Claims by Dual Nationals Under Investment Treaties: Are Investors Entitled to Sue Their Own States?

Forthcoming, The Journal of International Dispute Settlement

42 Pages Posted: 28 Sep 2017

See all articles by Javier Garcia Olmedo

Javier Garcia Olmedo

Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law

Date Written: September 20, 2017

Abstract

Nationality plays a vital role in the field of investor-state arbitration. Most investment treaties require that, to benefit from treaty protection, an investor must be a national of the home state. Yet, the determination of nationality for investment treaty purposes can be particularly complex, raising a number of unresolved questions of considerable practical importance. One of these questions is whether investors who hold the nationality of both state parties to an investment treaty (i.e., dual nationals) are entitled to sue their own home state where the treaty is silent on the issue of dual nationality. This contribution contends that, when faced with a claim of this nature, arbitral tribunals should apply the well-established customary rule of dominant and effective nationality, and uphold jurisdiction only if the investor maintains a stronger connection with its home state.

Keywords: investment treaty law, investment arbitration, diplomatic protection, nationality

JEL Classification: K33

Suggested Citation

Garcia Olmedo, Javier, Claims by Dual Nationals Under Investment Treaties: Are Investors Entitled to Sue Their Own States? (September 20, 2017). Forthcoming, The Journal of International Dispute Settlement . Available at SSRN: https://ssrn.com/abstract=3043229

Javier Garcia Olmedo (Contact Author)

Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law ( email )

4, rue Alphonse Weicker
Luxembourg, L-2721
Luxembourg

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