 April 2004, paras 81-82 (“That the ICSID Convention does not require an ‘investment’ to be financed from capital of any particular origin was confirmed by the tribunal in Tradex Hellas S.A. v. Republic of Albania. In that case, the tribunal considered a definition of ‘foreign investment’ under Albanian law that is substantially similar to the definition of ‘investment’ in the Ukraine-Lithuania BIT: ‘every kind of investment in the territory of the Republic of Albania owned directly or indirectly by a foreign investor.’ The tribunal found that the definition, ‘nowhere requires that the foreign investor has to finance the investment from his own resources [...] the law provides for a broad interpretation of ‘investment’. As in Tradex, the Claimant in the present case owns and controls the assets in Ukraine that have given rise to this dispute. The origin of the capital used to acquire these assets is not relevant to the question of jurisdiction under the Convention. In our view, the ICSID Convention contains no inchoate requirement that the investment at issue in a dispute have an international character in which the origin of the capital is decisive. Although the Convention contemplates disputes of an international character, we believe that such character is defined by the terms of the Convention, and in turn, the terms of the BIT. Were we to accept the origin of capital as transcending the textual definition of the nationality of the Claimant and the scope of covered investment in the Ukraine-Lithuania BIT, we would override the explicit choice of the Contracting Parties as to how to define these terms. Ukraine, Lithuania and other Contracting Parties chose their methods of defining corporate nationality and the scope of covered investment in BITs with confidence that ICSID arbitrators would give effect to those definitions. That confidence is premised on the ICSID Convention itself, which leaves to the reasonable discretion of the parties the task of defining key terms. We should be loathe to undermine it.”).

Amco Asia Corporation and others v. Republic of Indonesia, ICSID Case No. ARB/81/1, Award, 20 November 1984, para. 222 (“As to the origin, the Decision of Revocation states that the portion of the investment realized by PT Aeropacific cannot be taken into account, said company being an Indonesian one, so that the capital it put into the enterprise was not foreign fresh capital. The Tribunal will accept the conclusion of this reasoning, if not fully the reasoning itself.”); Tokios Tokelés v. Ukraine, ICSID Case No. ARB/02/18, Dissenting Opinion of Prosper Weil, 29 April 2004, paras. 14 (“To decide the jurisdictional issue the Decision should, therefore, have checked first whether the Tribunal has jurisdiction under Article 25 of the Convention - interpreted, as the Decision recalls, in light of its object and purpose - and then, in a second stage, whether it has jurisdiction also under the bilateral investment treaty. It is only if the tribunal had reached the conclusion that it has jurisdiction under the Convention that it would have had to examine whether it has jurisdiction also under the BIT. This, however, is not how the Decision proceeds. It states that "we begin our analysis of this jurisdictional requirement by underscoring the deference this Tribunal owes to the definition of corporate nationality contained in the agreement between the Contracting Parties, in this case, the Ukraine-Lithuania BIT." And this is what it does: it begins with the "Definition of ‘investor’ in Article 1(2) of the BIT", and then in a second stage it turns to the "Consistency of Article 1(2) of the BIT with the ICSID Convention."), 20 (“[i]t is only the international investments that the Convention governs, that is to say, an investment implying a transborder flux of capital. [...] [W]hen it comes to ascertaining the international character of an investment, the origin of the capital is relevant, and even decisive. […] Given the indisputable and undisputed Ukrainian character of the investment the Tribunal does not, in my view, give effect to the letter and spirit, as well as the object and purpose of the ICSID institution.”); Capital Financial Holdings Luxembourg S.A. v. Republic of Cameroon, ICSID Case No. ARB/15/18, Award and Dissenting Opinion of Alexis Mourre, 22 June 2017, para. 45 (“L'approche retenue par la majorité revient, en définitive, à ignorer les personnalités juridiques respectives de CFHL (société luxembourgeoise) et de FGH (société chypriote) pour considérer que nous serions en réalité en présence d'un investissement camerounais au Cameroun (c'est-à-dire réalisé par l'actionnaire ultime Mr Fatso), ne pouvant à ce titre bénéficier de la protection du Traite. Un tel raisonnement devrait conduire les arbitres a rechercher systématiquement l'origine ultime des fonds ayant servi a financer l'investissement, ce qui serait une source d'incertitude juridique. Dans le cas d'espèce, il ne me para1't pas conforme au traité bilatéral pour les raisons qui viennent d'être exposées.”).

