Diplomatic and Consular Protection of Persons with Dual Citizenship Abroad

The article is devoted to one of the least studied problems in the domestic science of international law, namely diplomatic and consular protection of state’s citizens abroad, especially in cases where the latter are endowed with dual and sometimes multiple citizenship. This problem involves a close intertwining of both political and legal norms used in the implementation of this field. The author distinguishes between diplomatic and consular protection, highlights common features and peculiarities of each of them. Diplomatic measures are clearly outlined, covering all possible procedures by which one state informs another of its claims (protest, negotiations, investigation, etc.). The choice of means of diplomatic protection is influenced by the nature of the rights of the person who has suffered damage from a foreign state; the amount of damage caused, both for the person and for the state of his/her citizenship, as well as the risks of aggravation or deterioration of relations between states. Some legal aspects of citizenship of the European Union and the specifics of protection of the rights and interests of its citizens according to the "delegated" protection and the "governing state" are highlighted.

7. State responsibility

This chapter discusses the international law of responsibility as primarily reflected in the 2001 International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts. It opens in Section 7.2 with an overview of some of the core principles and elements of state responsibility for wrongful acts. Section 7.3 discusses the issue of state attribution before Section 7.4 examines joint and collective responsibility. Section 7.5 discusses the various circumstances that may preclude the wrongfulness of conduct otherwise in violation of a (primary) legal obligation. Section 7.6 looks into the consequences of state responsibility while Section 7.7 discusses who may be entitled to invoke state responsibility. Section 7.8 examines the rules on diplomatic protection and Section 7.9 provides a brief overview of the responsibility of international organizations.

6. Immunity from national jurisdiction and diplomatic protection

This chapter discusses the different forms of immunity from national jurisdiction enjoyed by a state and its representatives. It presents state immunity and the complicated distinction between sovereign (jure imperii) and commercial (jure gestionis) acts. It discusses the exception to state immunity for commercial acts; provides an overview of some of the additional exceptions to state immunity; and discusses the immunities of state representatives. It distinguishes between immunity ratione personae and immunity ratione materiae and discusses how the distinction is applied to different state representatives. It also discusses the immunities of diplomatic representatives and diplomatic missions as well as the issue of consular protection and the immunities enjoyed by so-called special missions.

15 Investment Treaty Dispute Settlement

This chapter focuses on investment treaty dispute settlement, examining the nature of conflicts between investors and states and the various means provided by treaties to resolve them. In general, investor–state disputes governed by treaties occur because a host state has taken a ‘measure’ that allegedly violates that state's treaty commitments on the treatment it has promised to accord to investments protected by that treaty. Before the advent of investment treaties, investors basically had three methods to seek resolution of their disputes with host states: (a) direct negotiation with host state governments; (b) domestic courts in the host country; and (c) diplomatic protection by their home states. In order to establish a stable, rule-based system for international investment, treaties provide means to resolve disputes about the interpretation and application of treaty provisions. Most investment treaties provide four separate dispute settlement methods: (1) consultations and negotiations between contracting states; (2) arbitration between contracting states; (3) consultations and negotiations between covered investors and host governments; and (4) investor–state arbitration.

Beyond Protection: The Role of the Home State in Modern Foreign Investment Law

The chapter examines the evolution of the role of the home state in foreign investment law. Traditionally, such a role was essentially limited to norm-setting and protecting nationals and national companies abroad. Protection was typically offered through diplomatic protection, which was based on the legal fiction that the state was vindicating its own right. The conclusion of modern investment treaties, the progressive emancipation of foreign investors and the development of investor-state arbitration meant a marginalisation of the home state. Some recent treaties, however, have paved the way for a new role for the home state that goes well beyond protection of its nationals and national companies. Innovative provisions have introduced obligations and responsibilities for the home state, especially with regard to the fight against corruption and the liability of its own investors. It remains to be seen to which extent these provisions will spread across the international community of states.

