The investor’s nationality is relevant for jurisdictional purposes. 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.1
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.
Comprehensive and Progressive Agreement for Trans-Pacific Partnership (2018), Art. 9.1; Agreement between the People’s Republic of China and the Kingdom of Spain on the Promotion and Reciprocal Protection of Investments, adopted on 14 November 2005, entered into force on 1 July 2008, Art. 1(2), 9(1); Bilateral Agreement for the Promotion and Protection of Investments between the Government of the United Kingdom of Great Britain and Northern Ireland and Republic of Colombia, adopted on 17 March 2010, entered into force on 10 October 2014, Art. 1(1), 9(1); Netherlands Model Investment Agreement, Article 1(b)(i), 16; Agreement between the Government of Canada and the Government of the Republic of Moldova for the Promotion and Protection of Investments, adopted on 12 June 2018, entered into force on 23 August 2019, Arts.1 and 20.
II. Relevant date under the ICSID convention
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.2
III. Different approaches to the date on which the tribunal's jurisdiction needs to be established
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 for determination of 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.3
Victor Pey Casado and President Allende Foundation v. Republic of Chile, ICSID Case No. ARB/98/2, Award, 8 May 2008, para. 214; Domingo Garcia Armas, Manuel García Armas, Pedro Garcia Armas and othersv. Bolivarian Republic of Venezuela, PCA Case No. 2016-08, Award on Jurisdiction, 13 December 2019, paras. 657-658; Serafín García Armas and Karina García Gruber v. The Bolivarian Republic of Venezuela, PCA Case No. 2013-3, Decision on Jurisdiction, 15 December 2014, para. 214; Serafín García Armas and Karina García Gruber v. The Bolivarian Republic of Venezuela, PCA Case No. 2013-3, Judgment of the Paris Court of Appeal, 3 June 2020, para. 51.