Abstract

DUARTE, Tiago. International arbitration for the safeguard of investments and double nationality: two can equal zero?. e-Pública [online]. 2019, vol.6, n.2, pp.36-54. ISSN 2183-184X.

The assessment of the investor’s nationality is of utmost relevance to determine the arbitral tribunal’s jurisdiction in Investor-State Arbitration. In treaty-based arbitration the investor must give evidence that is protected by the BIT, which means that he must have the nationality of the State party to the BIT that is not the host State. The case law considers irrelevant the fact that the investor possesses another nationality besides the nationality of the State party to the BIT and considers also irrelevant the fact that the invoked nationality is not the dominant one. Things get more serious if the investor has also the nationality of the host State (double nationality). In this scenario the investor cannot launch an ICSID arbitration against the host State because the Washington Convention forbids it. The possibility of an ad hoc arbitration is subject to the interpretation of the applicable BIT which has led to an unstable case law both because the BITs are not all equal and because different tribunals have analyzed the dominant nationality doctrine in different ways.

Keywords : ICSID; double nationality; Investor-State Arbitration; jurisdiction ratione personae.

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