Fakes v. Republic of Turkey

279Jurisdiction — Foreign investor — Nationality — ICSID Convention, Article 25 — Dual nationality — Effective nationality — Whether an effective nationality test must be read into Article 25 of the ICSID Convention — Whether the explicit exclusion from jurisdiction of dual nationals who held the nationality of the host State was the only jurisdictional bar related to a natural person’s nationality under the ICSID ConventionApplicable law — Customary international law — Diplomatic protection — Effective nationality — ICSID Convention, Article 27(1) — Whether the rules of customary international law applicable in the context of diplomatic protection applied to determine nationality in investor–State arbitrationJurisdiction — Investment — ICSID Convention, Article 25 — Salini test — Legality — Whether the four elements of the Salini test must necessarily be met to determine the existence of an investment — Whether the three objective criteria of contribution, duration and risk were both necessary and sufficient to define an investment within the framework of the ICSID Convention — Whether the applicable BIT imposed further limits on protected investments — Whether the investment fell within the scope of the requirement of legality under municipal lawJurisdiction — Investment — Shares — Evidence — Burden of proof — Whether the share certificates were valid under the law of the host State — Whether the heavy burden of proof of alleged impropriety was met — Whether the claimant held legal title over the share certificates said to constitute the investmentEvidence — Burden of proof — Impropriety — Whether the burden of proof of any allegations of impropriety was particularly heavyCosts — Frivolous proceedings — ICSID Convention, Article 61(2) — ICSID Arbitration Rule 28 — Whether an arbitral tribunal had discretion in frivolous proceedings to allocate the arbitration costs and the legal fees and expenses between the parties by ordering the losing party to bear in full the costs of the arbitration and the entirety of the legal fees and expenses incurred by both parties

Not a Third Party: Home State Participation As a Matter of Right in Investment Treaty Arbitration

Host states are not the only sovereign parties that an investment dispute can impact. The sovereign interests of an investor’s home state are also potentially affected by an investment claim initiated by a national against an investment treaty partner, and more mechanisms should be put in place to ensure that the home state has access to the arbitration proceedings. This chapter argues for non-disputing state party participation as a matter of right in investment treaty arbitration cases. Whether or not the home state of the investor is informed of and allowed to participate in an investment dispute has largely been left to the discretion of arbitral tribunals; arbitration rules and jurisprudence have regarded the home state no differently than non-governmental third parties seeking to participate in the arbitration as amici curiae. From the perspective of increased transparency in the investor-state dispute settlement system, this chapter posits that non-disputing state parties must be accorded an elevated status in investor-state arbitration, with the following rights: first, to be formally notified at the outset about an investment treaty dispute; second, to have access to the documents of the arbitration case; and, third, to make written submissions with respect to the interpretation of the international investment agreement invoked in the claim. The analysis begins by identifying the sovereign interests of the home state that come into play in an investment treaty arbitration. The perils of diplomatic protection are examined in this chapter, to provide the perspective from which to delimit the parameters for non-disputing state party participation. A survey of arbitration rules and jurisprudence outlines the level of participation thus far accorded to home states in investment treaty arbitration.

Internationale Investitionen in Form von Gesellschaftsbeteiligungen

One of the most important differences between the investment protection law of the past, which is based on the law of diplomatic protection and customary aliens law, and modern investment protection law, which is based on a large number of international treaties, including international treaty provisions on the procedural enforcement of claims, is the question of whether, in addition to the company whose rights have been violated by state measures, its shareholders are also entitled to a legally enforceable claim for compensation under international law. The thesis is dedicated to the proof of the following theses: 1.) Foreign shareholders have a fundamental right of action, regardless of the amount and whether it is a direct or indirect shareholding. 2.) In order to guarantee that the principles of the rule of law are observed in mass proceedings, the existing ICSID-regulations need to be supplemented by "additional procedural rules" which have yet to be formulated.