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Passport, s'il vous plait? Investment treaty protection and the individual investor's citizenship.

When contemplating the protections afforded to private investors by Free Trade Agreements (FTAs) or Bilateral Investment Treaties (BITs)--and the concomitant right to pursue investor-state arbitration before bodies such as the International Centre for Settlement of Investment Disputes (ICSID)--we usually think of rights and claims held by corporate investors. The recent flurry of ICSID jurisprudence and literature on the topic of corporate nationality, (1) however, has overshadowed another powerful source of BIT/FTA protection, namely, rights held by individual investors.

This article will focus on the evolution of ICSID and other international jurisprudence concerning an individual investor's ability to bring investor-state claims. It will reveal the evolution of a relatively coherent and predictable framework for determining whether a natural person is entitled to protection under applicable BITs, FTAs, or other sources of international economic law.

I. INDIVIDUAL INVESTOR RIGHTS: AN OVERVIEW

Historically, individual claimants have played an important role in developing international investment law. Several of the more important cases of the Permanent Court of International Justice and International Court of Justice (ICJ) on investor protection were "diplomatic protection" claims brought by states on behalf of individual investors. (2) Numerous cases before "mixed claims" or ad hoc commissions were also brought by or on behalf of individuals. (3) During the 1980s, the Iran-United States Claims Tribunal occasionally adjudicated cases where claimants were individuals, not corporations. (4)

Claims by natural persons also occupy an important place in ICSID arbitration. (5) According to the ICSID website, of approximately 152 concluded cases, 17 involved individuals as the sole or lead claimant. Currently, 17 pending ICSID cases (of a total of 122 pending) involve an individual as the sole or lead claimant. (6) In several other ICSID cases, an individual claimant has proceeded jointly with a corporate claimant. (7)

The advent of the ICSID/BIT arbitral system has largely eclipsed the past system of states pursuing "diplomatic protection" claims. Nevertheless, such cases still do arise from time to time. In Ahmadou Sadio Diallo, (8) the Republic of Guinea, exercising its right of diplomatic protection in respect of one of its individual citizens, brought claims against the Democratic Republic of Congo (DRC) based on its alleged mistreatment of an individual Guinean investor--including the DRC's alleged expropriation of a Congolese company owned by that citizen. The ICJ held that it had jurisdiction to adjudicate certain of these claims, (9) but candidly acknowledged that today "the role of diplomatic protection [is] somewhat faded, as in practice recourse is only made to it in rare cases where treaty regimes do not exist or have proved inoperative." (10)

The availability of investment protection for an individual often depends on showing that he/she has a particular nationality. Over the last sixty years, various cases have addressed the applicable test for ascertaining an investor's nationality. In the last decade, these rules have been highly tested and refined in the ICSID context.

II. DEVELOPMENT OF RULES CONCERNING CITIZENSHIP AND NATIONALITY OUTSIDE OF THE ICSID CONTEXT

A. The Nottebohm Case and the "Effective Link" Test

The 1955 Nottebohm Case (11) is perhaps the best known international case to address individual investor nationality. In the early part of the twentieth century, Mr. Nottebohm, a German citizen, emigrated to Guatemala and later acquired numerous investments there. In October 1939, shortly after World War Two began in Europe, Mr. Nottebohm purported to relinquish his German citizenship and adopted that of a neutral country, Liechtenstein, without ever having established a residence in Liechtenstein. But Mr. Nottebohm was not treated as a neutral by the Guatemalan government. On the contrary, in 1943, Guatemala classified Mr. Nottebohm as a German citizen and therefore an "enemy alien," and deported him to the United States, where he spent two years and several months in a North Dakota internment camp. (12) His assets were treated as enemy property.

After war's end, Liechtenstein brought claims on Mr. Nottebohm's behalf against Guatemala before the ICJ. Liechtenstein argued that Mr. Nottebohm should have been treated as a national of Liechtenstein, a non-combatant, neutral state, and not treated as an enemy national. In addressing this claim, the ICJ stated that "international law leaves it to each State to lay down the rules governing the grant of its own nationality." (13) Nevertheless, given the absence of any "real prior connection" between Nottebohm and Liechtenstein and the "exceptional circumstances of speed and accommodation" in which Liechtenstein furnished Mr. Nottebohm with a passport, the ICJ held Guatemala was not required to recognize Mr. Nottebohm's Liechtenstein citizenship. (14)

Nottebohm has frequently been cited in cases involving individual citizenship issues as furnishing a possible basis for challenging an investor's claims of nationality. It has even been cited in cases where corporate nationality was challenged (thus far without apparent success), (15) and has also been urged by some commentators as a possible basis for denying recognition to "flags of convenience" of vessels. (16) Nevertheless, as further discussed below, Nottebohm's continued vitality in the realm of ICSID/BIT arbitration is debatable.

B. The Flegenheimer Case

The Flegenheimer claim, (17) like Nottebohm, arose from events during World War II. In that case, a post-World War II reparations commission was called upon to determine whether a particular individual investor possessed United States nationality, as he claimed. To establish that the post-war Conciliation Commission had jurisdiction over a claim, the claimant needed to show it was a "United Nations national," a term that included U.S. nationals. The claimant, Mr. Flegenheimer, asserted U.S. citizenship and sought reparation against Italy for allegedly confiscating shares in an Italian company owned by him. Mr. Flegenheimer attempted to prove citizenship by means of a certificate showing that he was a United States national, but the Commission refused to treat this certificate as conclusive: "[I]n an international dispute, official declarations, testimonials or certificates do not have the same effect as in municipal law. They are statements made by one of the Parties to the dispute which, when denied, must be proved like any other allegation." (18) In other words, the Commission was required to independently ascertain Mr. Flegenheimer's assertion of United States nationality, and the certificate of the U.S. government was not dispositive.

After investigating the facts, the Flegenheimer commission held that: (1) although born in Germany, Mr. Flegenheimer acquired U.S. citizenship at birth in 1890 through "filial" status, by virtue of having an American father; (2) for five years after his birth, Mr. Flegenheimer resided in Germany, thus causing him to lose his U.S. citizenship by operation of U.S. law implementing the terms of one of the "Bancroft Treaties" between the United States and the constituent states of nineteenth century Germany; (3) later, in 1940, Mr. Flegenheimer was stripped of his German citizenship by virtue of Nazi Germany's anti-semitic nationality laws; and (4) Mr. Flegenheimer did not subsequently reacquire U.S. citizenship. (19) Thus, the Commission held, Mr. Flegenheimer was not a U.S. national, and it had no jurisdiction over his claims.

