Part III Guide to Key Jurisdictional Issues, 10 Who is Entitled to Claim?: The Definition of Nationality in Investment Arbitration

Abstract

One of the main elements setting the scope of application ratione persona of international investment agreements is the definition of the investor. An investment agreement applies only to investors who qualify for coverage under its relevant provisions; only they can submit a claim against the host State. The definition identifies the group of investors whose foreign investment the home country is seeking to protect through the agreement as its ‘nationals’, as well as the ‘clients’ and the investments the host country wishes to attract. This chapter deals with the nationality of the investor, whether a natural or legal person; the criteria used by investment agreements to attribute this nationality, and the arbitral awards that support this qualification. For natural persons, the issues are usually not problematic, although some may arise in particular with regard to dual nationality. For legal persons, the debate remains far more complex.