Title:
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"Nationality" as a jurisdictional requirement for corporate investors under Article 25 of the ICSID Convention : a critical analysis
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The purpose of this thesis is to analyse the concept of nationality for corporate
investors under the Convention on the Settlement of Investment Disputes between
States and Nationals of Other States (,ICSID Convention'). Pursuant to Article 25 of
the ICSID Convention, ICSID arbitration tribunals have jurisdiction to resolve legal
disputes arising out of an investment between an ICSID Contracting State and a
national of another ICSID Contracting State, provided the disputing parties have
consented, in writing, to submit their disputes to the ICSID jurisdiction. Article 25
requires the corporate investor to hold a certain nationality, but it does not lay down
a method for the determination of that nationality.
It is argued in this thesis that interpretation of the concept of 'nationality' for
corporate investors by most ICSID tribunals risk an unwarranted extension of host
state consent to arbitrate. This unwarranted extension of consent exposes the
respondent host states to claims by an unlimited number of investors, including
those that have not obtained the host state's consent to arbitrate required under the
ICSID Convention. In the absence of a sound assessment of the jurisdictional
requirements, tribunals risk resolving disputes over which they do not have
jurisdiction. This raises serious questions on the legitimacy, and validity of the
decisions rendered by ICSID tribunals which are not subject to any meaningful
review and which often have significant impact on the general public.
Against this background, a re-evaluation of the concept of corporate nationality is
offered, which aims at mitigating the concerns on legitimacy and certainty that arise
from jurisdictional defects. This attempt is guided by a balanced approach to the
disputing parties' rights and interests and with a greater emphasis on economic
realities rather than formal appearances. In this connection, the purpose and special
characteristics of the corporate entity and the exceptional nature of the ICSID
dispute settlement mechanism are placed at the centre of the analysis. Finally, it is
argued that the 'real seat' theory, found in various civil law jurisdictions, should be
central to the assessment off corporate investors' nationality under the ICSID
Convention.
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