The particular result of the Flegenheimer case--that the Bancroft Treaties had operated to strip the claimant of U.S. citizenship--was perhaps unfortunate, given that the U.S. Supreme Court held only a few years later that the Bancroft Treaties unfairly subjected foreignborn citizens to rules regarding revocation of citizenship that were inconsistent with those applicable to native-born citizens, in violation of the Fifth Amendment to the U.S. Constitution. (20) Nevertheless, the legal methodology of Flegenheimer, under which a tribunal is responsible for making its own independent assessment of whether a claimant had the requisite nationality, has proven to be durable.

C. Treatment of Dual Citizenship By Claims Tribunals

Claims tribunals have occasionally been called upon to consider the position of dual nationals, especially when one of the claimant's nationalities is that of the respondent State. In the Merge Case, (21) the Italian-United States Conciliation Commission (the same body that determined Flegenheimer) addressed whether dual Italian/U.S. citizens could bring claims against Italy. After surveying claims tribunal jurisprudence of the late 19th and early 20th centuries, as well as the Nottebohm decision, the Commission noted that arbitral tribunals had indeed permitted claims by dual nationals, provided the claimant's "real and effective nationality" was not that of the respondent state. Such nationality, which it also referred to as the "prevalent" nationality, was to be measured by such factors as "habitual residence, family ties, his participation in public life, attachment shown by him for a given country and inculcated in his children." (22) The claimant in that case, Mrs. Merge, was not "dominantly" a United States national because she had not resided in the United States, had traveled on her Italian passport, and had used her Italian citizenship as a basis for avoiding internment in Japan when she lived there during the war. (23)

In 1981, in the wake of the Khomeini revolution and hostage crisis, the United States and Iran agreed to submit a variety of claims to a special claims tribunal. As part of the claims settlement agreement, it was agreed that the Iran-U.S. Claims Tribunal could hear "claims of nationals" of the United States or Iran. (24)

Several of the putative claimants in cases before the Iran-U.S. Claims Tribunal were dual nationals of both the United States and Iran. In its jurisprudence, (25) the Claims Tribunal addressed whether a dual Iran/U.S. national could be regarded as a "United States national," notwithstanding his/her Iranian citizenship. In support of their position, the dual nationals argued that Nottebohm created a permissive doctrine, enabling the Tribunal to disregard the Iranian nationality on the grounds that there was a more "genuine" and effective link with the United States. Accepting this argument, the chamber in the Case 18 Tribunal held that it "ha[d] jurisdiction over claims against Iran by dual Iran-United States nationals when the dominant and effective nationality of the claimant during the relevant period from the date the claim arose until 19 January 1981 was that of the United States." (26) Likewise, in Esphahanian, the majority of a Chamber Two tribunal held, based on the language of the Algiers Accords, that the Tribunal was required to admit claims against Iranian state defendants by dual Iran/U.S. nationals whose "real and effective nationality, that which accord[s] with the facts ... based on stronger factual ties" was that of the United States. (27)

Another issue which has arisen is the status of dual nationals possessing the nationality of a third state. Recently, the Ethiopia-Eritrea Claims Commission was called upon to determine whether persons who happened to be dual nationals of Eritrea and a third state (e.g., U.S.-Eritrean nationals or Dutch-Eritrean nationals) were automatically barred from pursuing compensation claims against Ethiopia relating to the recent conflict between those two nations. In a ruling issued in 2005, (28) the Claims Commission held that the possession of a second nationality did not bar an Eritrean claimant from pursuing claims against Ethiopia. Rejecting Ethiopia's argument that Eritrean nationality should not be recognized if the claimant's "effective nationality" was that of another state, the Claims Commission held, based on a survey of past arbitral jurisprudence, that:
   a dominant and effective nationality test must be restrictively
   applied, and limited to cases where a claimant holds the
   nationality of the two disputing States. This is because
   international dispute settlement traditionally requires an
   international element that is absent if the claim involves a person
   with the nationality of the defendant State. The test only makes
   sense as a means to assess whether a claim in an international
   forum has this predominantly international character. (29)


Thus, it did not matter if a claimant, possessing Eritrean nationality, also possessed the nationality of a third state. This conclusion is consistent with numerous past cases, including that of the Salem Tribunal, which held in 1932 that "the rule of International Law [is] that in a case of dual nationality a third power is not entitled to contest the claim of one of the two powers whose national is interested in the case by referring to the nationality of the other power." (30) The same principle has been now embraced by the International Law Commission in its Draft Articles on Diplomatic Protection. (31)

Claims tribunal cases are all highly dependent on the specific wording of the tribunal's constituent charter (e.g., for Case 18, the provisions of the Algiers Accords). However, as discussed below, this jurisprudence cannot automatically be transplanted into the modern ICSID context, particularly given the specific provisions of the ICSID Convention concerning dual nationality.

III. ICSID TRIBUNALS AND INDIVIDUAL NATIONALITY

A. ICSID Convention Definition of Individual Nationality

The cornerstone rule concerning individual investor nationality in ICSID cases is Article 25(2)(a) of the ICSID Convention, which defines "National of another Contracting State" as including:
   any natural person who had the nationality of a Contracting State
   other than the State party to the dispute on the date on which the
   parties consented to submit such dispute to conciliation or
   arbitration as well as on the date on which the request was
   registered pursuant to paragraph (3) of Article 28 or paragraph (3)
   of Article 36, but does not include any person who on either date
   also had the nationality of the Contracting State party to the
   dispute.... (32)


As with the corresponding definition of corporate nationality, Article 25(2)(a)'s definition of nationality is relatively open-textured. This reflects a deliberate choice on the part of the ICSID framers. As the Tribunal remarked in the Aucoven case, the ICSID Convention gives parties great "autonomy" to formulate the "criterion" for nationality, and tribunals are likely to defer to such criteria. (33)

In most cases, these criterion are supplied by the relevant BIT text. Thus, the definition of individual "nationality" often turns on the text of each particular BIT.

B. The ICSID Convention's Bar on Claims by Certain Dual Nationals

Article 25(2)(a) of the ICSID Convention specifically bars claims brought by an individual who is a dual national of the host state and the home state. Beyond that particular scenario, however, the ICSID Convention does not specifically bar claims by people with more than one nationality. For example, in Olguin, (34) an ICSID tribunal upheld jurisdiction in a claim brought under the Peru-Paraguay BIT by a claimant who possessed dual Peruvian-United States nationality.

Nor does it necessarily matter if the claimant's other nationality is that of a non-ICSID Contracting State. Professor Schreuer considers that "[t]he possession of the nationality of a non-Contracting State in addition to that of a Contracting State would not as such be a bar to becoming a party to ICSID proceedings." (35) If this is correct, a dual Canadian-Australian investor might be able to present claims, as an Australian citizen, under an investment treaty signed by Australia, even though Canada is not yet an ICSID Contracting State.

