In the context of investment treaty arbitration, when one considers the corporate nationality of investor and its implications to the jurisdiction of the arbitral tribunal, one would most certainly face issues concerning the multiple nationality of the investor, especially in today’s globalized economy.
Issues concerning multi-nationality of the investor would usually amount to incorporation, companies’ structure, siege social, shareholders, place of economic activity, place of the real operation, place of administration and others. However, in this discussion, it will be looked more into the notion of the multinational company itself and its operation in relation to investment. What is a multinational company in the context of foreign investment? What typical characteristics does it possess in modern business and how these characteristics influence the notion of nationality in international investment law?
One of the particular aspects of the multinational company causing most debates when considering the jurisdictional burdens in investment-treaty arbitration would usually involve the following (and which would usually be echoed by the host country – the respondent) – ‘In accordance with the respective BIT, the host country consented that it will settle disputes only and solely with nationals of the other Contracting party and only disputes in relation to foreign investment’.
As this statement might be regarded as clear enough and totally in line with the object and purpose of the respective BIT and the ICSID Convention, however, when it comes to a deeper analysis of the characteristics of multi-national investor in modern international commerce, the clearness and well as boundaries of such statement become quite blurred.
Therefore, in this essay, analysis of a specific question related to the notion of investor’s nationality will be asked – can one consider an investment and, respectively, investor as foreign, if the investor who invests abroad (e.g. purchase of shares of local company) also borrows abroad? In order to answer this dilemma, the object and purpose of “foreign” investment will be assessed (section II), followed by analysis of funding arrangements in the context of foreign investment (section III). Next, the relevant practice of investor-state tribunals will be assessed (section IV) which will provide a basis for conclusions in relation to implications of local funding to the notion of nationality in international investment law (section V).
Funding of investment is only one of numerous important questions arising in the era of modern and globalized, ‘financial-market-synchronized’ economy where the notion of nationality, as the one established in the current BIT regime, is facing such questions right now and will face much more in the near future.
- Definition and purpose of foreign investment
According to UNCTAD there are some 82,000 multinational companies worldwide, with 810,000 foreign affiliates. These companies play a major and growing role in the world economy. For example, exports by foreign affiliates of multi-nationals are estimated to account for about a third of total world exports of goods and services, and the number of people employed by them worldwide totaled about 77 million in 2008.
Interestingly, as it will be discussed in this essay, most of the foreign investment of such multinational companies is financed by the financial institutions of the host-state and this circumstance permits multinational firms to substitute parent-provided debt for local borrowing in countries with underdeveloped capital markets.
However, as mentioned above, the ICSID Convention and most of the preambles of the BITs provide that they are purposed to encourage only and solely “foreign” investment. Facilitation of foreign investment was emphasized also by Prof. Weil in famous Tokios Tokeles case, where the presiding and dissenting arbitrator urged to look at the political and economic reality – “When it comes to mechanisms and procedures involving States and implying, therefore, issues of public international law, economic and political reality is to prevail over legal structure”.
In addition, A. Broches, founding father of the ICSID Convention, stated that the nationality of investment was more important than that of the investor. He emphasized that ICSID Convention should [accordingly] apply in cases where funds invested came from outside the country rather than from foreigners residing in the country out of local capital owned by them, since the aim of the Convention was to encourage the flow of such funds. Moreover, A. Broches pointed out that in case funds were not foreign in origin, the host state would be entirely justified in treating the resident investor on the same footing as its own national investor.
Oxford Dictionary of Business (1996) defines ‘investment’ as 1.) The purchase of capital goods, such as plant and machinery in a factory in order to produce goods for future consumption. This is known as capital investment; the higher the level of capital investment in an economy, the faster it will grow. 2) The purchase of assets, such as securities, works of art, bank and building-society deposits, etc., with a primary view to their financial return, either as income or capital gain. This form of financial investment represents a means of saving. The level of financial investment in an economy will be related to such factors as the rate of interest, the extent to which investments are likely to prove profitable, and the general climate of business confidence.
Similarly, OECD provides that direct investment is a category of cross-border investment made by a resident in one economy (the direct investor) with the objective of establishing a lasting interest in an enterprise (the direct investment enterprise) that is resident in an economy other than that of the direct investor.
Such a definition is in line with the wording of the vast majority of BITs which provide that the term “investments” means every kind of asset and more particularly <…> rights derived from shares, bonds and other kinds of interests in companies and joint ventures.
