The Diamante Trading et al. v. Venezuela award has reignited the debate surrounding dual national claims before non-ICSID international investment tribunals. This article examines the arbitral decisions and scholarly works on the interpretation of the notion of « investor » enshrined in treaty clauses and procedural rules that neither explicitly exclude dual national claims from the ratione personae jurisdiction of arbitral tribu- nals, nor expressly provide for a qualified notion of « investor ». Rejecting both the theory of the implicit incorporation of Article 25(a) of the ICSID Convention and the characterization of investment treaties as self-contained and isolated regimes, the analysis supports an intermediate approach grounded in the criterion of dominant and effective nationality developed in the context of diplomatic protection. Such a position, consistent with the rules of interpretation codified in the Vienna Convention on the Law of Treaties, ensures coherence between treaty-based investment protection and general international law, while striking a balance between the rights of foreign investors and the sovereign prerogatives of host States.
La doppia nazionalità nell'arbitrato in materia di investimenti: riflessioni a margine del lodo Diamante Trading et al. c. Venezuela
giulia ciliberto
2025-01-01
Abstract
The Diamante Trading et al. v. Venezuela award has reignited the debate surrounding dual national claims before non-ICSID international investment tribunals. This article examines the arbitral decisions and scholarly works on the interpretation of the notion of « investor » enshrined in treaty clauses and procedural rules that neither explicitly exclude dual national claims from the ratione personae jurisdiction of arbitral tribu- nals, nor expressly provide for a qualified notion of « investor ». Rejecting both the theory of the implicit incorporation of Article 25(a) of the ICSID Convention and the characterization of investment treaties as self-contained and isolated regimes, the analysis supports an intermediate approach grounded in the criterion of dominant and effective nationality developed in the context of diplomatic protection. Such a position, consistent with the rules of interpretation codified in the Vienna Convention on the Law of Treaties, ensures coherence between treaty-based investment protection and general international law, while striking a balance between the rights of foreign investors and the sovereign prerogatives of host States.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