C. Illustrative BIT and FTA Definitions of Individual Nationality

Because the ICSID Convention permits parties to define nationality using criteria of their choosing, the text of the relevant instruments embodying this definition is crucial. Often, the definition will be found in the applicable investment treaty text. And in this regard, different BITs define nationality in very different ways. Some adopt a very open definition: the Netherlands-Panama BIT, (36) for example, defines "investors" as including "natural persons having the nationality of that Contracting Party." (37) It is possible that a tribunal interpreting these treaties will apply the approach evinced in Flegenheimer and Nottebohm, namely that nationality is determined by reference to the laws of the country in which nationality is claimed (here, the Netherlands and Panama).

Other BITs define individual nationality by specific reference to the investor's home state's nationality laws. The U.S.-Panama BIT, for example, which purports to protect "nationals and companies" of a contracting state, defines "national of a Party" as "a natural person who is a national or citizen of that Party under its laws." (38) The U.K.-Panama BIT is even more explicit, defining "nationals" as: "in respect of the Republic of Panama: natural persons deriving their status as nationals of the Republic of Panama from the constitution of Panama;" and "in respect of the United Kingdom: natural persons deriving their status as United Kingdom nationals from the law in force in the United Kingdom." (39)

Thus, within this one treaty, each state has adopted a slightly different definition of "investor" according to its own internal laws. Determining Panamanian nationality requires examination of Panama's constitution; determining UK nationality requires reference to the relevant Act of Parliament.

Multilateral treaties also specifically address individual citizenship. The 1987 ASEAN Agreement for the Promotion and Protection of Investments, for example, provides that "'nationals' shall be as defined in the respective Constitutions and laws of each of the Contracting Parties." (40) So, in disputes brought by Singaporean individuals, nationality is a question of Singaporean nationality laws, whereas a dispute brought by a Thai investor will call for examination of the Thai constitution and laws to determine if the investor is a national of Thailand.

D. Nationality Sometimes Defined as Including Permanent Residence

Some treaties define "national" to include permanent residents. The Canada-Panama BIT, for example, defines "investor" as including: (1) "in the case of Canada ... any natural person possessing the citizenship of or permanently residing in Canada in accordance with its laws"; and (2) "in the case of ... Panama ... any natural person possessing the citizenship of or permanently residing in Panama in accordance with its internal legislation." (41) Likewise, the Energy Charter Treaty defines "investor" as including "a natural person having the citizenship or nationality of or who is permanently residing in that Contracting Party in accordance with its applicable law." (42)

The protection of permanent residents sometimes creates potential anomalies. Under NAFTA, a question arises whether a citizen of Canada or the United States who permanently resides in Mexico might be barred from bringing NAFTA claims against Mexico on the ground he is also a Mexican "national," as defined by Article 201 of NAFTA. (43) This issue arose in Feldman Karpa v. Mexico, (44) where the claimant, Mr. Feldman Karpa, was a U.S. citizen by birth but a permanent resident of Mexico. Mexico claimed that Mr. Feldman Karpa should be regarded as a "national" of Mexico because Mexican permanent residents qualified for Mexican nationality under Article 201 of NAFTA. An arbitral tribunal of the ICSID Additional Facility (45) held, however, that Article 201 should not be construed as conferring Mexican "nationality" on a U.S. citizen merely because he was a permanent resident of Mexico. Under NAFTA, it held, "permanent residents are treated like nationals in a given State Party only if that State is different from the State in which the investment [was] made." (46) Whether the same principle is adopted in other treaties (such as the Energy Charter Treaty) remains to be determined.

E. Differences Between "Nationality" and "Citizenship"

As the above examples illustrate, nationality is potentially broader than citizenship. The difference extends beyond mere permanent residence. This is illustrated by the United States Model BIT, which defines "national" of the United States as "a natural person who is a national of the United States as defined in Title III of the Immigration and Nationality Act." (47) This definition is adopted in NAFTA, DR-CAFTA and the most recent single-state Free Trade Agreements involving the United States. (48)

In turn, the U.S. Immigration and Nationality Act defines the term "national of the United States" as: "(A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States." (49) Citizenship, as defined by the Act, includes citizenship by naturalization as well as by birth as guaranteed by the Fourteenth Amendment to the United States Constitution, deeming all persons "born" in the United States to be U.S. citizens. (50) Under U.S. law, the concept of owing "permanent allegiance" has a different meaning. It does not include "green card" permanent residents. But it does potentially cover people who were born in U.S. "territories." As the Second Circuit explained, the concept of "permanent allegiance:"
   was originally intended to account for the inhabitants of certain
   territories--territories said to "belong to the United States,"
   including the territories acquired from Spain during the
   Spanish-American War, namely the Philippines, Guam, and Puerto
   Rico--in the early twentieth century, who were not granted U.S.
   citizenship, yet were deemed to owe "permanent allegiance" to the
   United States. (51)


Of course, as a historical matter, the Philippines has since become a separate, independent nation. Moreover the Immigration and Nationality Act now provides that persons born or naturalized in Puerto Rico, Guam and the U.S. Virgin Islands have the status of U.S. citizens. (52) Thus, under the Act, there is now only a limited group of persons treated as "nationals, but not citizens of the United States at birth"--including "person[s] born in an outlying possession of the United States," i.e., persons born in American Samoa or Swains Island. (53) Thus, the concept of non-citizen nationals would now appear to have limited relevance within the United States. Nevertheless, it does demonstrate that, at least under U.S. law, the concept of "nationality" differs from "citizenship."

A similar issue potentially arises under U.K. law. The 1981 British Nationality Act differentiates between a "British citizen" and certain other categories of persons, including "a British [overseas territories citizen], a British National (Overseas), a British Overseas citizen, a British subject under this Act or a British protected person." (54) To the author's knowledge, the significance, if any, of these distinctions has not been raised in any reported ICSID case.

The international legal status of the British overseas dependencies, including the British West Indies, has, however, been addressed by the U.S. Supreme Court. In JPMorgan Chase Bank v. Traffic Stream (BVI), (55) an issue arose whether a company incorporated in the British Virgin Islands (BVI), which is "a British Overseas Territory, unrecognized ... as an independent foreign state," could be regarded as a "citizen or subject of a 'foreign state'" for purposes of jurisdiction in U.S. federal courts. (56) It was argued that, because the British Nationality Act did not confer upon BVI residents the full status of British citizens, but instead treated them as British nationals--who lack certain rights accorded to British citizens, such as the "right to travel freely within the United Kingdom"--BVI residents and companies should not be regarded as "citizens or subjects" of the United Kingdom. (57) Rejecting this argument, a unanimous Supreme Court held that:
   Although the word "citizen" may imply ... the enjoyment of certain
   basic rights and privileges ... a "subject" is merely "one who owes
   allegiance to a sovereign and is governed by that sovereign's laws.
   Thus, ... [U.S. law] has no room for the suggestion that members of
   a polity, under the authority of a sovereign, fail to qualify as
   "subjects" merely because they enjoy fewer rights than other
   members do. For good or ill, many societies afford greater rights
   to some of its members than others without any suggestion that the
   less favored ones have ceased to be "citizens or subjects." And
   although some persons, like resident aliens, may live within a
   foreign state without being treated under American law as members
   of that particular polity ... [the respondent] concedes that BVI
   citizens are at least "nationals" of the United Kingdom. (58)


Thus, it was "immaterial" that residents of British "territories" had "different rights of abode" and it was "enough to hold that the United Kingdom's retention and exercise of authority over the BVI renders BVI citizens, both natural and juridic, 'citizens or subjects' of the United Kingdom" for purposes of U.S. federal law. (59) Applying this logic in the ICSID context suggests it is at least possible that "nationals" include not only "citizens" of a country, but also persons who, while not full "citizens," should nonetheless be regarded as "subjects" of that country.