Therefore, foreign investment in general sense would mean 1) transfer of capital from one country to another; 2) representation of entry into national industry by a firm established in a foreign market. This model of foreign investment has always been the basis of the jurisprudence evolved so far international investment law.
- Funding of foreign investment
However, the economic reality, as indicated above, suggests that usually the real transfer of capital from one country to the other does not really happen. In majority of cases, it is the locally borrowed capital which is invested by the hands of the investor who is incorporated in another country:
“Direct investment used to be thought of by economists as an international capital movement….But economists trying to interpret direct investment as a capital movement were struck by several peculiar phenomena. In the first place, investors often failed to take money with them when they went abroad to take control of a company; instead they would borrow in the local market. Capital movement would take place gross…but not net. Or the investment would take place in kind, through the exchange of property-patents, technology, or machinery against equity claims, without the normal transfer of funds through the foreign exchange associated with capital movements….”
In addition, in his famous treatise Canadian scholar and economist Stephan Hymer observed that American-controlled enterprises operating in foreign countries borrow substantial amounts abroad – “In fact, the total American investment of $11,8 billion is only slightly more than half of the total assets of these enterprises”. Hymer also compared the Standard Oil Company of New Jersey with other, at that time large oil company, Royal Dutch Petroleum Company and found that these two companies in the same industry, one American and other Dutch, both invest and borrow in each other’s countries.
In today’s modern commerce this issue of local borrowing is even more substantial. While acquiring investment in a host-country, investors would usually use project loans—often collateralized by the assets of the specific project assets and with a claim on the revenue stream of the project. It is the financing of a particular economic unit in which the lender is satisfied to look initially to the cash flows and earnings of that economic unit as the source of funds from which a loan will be repaid and to the assets of the economic unit as a collateral for the loan.These would usually be raised from local banks or a branch of a locally incorporated bank or a foreign bank.
As found by a recent IMF study, in recent years, bank credit in emerging Asia and Latin America has grown strongly, in line with strong investment. While total bank credit in advanced economies and emerging Europe has stagnated, credit in other emerging economies—in particular in emerging Asia and Latin America—has risen significantly. Therefore, while taking into account that most of the investment comes from advanced economies, such as Europe and US to Asia and Latin America, this also suggests that investments in those emerging countries were also financed by local host-state banks.
Furthermore, economic research suggests that borrowers of local banks may have little access to other sources of funding even when banking markets are open to foreign investment. As a consequence, shocks to the banking sector have a disproportionate effect on investment by local bank borrowers in emerging markets.
It is also noted that in recent years, direct investors had extensively channeled funds to, and for borrowing funds from, third countries, and for the purpose of holding ownership interests in direct investment enterprises.
In practice, there might be many variations of local borrowing and investment. For instance, a foreign investor incorporated in country B may borrow from a local bank in country A and acquire shares in a manufacturing company in country A. In this scenario, country A would have no foreign equity inflows and country B would have no equity outflows. Clearly, the latter would evidence that investment of “foreign” funds never happens.
In another scenario, an investor incorporated in country A may receive a loan from its parent company incorporated in country B to purchase investment in country C. In this scenario, country C would receive equity inflow, however, it would not receive it directly from the investor incorporated in country A, since these funds would really come from country B.
These are only few examples of the issues arising when one considers the origins of funds to acquire investment.
- Practice of arbitral tribunals
In practice of the arbitral tribunals, the issue of the origins of funds and, respectively, tribunal’s jurisdiction had also provided fertile soil for debates.
For example, in a recent Chartered Bank v. United Republic of Tanzania award, the tribunal had analyzed questions related to indirect investments made through a chain of intermediary companies.
This dispute concerned a UK company – claimant, who owned a Hong Kong entity holding loans to a Tanzanian borrower. The relevant credit was initially granted by a consortium of Malaysian banks, and then purchased by the Hong Kong entity with its own funds. With respect to the Tanzanian loans, the UK claimant, by virtue of its equity ownership of the Hong Kong entity, sought the benefits of protection as an investor pursuant to the UK-Tanzania BIT.
Although the tribunal admitted that an investment might be made indirectly, for example through an entity that serves to channel an investor’s contribution into the host state and that special purpose vehicles have long facilitated cross-border investment, nevertheless, the tribunal had emphasized that to constitute claimant’s status as treaty investor, so that the loans may be considered investments “of” claimant, implicated claimant doing something as part of the investing process, either directly or through an agent or entity under the investor’s direction.
