International Investment Law and Arbitration Commentary, Awards and other Materials

This chapter, which should be read in conjunction with Chapter 10, addresses the second of two principal criteria for a dispute to enter the scope of submission to investment treaty arbitration – the existence of a protected investor. Whether an investor qualifies for treaty protection depends on its nationality. Essentially, only investors who are nationals of the other or another Contracting State to an investment treaty are eligible to seek treaty protection from a Contracting State. Arbitral tribunals are thus tasked with verifying if an investor is in possession of the nationality that it claims to have. Section 1 outlines the centrality of a determination on an investor’s nationality to its status as a protected investor, and the implications of the premium placed on nationality. Section 2 explores in greater detail the process of determining the nationality of individual investors, while Section 3 is devoted to the nationality of corporate investors. Section 4 touches on the emerging phenomenon of ‘divisible’ investors, whereby duplicate claims are launched against a host State by an investor through or in conjunction with close affiliates bearing different nationalities. The result is parallel or multiple proceedings.