ICSID: Jurisdiction
investment continued to exist past the date of entry
 The jurisdiction of the Centre shall extend to
any legal dispute arising directly out of an
investment, between a Contracting State (or
any constituent subdivision or agency of a
Contracting State designated to the Centre
by that State) and a national of another
Contracting State, which the parties to
the dispute consent in writing to
submit to the Centre. When the parties
have given their consent, no party may
withdraw its consent unilaterally.
Jurisdiction ratione materiae
The jurisdiction ratione materiae, or subject-
matter jurisdiction, of the Centre under Article
25(1) is thus defined as “any legal dispute
arising directly out of an investment.”
Therefore, ICSID’s subject-matter jurisdiction,
as defined in Article 25(1), has three components:
a) the requirement of a legal dispute;
b) the requirement that the legal dispute arise
directly out of the underlying
transaction; and
c) that such underlying transaction qualify
as an investment.
These three elements will be covered in
separate sections of this Module
Jurisdiction Ratione Temporis
Jurisdiction ratione temporis refers to the effect of
time on a tribunal’s powers pursuant to a treaty.
Such effects are usually directly dictated by express
language contained in the applicable treaty. In the
absence of express provisions in such treaty,
tribunals will decide the issue by reference to
customary international law.
Investment agreements commonly state that
investments made prior to their entry into force are
covered by the investors’ substantive protection of
the agreement.6 Where a treaty is silent on this
issue, it is commonly understood that investments
made before the treaty’s entry into force are covered
investments as well,7 especially when the
into force.8 Some tribunals have however refused to
follow this approach, positing that in the absence of
explicit wording in the applicable treaty, investments
acquired or made prior to the entry into force of the
treaty are not protected.
By application of the principle of non-retroactivity
and unless otherwise provided for in the relevant
investment agreement:
a. Tribunals have jurisdiction ratione
temporis for disputes that arose after the
treaty’s entry into force. The date on which
the dispute arose must be determined
objectively.11 See further Section IV.D below
and Dispute existence, Section III.B.
b. Tribunals’ jurisdiction does not
extend ratione temporis to alleged breaches
that took place prior to the making of an
investment.12 This is also true for the
continued effects of a violation that occurred
prior to the making of the
investment. However, previous litigation
13
on the same issues and the fact that the
dispute was foreseeable do not necessarily
bar the tribunal’s jurisdiction,14 in the
absence of bad faith.
First qualification: continuous and composite
acts
Second qualification: provisional application of a
treaty
Third qualification: disputes arising before the
entry into force of a treaty
“National of another Contracting State”
a) any natural person who had the nationality
of a Contracting State other than the State
party to the dispute on the date on which the
parties consented to submit such dispute to
conciliation or arbitration as well as on the
date on which the request was registered,
but does not include any person who on
either date also had the nationality of the
Contracting State party to the dispute; and
b) any juridical person which had the
nationality of a Contracting State other than
the State party to the dispute on the date on
which the parties consented to submit such
 dispute to conciliation or arbitration and any
juridical person which had the nationality of
the Contracting State party to the dispute on
that date and which, because of foreign
control, the parties have agreed should be
treated as a national of another Contracting
State for the purposes of this Convention.
Consent
 Consent by a constituent subdivision or
agency of a Contracting State shall require
the approval of that State unless that State
notifies the Centre that no such approval is
required.
 Consent of the parties to arbitration under
this Convention shall, unless otherwise
stated, be deemed consent to such
arbitration to the exclusion of any other
remedy. A Contracting State may require the
exhaustion of local administrative or judicial
remedies as a condition of its consent to
arbitration under this Convention.
The Secretariat is authorized to administer
mediations that relate to an investment, involve a
State or an REIO, and which the parties consent in
writing to submit to the Centre.
Reference to a State or an REIO includes a
constituent subdivision of the State, or an agency of
the State or the REIO. The State or the REIO must
approve the consent of the constituent subdivision
or agency which is a party to the mediation pursuant
to paragraph (1), unless the State or the REIO
concerned notifies the Centre that no such approval
is required.
Each party may be represented or assisted by
agents, counsel, advocates or other advisors, whose
names and proof of authority to act shall be
promptly notified by that party to the Secretary-
General (“representative(s)”).
ICSID INSTITUTION RULES
 Rule 1 - The Request
 Rule 2 - Contents of the Request
 Rule 3 - Recommended Additional
Information
 Rule 4 - Filing of the Request and Supporting
Documents
 Rule 5 - Receipt of the Request and Routing
of Written Communications
 Rule 6 - Review and Registration of the
Request
 Rule 7 - Notice of Registration
 Rule 8 - Withdrawal of the Request
The Request and Its Contents
(1) Any Contracting State or any national of
a Contracting State wishing to institute
proceedings under the Convention on the
Settlement of Investment Disputes between
States and Nationals of Other States
(“Convention”) shall file a request for
arbitration or conciliation together
with the required supporting
documents (“Request”) with the
Secretary-General and pay the lodging fee
published in the schedule of fees.
(2) The Request may be filed by one or
more requesting parties, or filed jointly
by the parties to the dispute.
Must include...
a) state whether it relates to an arbitration or
conciliation proceeding;
b) be in English, French or Spanish;
c) identify each party to the dispute and provide
its contact information, including electronic
mail address, street address and telephone
number;
d) be signed by each requesting party or its
representative and be dated;
e) attach proof of any representative’s authority
to act; and
f) if the requesting party is a juridical person,
state that it has obtained all necessary
internal authorizations to file the Request
and attach the authorizations.
The Request shall include:
a. a description of the investment and
of its ownership and control, a
summary of the relevant facts and
claims, the request for relief,
including an estimate of the amount
of any damages sought, and an
indication that there is a legal dispute
 between the parties arising directly
out of the investment;
b. with respect to each party’s
consent to submit the dispute to
arbitration or conciliation under
the Convention:
(i) the instrument(s) in which
each party’s consent is
recorded;
(ii) the date of entry into force
of the instrument(s) on
which consent is based,
together with supporting
documents demonstrating
that date;
(iii) the date of consent, which
is the date on which the
parties consented in
writing to submit the
dispute to the Centre, or, if
the parties did not consent
on the same date, the date
on which the last party to
consent gave its consent
in writing to submit the
dispute to the Centre; and
(iv) an indication that the
requesting party has
complied with any
condition for submission
of the dispute in the
instrument of consent;
If a Party is:
Natural Person
(i) information concerning that person’s
nationality on both the date of consent
and the date of the Request, together
with supporting documents
demonstrating such nationality; and
(ii) a statement that the person did not have
the nationality of the Contracting State
party to the dispute either on the date of
consent or the date of the Request
Juridical Person
(i) information concerning and supporting
documents demonstrating that party’s
nationality on the date of consent; and
(ii) if that party had the nationality of the
Contracting State party to the dispute on
the date of consent, information
concerning and supporting documents
demonstrating the agreement of the
parties to treat the juridical person as a
national of another Contracting State
pursuant to Article 25(2)(b) of the
Convention
Constituent Subdivision or agency of a
Contracting State
(i) the State’s designation to the Centre
pursuant to Article 25(1) of the
Convention; and
(ii) supporting documents demonstrating the
State’s approval of consent pursuant to
Article 25(3) of the Convention, unless
the State has notified the Centre that no
such approval is required.
Concerning the formal conditions required in
order to have valid consent, Article 25.1 of the
Washington Convention (hereinafter "the
Convention") states only one condition: that the
consent be given in writing. Regarding the
moment at which consent must be expressed, one
may deduce from the Convention that it must have
been given prior to the filing of a request for
conciliation or arbitration, since this request must, in
order to be registered, state the date and the nature
of the documents relating to the consent of the
Parties (G.R. Delaume, Le Centre International pour
Ie reglement des Differends relatifs aux
Investissements (CIRDl), in JD11982, p. 775 et
seq.). The consent to which Article 25.1 of the
Convention refers may have three sources:
(i) a clause contained in a contract
concluded between the State and
the investor;
(ii) national law, usually a Code or an Act
on investments; or
(iii) international law, by way of a clause
contained in a bilateral or
multilateral agreement.
Consent of States is twofold. Firstly, they have to
become members of the Convention. Secondly, they
have to agree on submitting a specific dispute or • The project should have a certain duration.
certain categories of disputes to the ICSID. • There should be a certain regularity of profit
and return.
• There is typically an element of risk for both
In Salini v. Morocco, two objections to subject- sides.
matter-jurisdiction were raised. The first was that • The commitment involved would have to be
construction contracts did not fall under the substantial.
definition of investment contained in the bilateral • The operation should be significant for the
treaty which formed the basis for consent. The host State’s development.
second objection was that construction contracts did
These features should not necessarily be understood
not qualify as investment under the ICSID
as jurisdictional requirements but merely as typical
Convention.
characteristics of investments under the Convention
As regards the first objection, the tribunal rejected
an interpretation of the BIT based on the host
State’s domestic law. It held that the contract fell
within the categories listed in the treaty.