More importantly, the tribunal established that an investment of a company or an individual implied not only the abstract possession of shares in a company that holds title to some piece of property. Rather, as argued by the tribunal, for an investment to be of an investor, some activity of investing was needed, which implicated the claimant’s control over the investment or an action of transferring something of value (money, know-how, contacts, or expertise) from one treaty-country to the other. Thus, in order to benefit from the BIT, a claimant needed to demonstrate that the investment was made at the claimant’s direction, that the claimant funded the investment or that the claimant controlled the investment in an active and direct manner.
These conclusions of the tribunal are important when one discusses the issue of investing of funds obtained locally.
First of all, it can be observed that approach taken by this arbitral tribunal is similar to the view of economists who provide that something other than money capital is (or may be) involved in international direct investment. This might simply be informal managerial or technical guidance; on the other hand it could incorporate the dissemination of valuable knowledge and/or entrepreneurship in the form of research and development, production technology, marketing skills, managerial expertise.
Secondly, the tribunal defined foreign investment as investor’s contribution into the host state. Thus in cases where it is not the investor who directly funds the investment, but a host-state’s bank, in economic realty, it would be difficult to establish that it was the contribution of the investor rather than contribution of the host-state’s financial institution.
Moreover, it could also be argued that the mere conclusion of a credit agreement by the investor and a local bank in relation to purchase of investment in a host-state would not be usually sufficient to establish that the claimant controlled investment in an active and direct manner. In particular, in cases when the investor acquires a project loan for the purchase of investment, such investment and substantial revenue stream of the project would be in realty held by the financing bank in the form of mortgage.
In connection to the latter, tribunal’s conclusion in TSA Spectrum v. Argentina is also relevant. In this case the tribunal found that “existence and materiality of foreign control have to be objectively proven” to establish jurisdiction. Therefore, the Tribunal pierced the veil of the corporate entity to determine the ultimate control of the investment and concluded that it lacked jurisdiction when found that the investment was actually controlled by an Argentine national.
Thus, in a hypothetical case of local financing and mortgage of the investment it would be difficult to establish that is was the investor who directly funded the investment or that it was the investor who had control over the investment or that is was the investor who had transferred something of value from his home state to the host-state.
Another dispute which is relevant for the purposes of the issue analyzed in this essay is the Berschader v. Russian Federation arbitration. In the latter case, the claim was brought under the Belgium/Luxembourg – USSR BIT. The tribunal was faced with a question of indirect ownership of the investment in question – indirect investment by Belgian claimants through a Belgian company BI into Russian Federation. What is important is that the tribunal found that assets [shares] fell within the categories of properties protected under the respective BIT. However, this fact alone did not warrant the conclusion that these assets qualified as investments under the treaty. Since BI was a company incorporated and established under the laws of Belgium, the tribunal found that claimants’ shareholding in BI was an investment in a Belgian company, and, as such, could not be considered as an investment in the territory of the Russian Federation. On the other hand, property rights in buildings located in Russian Federation held by BI had constituted investments in the territory of Russian Federation. However, the tribunal emphasized that all investments in Russian Federation were made by BI which was a separate legal entity from the claimants.
More importantly, the claimants’ raised an argument of the economic reality behind the investments made – argument posed in this essay as well. The claimants contended that the “real” investment of capital was made by the claimants and the mere fact that such investment was made through the vehicle of BI should not, according to the claimants, preclude protection under the Belgium/Luxembourg – USSR BIT. However, the tribunal argued that protection offered by the treaty cannot extend beyond the terms agreed between the contracting parties. Moreover, the tribunal established that the reason why the claimants and not the BI was bringing a claim under the treaty was that the claimants no longer controlled BI since that company was declared bankrupt. The tribunal indicated that it was not the purpose of the treaty to help shareholders overcome this kind of obstacle.
The reasoning of the tribunal in this dispute is useful when considering the issue of the origins of funds in the investment. As it was observed, this tribunal had established that the economic realty, in principle, cannot override the legal reality behind certain transaction for the purposes of establishing jurisdiction under the BIT. This would contradict the argument that one would need to establish the real origins of the investment or the real origins of the funds invested.