F. The Potential Breadth of BIT Investment Protection for Individuals

Most modern investments are made through corporate entities. But the mere presence of corporate investment vehicles does not strip individuals of their ability to make BIT claims because, under many BITs, protection is afforded to indirect investments. Some BITs expressly state that direct or indirect investments are covered. Yet even in the absence of an "explicit" reference to indirect investments, a BIT or FTA may be construed as extending to indirect investments. (60) That this rule extends to an individual's indirect investment holdings is illustrated by the case of Kardassopoulos v. Georgia, (61) in which an individual made claims under the Greece-Georgia BIT for losses sustained in a Georgian entity (which was held indirectly through a Panamanian company). The ICSID Tribunal held that:
   [t]he [Greece-Georgia] BIT is silent on whether the investor is
   required to directly own shares in a company investing in Georgia
   in order to qualify as an 'investment' under the treaty. The
   Tribunal in the ICSID case of Siemens A.G. v. Argentina was faced
   with a similar situation. That Tribunal reasoned ... [that] a
   literal reading of the Treaty does not support the allegation that
   the definition of investment excludes indirect investments.... The
   Tribunal agrees. The Tribunal is of the view that, in the present
   case, the indirect ownership of shares by [Mr. Kardassopoulos]
   constitutes an 'investment' under the BIT and the ECT. (62)


Thus, an individual's ability to make claims against the state, even with respect to indirectly-held investments, constitutes a powerful means of presenting claims, especially where the intermediate holding company might not have had the ability to pursue ICSID/BIT claims.

IV. ICSID ARBITRAL DECISIONS ON THE DEFINITION OF "NATIONAL" (63)

A. The Soufraki Case--ICSID Tribunals Endorse the Flegenheimer Rule

In the Soufraki case, (64) an ICSID tribunal dealt with a direct challenge to an investor's claim of Italian citizenship. The investor, Mr. Hussein Nuaman Soufraki, claimed damages under the Italy-UAE BIT for alleged expropriation of his rights under a 2000 concession contract between himself and Dubai Ports. The concession described Mr. Soufraki as a "Canadian national." When he filed his ICSID claim in 2002, however, Mr. Soufraki asserted that he was an Italian citizen. (65)

The UAE challenged ICSID's jurisdiction to hear and determine the dispute on the grounds that Mr. Soufraki lacked Italian citizenship and was therefore not a "national of another Contracting State" for purposes of the ICSID Convention or a protected "investor" for purposes of the Italy-UAE BIT.

The Soufraki tribunal began from the principle that "[i]t is accepted in international law that nationality is within the domestic jurisdiction of the State, which settles, by its own legislation, the rules relating to the acquisition (and loss) of nationality." (67) Thus, the issue of Mr. Soufraki's nationality required an analysis of Italian nationality law. Turning to the copious factual record, the Soufraki Tribunal agreed with the Respondent that Mr. Soufraki indeed was not an Italian citizen at the time his claim was filed in 2002. To be sure, Mr. Soufraki was born in Libya, "which was [at the time of his birth] under the sovereignty of Italy. Additionally, both his parents were Italian nationals." (68) As such, at birth, Mr. Soufraki acquired a claim to Italian citizenship "by right of jus soli and jus sanguinis." (69) This changed when Mr. Soufraki acquired Canadian citizenship and residency in 1991. Under Italian law, he automatically lost his Italian citizenship because Italian law provides for "loss" of citizenship for persons who "spontaneously acquire[] a foreign citizenship and establish[] [their] residence abroad." (70) Furthermore, although Italian law permitted Soufraki to reacquire his Italian citizenship by residing in Italy for a prescribed period, the Tribunal was not convinced that he had satisfied this rule. (71)

Mr. Soufraki argued that the issue of Italian nationality was a matter for Italian authorities to judge. These authorities had certified that he indeed sought to avert a negative ruling by relying on citizenships issued by an Italian national and, he submitted, these certificates were conclusive. The Tribunal held, however, that although these certificates had some prima facie evidentiary value, they were not dispositive in view of the objective evidence showing that Mr. Soufraki's citizenship had been lost in 1991. (72) In this regard, the Tribunal endorsed the words of Professor Schreuer (which, in turn, echo the Flegenheimer decision) that:
   A certificate of nationality will be treated as part of the
   "documents or other evidence" to be examined by the tribunal in
   accordance with Art. 43 [of the [ICSID] Convention]. Such a
   certificate will be given its appropriate weight but does not
   preclude a decision at variance with its contents. (73)


Accordingly, the Tribunal held that it lacked jurisdiction to hear Mr. Soufraki's claim.

Mr. Soufraki sought to reverse this outcome by seeking review of the jurisdictional ruling before an ad hoc ICSID annulment committee. (74) In a majority decision issued in 2007, the Soufraki annulment committee dismissed Mr. Soufraki's application and allowed the award (including its rejection of the Italian nationality certificates) to stand. (75) In its opinion, the Committee cautioned that:
   It is only in exceptional cases--like the case under scrutiny--that
   ICSID tribunals have to review nationality documentation issued by
   state officials. This is explained by Oppenheim, who wrote that
   international tribunals are empowered to delve into issues of
   nationality, but only when there are strong reasons to doubt the
   accuracy of the official documents:

   An international tribunal called upon to apply rules of
   international law based upon the concept of nationality has the
   power to investigate the state's claim that a person has its
   nationality. However, this power of investigation is one which is
   only to be exercised if the doubts cast on the alleged nationality
   are not only not manifestly groundless but are also of such gravity
   as to cause serious doubts with regard to the truth and reality of
   that nationality. (76)


However, the Committee, in an extensive review of past arbitral jurisprudence and commentary, (77) specifically endorsed the Flegenheimer approach, which "recogniz[es] the authority of international tribunals to make their own nationality determinations in ascertaining their jurisdictional competence." (78) As the committee majority explained:
   Flegenheimer stands for the proposition that it is a generally
   accepted international law principle that international tribunals,
   in the course of determining their own jurisdiction, are not only
   empowered, but duty bound, to make their own findings as to a
   contested nationality, even in the face of official nationality
   documents provided by one of the State Parties to the treaty
   establishing the jurisdiction[al] [competence] of the tribunal.
   (79)


Thus, while the facts in Soufraki were unusual, the methodology ultimately applied by the Tribunal and the Annulment Committee majority found ample precedential support in, and was consistent with, Flegenheimer.

