Defining Investors: Who Is Eligible To Claim?

This article sets out the basic concepts of investors in investment arbitration and analyses a selected number of decisions of arbitral tribunals in light of some objections to jurisdiction which are frequently raised by respondent States. More specifically, the article deals with the thorny legal question of the extent to which a national of a host State can sue its own State before an international tribunal, such as the International Centre for Settlement of Investment Disputes (ICSID) Tribunal. In particular, the article touches upon two recent cases in which the author was involved as co-counsel (in a team of several lawyers) for the States: a treaty-based case, Rompetrol v. Romania, on the issue of shell companies, and an unpublished contract-based case involving a West African State and a joint venture, on the issues of control and the interpretation of the term 'under foreign control' contained in Article 25(2)(b) of the ICSID Convention.