However, there were several arbitral awards which had recognized that a treaty claim could be brought by indirect owners of the investment. For example, the tribunal in Cemex v. Venezuela held that “when the BIT mentions investments of nationals of the other Contracting Party… this does not imply that they must be ‘directly’ owned by those nationals”.
Similarly, the claimant in CMS v. Argentina had successfully presented a claim for violations of the US-Argentina BIT as a shareholder in an Argentine incorporated company.
However, it is important to note that one of the major arguments raised by CMS in CMS v. Argentina related to the fact that due to Argentine’s regulation, the investor could not repay its project debts. In fact, the investor financed its investment by debt which was to be amortized over the life of the project. The total debt of the investor, both domestic and external, amounted to US$ 590 million. In regards to the latter, the Argentine Government argued that the investor had not chosen wisely the choices available to investor as sources of financing and argued that the investor could not now attempt to transfer the consequences of these financing decisions to the Government.
In this connection, it is also important to consider the financial institution’s, which had financed the investment, standing as indirect claimant under the BIT. Could a bank which had financed the acquisition of the investment and which had control of the investment under the credit agreement and mortgage file a damages claim as a creditor against the host-state?
First of all, as it was evidenced above, the main requirement for the claimant to evidence its standing to bring an indirect claim against the host-state is to prove that it had substantial control over the investment. Therefore, it could be argued that if a financial institution, such as a lending bank, had financed nearly 99% of the investment and had control over the investment under a mortgage, than it could establish the actual and real control over the investment in question.
Secondly, some major investment treaties, such as NAFTA Article 1116 permits an “investor of a Party” to bring a claim on its own behalf for loss or damage arising out of the breach of a NAFTA investment obligation by “another Party”. NAFTA Article 1117 extends a NAFTA tribunal’s jurisdiction over claims brought by an “investor of a Party” on behalf of an “enterprise of another Party that is a juridical person that the investor owns or controls directly or indirectly” for loss or damage arising from the breach of a NAFTA investment obligation by “the other Party.”
Thirdly, there were indicative examples of bank claims in investment arbitration due to losses arising out of financing of investment. For example, a group of seven foreign banks have signaled that they would proceed with international investment treaty arbitrations against the Government of India, in relation to alleged losses arising out of their financing of the failed Dabhol power plant project. The seven banks – Credit Suisse First Boston, Standard Chartered Bank, Erste Bank Der Oesterreichischen Sparkassen AG, Calyon SA, BNP Paribas, ANZEF Ltd. V. India, and ABN Amro N.V. hailed from five different European nations. The banks alleged that the Government of India had failed to protect their loans in the Dabhol project, and was liable for damages under investment treaties concluded by India with the UK, Switzerland, Austria, France and the Netherlands. Although these cases were settled in 2004, they are a direct example that it is not only the corporate vehicle which could claim damage in relation to the investment, but the actual source of funds of the investment, i.e. the funding bank.
Therefore, based on the above, it may be observed that in cases where the investment was financed by funds of financial institutions, such institutions, mainly commercial banks, could in essence stand as direct or indirect investors under the respective BITs and claim damages in relation to investment which was funded by them. Arguably, such a conclusion may have important implications to the notion of nationality in international investment law.
- Implications of local funding to the notion of nationality
As it was evidenced above, multi-nationality of investment and investors in modern commerce raise complex questions in relation to the jurisdiction of the arbitral tribunal in investor-state claims. In particular, the notion of nationality, as it stands now in most of the BITs in force, may fall short when it comes to analysis of the use of corporate vehicles and funding to finance the acquisition of the investment.
Financing is the key aspect of any investment transaction. In fact, many investments are made in the process of privatization of state’s property. In such cases, the investors would usually be required to provide evidence of funding arranged, for example, comfort letters would usually be submitted together with investors bid. The proof of ample funds to finance acquisition of the investment was raised by the respondent in Generation Ukraine v Ukraine where it was argued that any investment could not be proved without actual evidence of funds to finance acquisition of investment.
However, based on the analysis above, it may no longer be clear who is actually entitled to claim damages against the host-state of investment. As argued above, the financing of investment by financial institutions, especially when considering project loans, may provide a right of claim for totally different and separable players in relation to investment made.
In traditional sense, foreign investment would mean transfer of capital from one country to another and representation of entry into national industry by a firm established in a foreign market. However, in cases where the investment is funded by borrowed money, the nationality of investment and, respectively, investor becomes a difficult assessment.
