^* Christina Knahr is a Post-Doctoral Researcher at the Department of European, International and Comparative Law at the University of Vienna.

^* This text was reproduced and reformatted from the text appearing in the I.L.M. Issuu database: (visited February 10, 2009)<<http://issuu.com/i.l.m./docs/al_haramain_v._u.s.>>.

¹ Other cases where the nationality of individuals was a central issue were Soufraki v. United Arab Emirates, ICSID Case No. ARB/02/7, Award, 12 ICSID Rep. 158 (2004); Soufraki v. United Arab Emirates, ICSID Case No. ARB/02/7, Annulment, (June 5, 2007), available at< http://ita.law.uvic.ca/documents/SoufrakiAnnulment.pdf>; Waguih Elie George Siag and Clorinda Vecchi v. Arab Republic of Egypt, ICSID Case No. ARB/05/15, Jurisdiction, (April 11, 2007), available at< http://ita.law.uvic.ca/documents/Siagv.Egypt.pdf>.

² Ioan Micula, Viorel Micula, S.C. European Food S.A, S.C. Starmill S.R.L. and S.C. Multipack S.R.L. v. Romania, 28, ICSID Case No. ARB/05/20, Jurisdiction, (Sept. 24, 2008) [hereinafter Micula].

³ Id. ¶ 31.

⁴ Id. ¶¶ 34-38.

⁵ Id. ¶¶ 42-48.

⁶ See Art. 25(2)(a) of the ICSID Convention (“National of another Contracting State” means “(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 pursuant to paragraph (3) of Article 28 or paragraph (3) of Article 36, but does not include any person who on either date also had the nationality of the Contracting State party to the dispute”).

⁷ See Art. 25(2)(b) of the ICSID Convention (“National of another Contracting State” means “(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”).

⁸ Micula, supra note 2, ¶ 89.

⁹ Nottebohm (Liech. v. Guat.), 1953 I.C.J. 111 (Preliminary Objections of November 18).

¹⁰ Micula, supra note 2, 72-74.

¹¹ Id. ¶ 76.

¹² Id. ¶¶ 79, 80.

¹³ Id. ¶ 85.

¹⁴ Id. ¶ 86.

¹⁵ Id. ¶ 92.

¹⁶ Id. ¶ 93.

¹⁷ Id. ¶ 94.

¹⁸ Id.

¹⁹ Id. ¶ 95.

²⁰ Id. ¶¶ 95-97.

²¹ Id. ¶ 98.

²² Id. ¶ 99.

²³ Id. ¶ 100.

²⁴ Id. ¶ 101.

²⁵ Id. ¶ 7.

²⁶ Id. ¶ 31.

²⁷ Id. ¶ 168.

²⁸ Id. ¶ 166.

²⁹ Id. ¶ 167.

¹ See Amco Asia Corporation and others v. Republic of Indonesia (ICSID Case No. ARB/81/1), Decision on Jurisdiction of 25 September 1983, ¶ 38, Exh. C-205.

² See Trans-Global Petroleum, Inc. v. Hashemite Kingdom of Jordan (ICSID Case No. ARB/07/25), Decision on the Respondent’s Objection under Rule 41(5) of the ICSID Arbitration Rules of 12 May 2008.

³ Telenor Mobile Communications AS v. Republic of Hungary (ICSID Case No. ARB/04/15), Award of 13 September 2006, 21 ICSID Rev.—FILJ 603 (2006).

⁴ Romania’s letter, 4 July 2008, ¶ 2.

⁵ Loc. cit., ¶ 5.

⁶ Loc. cit., ¶ 6(k).

⁷ Romania’s letter, 18 July 2008, p. 1.

⁸ See International Law Commission, Draft Articles on Diplomatic Protection with commentaries, 2006, Yearbook of the International Law Commission, 2006, vol. II, Part Two, under Article 4, p. 31 [hereinafter Draft Articles on Diplomatic Protection]. See also the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws.