B. Dual Nationality - the Champion Trading Decision

In Champion Trading, (80) a corporation and three individuals made various claims before ICSID under the U.S.-Egypt BIT, alleging that Egypt had unlawfully expropriated a cotton company. The three individual claimants, who were brothers, claimed to be U.S. nationals. The Egyptian government challenged the brothers' standing to bring claims as U.S. nationals, arguing that they possessed dual U.S.-Egyptian nationality, which meant that their claims were barred by Article 25 (2)(a) of the ICSID Convention. (81) The facts showed that, although they were born and raised in the United States, and therefore indisputably had U.S. citizenship, their father was an Egyptian citizen, meaning that they automatically acquired Egyptian citizenship at birth. (82) On its own review of Egyptian law as well as the evidentiary record, the ICSID Tribunal agreed that the brothers indeed were dual U.S.-Egyptian nationals. (83)

Anticipating this ruling, the brothers made a fall-back argument intended to prevent the provisions of Article 25(a)(2) from being applied against them. Citing Nottebohm's "effective link" test as well as the Iran-U.S. Claims Tribunal's decision in Case 18, (84) the brothers argued that the Tribunal should disregard their Egyptian citizenship because their dominant and effective nationality was U.S. citizenship. (85) Rejecting this view, the Champion Trading Tribunal held that the Nottebohm and Case 18 doctrines could not be applied to a case governed by the ICSID Convention, which "contain[ed] a clear and specific rule regarding dual nationals." (86) This, the Tribunal held, was an insurmountable obstacle to jurisdiction that could not be overcome by reference to case law, such as Nottebohm, that had been decided outside of the context of ICSID. (87) Thus, the claimants' possession of dual U.S.-Egyptian citizenship was fatal to their attempts to invoke ICSID jurisdiction.

C. Micula and Siag--Nottebohm's "Effective Link" Test is Not Automatically Applicable in ICSID/BIT Cases

Just as Champion held that Nottebohm could not be utilized to rescue a claim that is otherwise barred by treaty, two recent cases have now established that Nottebohm cannot be utilized to deny an investor's treaty rights. In Siag v. Egypt, (88) two claimants presented evidence that they had once possessed Egyptian citizenship, but had renounced it in favor of Italian citizenship. Citing Nottebohm, Egypt objected that the claimants lacked an "effective" link with Italy. As in Champion Trading, the Siag Tribunal, by majority, refused to apply Nottebohm. The majority held that the terms of the Italy-Egypt BIT only permitted it to consider whether Italian citizenship law had been complied with, and that it could not revisit this conclusion by examining the "effect" of the claimants' links with Italy. (89)

In dissent, Arbitrator Orrego Vicuna wrote that the "principle of effectiveness" remained "the accepted premise in international law," as confirmed in the recent work of the ILC and International Law Association on diplomatic protection. (90) Arbitrator Orrego Vicuna was skeptical not only of the factual claim that Mr. Siag had obtained citizenship but also of the majority's interpretation of Egyptian nationality law. In language reminiscent of the Nottebohm decision, he expressed the view that Mr. Siag had acquired a nationality as an "artifice" to "prevail over [his] real and effective [Egyptian] nationality." (91) Thus, he disagreed with the majority's findings concerning nationality.

In Micula v. Romania, (92) the most recent case to address individual nationality, attempts to invoke Nottebohm were unanimously rejected. In that case, two brothers made claims under the Sweden-Romania BIT. Both were Romanian expatriates who had apparently applied for, and acquired, Swedish citizenship at the time of the subject investment. The tribunal noted that one of the brothers' citizenship was acquired lawfully by marriage to a Swedish woman. (93) Regarding the other brother, it held, over Romania's objections, that his acquisition of Swedish citizenship was valid under Swedish law and that "[t]he record [did] not include any elements which should lead the Tribunal to investigate" suggestions that his Swedish citizenship was fraudulently obtained. (94)

Undeterred, Romania sought to invoke Nottebohm's "effective link" test as a means of defeating jurisdiction, notwithstanding the factual finding of Swedish citizenship. Citing Nottebohm, Romania argued that "the Swedish nationality of Messrs Micula is not effective and cannot be opposed to Romania because of their strong links with Romania and their lack of genuine and effective links with Sweden." (95) The Tribunal was not receptive to this suggestion. It held that "the role of a genuine or effective link with the state of nationality is disputable in public international law, and is indeed disputed, particularly in the case of a single nationality." (96) Indeed, the Tribunal held, the weight of authority suggests that Nottebohm should be confined to its "peculiar facts" and that, generally, "[t]here is ... a clear reluctance in public international law to apply the genuine link test where only a single nationality is at issue." (97) The facts showed that the brothers only possessed one nationality--Swedish nationality--throughout the dispute, meaning that, Nottebohm's "effective link" test was inapplicable from any view. Moreover, even if Nottebohm was capable of application to the facts of the case, its operation was precluded by the express terms of the ICSID Convention and the Sweden-Romania BIT, both of which expressly supplied the criteria for determining nationality--with neither leaving room for a "genuine link" test to be superimposed on those treaty definitions. (98)

V. CONCLUSION

As can be seen from the above discussion, ICSID tribunals have largely succeeded in establishing transparent and reasonably well-defined criteria for ascertaining whether an individual claimant possesses the requisite nationality, based on the application of state nationality laws to the case at hand, without giving automatic deference to the home (or host) state's assertions as to whether the investor indeed is a "national" of that state. That tribunals have developed such a coherent and predictable rule is a great credit to the institution of investment arbitration.

As can also be seen, the Nottebohm "genuine link" test has yet to be successfully invoked as a basis for denying ICSID jurisdiction, even as a basis for denying treaty benefits to an investor. Instead, primacy has been given to the express language of the relevant investment treaties in defining the criteria for individual nationality. Thus, if the trend evidenced by Micula continues, the Nottebohm decision may be consigned to the Guatemalan jungle from whence it came.

1. See generally Timothy G. Nelson & Marco E. Schnabl, Safeguarding Against Expropriation of Assets in Latin America: The Bolivian Water Decision, Distilled, 1 WORLD ARB. & MEDIATION REV. 557 (October 1, 2007) (explaining Aguas del Tunari's effect on ICSID arbitration rules).

2. See Oscar Chinn (U.K. v. Belgium), 1934 P.C.I.J. (ser. A/B) No. 63, at 88-9 (May 1) (addressing allegations of regulatory discrimination against foreign boat owners on the River Congo); Nottebohm Case (Liech. v. Guat.), 1955 I.C.J. 4 (Apr. 6) (addressing claims of wrongful seizure of foreigner's property).

