Among the many jurisdictional issues that arise in the context of investment treaty arbitration, relatively little attention has been paid to the requirements for State participation as a condition for jurisdiction. The present paper is concerned with the position of the State as respondent in investment treaty arbitrations, and in particular, whether there are accepted criteria for identifying and defining a respondent State to investment claims. Of course, the position of the State in such proceedings is clear: the State is almost always a respondent. But does the definition of the respondent State raise any difficulties? And should this even be an issue? Is it possible, for example, to raise a jurisdictional objection on the basis that a State no longer exists, or that a respondent to an investment claim can no longer be defined as a State? While these questions have received little attention in the arbitral case law to date, this does not mean that they are not pertinent.
It is often argued that investment treaty arbitration is asymmetrical. In most cases, the State is systematically challenged for not complying with its obligations under a bilateral investment treaty (“BIT”) or other international law. This of course draws attention to the State’s specific position in that asymmetry, which is determined even before the foreign investor submits its claim to arbitration. During the pre-arbitral phase, one could consider that the State is the master of the applicable treaties – the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (the “Washington Convention”) and the relevant BIT.