⁹ See Hussein Nuaman Soufraki v. United Arab Emirates (ICSID Case No. ARB/02/7) [hereinafter Soufraki], Decision of the ad hoc Committee on the Application for the Annulment of the Award of 5 June 2007, Exh. RL-76. ¶ 60; Waguih Elie George Siag and Clorinda Vecchi v. Arab Republic of Egypt (ICSID Case No ARB/05/15), Decision on Jurisdiction of 11 April 2007, ¶¶ 143 and 146, Exh. RL-80 [hereinafter Siag].

¹⁰ See Draft Articles on Diplomatic Protection, Article 4, p. 31.

¹¹ Ibid., p. 34.

¹² Soufraki, ¶¶ 58 ff.

¹³ Fraud was not alleged in the Soufraki case but has been dealt with in the Ellias Assad Flutie case, the US-Venezuela Mixed Claims Commission pursuant to the Protocol of February 17, 1903, between the United States of America and the Republic of Venezuela, Decision of 1904, IX Reports of International Arbitral Awards, p. 148 (no standing of Mr. Flutie as his naturalization was improperly granted since he had no intent to reside permanently in the US and did not reside during the continued term of five years) [hereinafter the Flutie case]. Fraud was also mentioned in the Flegenheimer Case, Italian- United States Conciliation Commission, 20 September 1958, 14 Reports of International Arbitral Awards, p. 327, ¶ 38, as a motive for rejection of a certificate’s prima facie probative value. In addition, as put by Oppenheim’s International Law, R Jennings and A Watts (eds), 9th edn, 1996, p. 855, Exh. RL-78: “this power of investigation is one which is only to be exercised if the doubts cast on the alleged nationality are not only manifestly groundless but are also of such gravity as to cause serious doubts with regard to the truth and reality of that nationality”.

¹⁴ See Draft Articles on Diplomatic Protection, commentary under Article 4 ¶ (7), referring to the advisory opinion of the Inter-American Court of Human Rights in the Proposed Amendments to the Naturalization Provisions of the Political Constitution of Costa Rica, 79 I.L.R. 283, pp. 302-303, ¶¶ 62-63.

¹⁵ See McLachlan, Shore, Weiniger, International Investment Arbitration, Oxford 2007 5.10 p. 135 and fn. 16 with a reference to the ELSI case. 16 Nottebohm (Liechtenstein v. Guatemala), 18 November 1953, [1955] ICJ Reports 111, Exh. RL-72.

¹⁷ JR Dugard, First Report on Diplomatic Protection, 7 March 2000, A/CN.4/506, ¶ 110.

¹⁸ Loc. cit., ¶ 111.

¹⁹ The commentary under Draft Articles on Diplomatic Protection, Article 4 reads as follows: (5) Draft article 4 does not require a State to prove an effective or genuine link between itself and its national, along the lines suggested in the Nottebohm case, as an additional factor for the exercise of diplomatic protection, even where the national possesses only one nationality. Despite divergent views as to the interpretation of the case, the Commission took the view that there were certain factors that served to limit Nottebohm to the facts of the case in question, particularly the fact that the ties between Mr. Nottebohm and Liechtenstein (the Applicant State) were “extremely tenuous” compared with the close ties between Mr. Nottebohm and Guatemala (the Respondent State) for a period of over 34 years, which led the International Court of Justice to repeatedly assert that Liechtenstein was “not entitled to extend its protection to Nottebohm vis-à-vis Guatemala”. This suggests that the Court did not intend to expound a general rule applicable to all States but only a relative rule according to which a State in Liechtenstein’s position was required to show a genuine link between itself and Mr. Nottebohm in order to permit it to claim on his behalf against Guatemala with whom he had extremely close ties. Moreover, it is necessary to be mindful of the fact that if the genuine link requirement proposed by Nottebohm was strictly applied it would exclude millions of persons from the benefit of diplomatic protection as in today’s world of economic globalization and migration there are millions of persons who have moved away from their State of nationality and made their lives in States whose nationality they never acquire or have acquired nationality by birth or descent from States with which they have a tenuous connection. (Footnotes omitted, Exh. C-203).