3. See Shufeldt Claim (U.S. v. Guat.), 2 R. Int'l Arb. Awards 1079 (ad hoc arbitration 1930) (arbitrator adjudicating claims concerning Guatemala's allegedly improper termination of an agricultural concession); Landreau Claim (U.S. v. Peru), 1 R. Int'l Arb. Awards 347 (ad hoc arbitration commission 1922) (awarding $125,000 compensation for failure to pay statutory reward to U.S. national who discovered guano deposits within Peru).

4. See Arensberg v. Ministry of Hous. & Urban Dev. of Iran, 10 Iran-U.S.C.T.R. 37 (1986) (granting individual members of partnership's claims for unpaid debts).

5. Natural persons are potentially entitled to be treated as "nationals" of a Contracting State under the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States ("ICSID Convention"). See infra Part III (discussing ICSID tribunals and individual nationality).

6. ICSID, http://icsid.worldbank.org/ICSID/Index.jsp. This information, taken from the ICSID website, is purely a reflection of the number of cases listed as involving individual claimants (as opposed to corporations). Since the website only identifies the lead claimant, and does not supply copies of pleadings, it is possible that some of these claims also involve corporations as a co-claimant. Conversely, some of the claims involving corporations as lead claimants may also involve individuals as co-claimants.

7. See Loewen Group, Inc. v. United States, ICSID Case No. ARB(AF)/98/3, Award (June 26, 2003) (TLGI, a Canadian corporation and Raymond Loewen, a Canadian citizen joined suit against the Federal Government of the United States of America).

8. Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), 2007 I.C.J. 103 (May 24), available at http://www.icj-cij.org/docket/files/103/13856.pdf.

9. See id. para. 96 (upholding claims brought to remedy injuries suffered by investor in its own right, but dismissing claims to remedy injuries to corporate entity).

10. Id. para. 88.

11. 1955 I.C.J. 4 (Apr. 6).

12. Id. at 15, 16, 34, 45 (Read, J., dissenting); cf. Ubersee Finanz-Korporation, A.G. v. Brownell, 133 F. Supp. 615, 619 (D.D.C. 1955) (characterizing German citizen's adoption, in November 1939, of Liechtenstein citizenship, as "citizenship of convenience"), aff'd, 244 F.2d 789 (D.C. Cir. 1957).

13. 1955 I.C.J. at 23.

14. Id. at 26.

15. In Rompetrol Group N.V. v. Romania, No. ARB/06/3, 2008 WL 4410818 at 1 (KSID Apr. 18, 2008), Romania attempted to rely on the concept articulated in Nottebohm, of "real and effective nationality," to argue that the corporate claimant (which was incorporated in the Netherlands) lacked an effective link with the Netherlands, such that its "real and effective nationality" should be viewed as Romanian. Id. para. 84. The Rompetrol tribunal held, however, that: (1) the Nottebohm decision related to natural persons, and had never been applied to resolve issues of corporate nationality; and (2) in all events, the sole test of corporate nationality was that supplied by the Netherlands-Romania BIT, which permitted claims by any corporation that could show it was a "legal person[] constituted under the law of the [Netherlands]"--and thus left no room for the denial of treaty benefits based on Nottebohm's "effective nationality" test. Id. para. 88, 101.

16. In language that bears some similarities to Nottebohm, the 1982 Law of the Sea Convention (and its predecessor) provide that "[s]hips have the nationality of the State whose flag they are entitled to fly" but that "[t]here must exist a genuine link between the State and the ship." United Nations Convention on the Law of the Sea art. 91(a), Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter "Law of the Sea Convention"]; accord Geneva Convention on the High Seas art. 5(1), Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 82 [hereinafter "Geneva Convention"]. Some have contended that the "genuine link" test, enunciated in Nottebohm and in the second limb of Article 91(1) of the Law of the Sea Convention and Article 5(1) of the Geneva Convention may enable states to deny recognition to "flags of convenience." See generally, L.F.E. Goldie, Recognition and Dual Nationality: a Problem of Flags of Convenience, 39 BRIT. Y.B. INT'L L. 220, 274-76 (1963) (noting possible interpretation of Article 5(1) of Geneva Convention as importing Nottebohm-style de-recognition of ships' nationality). Others have contended that, as a practical matter, Article 91/Article 5 preserves the pre-existing position under customary international law as stated in Muscat Dhows (Fr. v. Gr. Brit.), Hague Ct. Rep. (Scott) 93 (Perm. Ct. Arb. 1905), namely that all states retain the general discretion to bestow nationality upon ships as they see fit and if ships fly a state's flag, the ship's nationality must be respected. See Rudiger Wolfrum, Reflagging & Escort Operations in the Persian Gulf: An International Law Perspective, 30 VA. J. INT'L L. 387, 391 (1989) (contending that "in spite of its language that purports to limit a State's registration and flagging rights, Article 5 [of the Geneva Convention] in practice codifies the freedom of registration advocated by the traditional school" as stated in Muscat Dhows).

17. Flegenheimer Claim, 25 I.L.R. 91 (Italian-U.S. Conciliation Comm'n 1958).

18. Id. at 98.

19. Id. at 166; see also id. at 123-24 (describing the history of the various "Bancroft Treaties" with the German states, providing that any German-born person who, after acquiring U.S. citizenship, later resided in Germany for a specified period, would lose their U.S. citizenship).

20. See Schneider v. Rusk, 377 U.S. 166, 168-69 (1964) (describing United States' ruling against Bancroft Treaty):
   A native-born [U.S.] citizen is free to reside abroad indefinitely
   without suffering loss of citizenship. The discrimination aimed at
   naturalized citizens drastically limits their rights to live and
   work abroad in a way that other citizens may. It creates indeed a
   second-class citizenship. Living abroad, whether the citizen be
   naturalized or native born, is no badge of lack of allegiance and
   in no way evidences a voluntary renunciation of nationality and
   allegiance. It may indeed be compelled by family, business, or
   other legitimate reasons.


Id. at 168-69. In view of their constitutional infirmity, virtually all of the Bancroft Treaties were terminated by the Carter Administration. See 80 Dep't St. Bull. i, 78-80 (Oct. 1980); 81 Dep't St. Bull. 3, 39-40 (Jan. 1981) (reporting notifications of termination of naturalization conventions entered into with various nations).

21. 14 R. Int'l Arb. Awards 236 (Italian-U.S. Concilliation Comm'n 1955).

22. Id. at 244, quoting Nottebohm Case.

23. Id. at 248.

24. Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Islamic Republic of Iran, art. VII(1), (2), Jan. 19, 1981, 20 I.L.M. 230.

25. See Decision Concerning Jurisdiction Over Persons with Dual Nationality, 5 Iran-U.S. Cl. Trib. Rep. 251 (1984) (discussing Tribunal's jurisdiction); Esphahanian v. Bank Tejarat, 2 Iran-U.S. Cl. Trib. Rep. 157 (1983) (deciding applicable law and jurisdiction).