In case the acquisition of investment is financed by a local financial institution, it could be alleged that investment is not of foreign original at all. Conversely, one could argue that since the origin of funds is local, than the investment operation should be considered as of local nature. Therefore, the foreign investment does not occur. The latter would be in line with the A. Broches view that in case funds were not foreign in origin, the host state would be entirely justified in treating the resident investor on the same footing as its own national investor.
Similarly, the case may be, that investment operation, although conducted through a certain corporate vehicle, is funded by a third party national or a financial institution of third country. In such a scenario, one could allege that the investment was “foreign” in nature, however, it was not executed by a national of the respective BIT. The latter would also cause problems when considering the jurisdiction of arbitral tribunal.
Even more, as it was evidenced by the India’s Dabhol power plant project, certain investment transactions could be funded by numerous banks with different nationalities. The latter would also pose questions in regards of the notion of investor’s nationality, as well as the issue of group claims in investment arbitration. Possibility to file mass claims in investor-state arbitration was already evidenced by the Abaclat and v The Argentine Republic dispute where the tribunal decided, by a majority, that it had jurisdiction to hear ‘mass claims’ brought by over 60,000 Italian bondholders. However, the notion of the nationality of investment in Dabhol power plant project case would be even more complex due to different nationalities of the banks involved.
As it was evidenced above, the notion of control is also of utmost importance when assessing the ius standi of a possible entitlement to claim a breach under BIT. There were examples, were tribunals had used the notion of control to provide an entitlement to indirect claimants. However, the question is yet to be answered is whether in cases of the use project loans where the assets of the specific project together with a claim on the revenue stream of the project are de facto held by a bank and not by the investor itself.
As it was argued in the introduction of this essay, the issue of the investment of borrowed funds is only a fraction of the challenges faced by the notion of nationality in contemporary international investment law. The latter is just one of the evidences that the notion of nationality no longer reflects the modern needs of globalized economy and a change to the approach towards nationality is needed.
 UNCTAD World Investment Report 2009 – Transnational Corporations, Agricultural Production and Development (UNCTAD/WIR/2009), 17 Sep 2009, 312 page(s), 6530.0 KB;
 Desai, Mihir A., C. Fritz Foley, and James R. Hines. „Capital controls, liberalizations, and foreign direct investment.“ Review of Financial Studies 19.4 (2006): 1433-1464; Hymer, Stephen. The international operations of national firms: A study of direct foreign investment. Vol. 14. Cambridge, MA: MIT press, 1976;
 Tokios Tokelés v. Ukraine, ICSID Case No. ARB/02/18, Apr 29, 2004, Dissenting Opinion (Chairman Prosper Weil);
 Amazu A. Asouzu. International Commercial Arbitration and African States: Practice, Participation and Institutional Development, Cambridge University Press, 2001, p. 232;
 OECD Benchmark Definition of Foreign Direct Investment – 4th Edition, OECD 2008http://www.oecd.org/fr/daf/inv/statistiquesetanalysesdelinvestissement/fdibenchmarkdefinition.htm
 Agreement On Promotion And Protection Of Investments Between The Government Of The Kingdom Of Bahrain And The Government Of The Kingdom Of The Netherlands;
 Caves, Richard E. „International corporations.“ International Business: Theory of the multinational enterprise 1 (2002): 19;
 Kindlebernger, Charles P. American Busines Abroad: Six Lectures on Direct Investment. Yale University Press, 1969; see also Lipsey, Robert E. Foreign direct investment and the operations of multinational firms: Concepts, history, and data. No. w8665. National Bureau of Economic Research, 2001;
 Hymer, Stephen. The international operations of national firms: A study of direct foreign investment. Vol. 14. Cambridge, MA: MIT press, 1976, p. 13;
 Ibid, p. 15;
 Foreign Direct Investment In Emerging Market Countries. Report of the Working Group of the Capital Markets Consultative Group, September 2003, IMF http://www.imf.org/external/np/cmcg/2003/eng/091803.pdf
 Nagla Nassar, Project Finance, Public Utilities, and Public Concerns: A Practioner’s Perspective, 23 FORDHAM INT’L L.J. 60, 60 (2000); ; William M. Stelwagon, Financing Private Energy Projects in the Third World, 37 CATH . LAW. 45, 46 (1996); Alexander F. H. Loke, Risk Management and Credit Support in Project Finance, 2 SING. J. INT’L & COMP. L. 37, 38 (1998);
 Investment and its Financing: A Macro Perspective Annex to the G-20 Surveillance Note Meetings of G-20 Finance Ministers and Central Bank Governors, February 15–16, 2013, IMF; see also Duchin, Ran, Oguzhan Ozbas, and Berk A. Sensoy. „Costly external finance, corporate investment, and the subprime mortgage credit crisis.“ Journal of Financial Economics 97.3 (2010): 418-435; Giuffra Jr, Robert J. „Investment Bankers’ Fairness Opinions in Corporate Control Transactions.“ Yale LJ 96 (1986): 119;
 Paravisini, Daniel. „Local bank financial constraints and firm access to external finance.“ The Journal of Finance 63.5 (2008): 2161-2193.
