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
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.7
A. 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.8 Some learned arbitrators have expressed a different position.9
B. 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.10 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.11
V. Origin of capital
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.16 With rare exceptions,17 tribunals have largely confirmed that neither the ICSID Convention, nor the ECT contain an origin of capital requirement.18 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 State19 or funds that are not the investor’s own capital,20 are also protected under the applicable IIT.
Schreuer, C. and others, The ICSID Convention: A Commentary, 2nd ed., 2009, pp. 136-140.
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.
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