26. Decision Concerning Jurisdiction Over Persons with Dual Nationality, 5 Iran-U.S. Cl. Trib. Rep. at 265 (emphasis added).

27. Esphahanian, 2 Iran-U.S. Cl. Trib. Rep. 157 (1983) (noting dicta in Flegenheimer that there may be grounds for "denying jurisdiction" where "an individual disguises his dominant or effective nationality in order to obtain benefits with his secondary nationality not otherwise available to him"); see also Decision Concerning Jurisdiction Over Persons with Dual Nationality, 5 Iran-U.S. Cl. Trib. Rep. at 265.

28. Loss of Property in Ethiopia Owned by Non-Residents-Eritrea's Claim, 24 Eritrea-Ethiopia Claims Commission (Eri. v. Eth.), Partial Award (Dec. 19, 2005) available at http://www.pcacpa.org/upload/files/FINAL%20ER%20CLAIM%2024.pdf.

29. Id. para. 11.

30. Salem (U.S. v. Egypt), 2 R.I.A.A. 1165, 1188 (U.S.-Egypt Special Claims Tribunal 1932) (holding that possession of dual U.S./Persian citizenship did not bar claims against Egypt).

31. See International Law Commission on Diplomatic Protection art. 6, G.A. Res. 61/10, U.N. Doc. A/61/10 (2006) (addressing "multiple nationality and claim against a third State").

32. ICSID Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, art. 25(2)(a), Mar. 18, 1965, 575 U.N.T.S. 159.

33. Autopista Concesionada de Venezuela, C.A. v. Venezuela, ICSID Case No. ARB/00/5 (W. Bank) para. 61 (Sept. 27, 2001).

34. Olguin v. Paraguay, ICSID Case No. ARB/98/5, Decision on Jurisdiction (July 26, 2001). The Olguin tribunal comprised: Rodrigo Oreamuno (Costa Rica), Eduardo Mayora Alvorado (Guatemala) and Francisco Rezek (Brazil).

35. CHRISTOPH H. SCHREUER, THE ICSID CONVENTION: A COMMENTARY, para. 485 (Cambridge Univ. Press 2001).

36. Agreement on Encouragement and Reciprocal Protection of Investments Between the Republic of Panama and the Kingdom of the Netherlands, Pan.-Neth., Aug. 28, 2000. For convenience, this sampling of BITs has focused on treaties involving Panama. This was done for no other reason than that Panama has contracted with some of the more significant "repeat players" in BIT practice, including the Netherlands, the United States and the United Kingdom.

37. Id. art. 1(b).

38. Treaty Between the Government of the United States of America and the Government of the Republic of Panama Concerning the Treatment and Protection of Investments art. 1(a), U.S.-Pan., Oct. 27, 1982, 21 I.L.M. 1227 (emphasis added).

39. Agreement Between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Panama for the Promotion and Protection of Investments, art. 1(c), U.K.-Pan., Oct. 7, 1983, Pan. T. S. No. 14 (emphasis added).

40. ASEAN Agreement for the Promotion and Protection of Investments art. I(1), Dec. 15, 1987, 27 I.L.M. 612, available at http://www.aseansec.org/12816.htm.

41. Treaty Between the Government of Canada and the Government of the Republic of Panama for the Protection of Investments, Can.-Pan., Sept. 12, 1996, C.T.S. 1998/35 (emphasis added).

42. The Energy Charter Treaty, art. 1(7)(a)(i), Dec. 12, 1994, 34 I.L.M. 373 (emphasis added).

43. North American Free Trade Agreement, U.S.-Can.-Mex, art. 201, Dec. 17, 1992, 32 I.L.M. 289 [hereinafter NAFTA].

44. Marvin Roy Feldman Karpa v. United Mexican States, ICSID Case No. ARB(AF)/99/1, Interim Decision on Preliminary Jurisdictional Issues, paras. 2729, 33 (Dec. 6, 2000).

45. The Feldman Karpa tribunal comprised: Konstantinos D. Kerameus (Greece), David A. Gantz (United States), and Jorge Covarrubias Bravo (Mexico). Id. para. 4.

46. Id. para. 34.

47. U.S. Dep't of State, U.S. Model Bilateral Investment Treaty, art. 1 (Nov. 2004), http://www.state.gov/documents/organization/38710.pdf [hereinafter U.S. Model BIT].

48. See NAFTA, supra note 43 (defining national as including "with respect to the United States, 'national of the United States' as defined in the existing provisions of the Immigration and Nationality Act"); Dominican Republic-Central America-United States Free Trade Agreement, art. 2.1, Aug. 5, 2004, 119 Stat. 462, 43 I.L.M. 514 [hereinafter CAFTA]; 2006 Peru-U.S. Trade Promotion Agreement, Peru-U.S., April 12, 2006, available at http://www.user.gov/Trade_Agreements/Bilateral/Peru_IPA/Final_Texts/Section_I ndex.html (stating that "national" includes a "natural person who has the nationality of a Party" and "with respect to the United States, 'national of the United States' [is] as defined in the existing provisions of the Immigration and Nationality Act").

49. 8 U.S.C. [section] 1101(a)(22) (2006) (emphasis added).

50. See 8 U.S.C. [section] 1401 (2006) (codifying U.S. naturalization laws); see also U.S. CONST. AMEND. XIV, ("All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside").

51. Marquez-Almanzar v. Immigration and Naturalization Serv., 418 F.3d 210, 218 (2d Cir. 2005).

52. 8 U.S.C. [section][section] 1402, 1406-07.

53. See 8 U.S.C. [section][section] 1101(a)(29) (defining "outlaying possessions of the United States"); 1408 (discussing which persons will be considered nationals, but not citizens of the United States at birth).

54. British Nationality Act, 1981, c. 61, [section] 4 (UK). A "British Overseas citizen" potentially includes certain of the U.K.'s "dependent territories" outside the British home islands. The application of this Act, however, is subject to certain notable exceptions. Following the Falklands/Malvinas conflict of 1982, for example, the U.K. Parliament controversially conferred full British citizenship on Falklands Islanders without giving corresponding treatment to other British overseas dependencies. See British Nationality (Falkland Islands) Act, 1983 c. 6, [section] 1 (UK) (defining who shall at commencement of the act become a British citizen).

55. 536 U.S. 88 (2002).

56. See id. at 91-92 (discussing whether corporation could obtain jurisdiction in U.S. Federal court through alienage diversity jurisdiction); see also id. at 94-95 (discussing "alienage jurisdiction" under U.S. Const. art. III, [section] 2 (conferring jurisdiction on federal courts in "[c]ontroversies ... between a State, or the Citizens thereof, and foreign States, Citizens or Subjects")); 28 U.S.C. [section] 1332 (2009) (defining jurisdiction of U.S. district courts).