The tribunal then turned to the second objection, i.e.

that the contract did not qualify as an investment
under the ICSID Convention. It considered the
criteria generally identified by commentators
for defining investment under the Convention.
These were:

 a contribution,
 a certain duration,
 participation in the risks of the
operation, and
 that the operation should contribute to
the development of the host state
(based on the preamble of the ICSID
Convention).

The tribunal found that each of these criteria

were met by the construction contract.

As regards the element of risk, the tribunal added

the following observation:

It matters little in this respect that the risks have

been freely agreed to. It similarly matters little that
the contractor’s remuneration is not tied to the
exploitation of the work being constructed. A
construction project that spans several years and
whose cost cannot be established with certainty
beforehand creates a manifest risk for the
contractor.

While it is not possible to give a precise definition of

“investment” it is possible to identify certain typical
features.
Article 25, par. 2 (b) regulates the nationality of
juridical persons establishing a general rule and an
exception.

The first one encompasses any juridical person

which had the nationality of a contracting state other
than the state party to the dispute on the date on
which the parties consented to submit such dispute
to conciliation or arbitration.

The second one includes any juridical person which

had the nationality of the contracting state to the
dispute in the date when the parties consented to
submit dispute to conciliation or arbitration ad
which, because of foreign control, the parties agreed
should be treated as a national of another
contracting state for the purposes of the Convention.

How to determine nationality:

(1) Place of Incorporation;

(2) Head Office; or
(3) Ownership and control.