²⁰ This said, the Tribunal notes that Aaron Broches mentioned in his Hague lecture, “It is necessary to realize, however, that the Legal Committee abstained from defining ‘nationality’ and that there was a general recognition that in the course of ruling on their competence Commissions and Tribunals might have to decide whether a nationality of convenience [referring to the Nottebohm case] or a nationality acquired involuntarily by an investor could or should be disregarded”, in the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, Recueil des cours, Volume No. 136, 1972, p. 358, Exh. RL-109. He had previously stated, in the Chairman’s Reports on the Preliminary Draft of the Convention, that “it should be noted that the significance of nationality in traditional instances of espousal of a national’s claim should be distinguished from its relatively unimportant role within the framework of the Convention. In the former case, the issue of nationality is of substantive importance as being crucial in determining the right of a State to bring an international claim, while under the Convention, it is only relevant as regards the capacity of the investor to bring a dispute before the Center”. Doc. Z11, 9 July 1964, ¶ 116, Exh. RL-73.

²¹ Siag, para. 198.

²² See Champion Trading Company, Ameritrade International, Inc, James T Wahba, John B Wahba and Timothy T Wahba v. Arab Republic of Egypt (ICSID Case No. ARB/02/9), Decision on Jurisdiction of 21 October 2003, p. 17, Exh. RL-110; Siag, ¶¶ 196-198; The Rompetrol Group N.V. v. Romania (ICSID Case No. ARB/06/3), Decision on Jurisdiction and Admissibility of 18 April 2008, ¶ 93, Exh. C-243 (albeit regarding corporate claimants).

²³ Op. cit., ¶ 198 and 201; see Victor Pey Casado and President Allende Foundation v. Republic of Chile (ICSID Case No. ARB/98/2), Award of 8 May 2008, ¶ 414. Exh. C-244 op. cit., ¶ 415 [hereinafter Pey Casado v. Chile].

²⁴ Item 14(II) of the Minutes of the First Session reads: a. Each party’s submission shall contain a full statement of the relevant party’s case, together with the formal relief claimed from the Tribunal and all evidential and legal materials upon which that party relies in support of its case, including documentary evidence, witness statements, and expert reports. At the session, the President clarified that each submission should include specific allegations and an indication whether the submitting party agrees with the other party’s allegations and the reasons therefore. b. As an exception to Item 14(II)(a) above, the Claimants will not be required to provide with the Memorial any expert reports on the amount of damages claimed, provided that the legal and factual bases for their damages claim and the method of its calculation are described in the Memorial.”

²⁵ See ¶ 26 of the Report of the Executive Directors on the Convention according to which:”The expression ‘legal dispute’ has been used to make clear that while conflicts of rights are within the jurisdiction of the Centre, mere conflicts of interests are not. The dispute must concern the existence or scope of a legal right or obligation, or the nature or extent of the reparation to be made for breach of a legal obligation.”

²⁶ As put by the Duke Energy International Peru Investments No. 1 Ltd. v. Republic of Peru (ICSID Case No. ARB/03/28), Decision on Jurisdiction of 1 February 2006, ¶ 148, Exh. C-147 (incomplete document): “What is decisive of the Tribunal’s jurisdiction ratione temporis is the point in time at which the instant legal dispute between the parties arose, not the point in time during which the factual matters on which the dispute is based took place”. In that case the dispute was deemed to have arisen after a tax assessment had been imposed. See also Pey Casado v. Chile, op. cit., ¶ 446.

²⁷ See e.g., Pey Casado v. Chile, op. cit., ¶ 427-429. See also Salini Costruttori S.p.A. and Italstrade S.p.A. v. Hashemite Kingdom of Jordan (ICSID Case No. ARB/02/13), Decision on Jurisdiction of 29 November 2004, para. 176 (“[O]ne must distinguish carefully between jurisdiction ratione temporis of an ICSID Tribunal (i.e., the existence of a dispute) and applicability ratione temporis of the substantive obligations contained in a BIT”).

²⁸ International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, annexed to the General Assembly Resolution 56/83, UN Doc A/RES/56/83, 12 December 2001, Article 35. See Enron Corporation and PonderosaAssets, L.P. v. Argentine Republic (ICSID Case No. ARB/01/3), Decision on Jurisdiction of 14 January 2004, ¶¶ 79 to 81, Exh. RL-64.