57. JPMorgan Chase Bank, 536 U.S. at 97-98.

58. Id. at 99.

59. Id. at 100.

60. See, e.g., Siemens A.G. v. Argentine Republic, ICSID Case No. ARB/02/8, Decision on Jurisdiction, para. 137 (Aug. 3, 2004) (stating although "there [was] no explicit reference to direct or indirect investment as such in the [Germany-Argentina BIT]," BIT covered indirect investment, notwithstanding that there were "interposed companies between the investment and the ultimate owner of the company"); accord Noble Energy Inc v. Ecuador, ICSID Case No. ARB/05/12, Decision on Jurisdiction, para. 77 (Mar. 5, 2008). "The Tribunal concurs with previous tribunals that have held that an indirect shareholder can bring a claim under the ICSID Convention and under a BIT in respect of a direct and an indirect investment. Failing any contrary wording, the BIT and the ICSID Convention encompass actions of indirect shareholders for their damages." Id.

61. Kardassopoulos v. Georgia, ICSID Case No. ARB/05/18, Decision on Jurisdiction (Jul. 6, 2007). The author represents the claimant in that case.

62. Id. paras. 123-24.

63. Some of the cases described below are also discussed in an informative article written in 2004. Robert Wisner & Nick Gallus, Nationality Requirements in Investor-State Arbitration, 5 J. OF WORLD INVESTMENT & TRADE 927, 923-33 (2004).

64. Soufraki v. United Arab Emirates, ICSID Case No. ARB/02/07, Award (Jul. 7, 2004).

65. Id. paras. 3-4.

66. The ICSID arbitral tribunal in Soufraki comprised: L. Yves Fortier, Q.C. (Canada), Judge Stephen M. Schwebel (U.S.), and Dr. Aktham El Kholy (Egypt).

Id. para. 8.

67. Id. para. 55.

68. Id. para. 49.

69. Id.

70. Id. paras. 24, 52 (quoting Italian nationality statute).

71. Id. paras. 69-81

72. Id. para. 63.

73. Id. (quoting Schreur, supra note 35, at 268, para. 433).

74. vThe Soufraki annulment committee comprised: Judge Florentino P. Feliciano (Philippines), Mr. Omar Nabulsi (Jordan), and Professor Brigitte Stern (France).

75. Soufraki v. United Arab Emirates, ICSID Case No. ARB/02/07, Decision on Application for Annulment, para. 139 (Jun. 5, 2007). Mr. Nabulsi issued a Separate Opinion and Dissent.

76. Id. para. 28 (quoting OPPENHEIM'S INTERNATIONAL LAW 855 Robert Jennings & Arthur Watts eds., Harlow, Longman, 9th ed. 1992) (emphasis in original).

77. Among the numerous past cases surveyed by the Soufraki annulment committee majority were: (1) Medina Case, (U.S.-Costa Rica Mixed Claims Commission, Dec. 31, 1862), reprinted in JOHN BASSET MOORE HISTORY AND DIGEST OF THE INTERNATIONAL ARBITRATION TO WHICH THE UNITED STATES HAS BEEN A PARTY 2587-88 (1898) (refusing to accept a U.S. decree of naturalization at face value; holding that "when it becomes evident" that an official statement is "incorrect, the presumption of truth must yield to truth itself"); and (2) Flutie Case, 9 R. INT'L ARB. AWARDS 148, 151-55 (U.S.-Venezuela Mixed Claims Commission, 1904) (similarly refusing to accept U.S. decree of naturalization: "[w]hatever may be the conclusive force of judgments of naturalization under the municipal laws of the country in which they are granted, international tribunals, such as this Commission, have claimed and exercised the right to determine for themselves the citizenship of claimants from all the facts presented."). See Soufraki, ICSID Case No. ARB/02/07, paras. 66-70 (Jun. 5, 2007) (discussing these cases).

78. Soufraki, ICSID Case No. ARB/02/07, para. 73 (Jun. 5, 2007).

79. Id. para. 71.

80. Champion Trading Co. v. Egypt, ICSID Case No. ARB/02/9, Decision on Jurisdiction (Oct. 21, 2003). The Champion Trading tribunal comprised: Robert Briner (Switzerland), L. Yves Fortier, Q.C. (Canada), and Laurent Aynes (France).

81. See supra Part III.B (discussing the ICSID Convention's bar on claims by certain dual nationals).

82. Champion Trading Co., ICSID Case No. ARB/02/9, para. 3.4.1 (Oct. 21, 2003) (explaining that under Egyptian law, "a child born of an Egyptian father, either within or outside Egypt, automatically acquires at birth Egyptian nationality if at that time the father holds Egyptian nationality.").

83. Id.

84. See Decision Concerning Jurisdiction Over Persons with Dual Nationality,.5 Iran-U.S. Cl. Trib. Rep. 251 (1984) (stating "for any claim brought before an international tribunal, the tribunal must verify whether the claimant has an effective link with the claimant State.").

85. See Champion Trading, ICSID Case No. ARB/02/9, para. 3.4.1 (Oct. 21, 2003) (discussing claimants' argument that their involuntary Egyptian nationality should not be taken into account when interpreting the Convention). .

86. Id.

87. Id.

88. Siag v. Egypt, ICSID Case No. ARB/05/15, Decision on Jurisdiction (Apr. 11, 2007). The Siag tribunal comprised: Michael Pryles (Australia), Professor Francisco Orrego Vicuna (Chile), and David Williams, Q.C. (New Zealand). Id. paras. 6,7.

89. Id. para. 198.

90. Id. Partial Dissenting Opinion of Professor Francisco Orrego Vicuna.

91. Id.

92. Micula v. Romania, ICSID Case No. ARB/05/20, Decision on Jurisdiction and Admissibility (Sept. 24, 2008). The Micula tribunal comprised: Laurent Levy (Brazil (Switzerland), Stanimir Alexandrov (Bulgaria), and Claus-Dieter Ehlerman (Germany). Id. para. 11.

93. Id. para. 90.

94. Id. paras. 92-95.

95. Id. para. 98.

96. Id. para. 99.

97. Id.

98. Id. paras. 100, 101. In all events, the Tribunal held, Nottebohm was distinguishable because Romania had affirmatively "agreed" to assumption of Swedish nationality when it accepted the claimants' renunciation of citizenship. Id. para. 103.

Timothy G. Nelson *

* Mr. Nelson is a Partner in the International Litigation and Arbitration Group of Skadden, Arps, Slate, Meagher & Flom LLP, New York. Copyright 2008 by the author. The views expressed herein are solely those of the author and are not those of his firm or the firm's clients. The author acknowledges the invaluable assistance of Julie Bedard, Counsel, Skadden, Arps, Slate, Meagher & Flom LLP, in preparing this article.
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