 OECD Benchmark Definition of Foreign Direct Investment – 4th Edition, OECD 2008http://www.oecd.org/fr/daf/inv/statistiquesetanalysesdelinvestissement/fdibenchmarkdefinition.htm
 Standard Chartered Bank v. United Republic of Tanzania (ICSID Case No. ARB/10/12, Award, 2 November 2012);
 Ibid, para 198;
 Ibid, para 231;
 Ibid, para 230;
 Dunning, John H., Studies in International Investment, London, George Allen & Unwin, Ltd., 1970.;
 TSA Spectrum de Argentina SA v. Argentina, ICSID Case No ARB/05/5, Award (Dec. 19, 2008);
 Ibid, para 134;
 Vladimir Berschader and Moïse Berschander v. The Russian Federation, SCC Case No. 080/2004, Apr 21, 2006, Award;
 Ibid, para 122;
 Ibid, para 149;
 Amco Asia Corp. and others v. Indonesia, ICSID Case No. ARB/81/1, Decision on Jurisdiction, (Sept. 25, 1983); Utd. Parcel Serv. of America (UPS) v. Canada, NAFTA (UNCITRAL), Award on the Merits, (May 24, 2007); Antoine Goetz and others v. Republic of Burundi, ICSID Case No. ARB/95/3, Award, para. 89 (Feb. 10, 1999); American Mfg. & Trading, Inc. v. Democratic Republic of the Congo, ICSID Case No. ARB/93/1, Award (Feb. 21, 1997); Alex Genin, Eastern Credit Ltd., Inc. and A.S. Baltoil v. The Republic of Estonia, Award (June 25, 2001); CME Czech Republic B.V. (The Netherlands) v. The Czech Republic, Partial Award (Sept. 13, 2001);
 Cemex Caracas Investments B.V. and Cemex Caracas II Investments B.V. v. Venezuela (ARB/08/15), Decision on jurisdiction, 30 December 2010, para. 157;
 CMS Gas Transmission Company v. Argentina (ARB/01/8), Decision on jurisdiction, 17 July 2003;
 Ibid, para 78;
 For example, in the NAFTA case UPS v. Canada, the Tribunal allowed United Parcel Service, the U.S. parent company, to bring claims against Canada on behalf of its wholly owned Canadian subsidiary, UPS Canada. The Tribunal held: “UPS is the sole owner of UPS Canada. As such, it is entitled to file a claim for its losses, including losses incurred by UPS Canada. . . . Whether the damage is directly to UPS or directly to UPS Canada and only indirectly to UPS is irrelevant to our jurisdiction. . . . (Utd. Parcel Serv. of America (UPS) v. Canada, NAFTA (UNCITRAL), Award on the Merits, para. 35 (May 24, 2007);
 See Note, “Looking Beyond the Dabhol Debacle: Examining its Causes and Understanding its Lessons,” 41 Vanderbilt Journal of International Law (2008); „Seven banks start arbitration vs India over Dabhol“, Reuters News, Dec.10, 2004 „US Government mounts arbitration against India over failed power plant project“, INVEST-SD News Bulletin, Nov.29, 2004; „European Banks move to BIT arbitration against India in Dabhol dispute“, INVEST-SD News Bulletin, Dec.17, 2004, available on-line at: http://www.iisd.org/pdf/2004/investment_investsd_dec17_2004.pdf;
 Generation Ukraine, Inc. v. Ukraine, ICSID Case No. ARB/00/9, Sep 16, 2003 Award;
 Abaclat and Others v. Argentine Republic, ICSID Case No. ARB/07/5 (formerly Giovanna a Beccara and Others v. The Argentine Republic);