ICW Europe Investments Limited v. Government of the Czech Republic, PCA Case No. 2014-22, Award, 15 May 2019, paras 210-211 (“As to Article 1(a) of the BIT, the Tribunal is not persuaded that this provision imposes a requirement that the funds of an investment be foreign in their origin. In particular, the Tribunal notes that paragraph (a) refers to ‘every kind of asset’, regardless of the origin of the funds utilised for its acquisition. The only restriction imposed in paragraph (a) is that the asset in question is one ‘belonging to an investor’. In this vein, the Tribunal considers that whether an investment belongs to an investor is independent of the question of the origin of the funds employed by an investor to acquire such investment. Furthermore, the nationality requirement set out in the part of the clause following ‘belonging’ is confined to that of the investor, and thus, it does not support the proposition that funds must originate in either Contracting Party. These considerations are at least in part confirmed by the final sentence in Article 1(a) of the BIT, which emphasises that ‘all investments’ which fall within the provision’s scope of application are covered, regardless of the time of making of the respective investment. Nor is the Tribunal persuaded that Article 1(6) of the ECT establishes a requirement as to the foreign origin of the funds of an investment. In particular, the Tribunal notes that Article 1(6) also refers to ‘every kind of asset’, regardless of the origin of the funds for its acquisition. The only restriction is that the asset in question is ‘owned or controlled directly or indirectly by an Investor’. Once again, the Tribunal considers that the question whether an investment is owned by an investor is a matter independent of the question of origin of the funds employed by an investor to acquire such investment. Furthermore, where the investor needs to be a national of another Contracting Party, the ECT does not require that the funds also come from another Contracting Party.”); Bernard von Pezold & Others v. Republic of Zimbabwe, ICSID Case No. ARB/10/15, Award, 28 July 2015, para. 243 (“The Respondent submits that, because funding for the alleged investments came from Zimbabwe and remained in Zimbabwe, no foreign investments are at stake (see ibid., paras. 939, 941, 942 and 985). The Respondent adds that the Claimants’ investments were ‘self sufficient’, in particular after 2005, referring to the following statement in the Claimants’ Memorial (see ibid., para. 941, quoting Mem. at para. 83): However, prior to their Zimbabwean businesses being affected by the Land Reform and Resettlement Programme, there was by and large enough cash generated by the businesses for them to be self-financing.”); Tokios Tokelés v. Ukraine, ICSID Case No. ARB/02/18, Decision on Jurisdiction, 29 April 2004, paras 81-82 (“That the ICSID Convention does not require an ‘investment’ to be financed from capital of any particular origin was confirmed by the tribunal in Tradex Hellas S.A. v. Republic of Albania. In that case, the tribunal considered a definition of ‘foreign investment’ under Albanian law that is substantially similar to the definition of ‘investment’ in the Ukraine-Lithuania BIT: ‘every kind of investment in the territory of the Republic of Albania owned directly or indirectly by a foreign investor.’ The tribunal found that the definition, ‘nowhere requires that the foreign investor has to finance the investment from his own resources...the law provides for a broad interpretation of ‘investment.’’ As in Tradex, the Claimant in the present case owns and controls the assets in Ukraine that have given rise to this dispute. The origin of the capital used to acquire these assets is not relevant to the question of jurisdiction under the Convention. In our view, the ICSID Convention contains no inchoate requirement that the investment at issue in a dispute have an international character in which the origin of the capital is decisive. Although the Convention contemplates disputes of an international character, we believe that such character is defined by the terms of the Convention, and in turn, the terms of the BIT. Were we to accept the origin of capital as transcending the textual definition of the nationality of the Claimant and the scope of covered investment in the Ukraine-Lithuania BIT, we would override the explicit choice of the Contracting Parties as to how to define these terms. Ukraine, Lithuania and other Contracting Parties chose their methods of defining corporate nationality and the scope of covered investment in BITs with confidence that ICSID arbitrators would give effect to those definitions. That confidence is premised on the ICSID Convention itself, which leaves to the reasonable discretion of the parties the task of defining key terms. We should be loathe to undermine it.”).

Bibliography

Schreuer, C. and Others, The ICSID Convention: A Commentary, 2nd ed., 2009, pp. 136-140.

Ryan, M. C., Is there a “Nationality” of Investment? Origin of Funds and Territorial Link to the Host State, in Banifatemi, Y. (ed.), Jurisdiction in Investment Treaty Arbitration, 2018, pp. 97-126.

Baltag, C., The Energy Charter Treaty: The Notion of Investor, 2012, pp. 165, 199-202.

Castro de Figueiredo, R., ICSID and Non-Foreign Investment Disputes, Transnational Dispute Management, 2007.

Benson, C. and Others, Covered Investment, in Legum, B. (ed.), The Investment Treaty Arbtiration Review (Law Business Research), 1st ed., 2016, pp. 11-14.